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Over-regulation has ensured the average American cannot afford the average American house. Our building codes are rife with senseless statutes that make homeownership unduly prohibitive, leave 1.5 million of us homeless and have required taxpayers to sustain an otherwise unsustainable and increasingly unaccountable mortgage industry.

Most of these housing codes were drafted by the International Code Council (ICC)-  a non-governmental organization comprised largely of private interest groups from the mortgage, insurance and building industries. When corporate-sponsored recommendations from the ICC are unquestionably adopted by states and municipalities as law, the public such laws are supposed to serve tends to suffer. Many of these codes have been formed with absolute disregard for any legal purpose. Of these, several make our homes considerably more dangerous, toxic and/or unduly expensive. Such codes do not serve to protect the public at large so much as they serve the private industries that created them and the governing bodies by which they have been adopted.

Most, if not all, of these arbitrary codes can be easily identified by their unquantifiable prescription for more building materials and/or bigger houses. In terms of earthquake and wind resistance, the prohibition of smaller dwellings (minimum size standards) actually makes our homes considerably more dangerous. This decrease in safety is mitigated by requiring that more framing, sheathing and fasteners be added to each dwelling and that these extra materials ultimately be added to each home’s price tag.

Minimum size standards generally fall into a category of residential codes commonly known as “General Habitability Requirements” or “Acceptability Criteria”. Amongst other things, these mandate how many rooms and amenities our houses must contain and how big they need to be in order to accommodate our presumed personal needs. As “general” provisions, they tend to ignore the particulars of any specific case and, thus, disregard those principal statutes providing that the particulars of each case be used to determine everything. Some of these unfounded prescriptions took a major hit in 2015 when, under increasing public pressure, the International Code Council conceded that a few of its Habitability Requirements never served to make American housing any safer or healthier to begin with. States and their political subdivisions have subsequently been forced to repeal those decades-old codes publicly recognized by the ICC as exclusive to any lawful purpose.

Protections against such over-reaching over-regulation do exist; but, as long as systematic disregard for them goes unabated, it seems things are only going to get worse. A few of the protections can be found in the residential code itself. Of all the regulations used to determine how houses are built in the US, a small handful, known as Equivalency Standards, is designed to ensure all the others make sense. These standards provide that nothing in the code can be used to prohibit the construction of any dwelling that is as good as or better than what code prescribes. An accompanying provision requires any official who rejects a housing proposal to provide sound reason for their decision in writing. Merely referencing other statutes as cause would be insufficient, as code itself has just explained that the sections, in and of themselves, cannot be used to squelch plans for what may be a perfectly good home. An official’s report should, instead, present facts substantiating how the proposal allegedly fails to preserve health and safety.

Equivalency Standards are derived largely from the Tenth Amendment and Constitutional welfare clauses, the sum of which should go a long way towards protecting common sense from nonsensical laws and impractical interpretations them. These provisions grant states and their municipalities with the power to enact laws only so long as those laws are designed specifically for, “public health, welfare, and safety”. A housing code or zoning law that serves any other purpose would exceed the powers of the governing body(s) enacting it.

Further statutes provide that it is a felony for anyone operating under color of law to deprive anyone else in this country of a legal right or privilege. This includes building and zoning officials and it makes no exception for the Right to Housing as granted by the Universal Declaration of Human Rights, of which the U.S. is a signatory. Depriving the public of our dire need for more affordable housing would require sufficient probable cause that we'd all be better off without it. Failing to provide as much may also constitute an Arbitrary Use of Governmental Power.

It may seem the disclaimer that Equivalency Standards provide might be enough to make the whole building code, of which they are a part, lawful and effective enough. These standards do, after all, seem to state that any sketchy housing regulations should simply be overridden by housing officials. In reality, most enforcers seem to believe the regulations handed down to them are invariably lawful and, thus, unequalled by any proposal that doesn’t comply with them. They tend to go by the book (except for the part that says the rest of the book shouldn’t necessarily be adhered to); they frequently cite unsound code as means of denying perfectly sound housing proposals; and they do so without much, if any, understanding of their own legal obligation. This, in turn, has a chilling effect on designers who don’t necessarily want to put a lot of time and effort into creating a solution to our housing dilemma that will, more likely than not, be shot down by someone in the building department simply because it isn’t “code compliant”.

In reality, there is no disclaimer or Constitutional law short of abatement that can make the codebook it governs work when the codes in that book are as arbitrary as ours have become. Our inclusion of so many regulations designed for something other than any legal purpose makes the purpose of the entire set vague. Barring the repeal of these statutes, a more humane housing plan is going to depend largely on how eager our building and zoning officials are to embrace the power and responsibility already granted to them by Equivalency Standards and the federal Constitution. If nothing in our codes can be used to prohibit the construction of dwellings that are as good as or better than what code has produced so far, it’s hard to imagine what sort of structure an authority might, by now, reasonably deny. For many of us, almost any roof overhead would be a vast improvement. Profit driven codes and zoning laws have been prohibiting as much for decades. Unlawful disregard for public welfare under the guise of “code compliance” can no longer be sustained.

 

Posted by Jay Shafer — June 16, 2017

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