Building Codes in the Sky with Diamonds

Attr: Paraphone Music Sweden [CC BY 3.0 (https:creativecommons.org.licenses/by/3.0)]

Gregory L. Shelton

Horack, Talley, Pharr & Lowndes, P.A.


Picture yourself in a shack by the river
With newspaper curtains . . .
roof open to skies
Somebody’s knocking, you answer quite slowly
A man with demolishing eyes

Good Morning, Good Morning

It’s Friday morning at nine o’clock, and you’re still padding about in your ventilated bathrobe, clutching your coffee and perusing the local section of the newspaper. “Four thousand potholes in town? Hmm. I wonder who counted them all.”

Your quiet morning is interrupted by a man from code enforcement. His name is Mr. Maxwell, and he informs you that he wants to bulldoze your home. “Look, Maxwell,” you protest. “Just yesterday I was doing the garden and digging the weeds. Who could ask for more?”

“The county believes this structure is not safe,” Maxwell replies. “You’ve got a hole in the roof where the rain gets in. You have an infestation of Norwegian wood beetles eating through the walls. And I just saw a raccoon coming in through the bathroom window.”

Maxwell tries to hand you an official looking document, but you refuse to accept it. “Chasing paper leads me nowhere,” you tell him. He leaves it in a jar by the door and bids you a good day.

Curiosity eventually wins out. There will be a hearing in ten days to determine whether your house will be demolished.

“How could they do this to me?” you wonder.

You need help. And not just from anybody. You need a guru. An expert-textpert who can help you fend off Maxwell’s sledgehammers.

You ring your solicitor. He listens intently as you tell your story. “Hmm. I see. What’s that? You say you’ll change the constitution?” he asks. “Well, you know . . . states have an inherent right under the Tenth Amendment to enact and enforce laws to protect the health, safety, welfare, and morals of the community. This is known as the state police power.”

The solicitor continues: “A state may delegate its police power to local jurisdictions, such as counties, cities, and towns. Whether and how much authority is delegated varies from state to state. The code enforcement agency to whom the power is delegated may require an owner to repair a structure or even demolish it, provided of course the agency properly interprets the building code and does not violate the owner’s statutory and constitutional rights.”

Mean Mr. Maxwell wants to bulldoze your house, and this lawyer has his head in a cloud. You’ve had enough. You tell him that you can’t sleep, that you can’t stop your brain, and that you’re going insane. “I’ll give you everything I’ve got for a little peace of mind,” you say in desperation.

“No need for that,” the lawyer tells you. “But I do charge by the hour. Now, is your house on the North or South Carolina side of the river?”

“Both sides” you tell him. [Cue sitar music]

South Carolina: Everything Was Right

On the South Carolina side of the river, a splendid time is guaranteed for all.

Let me introduce to you, the one and only police power: “The public policy of South Carolina is to maintain reasonable standards of construction in buildings and other structures in the State consistent with the public health, safety, and welfare of its citizens.” S.C. Code of Laws § 6-9-5. The South Carolina Building Codes Council, a state agency, adopts the building codes to be enforced. Municipalities and counties then enforce the building codes. S.C. Code of Laws § 6-9-10(A); S.C. Code Regs. 8-105; Int’l Bldg. Code §§ 104.2, 104.3.

South Carolina’s streamlined approach to building code enforcement minimizes disputes about procedure and process. However, building code issues do appear from time to time in South Carolina’s law books. Just last year, the Supreme Court of South Carolina addressed the building code in a case called Donevant v. Town of Surfside Beach, 422 S.C. 264 (2018).

In Donevant, the town’s building official issued a stop work order on work being performed without a permit. The town fired the building official for issuing the stop work order. The building official, in turn, sued the town for wrongful termination. The town defended by arguing that the building official was an at-will employee. The court rejected this argument, stating that “it is a violation of a clear mandate of public policy to fire a building official for enforcing the building code.”

Although Donevant deals primarily with the public policy exception to the at-will employment doctrine, it is a good place to start if you want to learn more about the building code in South Carolina. The court introduces the reader to the Building Codes Council, and then walks the reader through the applicable statutes, administrative codes, and even applicable provisions of the International Building Code.

North Carolina: Helter Skelter

Meanwhile, on the North Carolina side of the river, things are very strange.

Richard Ducker’s two-part series on code enforcement and nuisance abatement in the Coates’ Canons blog is aptly titled “What a Mess.” But don’t take his word for it. Let’s climb in the back of a newspaper taxi and take a little trip to Building Code Land.

[Think this part in animation]

Above you in the marmalade skies, you see a flock of law books, covers and pages flapping, screaming like psychedelic seagulls. There are chapters on the police power, chapters on cities, chapters on counties, chapters on state agencies, chapters on administrative appeals. So many chapters. So many pages. See how they fly.

And suddenly . . . they’re gone!

The International Building Code then appears from behind a row of bent backed tulips.


Measurements, calculations, earthquakes, and walls
ramps, sprinklers, voltage, and stalls

Chaotic yet precise, ambiguous yet technical
Building code books are imminently collectible

Jeremy

How we hate to see them go.

But now it’s time to relax and float downstream, to a little hideaway beneath the waves. Here in the sea of green lurk local ordinances, interlocal enforcement agreements, UDOs, constitutions, and even a fireman with an hourglass. (Engineering and Codes is a division within the Office of State Fire Marshall, so that’s a hidden meaning right there.)


Ad hoc, ad loc and quid pro quo.

So little time, so much to know

Jeremy again

By all the sea nymphets, we’re losing power. Time to surface.

[Here comes the sun]

Next stop, ladies and gentlemen: Patterson v. City of Gastonia, 220 N.C. App. 233 (2012).

This opinion from the court of appeals addresses law-and-order topics like sovereign immunity, demolition, administrative hearings, statutory construction, due process, the housing code, and inverse condemnation. But things aren’t as western as they first appear. Beneath the surface, Patterson takes us on a transcendental journey through the building code appeal process. It’s a long and winding road that may lead to the door of the courthouse. Or department of insurance. Or local zoning board of adjustment. Chief building inspector. City council. Zoning board. Sun king. Goo goo g’joob.

There are also subversive messages hidden in the text of the court’s opinion. For example, the word “procedural” appears throughout. “Procedural” backwards is “la rude corp,” which is almost French for “the rough body.” And building code enforcement in North Carolina is a rough body of law to master.

Surrender to the Void

It would take me years to write a comprehensive book on North Carolina’s helter-skelter laws. I don’t want to be a paperback writer. Just remember this:

True wisdom comes from understanding how much you do not yet understand

Me

I don’t know what’s going on back there, people, but my newspaper taxi appears to be on fire. It’s getting smoky in here. Tour’s over.

We Can Work It Out

Building code enforcement involves aspects of criminal law, construction law, constitutional law, tort law, administrative law, and municipal law. If you find yourself in times of trouble, don’t just sit around making nowhere plans. You have a fighting chance to save your restaurant, gas station, factory, hotel, condo, shed, beach house, or castle. But you’ve got to get help quickly or you may end up sleeping behind the shelter in the middle of the roundabout.

About Gregory L. Shelton

Gregory L. Shelton is licensed to practice in North Carolina, South Carolina, and Florida. He is a South Carolina circuit court mediator and North Carolina superior court mediator. Greg is the Managing Editor of the North Carolina Construction Law Deskbook, the definitive treatise on construction law in the state. He is also Florida board certified as a construction law specialist. He practices at Horack, Talley, Pharr & Lowndes, P.A. Phone: (704) 377-2500 Fax: (704) 716-0905 Email: GShelton@horacktalley.com.
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