“The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail—its roof may
shake—the wind may blow through it—the storm may enter, the rain may enter—but the King of England cannot enter—all his force dares not cross the threshold of the ruined tenement!”
William Pitt, March 1763
Introduction
William Pitt, arguing before the British Parliament against excise
officers entering private homes to levy the Cyder Tax, eloquently
articulated this long-held and cherished notion of the sanctity of
private property. However, a person’s right to privacy is not
absolute. There has always been a tension between the rights of
property owners to do whatever they desire with their property and the
ability of the government to regulate uses to protect the safety,
health and welfare of the community. Few, however, would argue with
the right and duty of a city government to prohibit the operation of a
munitions factory or a chemical plant in the middle of a crowded
residential neighborhood.
History
The first known housing laws are in the Code of Laws of Hammurabi [1],
who was the King of Babylonia, circa 1792–1750
BC. These laws
addressed the responsibility of the home builder to construct a
quality home and outlined the implications to the builder if injury or
harm came to the owner as a result of the failure to do so. During the
Puritan period (about 1620–1690), housing laws essentially governed
the behavior of the members of the society. For example, no one was
allowed to live alone, so bachelors, widows, and widowers were placed
with other families as servants or boarders. In 1652, Boston
prohibited building privies within 12 feet of the
street. Around the turn of the 18th century, some New England
communities implemented local ordinances that specified the size of
houses. During the 17th century, additional public policies on housing
were established. Because the English tradition of using wooden
chimneys and thatched roofs led to fires in many dwellings, several
colonies passed regulations prohibiting them.
After the early 17th century came an era of very rapid metropolitan
growth along the East Coast. This growth was due largely to
immigration from Europe and was spurred by the Industrial Revolution.
The most serious housing problems began in New York about 1840 when
the first tenements were built. In 1867, a report by the New York
Metropolitan Board of Health on living conditions in tenements
convinced the New York State legislature to pass the Tenement Housing
Act of 1867 [2]. The principal requirements of the act included the
following:
- Every room occupied for sleeping, if it does not communicate
directly with the external air, must have a ventilating or transom
window at least 3 foot square to the neighboring room or hall.
- A proper fire escape is necessary on every tenement or lodging
house.
- The roof is to be kept in repair and the stairs are to have
banisters.
- At least one toilet is required for every 20 occupants for all
such houses, and those toilets must be connected to approved
disposal systems.
- Cleansing of every lodging house is to be to the satisfaction of
the Board of Health, which is to have access at any time.
- All cases of infectious disease are to be reported to the Board
by the owner or his agent; buildings are to be inspected and, if
necessary, disinfected or vacated if found to be out of repair.
There were also regulations
governing distances between buildings, heights of rooms, and
dimensions of windows. Although this act had some beneficial
influences on overcrowding, sewage disposal, lighting, and
ventilation, perhaps its greatest contribution was in laying a
foundation for more stringent future legislation.
Jacob A. Riis, a Danish immigrant and a police reporter on New York’s
Lower East Side, published a book titled How the Other Half
Lives—Studies Among the Tenements of New York [3], which
swayed public opinion in the direction of housing reform and resulted
in the Tenement House Act of 1901. The basic principles established in
the Tenement House Act of 1901 still underlie much of the housing
efforts in New York City today [4]. Since 1909, with the establishment of the
Philadelphia Housing Association, that city has had almost continual
inspection and improvement. Chicago enacted housing legislation as
early as 1889 and health legislation as early as 1881. Regulations on
ventilation, light, drainage, and plumbing were put into effect in
1896.
Before 1892, all government involvement in housing was at a local
level. In 1892, however, the federal government passed a resolution
authorizing investigation of slum conditions in cities with 200,000 or
more inhabitants. Congress appropriated only $20,000 (roughly equal to
$390,000 in 2003) to cover the expenses of this project, which limited
the number of investigations.
No significant housing legislation was passed in the 20th century
until 1929 [5], when the New York State legislature passed its Multiple
Dwelling Law. Other cities and states followed New York’s example and
permitted less strict requirements in their codes. This decreased what
little emphasis there was on enforcement. Conditions declined until,
by the 1930s, President Franklin D. Roosevelt’s shocking report to the
people was “that one-third of the nation is ill-fed, ill-housed, and
ill-clothed.” In response to the overwhelming loss of homes during the
Great Depression, Congress passed the United States Housing Act of
1937, which created the United States Housing Authority (USHA). This
act subsidized construction of new public housing units and required
the elimination of at least an equivalent number of units from the
local housing supply that were determined to be inferior. In 1942, the
USHA was renamed the Federal Public Housing Administration and, in
1947, was renamed the Public Housing Administration.
The federal government not only encouraged the construction of public
housing, but took on the role of financing private housing. In 1938,
the Federal National Mortgage Association was created. (“Fannie Mae”
became a private organization in 1968 [6]. Its purpose was to provide a
secondary market for the Federal Housing Administration (FHA), created in 1934, and Veterans
Administration (VA) mortgage loans. The Servicemen’s Readjustment Act
of 1944, also known as the GI Bill of Rights, created a VA loan
program guaranteeing home mortgage loans for veterans. This
legislation, in conjunction with the FHA loan program, was the impetus
for initiating the huge program of home construction and subsequent
suburban growth following World War II. In 1946, the Farmers Home
Administration, housed in the United States Department of Agriculture
(USDA), was created to make loans and grants for constructing and
repairing farm homes and assisting rural self-help housing groups.
The Housing Act of 1949 allowed “primarily residential” and “blighted”
urban areas to be condemned, cleared of buildings, and sold for
private development. In addition to assisting in slum clearance, this
act also provided for additional public housing and authorized the
USDA to provide farmers with loans to construct, improve, repair or
replace dwellings to provide decent, safe, and sanitary living
conditions for themselves, their tenants, lessees, sharecroppers, and
laborers.
Because the many housing responsibilities administered by various
agencies within the federal government proved unwieldy, the Housing
and Urban Development Act was passed in 1965. The U.S. Department of
Housing and Urban Development (HUD) was created to centralize the
responsibilities of the Housing and Home Finance Agency and
incorporated the FHA, the Federal National Mortgage Association, the
Public Housing Administration, Urban Development Administration, and
the Community Facilities Administration.
Zoning, Housing Codes, and Building Codes
Housing is inextricably linked to the land on which it is located.
Changes in the patterns of land use in the United States, shifting
demographics, an awareness of the need for environmental stewardship,
and competing uses for increasingly scarce (desirable) land have all
placed added stress on the traditional relationship between the
property owner and the community. This is certainly not a new
development.
In the early settlement of this country, following the precedent set
by their forefathers from Great Britain, gunpowder mills and
storehouses were prohibited from the heavily populated portions of
towns, owing to the frequent fires and explosions. Later, zoning took
the form of fire districts and, under implied legislative powers,
wooden buildings were prohibited from certain sections of a
municipality. Massachusetts passed one of the first zoning laws in
1692. This law authorized Boston, Salem, Charlestown, and certain
other market towns in the province to restrict the establishment of
slaughterhouses and stillhouses for currying leather to certain
locations in each town.
Few people objected to such restrictions. Still, the tension remained
between the right to use one’s land and the community’s right to
protect its citizens. In 1926, the United States Supreme Court took up
the issue in Village of Euclid, Ohio, v. Ambler Realty [7]. In this
decision, the Court noted, “Until recent years, urban life was
comparatively simple; but with great increase and concentration of
population, problems have developed which require additional
restrictions in respect of the use and occupation of private lands in
urban communities.” In explaining its reasoning, the Court said,
“the law of nuisances may be consulted not for the purpose of
controlling, but for the helpful aid of its analogies in the process
of ascertaining the scope of the police power. Thus the question of
whether the power exists to forbid the erection of a building of a
particular kind or a particular use is to be determined, not by an
abstract consideration of the building or other thing considered
apart, but by considering it in connection with the circumstances
and the locality.... A nuisance may be merely the right thing in the
wrong place—like a pig in the parlor instead of the barnyard.”
Zoning, housing, and building codes were adopted to improve the health
and safety of people living in communities. And, to some extent, they
have performed this function. Certainly, housing and building codes,
when enforced, have resulted in better constructed and maintained
buildings. Zoning codes have been effective in segregating noxious and
dangerous enterprises from residential areas. However, as the U.S.
population has grown and changed from a rural to an urban then to a
suburban society, land use and building regulations developed for the
19th and early 20th centuries are creating new health and safety
problems not envisioned in earlier times.
Zoning and Zoning Ordinances
Zoning is essentially a means of ensuring that a community’s land uses
are compatible with the health, safety, and general welfare of the
community. Experience has shown that some types of controls are needed
to provide orderly growth in relation to the community plan for
development. Just as a capital improvement program governs public
improvements such as streets, parks and other recreational facilities,
schools, and public buildings, so zoning governs the planning program
with respect to the use of public and private property.
It is very important that housing inspectors know the general nature
of zoning regulations because properties in violation of both the
housing code and the zoning ordinance must be brought into full
compliance with the zoning ordinance before the housing code can be
enforced. In many cases, the housing inspector may be able to
eliminate violations or properties in violation of housing codes
through enforcement of the zoning ordinance.
Zoning Objectives
As stated earlier, the purpose of a zoning ordinance is to ensure that
the land uses within a community are regulated not only for the
health, safety, and welfare of the community, but also are in keeping
with the comprehensive plan for community development. The provisions
in a zoning ordinance that help to achieve development that provides
for health, safety, and welfare are designed to do the following:
- Regulate height, bulk, and area of structure. To provide
established standards for healthful housing within the community,
regulations dealing with building heights, lot coverage, and floor
areas must be established. These regulations then ensure that
adequate natural lighting, ventilation, privacy, and recreational
areas for children will be realized. These are all fundamental
physiologic needs necessary for a healthful environment. Safety from
fires is enhanced by separating buildings to meet yard and
open-space requirements. Through requiring a minimum lot area per
dwelling unit, population density controls are established.
- Avoid undue levels of noise, vibration, glare, air pollution,
and odor. By providing land-use category districts, these
environmental stresses upon the individual can be reduced.
- Lessen street congestion by requiring off-street parking and
off-street loading.
- Facilitate adequate provision of water, sewerage, schools,
parks, and playgrounds.
- Provide safety from flooding.
- Conserve property values. Through careful enforcement of
the zoning ordinance provisions, property values can be stabilized
and conserved.
To understand more fully the
difference between zoning and subdivision regulations, building codes,
and housing ordinances, the housing inspector must know what cannot be
accomplished by a zoning ordinance. Items that cannot be accomplished
by a zoning ordinance include the following:
- Overcrowding or substandard housing. Zoning is not retroactive
and cannot correct existing conditions. These are corrected through
enforcement of a minimum standards housing code.
- Materials and methods of construction. Materials and methods of
construction are enforced through building codes rather than through
zoning.
- Cost of construction. Quality of construction, and hence
construction costs, are often regulated through deed restrictions or
covenants. Zoning does, however, stabilize property values in an
area by prohibiting incompatible development, such as heavy industry
in the midst of a well-established subdivision.
- Subdivision design and layout. Design and layout of
subdivisions, as well as provisions for parks and streets, are
controlled through subdivision regulations.
Content of the Zoning
Ordinance
Zoning ordinances establish districts of whatever size, shape, and
number the municipality deems best for carrying out the purposes of
the zoning ordinance. Most cities use three major districts:
residential (R), commercial (C), and industrial (I). These three may
then be subdivided into many subdistricts, depending on local
conditions; e.g., R-1 (single-unit dwellings), R-2 (duplexes), R-3
(low-rise apartment buildings), and so on. These districts specify the
principal and accessory uses, exceptions, and prohibitions [8].
In general, permitted land uses are based on the intensity of land
use—a less intense land use being permitted in a more intense
district, but not vice versa. For example, a single-unit residence is
a less intense land use than a multiunit dwelling (defined by HUD as
more than four living units) and hence would be permitted in a
residential district zoned for more intense land use (e.g., R-3). A
multi-unit dwelling would not, however, be permitted in an R-1
district. While intended to promote the health, safety, and general
welfare of the community, housing trends in the last half of the 20th
century have led a number of public health and planning officials to
question the blind enforcement of zoning districts. These individuals,
citing such problems as urban sprawl, have stated that municipalities
need to adopt a more flexible approach to land use regulation—one that
encourages creating mixed-use spaces, increasing population densities,
and reducing reliance on the automobile.
These initiatives are often called “smart growth programs.” It is
imperative, if this approach is taken, that both governmental
officials and citizens be involved in the planning stage. Without this
involvement, the community may end up with major problems, such as
overloaded infrastructure, structures of inappropriate construction
crowded together, and fire and security issues for residents.
Increased density could strain the existing water, sewer and waste
collection systems, as well as fire and police services, unless proper
planning is implemented.
In recent years, some ordinances have been partially based on
performance standards rather than solely on land-use intensity. For
example, some types of industrial developments may be permitted in a
less intense use district provided that the proposed land use creates
no noise, glare, smoke, dust, vibration, or other environmental stress
exceeding acceptable standards and provided further that adequate
off-street parking, screening, landscaping, and similar measures are
taken.
Bulk and Height Requirements. Most early zoning ordinances
stated that, within a particular district, the height and bulk of any
structure could not exceed certain dimensions and specified dimensions
for front, side, and rear yards. Another approach was to use
floor-area ratios for regulation. A floor-area ratio is the relation
between the floor space of the structure and the size of the lot on
which it is located. For example, a floor-area ratio of 1 would permit
either a two-story building covering 50% of the lot, or a one-story
building covering 100% of the lot, as demonstrated in
Figure 3.1.
Other zoning ordinances specify the maximum amount of the lot that can
be covered or merely require that a certain amount of open space must
be provided for each structure, and leave the builder the flexibility
to determine the location of the structure. Still other ordinances,
rather than specify a particular height for the structure, specify the
angle of light obstruction that will assure adequate air and light to
the surrounding structures, as demonstrated in
Figure 3.2.
Yard Requirements. Zoning ordinances also contain minimum
requirements for front, rear, and side yards. These requirements, in
addition to stating the lot dimensions, usually designate the amount
of setback required. Most ordinances permit the erection of auxiliary
buildings in rear yards provided that they are located at stated
distances from all lot lines and provided sufficient open space is
maintained. If the property is a corner lot, additional requirements
are established to allow visibility for motorists.
Off-Street Parking. Space for off-street parking and off-street
loading, especially for commercial buildings, is also contained in
zoning ordinances. These requirements are based on the relationship of
floor space or seating capacity to land use. For example, a furniture
store would require fewer off-street parking spaces in relation to the
floor area than would a movie theater.
Exceptions to the Zoning Code
Nonconforming Uses. Because zoning is not retroactive, all
zoning ordinances contain a provision for nonconforming uses. If a use
has already been established within a particular district before the
adoption of the ordinance, it must be permitted to continue, unless it
can be shown to be a public nuisance.
Provisions are, however, put into the ordinance to aid in eliminating
nonconforming uses over time. These provisions generally prohibit a)
an enlargement or expansion of the nonconforming use, b)
reconstruction of the nonconforming use if more than a certain portion
of the building should be destroyed, c) resumption of the use after it
has been abandoned for a period of specified time, and d) changing the
use to a higher classification or to another nonconforming use. Some
zoning ordinances further provide a period of amortization during
which nonconforming land use must be phased out.
Variances. Zoning ordinances contain provisions for permitting
variances and providing a method for granting these variances, subject
to certain specified provisions. A variance may be granted when, owing
to the specific conditions or use of a particular lot, an undue
hardship would be imposed on the owner if the exact content of the
ordinance is enforced. A variance may be granted due to the shape,
topography, or other characteristic of the lot. For example, suppose
an irregularly shaped lot is located in a district having a side yard
requirement of 20 feet on a side and a total lot size
requirement of 10,000 square feet. Further suppose
that this lot contains 10,200 square feet (and
thus meets the total size requirement); however, due to the irregular
shape of the lot, there would be sufficient space for only a 15-foot
side yard. Because a hardship would be imposed on
the owner if the exact letter of the law is applied, the owner of the
property could apply to the zoning adjustment board for a variance.
Because the total area of the lot is sufficient and a lessening of the
ordinance requirements would not be detrimental to the surrounding
property, nor would it interfere with neighboring properties, a
variance would probably be granted.
Note that a variance is granted to the owner under specific
conditions. Should use of the property change, the variance would be
voided.
Exceptions. An exception is often confused with a variance. In
every city there are some necessary uses that do not correspond to the
permitted land uses within the district. The zoning code recognizes,
however, that if proper safeguards are provided, these uses would not
have a detrimental effect on the district. An example would be a fire
station that could be permitted in a residential area, provided the
station house is designed and the property is properly landscaped to
resemble or fit in with the characteristics of the neighborhood in
which it is located.
Administration. Zoning inspectors are essential to the zoning
process because they have firsthand knowledge of a case. Often, the
zoning inspector may also be the building inspector or housing
inspector. Because the building inspector or housing inspector is
already in the field making inspections, it is relatively easy for
that individual to check compliance with the zoning ordinances.
Compliance is determined by comparing the actual land use with that
allowed for the area and shown on the zoning map.
Each zoning ordinance has a map detailing the permitted usage for each
block. Using a copy of this map, the inspector can make a preliminary
check of the land use in the field. If the use does not conform, the
inspector must then contact the Zoning Board to see whether the
property in question was a “nonconforming use” at the time of the
passage of the ordinance and whether an exception or variance has been
granted. In cities where up-to-date records are maintained, the
inspector can check the use in the field.
When a violation is observed, and the property owners are duly
notified of the violation, they have the right to request a hearing
before the Zoning Board of Adjustment (also called the Zoning Board of
Appeals in some cities). The board may uphold the zoning enforcement
officer or may rule in favor of the property owner. If the action of
the zoning officer is upheld, the property owner may, if desired, seek
relief by appealing the decision to the courts; otherwise, the
violation must be corrected to conform to the zoning code.
It is critical for the housing or building inspector and the zoning
inspector to work closely in municipalities where these positions and
responsibilities are separate. Experience has shown that illegally
converted properties are often among the most substandard encountered
in the municipality and often contain especially dangerous housing
code violations.
In communities where the zoning code is enforced effectively, the
resulting zoning compliance helps to advance, as well as sustain, many
of the minimum standards of the housing code such as occupancy,
ventilation, light, and unimpeded egress. By the same token, building
or housing inspectors can often aid the zoning inspector by helping
eliminate some nonconforming uses through code enforcement.
Housing Codes
A housing code, regardless of who promulgates it, is basically an
environmental health protection code. Housing codes are distinguished
from building codes in that they cover houses, not buildings in
general. For example, the housing code requires that walls support the
weight of the roof, any floors above, and the furnishings, occupants,
etc., within a building.
Early housing codes primarily protected only physical health; hence,
they were enforced only in slum areas. In the 1970s, it was realized
that, if urban blight and its associated human suffering were to be
controlled, housing codes must consider both physical and mental
health and must be administered uniformly throughout the community.
In preparing or revising housing codes, local officials must maintain
a level of standards that will not merely be minimal. Standards should
maintain a living environment that contributes positively to healthful
individual and family living. The fact that a small portion of housing
fails to meet a desirable standard is not a legitimate reason for
retrogressive modification or abolition of a standard. The adoption of
a housing ordinance that establishes low standards for existing
housing serves only to legalize and perpetuate an unhealthy living
environment. Wherever local conditions are such that immediate
enforcement of some standards within the code would cause undue
hardship for some individuals, it is better to allow some time for
compliance than to eliminate an otherwise satisfactory standard. When
immediate health or safety hazards are not involved, it is often wise
to attempt to create a reasonable timetable for accomplishing
necessary code modifications.
History
To assist municipalities with developing legislation necessary to
regulate the quality of housing, the American Public Health
Association (APHA) Committee on the Hygiene of Housing prepared and
published in 1952 a proposed housing ordinance. This provided a
prototype on which such legislation might be based and has served as
the basis for countless housing codes enacted in the United States
since that time. Some municipalities enacted it without change. Others
made revisions by omitting some portions, modifying others and
sometimes adding new provisions [9].
The APHA ordinance was revised in 1969 and 1971. In 1975, APHA and the
CDC jointly undertook the job of rewriting and updating this model
ordinance. The new ordinance was entitled the APHA-CDC Recommended
Housing Maintenance and Occupancy Ordinance [10]. The most recent model
ordinance was published by APHA in 1986 as Housing and Health: APHA-CDC
Recommended Minimum Housing Standards [11]. This new ordinance is one
of several model ordinances available to communities when they are
interested in adopting a housing code.
A community should read and consider each element within the model
code to determine its applicability to their community. A housing code
is merely a means to an end. The end is the eventual elimination of
all substandard conditions within the home and the neighborhood. This
end cannot be achieved if the community adopts an inadequate housing
code.
Objectives
The Housing Act of 1949 [12] gave new impetus to existing local, state,
and federal housing programs directed toward eliminating poor housing.
In passing this legislation, Congress defined a new national objective
by declaring that “the general welfare and security of the nation and
the health and living standards of its people...require a decent home
and a suitable living environment for every American family.” This
mandate generated an awareness that the quality of housing and
residential environment has an enormous influence upon the physical
and mental health and the social well-being of each individual and, in
turn, on the economic, political, and social conditions in every
community. Consequently, public agencies, units of government,
professional organizations and others sought ways to ensure that the
quality of housing and the residential environment did not
deteriorate.
It soon became apparent that ordinances regulating the supplied
utilities and the maintenance and occupancy of dwellings were needed.
Commonly called housing and building codes, these ordinances establish minimum
standards to make dwellings safe, sanitary, and fit for human
habitation by governing their condition and maintenance, their
supplied utilities and facilities, and their occupancy. The 2003
International Code Council (ICC) [13,14] International Residential
Code—One- and Two-Family Dwellings (R101.3) states “the purpose of
this code is to provide minimum requirements to safeguard the public
safety, health and general welfare, through affordability, structural
strength, means of egress, facilities, stability, sanitation, light
and ventilation, energy conservation, and safety to life and property from
fire and other hazards attributed to the built environment.”
Critical Requirements of an Effective Housing Program
A housing code is limited in its effectiveness by several factors.
First, if the housing code does not contain standards that adequately
protect the health and well-being of the individuals, it cannot be
effective. The best-trained housing inspector, if not armed with an
adequate housing code, can accomplish little good in the battle
against urban blight.
A second issue in establishing an effective housing code is the need
to establish a baseline of current housing conditions. A systems
approach requires that you establish where you are, where you are
going, and how you plan to achieve your goals. In using a systems
approach, it is essential to know where the program started so that
the success or failure of various initiatives can be established.
Without this information, success cannot be replicated, because you
cannot identify the obstacles navigated nor the elements of success.
Many initiatives fail because program administrators are without the
necessary proof of success when facing funding shortfalls and budget
cuts.
A third factor affecting the quality of housing codes is budget.
Without adequate funds and personnel, the community can expect to lose
the battle against urban blight. It is only through a systematic
enforcement effort by an adequately sized staff of properly trained
inspectors that the battle can be won.
A fourth factor is the attitude of the political bodies within the
area. A properly administered housing program will require upgrading
substandard housing throughout the community. Frequently, this results
in political pressures being exerted to prevent the enforcement of the
code in certain areas of the city. If the housing effort is backed
properly by all political elements, blight can be controlled and
eventually eliminated within the community. If, however, the housing
program is not permitted to choke out the spreading influence of
substandard conditions, urban blight will spread like a cancer,
engulfing greater and greater portions of the city. Similarly, an
effort directed at only the most seriously blighted blocks in the city
will upgrade merely those blocks, while the blight spreads elsewhere.
If urban blight is to be controlled, it must be cut out in its
entirety.
A fifth element that limits housing programs is whether they are
supported fully by the other departments within the city. Regardless
of which city agency administers the housing program, other city
agencies must support the activities of the housing program. In
addition, great effort should be expended to obtain the support and
cooperation of the community. This can be accomplished through public
awareness and public information programs, which can result in
considerable support or considerable resistance to the efforts of the
program.
A sixth limitation is an inadequately or improperly trained inspection
staff. Inspectors should be capable of evaluating whether a serious or
a minor problem exists in matters ranging from the structural
stability of a building to the health and sanitary aspects of the
structure. If they do not have the authority or expertise, they should
develop that expertise or establish effective and efficient agreements
with overlapping agencies to ensure timely and appropriate response.
A seventh item that frequently restricts the effectiveness of a
housing program is the fact that many agencies responsible for housing
issues fail to do a
complete job of evaluating housing problems. The deterioration of an
area may be due to factors such as housing affordability, tax rates,
or issues related to investment cost and return. In many cases, the
inspection effort is restricted to merely evaluating the conditions
that exist, with little or no thought given to why these conditions
exist. If a housing effort is to be successful, as part of a systems
approach, the question of why the homes deteriorated must be
considered. Was it because of environmental stresses within the
neighborhood that need to be eliminated or was it because of apathy on
the part of the occupants? In either case, if the causative agent is
not removed, then the inspector faces an annual problem of maintaining
the quality of that residence. It is only by eliminating the causes of
deterioration that the quality of the neighborhood can be maintained.
Often the regulatory authority does not have adequate authority within
the enabling legislation of the code needed to resolve the problem or
there are gaps in jurisdiction.
Content of a Housing Code
Although all comprehensive housing codes or ordinances contain a
number of common elements, the provisions of communities will usually
vary. These variations stem from differences in local policies,
preferences, and, to a lesser extent, needs. They are also influenced
by the standards set by the related provisions of the diverse
building, electrical, and plumbing codes in use in the municipality.
Within any housing code there are generally five features:
- Definitions of terms used in the code.
- Administrative provisions showing who is authorized to
administer the code and the basic methods and procedures that must
be followed in implementing and enforcing the sections of the code.
Administrative provisions deal with items such as reasonable hours
of inspections, whether serving violation notices is required, how
to notify absentee owners or resident-owners or tenants, how to
process and conduct hearings, what rules to follow in processing
dwellings alleged to be unfit for human habitation, and how to
occupy or use dwellings finally declared fit.
- Substantive provisions specifying the various types of
health, building, electrical, heating, plumbing, maintenance,
occupancy, and use conditions that constitute violations of the
housing code. These provisions can be and often are grouped into
three categories: minimum facilities and equipment for dwelling
units; adequate maintenance of dwellings and dwelling units, as well
as their facilities and equipment; and occupancy conditions of
dwellings and dwelling units.
- Court and penalty sections outlining the basis for court
action and the penalty or penalties to which the alleged violator
will be subjected if proved guilty of violating one or more
provisions of the code.
- Enabling, conflict, and unconstitutionality clauses
providing the date a new or amended code will take effect,
prevalence of more stringent provision when there is a conflict of
two codes, severability of any part of the ordinance that might be
found unconstitutional, and retention of all other parts in full
course and effect. In any city following the format of the APHA-CDC
Recommended Housing Maintenance and Occupancy Ordinance,[10] the
housing officer or other supervisor in charge of housing inspections
will also adopt appropriate housing rules and regulations from time
to time to clarify or further refine the provisions of the
ordinance. When rules and regulations are used, care should be taken
that the department is not overburdened with a number of minor rules
and regulations. Similarly, a housing ordinance that encompasses all
rules and regulations might have difficulty because any amendments
to it will require action by the political element of the community.
Some housing groups, in attempting to obtain amendments to an
ordinance, have had the entire ordinance thrown out by the political
bodies.
Administrative Provisions
of a Housing Code
The administrative procedures and powers of the housing inspection
agency, its supervisors, and its staff are similar to other provisions
in that all are based on the police power of the state to legislate
for public health and safety. In addition, the administrative
provisions, and to a lesser extent, the court and penalty provisions,
outline how the police power is to be exercised in administering and
enforcing the code.
Generally, the administrative elements deal with procedures for
ensuring that the constitutional doctrines of reasonableness, equal
protection under the law and due process of law are observed. They
also must guard against violation of prohibitions against unlawful
search and seizure, impairment of obligations of contract, and
unlawful delegation of authority. These factors encompass items of
great importance to housing inspection supervisors such as the
inspector’s right of entry, reasonable hours of inspection, proper
service, and the validity of the provisions of the housing codes they
administer.
Owner of Record. It is essential to file legal actions against
the true owners of properties in violation of housing codes. With the
advent of the computer, this is often much easier than in the past.
Databases that provide this information are readily available from
many offices of local government such as the tax assessment office.
The method of obtaining the name and address of the legal owner of a
property in violation varies from place to place. Ordinarily, a check
of the city tax records will suffice unless there is reason to believe
these are not up to date. In this case, a further check of county or
parish records will turn up the legal owner if state law requires deed
registration there. If it does not, the advice of the municipal law
department should be sought about the next steps to follow.
Due Process Requirements. Every notice, complaint, summons, or
other type of legal paper concerning alleged housing code violations
in a given dwelling or dwelling unit must be legally served on the
proper party to be valid and to prevent harassment of innocent
parties. This might be the owner, agent, or tenant, as required by the
code. It is customary to require that the notice to correct existing
violations and any subsequent notices or letters be served by
certified or registered mail with return receipt requested. The
receipt serves as proof of service if the case has to be taken to
court.
Due process requirements also call for clarity and specificity with
respect to the alleged violations, both in the violation notices and
the court complaint-summons. For this reason, special care must be
taken to be complete and accurate in listing the violations and
charges. To illustrate, rather than direct the alleged violator “to repair all
windows where needed,” the alleged violator should be told exactly which
windows and what repairs are involved.
The chief limitation on the due process requirement, with respect to
service of notices, lies in cases involving immediate threats to
health and safety. In these instances, the inspection agency or its
representative may, without notice or hearing, issue an order citing
the existence of the emergency and requiring that action deemed
necessary to meet the emergency be taken.
In some areas housing courts on the municipal level have advocates
that assist both plaintiffs and defendants prepare for the court
process or to resolve the issue to avoid court.
Hearings and Condemnation Power. The purpose of a
hearing is to give the alleged violator an opportunity to be heard
before further action is taken by the housing inspection agency. These
hearings may be very informal, involving meetings between a
representative of the agency and the person ordered to take corrective
action. They also may be formal hearings at which the agency head
presides and at which the city and the defendant both are entitled to
be represented by counsel and expert witnesses.
Informal hearings. An alleged violator may have questions about a
violation notice or the notice may be served at a time when personal
hardship or other factors prevent an alleged violator from meeting the terms of
the notice. Therefore, many housing codes provide the opportunity for
a hearing at which the alleged violator may discuss questions or problems and
seek additional time or some modification of the order. Administered
in a firm but understanding manner, these hearings can serve as
invaluable aids in relieving needless fears of those involved, in
showing how the inspection program is designed to help them and in
winning their voluntary compliance.
Formal hearings. Formal hearings are often quasijudicial
hearings (even though the prevailing court rules of evidence do not
always apply) from which an appeal may be taken to court. All
witnesses must therefore be sworn in, and a record of the proceedings
must be made. The formal hearing is used chiefly as the basis for
determining whether a dwelling is fit for human habitation, occupancy,
or use. In the event it is proved unfit, the building is condemned and
the owner is given a designated amount of time either to rehabilitate
it completely or to demolish it. Where local funds are available, a
municipality may demolish the building and place a lien against the
property to cover demolition costs if the owner fails to obey the
order within the time specified. This type of condemnation hearing is
a very effective means of stimulating prompt and appropriate
corrective action when it is administered fairly and firmly.
Procedures for Coping With Common Problems. Several
states and local communities have developed innovative ways to resolve
code violation issues.
Limitation of occupancy notification. This technique was
pioneered in Wilmington, Delaware. It makes it mandatory for property
owners in the community to obtain a legal notice from the housing
inspection agency specifying the maximum number of persons that may
occupy each of their properties. It also requires these owners to have
a residence, place of business, or an agent for their properties
within the community. The agent should be empowered to take remedial
action on any of the properties found in violation. In addition, if
the property is sold, the new owner must obtain a new Limitation of
Occupancy Notification.
Request for inspections. Several states permit their
municipalities to offer a request for inspection service. For a fee,
the housing inspector will inspect a property for violations of the
housing code before its sale so that the buyer can learn its condition
in advance. Many states and localities now require owners to notify
prospective purchasers of any outstanding notice of health risk or
violations they have against their property before the sale. If they
fail to do so, some codes will hold the owner liable to the purchaser
and the inspection agency for violations.
Tickets for minor offenses. Denver, Colorado, has used minimal
financial fines to prod minor violators and first offenders into
correcting violations without the city resorting to court action.
There are mixed views about this technique because it is akin to
formal police action. Nevertheless, the action may stimulate
compliance and reduce the amount of court action needed to achieve it.
Forms and Form Letters. A fairly typical set of forms
and form letters are described below. It should be stressed that
inspection forms to be used for legal notices must satisfy legal
standards of the code, be meaningful to the owner and sufficiently
explicit about the extent and location of particular defects, be
adaptable to statistical compilation for the governing body reports,
and be written in a manner that will facilitate clerical and other
administrative usage.
The daily report form. This form gives the inspection agency an
accurate basis for reporting, evaluating, and, if necessary, improving
the productivity and performance of its inspectors.
Complaint form. This form helps obtain full information from
the complainant and thus makes the relative seriousness of the problem
clear and reduces the number of crank complaints.
No-entry notice. This notice advises occupants or owners that
an inspector was there and that they must return a call to the
inspector.
Inspection report form. This is the most important form in an
agency. It comes in countless varieties, but if designed properly, it
will ensure more productivity and more thoroughness by the inspectors,
reduce the time spent in writing reports, locate all violations
correctly, and reduce the time required for typing violation notices.
Forms may vary widely in sophistication from a very simple form to one
whose components are identified by number for use in processing the
case by automation. Some forms are a combined inspection report and
notice form in triplicate so that the first page can be used as the
notice of violation, the second as the office record, and the third as
the guide for reinspection. A covering form letter notifies the
alleged violator of the time allowed to correct the conditions listed in the
report form.
Violation notice. This is the legal notice that housing code
violations exist and must be corrected within the indicated amount of
time. The notice may be in the form of a letter that includes the
alleged violations or has a copy of these attached. It may be a
standard notice form, or it may be a combined report-notice.
Regardless of the type of notice used, it should make the location and
nature of all violations clear and specify the exact section of the
code that covers each one. The notice must advise alleged violators of their
right to a hearing. It should also indicate that the alleged violator has a
right to be represented by counsel and that failure to obtain counsel
will not be accepted as grounds for postponing a hearing or court
case.
Hearing forms. These should include a form letter notifying the
alleged violator of the date and time set for the hearing, a standard summary
sheet on which the supervisor can record the facts presented at an
informal hearing, and a hearing-decision letter for notifying all
concerned of the hearing results. The latter should include the names
of the alleged violator, inspector, law department, and any other city
official or agency that may be involved in the case.
Reinspection form letters or notices. These have the same
characteristics as violation notices except that they cover the
follow-up orders given to the alleged violator who has failed to comply with
the original notice within the time specified. Some agencies may use
two or three types of these form letters to accommodate different
degrees of response by the alleged violator. Whether one or several are used,
standardization of these letters or notices will expedite the
processing of cases.
Court complaint and summons forms. These forms advise alleged
violators of the charges against them and summon them to appear in
court at the specified time and place. It is essential that the
housing inspection agency work closely with the municipal law
department in preparing these forms so that each is done in exact
accord with the rules of court procedure in the relevant state and
community.
Court action record form. This form provides an accurate running
record of the inspection agency’s court actions and their results.
Substantive Provisions of a Housing Code
A housing code is the primary tool of the housing inspector. The code
spells out what the inspector may or may not do. An effort to improve
housing conditions can be no better than the code allows. The
substantive provisions of the code specify the minimal housing
conditions acceptable to the community that developed them.
Dwelling units should have provisions for preparing at least one
regularly cooked meal per day. Minimum equipment should include a
kitchen sink in good working condition and properly connected to the
water supply system approved by the appropriate authority. It should
provide, at all times, an adequate amount of heated and unheated
running water under pressure and should be connected to a sewer system
approved by the appropriate authority. Cabinets or shelves, or both,
for storing eating, drinking, and cooking utensils and food should be
provided. These surfaces should be of sound construction and made of
material that is easy to clean and that will not have a toxic or
deleterious effect on food.
In addition, a stove and refrigerator should be provided. Within every
dwelling there should be a room that affords privacy and is equipped
with a flush toilet in good working condition. Within the vicinity of
the flush toilet, a sink should be provided. In no case should a
kitchen sink substitute as a lavatory sink. In addition, within each
dwelling unit there should be, within a room that affords privacy,
either a bathtub or shower or both, in good working condition. Both
the lavatory sink and the bathtub or shower or both should be equipped
with an adequate amount of heated and unheated water under pressure.
Each should be connected to an approved sewer system.
Within each dwelling unit two or more means of egress should be
provided to safe and open space at ground level. Provisions should be
incorporated within the housing code to meet the safety requirements
of the state and community involved. The housing code should spell out
minimum standards for lighting and ventilation within each room in the
structure. In addition, minimum thermal standards should be provided.
Although most codes merely provide the requirement of a given
temperature at a given height above floor level, the community should
give consideration to the use of “effective temperatures.” The
effective temperature is a means of incorporating not only absolute
temperature in degrees, but also humidity and air movement, giving a
better indication of the comfort index of a room.
The code should provide that no person shall occupy or let for
occupancy any dwelling or dwelling units that do not comply with
stated requirements. Generally, these requirements specify that the
foundation, roof, exterior walls, doors, window space and windows of
the structure be sound and in good repair; that it be moisture-free,
watertight and reasonably weather tight and that all structural
surfaces be sound and in good repair.
HUD defines a multifamily dwelling unit as one that contains four or
more dwelling units in a single structure. A dwelling unit is further
defined as a single unit of residence for a family of one or more
persons in which sleeping accommodations are provided but toileting or
cooking facilities are shared by the occupants.
Building Codes
Building codes define what materials and methods are to be used in the
construction of various buildings. Model building codes have been
published by various trade organizations such as the Southern Building
Code Congress International (SBCCI), Building Officials and Code
Administrators (BOCA), and the International Conference of Building
Officials (ICBO). Each of these groups published a model building code
that was widely used or adapted regionally in the United States. BOCA
national codes were used mostly in eastern and Great Lakes states,
ICBO uniform codes in western and Midwest states, and SBCCI standard
codes in southern states. As a result, the construction industry often
faced the challenge, and cost, of building to different codes in
different areas of the country.
In 1994, BOCA, ICBO, and SBCCI created the International Code Council
(ICC) to develop a single set of comprehensive, coordinated model
construction codes that could be used throughout the United States and
around the world. The first I-Code published was the International
Plumbing Code in 1995. By 2000, a complete family of I-Codes was
available, including the International Building Code. The ICC
Performance Code for Buildings and Facilities joined the I-Code family
in 2001.
On February 1, 2003, the three organizations (BOCA, SBCCI, and ICBO)
were consolidated into the ICC [13,14]. According to ICC Board
president, Paul E. Myers,
“The ICC International Codes
(I Codes) combine the strengths of the regional codes without regional
limitations. The ICC is a nonprofit organization dedicated to
developing a single set of comprehensive and coordinated national
codes to make compliance easier and more cost-effective. I Codes
respond to the needs of the construction industry and public safety. A
single set of codes has strong support from government, code
enforcement officials, fire officials, architects, engineers,
builders, developers, and building owners and managers.”
References
- Hammurabi’s Code of Laws. Translated by L.W. King. Available
from URL:
http://eawc.evansville.edu/anthology/hammurabi.htm.
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the Industrial Commission, Volume XV. Washington, DC: US Government
Printing Office; 1901. p. 465–92. Available from URL:
http://tenant.net/Community/LES/clag2.html.
- Riis J. How the other half lives—studies among the tenements of
New York. New York: Charles Scriber’s Sons; 1890. Available
from
URL: http://www.bartleby.com/208/.
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zoning:
zoning history. New York City: New York City
Department of City
Planning; no date. Available from URL:
http://www.nyc.gov/html/dcp/html/zone/zonehis.html.
- New York State Multiple Dwelling Law: chapter 713 of the
Laws of
1929, as amended. Available from URL:
http://tenant.net/Other_Laws/MDL/mdltoc.html.
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http://www.fanniemae.com.
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Civic Association; 2000 18 Mar. Available from URL:
http://www.nbca.org/TAP_AJC_3-18.htm.
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from URL:
http://www.municode.com/Resources/Online%20Library.asp.
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maintenance and occupancy ordinance. Atlanta: US Department of
Health and Human Services; 1975.
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health: APHA-CDC recommended minimum
housing standards. Washington, DC: American Public Health
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The past, present, and future of federal housing and urban
policy.
Housing Policy Debate 2000;11(2):291–7. Available from URL:
http://www.fanniemaefoundation.org/programs/hpd/pdf/
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Country Club, IL: ICC; 2003.
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Country Club, IL: ICC; 2003.
Additional Sources of Information
American Planning Association. Available from URL:
http://www.planning.org/
Arendt R. “Open Space” zoning: what it is and why it works. Planners
Commission Journal 1992. Available from URL:
http://www.plannersweb.com/articles/are015.html.
Bookmark, Inc. Available from URL:
http://www.bookmarki.com/
International Code Council. Available from URL:
http://www.iccsafe.org.
Rosenberg M. Zoning: residential, commercial, or industrial? New
York: About, Inc.; no date. Available from URL:
http://geography.about.com/library/weekly/
aa072801a.htm?iam=sherlock_abc/
US Department of Energy, Land Use Planning. Smart Communities
Network. Washington, DC: US Department of Energy; no date.
Available
from URL:
http://www.smartcommunities.ncat.org/
US Department of Housing and Urban Development. Available from URL:
http://www.hud.gov/.
US Department of Housing and Urban Development. Final report of HUD
review of model
building codes. Washington, DC: US Department of Housing and Urban
Development; no date. Available from URL:
http://www.hud.gov/offices/fheo/disabilities/modelcodes/
ibc03notice.pdf