Rants and Raves of Mac McIntyre
The City of DeKalb has released a draft copy of the language proposed for commercial/industrial property inspections. Click here to review the latest draft of the City’s Fire Safety Registration and Inspection ordinance.
An “informal” public hearing is scheduled for the January 12, 2015 regular City Council meeting.
The language or at least the tone of this latest proposal is vastly different from the proposed commercial property inspection program that created a stir among investment property owners and business operators in DeKalb.
Change begins with the name which is now Fire Safety Registration and Inspection Program. The program will be administered and conducted at least in part by the DeKalb Fire Department. The original proposal formerly referred to as the Commercial Property Inspection ordinance amendment called for annual inspections to be performed by a third party inspection company at a cost to be determined only after city council approval.
Under the new proposal each commercial building within the city limits is subject to the completion of a Basic Fire Inspection, completed every 1-3 years. Buildings found without any violations noted during this inspection shall be reinspected on a recurring three-year rotation. Buildings with violations and any vacant buildings are reinspected on a one-year rotation. No fee is assessed for the initial Basic Fire Inspections.
In the event that “any owner” refuses to permit inspection of a building or a portion thereof, the Fire Department shall inspect such portion as the owner permits access to, and shall document any conditions noted.
Waiver of Basic Fire Inspection applies to:
- Any portion of a Commercial Building which is subject to a City license-based inspection (e.g. Fire Life-Safety, Hotel-Motel, Gas Station, Rooming House). In the case of a Commercial Building where only a portion is subject to a City license-based inspection, the balance of the Building shall be subject to a Basic Fire Inspection.
- If the Owner or occupant of a Commercial Building provides the City with a complete copy of annual Third Party Inspection reports for said Building, such portion of the Building which was inspected/documented in the Third Party Inspection report shall not be required to have a Basic Fire Inspection.
- In the case of a Mixed-Use Building, the portions utilized or available for Commercial or Industrial uses shall be subject to inspection. In addition, residential common areas (e.g. common stairwells, balconies and hallways) shall be subject to inspection. Individual residential units shall not be subject to inspection, in the absence of either a properly issued search warrant or occupant request for/consent to inspection.
The Fire Department will complete a Pre-Plan Walkthrough of all commercial buildings in the city within three years and from then on an annual basis. The Pre-Plan Walkthrough is required even for buildings that do not require a Basic Fire Inspection.
This Walkthrough inspection is done in compliance with Insurance Services Offices (ISO) standards and requirements applicable to building emergency pre-planning, identifying ingress/egress points, utility connections, fire alarm or sprinkler panel/connection locations, bulk flammables storage areas and other similar information.
The entire commercial building and the property it sits on is subject to a Pre-Plan Walkthrough excluding any individual residential units in a Mixed-Use Building. The City will attempt to complete the Walkthrough at the same time as any other required inspections are completed.
The City shall document any building or property maintenance code or other ordinance violations that are visible from any public property or right of way, public area or private property to which the City is granted access. The City will issue citations for any violations noted, and shall have the authority to apply for and seek issuance of a search warrant, administrative or otherwise, on a case by case basis.
In the event any building and property does not voluntarily allow any portion of an applicable City inspection or Walkthrough the building is then not eligible to use a compliance agreement and won’t be eligible for any of the incentives contemplated. A refusal may render a building or property ineligible for “other” City-issued licenses or incentives.
If an inspection reveals the presence of one or more violations of any applicable city code, the City and owner of the building enter into a compliance agreement which acknowledges and documents any violation and provides a timeline for remediation. If the owner enters into such a compliance agreement and undertakes reasonable measures to remediate the violation during the time allowed the City won’t issue citations for any ordinance violation.
A compliance agreement includes the following provisions:
- A reasonably precise description of the violation(s) noted (with photographs where possible).
- The timeline for the remediation to be completed and the anticipated reinspection date.
- An acknowledgement that the Owner is not, by entering into a compliance agreement, waiving any of its rights.
- A basic description of the contemplated repair (where possible), and an indication as to whether a building permit is required to complete the repair based upon the information known at the time.
- Contact information for the Owner and City representatives who will be most directly involved in carrying out the Compliance Agreement.
- In the event of a condition that presents an imminent safety hazard, a description of any agreed-upon temporary measures being undertaken to mitigate or protect against said hazard.
In the event that an owner refuses to enter into a Compliance Agreement or refuses to comply with the terms thereof, violations or conditions noted shall be referred for issuance of appropriate violation notices or citations.
Highlights
Considering the original staff proposal this appears to be a win for those clamoring that DeKalb get friendlier. The first effort could get a property’s water turned off for an unrelated tenant not meeting an unrelated obligation.
Note the friendly language and acknowledgement of Murphy’s Law:
Determination of Timeline: The City shall work in good faith with the Owner of a Building to determine a reasonable timeline for remediation of violations, based upon the nature and scope of the violation, the complexity of the required repair, the necessity for building permits or plans, the impact that weather conditions have upon the repair, the availability of repair materials, and similar factors.
Extension of Compliance Agreements: In the event that the Owner has in good faith and within a reasonable time period commenced efforts to remediate any noted violations and is unable to remediate a violation within the time period allowed under the Compliance Agreements because of factors not under the Owner’s control, the City shall agree to extend a Compliance Agreement by a reasonable amount of time.
Now we’re talking business friendly:
City Incentives: The Building shall be eligible for City Incentives as follows:
- Building Permit Fee Reduction: The cost of any applicable building permit or building-permit related inspection fee related to remediation or correction of the violation shall be reduced in an amount to be established by City Council resolution from time to time, initially established at twenty-five percent (25%).
- Commercial Property Remediation Incentive: The Building shall be eligible for participation in the then-current Commercial Property Remediation incentive program (if any), with the City making a contribution towards the repair or remediation costs or otherwise incentivizing, subsidizing or reducing the cost of the remediation.
- AIP Incentives: Where possible, the Building shall be eligible for any available Architectural Improvement Program incentives that may be available.
- Agreed Suspension of Licenses: If a violation requires temporary closure of a Building with a City-issued license (e.g. liquor license), at the Owner’s request, the City shall temporarily suspend such license for the period of repair, and shall pro-rate the next applicable license renewal fee based upon the period of time that the license was voluntarily suspended.
- Other Incentives: Depending upon the nature, scope, cost and complexity of the remediation required, the City Council may approve additional incentives on a case by case basis.
- Recognition of Safe Buildings: The Fire Department shall issue each Building which voluntarily completes all required Inspections and Walkthroughs and remediates any noted violations with a City-issued certificate or decal recognizing appropriately recognizing and commending the Building or Owner.
There is extended effort for voluntary compliance matched with accountable incentives.
Buildings that Refuse or Partially Refuse Inspection or Walkthrough: In the case of any Building and Property that does not voluntarily comply with the conduct of any portion of an applicable City Inspection or Walkthrough:
a) The Building shall not be eligible for use of a Compliance Agreement and shall not be eligible for any of the incentives contemplated in Section (e)(1) above.
Contentions
Ambiguous language in law feeds attorneys your money.
A refusal to allow an inspection or enter into a compliance agreement may render a building or property ineligible for other City-issued licenses?
v) Use of Compliance Agreements: City staff is authorized to utilize the Compliance Agreement procedures outlined herein to address other property-related ordinance violations as may be appropriate from time to time. The City shall in good faith attempt to utilize Compliance Agreements where any violation is identified in the completion of any Inspection which is required by City Code.
Spell it out, cross the t and dot the i. Specifically what other licenses are ineligible for refusing all or part of an inspection?
Throw the dogs a bone
Applicable Standards: No provision of this Ordinance shall have an impact upon the determination of the applicable building code or standards to which a Building or property is held. It is the intention of the City to recognize any applicable ‘grandfathering’ provisions of the City’s Building and Fire Codes. In the event that there is a dispute regarding which code or standard is applicable, such dispute may be referred to the Building Code Board of Appeals consistent with the provisions of Chapter 24 of the City Code of Ordinances. It is expressly recognized that not all buildings will comply with the most updated provisions of the City’s building codes, and that under applicable laws, existing Buildings benefit from provisions in the codes that permit grandfathering of existing conditions
The first reaction heard to the news that the Building Board of Appeals would serve any capacity in this effort was, “somebody better check to see if all of those fellas are still alive. They ain’t met in years.”
That reinvigorated board or reasonable facsimile should (shall not may) be much more involved than “may” be referred disputes regarding which code or standard is applicable for the purpose of grandfathering older building permits. The same board should weigh in on disputes regarding compliance agreement fulfillment or lack thereof.
Calling BS right here
For purposes of this Ordinance, buildings owned by the City of DeKalb and used for human occupancy on a regular basis shall be deemed to be Commercial Buildings. […] Any parcel of real property, improved with a permanent structure, where either the real property or the structure is owned by the State or Federal Government or a unit thereof, or by a unit of local government other than the City of DeKalb. Where a property includes multiple uses, such portion of the property or Building which qualifies as a Governmental Building shall be deemed Excluded
Private investment property owners complained of the lack of fairness when government imposes regulations on the public yet exclude the government from those regulations. Be careful what you ask for.
All government buildings except those owned by the City of DeKalb are exempt from the new Fire Safety Registration and Inspection ordinance. Some senior staff have been heard to say not exempting the City of DeKalb and forcing taxpayers to cough up more to meet new building codes helps convince the city council to sell general obligation debt bonds to pay for a new or expensively remodeled city hall. If so that’s BS.
What if the Building Board of Appeals ruled that city hall was grandfathered?
Postscript
There remains a cat and mouse game with the public’s business that needs to cease. For example — Will Heinisch has been requesting through FOIA what the total amount of public funds have been paid to the city attorney for his work on this robust effort for commercial property regulations. According to an obligatory FOIA response letter the City of DeKalb is claiming exemptions under the Act to deny fulfillment. Since when are public funds not the public’s business? Stop the nonsense. That’s the best way to get DeKalb friendly again.
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