Housing Tangled in Red Tape
It sounded good: government would help make houses safe with detailed building codes. But today's codes extract a very high price. Isn't there a better way to have safe houses?
Patrick Hazel is the stuff America is made of: solid, law-abiding, determined, and hardworking. But in May 1978, something happened to make this 50-year-old war veteran take on an opponent most people simply back away from: the building department.
It started when he and his wife, Betty—their children grown and going their own ways—began to make plans to build a smaller house for themselves. That May, they found an irregularly shaped hillside lot, part of a 1928 subdivision, in the Santa Cruz mountains between San Francisco and Monterey, California. After placing a deposit on the parcel, Hazel made a trip to the county building department to find out whether it was a buildable lot—a very simple request, or so he thought.
Hazel was instructed to fill out an application, pay a fee, and submit 12 copies of the plot plan (showing the boundaries of the property and the location of the house). Why 12 copies? Because, he was told, 12 separate agencies would have to evaluate the application, including the Santa Clara Valley Water District, the California Department of Transportation (Caltrans), the Historical Heritage Commission, the county fire marshal, and the school district.
Hazel blew his top. "I don't care how far you stretch it," he exclaims; "what does Caltrans care what kind of house I'm building on my lot? But they can stop me. Caltrans can stop me from building on a lot in an established subdivision that's not even on county, city, or state roads.…Twelve agencies," Hazel shakes his head. "That's when I decided not to participate in that process."
Hazel bought the land, deciding to build his house but skip the entire permit rigmarole. Now, almost three years later, he is fighting both civil and criminal suits brought against him by the county. His partly built split-level house sits among redwood and oak trees, covered with plastic to keep out the rain, while the Hazels struggle to keep up with legal costs.
Like Patrick Hazel, most people don't realize the size and scope and power of their local building department until they come face to face with it. And when they do, it's face to faceless bureaucracy. All the laws governing the building of people's homes were intended to provide some assurance of basic safety, of protection from fire hazards and negligence. But today, amidst quite specific height, light, and lot requirements and a whole welter of peripheral red tape, the original intent of those laws has been lost.
STUDS, PLUGS, AND PIPES
The first recorded building regulation was straightforward and stringent. Around 2,000 B.C. the Code of Hammurabi included a provision that "if a builder has built a house for a man and his work is not strong, and if the house he has built falls in and kills the householder, that builder shall be slain." There is no record of how many people made an early exit for this crime.
More detailed building regulations emerged in London in 1189. A "building's court" was set up to rule on boundary disputes, pollution complaints (having to do with inadequate plumbing facilities), and fire prevention. With each passing century, layers were added to the legal requirements pertaining to house and home.
By the early 1900s, the idea of building codes and zoning had caught on in America. In a narrow sense, a building code is a set of regulations laying down the law for construction, maintenance, alteration, repair, or demolition of buildings. Broadly understood, building codes include or go hand-in-hand with regulations that control more than the physical building itself, such as: zoning ordinances, which mandate a building's permitted use, height, bulk, and location on the lot; health standards, such as sanitary requirements and occupancy limits; and such miscellany as sidewalk requirements.
The first housing code was enacted in New York City in 1867, although it was generally not enforced until the turn of the century. St. Louis adopted partial zoning in 1901; Los Angeles, in 1909. In 1911 a huge fire at the Triangle Shirt Waist Company in New York created pressure for stricter housing and zoning ordinances, enacted in 1916. With a Federal Standard Zoning Enabling Act passed in 1924, the way was paved for cities and states to proceed with comprehensive land use controls.
While the United States does not have one single, national building code, there are four broadly accepted model codes (see box, below). Local communities usually select one of these for adoption, but not without their own embellishments. With an ordinance prohibiting construction and alteration without a permit and mandating site inspections at various phases of construction, the local building department is in business.
Today's building codes typically add up to pages and pages of detailed technical prescriptions. Among other things, they specify materials (for example, 2 x 4 studs), placement (electrical outlets every 12 feet along a wall), and bulk (a minimum 7-foot-6-inch ceiling height in living areas other than baths and halls).
The point of such requirements is benign enough: to protect home buyers, not themselves knowledgeable in the details of construction, from builders who might otherwise not meet standards of sound construction. But this type of detailed specification code, people are discovering, is not without its problems. It is a very rigid system, requiring the building department and its inspectors to go by the book and approve or reject construction on the basis of its meeting or not meeting all the specifications. Innovative products and methods that would achieve the same purpose as the code requirements, but do it better or at less cost, are slow to be adopted. And there can be no stretching of the code to allow for construction more suitable to a particular site or to an individual's particular desires.
If the codes were to be replaced by a set of performance guidelines specifying goals rather than methods—often proposed as a solution to these defects—the system would run up against another problem, pointed out by John McClaughry, a member of the 1977 National Commission on Neighborhoods: the building department's plan reviewers and inspectors would have discretion without accountability, for they are not answerable to the occupants of a building in case of damage arising from poor construction. If the purpose of having mandatory building codes is to protect occupants, the choice seems to be between safe housing under rigid, impersonal rules and flexible guidelines enforced by unaccountable inspectors. This artificial divorce is one of the key issues behind Patrick Hazel's personal revolt.
"GET A PERMIT"
After his initial contact with the county building department, Patrick Hazel went home and reviewed his US and California constitutions. There was nothing in either document, he decided, that told him he had to get a building permit. He resolved to begin construction without one. The three-bedroom redwood house would, however, meet or exceed all the specifications of the Uniform Building Code.
"I was not about to give up my accountability to an inspector who was not accountable," Hazel explains. He hired a professional surveyor, structural and civil engineers, and a designer and started building his home. (Hazel himself installs water systems for a living.) "It dawned on me that all the problems I was having were my fault," he says ruefully, "because for all these years I'd done nothing to stop it. And I should have. But you know, you say to yourself, 'Let someone else take care of it.'"
This time Hazel was going to take care of things himself. First he told the county what he intended to do. "From day one I never tried to circumvent or to sneak through anything." he notes. "I sent all the documents required, and I said, 'Enclosed you will find all the necessary documents relating to the single-family residence construction, etc. You will also note that the entire project has been thoroughly engineered.' I then pointed out that I appreciated their offer of assistance but that I would not be requiring either permits or departmental services." But the building department refused to even look at the documents.
In February 1979 the county filed criminal and civil actions against Hazel for failing to get a building permit and beginning grading on his property. By that time the house was actually about 40 percent finished. Under the civil action, the county requested, but was denied, a court order to compel Hazel to tear down what had already been built.
After going to three different legal firms, Hazel found a lawyer willing to take on the State, and the court battle has been raging for nearly two years now. He has been to court several times with motions to dismiss the charges. Although he has been consistently turned down, Hazel reports that one judge said, "I'm going to rule against this, and I hope you appeal my ruling, and I hope you win your appeal."
"What this really amounts to," says Hazel, "is that the local courts do a very effective job of insulating the county government against any kind of challenge. And that's why it's difficult to fight city hall, because they say, 'Well, you have the option of appeal.' But appeals cost many, many thousands of dollars and generally take years. They hope to break you before you reach that point." The Hazels aren't there yet, although they have already spent some $20,000 in legal fees.
To add insult to injury, Hazel's taxes on the disputed piece of property were raised by several thousand dollars "for improvements made." Hazel has appealed that tax, asking what kind of system allows one government department to demand that a construction be torn down while another rules that that vile construction has added $50,000 to the value of the property.
CODES AND COSTS
Hazel does have two disputes with the county that would keep his plans from being approved even if he were willing to go through the permit process. He objects to the county's requirement that the front 30 feet of his property, which adjoins a private road, be "dedicated" in perpetuity (though taxes on it are still applicable, of course). He is also fighting for the right to install in his future home a sewage disposal system that is unacceptable in his county, although federally approved, consistent with the Uniform Building Code, and allowed by the codes of several other counties in California. This system, maintains Hazel, is more efficient for a hillside location like his.
Rigid requirements like that are driving up the cost of housing all across America. According to a recent study done by George Sternlieb at Rutgers University, almost 20 percent of new-home costs—an average of $12,000 per house—is attributable to overregulation of home building. Fred Case of UCLA's Graduate School of Management estimates that when the costs of governmental regulations and review procedures are added together, it may account for as much as 40 percent of the price of new homes.
Just how the present building code system adds to costs is explained in the report of the 1977 National Commission on Neighborhoods:
• The diversity of code requirements from jurisdiction to jurisdiction makes it impossible for both manufacturers and builders to lower costs by producing a high volume of the same item.
• Specification codes make creative innovation difficult and give manufacturers and unions an opening for influencing code requirements for their benefit.
• Stringent code requirements can be used to discriminate against lower-income families (who do not contribute to the tax base as heavily as middle- and upper-income households). The process of obtaining a permit has become so onerous in some places that construction is discouraged, raising the market prices of existing structures and further squeezing out lower-income owners.
• Rehabilitation is discouraged, since even the simplest repair requires obtaining a permit (and paying for both that and site inspections), and the site inspector often finds other conditions that are not up to code and must be fixed.
• Because the heads and members of the building code bureaucracies are often ex-union tradesmen, it is difficult to get permits for nonunion jobs. In addition to raising the cost of the job, this union favoritism has an adverse effect on blacks and some minorities who have traditionally been discouraged from joining certain unions. A similar effect occurs when only licensed tradesmen are allowed to work on a building.
William Marina has learned about the costs of building codes first-hand. A history professor at a Florida university, he also has a builder's license and quite a bit of building experience under his belt. Building departments, he notes, are basically conservative. "They're not willing to listen to different kinds of ideas. I built an ecological house, for example, completely up to code, but they really viewed it with suspicion." On top of that, parts of the code are "entirely capricious." Marina gives the example of Deerfield, Florida, where he noticed that there are no hedges or fences in front yards. When he asked about this at the building department, "they said it was to protect people from being attacked by criminals hiding in the hedges." Such unlikely scenarios become enshrined in the building code, while aesthetic value and comfort (hedges can funnel breezes) are ignored.
Some individuals' needs for less-costly housing are also lost in the shuffle of building codes. Marina is currently waging a court battle concerning property he owns in Ft. Lauderdale. He is unable to obtain a permit to build on it because the parcel of land doesn't come up to that city's required 6,000 square feet, although he "could easily build a back-to-back townhouse 15 x 75 feet in that space." The upshot of such lot square footage requirements, laid down in the Southern Standard Building Code that Florida follows, is fewer homes constructed on higher-priced lots.
Marina made his way through the building code obstacle course to build his own 2,300-square-foot home in Delray Beach for a mere $33,000—with such niceties as cedar wood and beamed ceilings. This basic three-bedroom, two-bath house plus garage, he is convinced, could be built for as low as $20,000, not by any miracles, but by taking advantage of economies blocked by the present system of building codes.
CODE CONSERVATISM
Because code requirements vary so greatly from place to place, manufacturers of building materials are not able to lower costs through large-volume production of single items. The extreme example of this dilemma is prefabricated housing, which now must be tailored to the small markets defined by local code requirements, hampering much of its cost-reducing potential. The same problem keeps costs of many parts high. Such things as standardized plumbing cores—prefabricated units for back-to-back bathroom and kitchen installations—are prohibited by many codes.
While standardization of building codes across local and state lines would help to secure such economies in home building, other innovations would not fare so well. The specification nature of the codes is itself conservative, inhibiting the development and introduction of improved and cost-saving technology. Instead of saying what durability standard is to be met by plumbing parts, for example, codes typically mandate a specific kind of pipe. If the price of copper soars, the builder cannot choose a less-costly pipe that serves nearly as well. If the plastics industry discovers that it can make a pipe that matches the quality of copper, the builder cannot switch unless the code is changed—a long, politically entangled process, for the conservatism of specification codes is reinforced by the interest groups they inevitably favor. Instead of saying that interior partitions must be able to withstand so many pounds of pressure per square inch, many of today's codes specify 2 x 4 studs spaced 16 inches apart. For purposes of safety, wider spacing is just as satisfactory. The influential lumber industry, however, would rather see more studs required, and the carpenters' union knows that it takes longer to place studs 16 inches rather than, say, 24 inches apart.
Sharon Oster and John Quigley did a study of regulation barriers to the diffusion of innovation in construction, reported in the Bell Journal of Economics (Autumn 1977). Looking at four suggested innovations, the researchers found that their adoption in various jurisdictions was affected by: (1) the educational level of the chief building official, where the better-educated the official, the more likely is acceptance of innovation; (2) the extent of unionization, since unions are less than enthusiastic if the innovation reduces labor input or replaces local labor with other labor (as in prefabrication); (3) the presence of larger firms, producing more units of housing, because they make greater lobbying efforts to secure the adoption of cost-reducing code changes.
Whether it's pushing through an innovation or dealing with the building department on a standard permit, notes builder William Marina, big business has it easier than the small builder/developer or the ordinary family looking to put up their dream house. He sees as a major breakthrough in the building market the big companies that can build their own "cities." (Likewise, Martin Mayer, in his book The Builders, explains the rise of "rapacious developers." Restrictive zoning and environmental legislation have made development so shaky a proposition that only big companies can afford to take the risks.) Big business ends up providing lower- and middle-income families their only relief from the costs of housing regulation.
The "hill people" of northern California found out that individualized housing is harder than building it yourself. In the wheat-colored hills of Mendocino County, these mostly young people tried to exchange the patterns of city life for an isolated and primitive existence, but the building codes pursued them. Buying an acre or two of land upon which to start a community, they pitched in to build their own log cabins. Officialdom, however, found a defect in these lovingly built homes: their owners had not bothered to buy building permits nor to obtain certificates of occupancy.
Sometime in 1975, the county grand jury quietly passed a resolution condemning the code violators as "persons who totally disregard building as well as health and sanitation laws." A task force was created to "seek out" the violators (not an easy task), with $200,000 in pocket money approved by the Board of Supervisors. The task force came in jeeps to "red tag" the noncode dwellings: "This Building Unfit for Human Occupancy."
When some of the hill people went into town to see if allowing their homes to be inspected would change things, they were rebuffed. "Because none of us had applied for a permit," John Pateros, ex-IBM salesman and one of the hill people, explained to a reporter, "they were illegal structures. Because of this the building department contended that there was legally nothing to inspect. To apply for a permit, you had to first tear down the illegal structure."
PREVENTING SELF-HELP
What lies behind such "sticking by the book"? Says Peter Grenell, in Freedom to Build, building departments' rejection of individualized housing results from "a genuine desire to improve the living conditions of as many people as possible; a fixed idea of what constitutes 'good' housing;…an emphasis on standardization of design and production efficiency; and a consequent disregard of the role of the dweller in the provision of housing. The latter is based on assumptions that…people 'don't know what they want,' or simply that trained technicians 'know better' about laymen's needs than they do."
Such assumptions are what the hill people were fleeing when they took up their alternative lifestyle. In the book Dwelling, one of them—a former suburban Maryland housewife who now calls herself River—describes her first contact with the building code: "I remember Duane saying, 'Oh good, you're really hidden down here, well back from the road. It'll be a long time before the inspector finds you here.' 'The inspector?' I exclaimed. 'What inspector?' Richard suggested that we put up signs against trespassers, for even inspectors must respect posted land unless they have a specific warrant. I remember the panic, the resentment, the disbelief, then anger, at discovering that somebody out there had heavy control over how I lived my life; that in this free land, I could not build and live in whatever shelter I chose.…Thus began my small but intense campaign to find ways around and through what seemed to me to be a perversion of the law, and of the historical and hallowed goals of the entire country."
The hill people set up an organization, United Stand, and tried to reach all the hill people living in other areas around them. Eventually they found themselves giving their makeshift, but effective, slide show in Sacramento, and outspoken member Anon Forrest was appointed by Gov. Jerry Brown to the California Commission of Housing and Community Development. Forrest, until she went back into the hills, was pushing the adoption of a special category in the existing code, freeing the rural dweller to build a home without many of the requirements, such as plumbing and electricity, imposed upon urban homes.
But United Stand has been rethinking this proposal. As one of its news reports explained: "Since it is clearly impossible to define all the safe, sane, and healthy ways in which one can build, it seems to U.S. that simply adding another definitive regulation (the Cabin regs) to an already bum law will just compound the problem.…What is needed is a prohibitive code, not a directive one. By defining and prohibiting those conditions which the law seeks to avoid (i.e., fire hazards, pollutants, unsafe and/or unsanitary housing), our government will take a massive step toward protecting both the freedoms and the welfare of its citizens."
John F.C. Turner concludes in the book Freedom to Build that, while building codes have advanced human welfare in countries with high per capita incomes, "their rigidity often contributes to a shortage of safe and sanitary housing." One of the Mendocino rebels speaks in Dwelling of the economic burden imposed on many by having to build to code: "I was talking to a man, a representative of a Mexican-American organization, and he wanted to know…about housing for his people, who don't speak English, and don't get to the Board of Supervisors.…I asked him, 'If you could build a house that would be legal for $1,000-$2,000, would you do it?' He got so excited, and said, 'That would be the answer.'"
But officialdom would be unlikely to see it that way. In Freedom to Build, Peter Grenell recounts a telling situation: "A dedicated Indian construction official of the U.S. Bureau of Indian Affairs could not accept the idea of building adequate, though spartan, housing for his people in the absence of funds for up-to-standard accommodations, even though to build nothing would mean that many Indians would remain in tents and hovels through cold winters." For those in the lower end of the economic scale—whether by choice, like the hill people, or by circumstance—building codes can be even less than a mixed blessing.
Lee Nason is the only woman she knows of in New England who does what she does: managing some $10 million worth of construction a year for various owners, including rehabilitation and restoration. Here, too, building codes often have the effect of squeezing low-income people out of affordable housing.
Nason, who has been in the building industry in Massachusetts for 10 years, hires the architect, makes certain that the design meets the needs of the owner, and then plunges into the zoning and permit approval process. Armed with a masters in architecture from the Massachusetts Institute of Technology and a bachelor's degree in engineering, she is chock full of criticism of the miasma of building controls.
"I spent 30 percent of my time dealing with building inspectors on one building alone," she recalls. "Overall, I use up 20 to 25 percent of my week dealing with codes, preparations for hearings, dealing with code violations. It is extremely burdensome." Until recently each town in Massachusetts had its own local version of the building code. Although there is now a mandatory statewide code, Nason charges that there are still so many differences of interpretation and special terms in different towns that she can't use the same design in two cities.
SAFETY PROMISES
Nason is angered by the fact that adherence to the codes can sometimes raise safety problems. "In one city, I was doing some $250,000 worth of renovation on an exciting Bullfinch building in the downtown area. The original builders had installed fire shutters with heat sensors which shut windows in case of fire, and in this case protected the building for several hours. The shutters were put in about 40 years ago, so I couldn't get replacement parts and had to pull them off. Now, I either had to put in new ones at a large cost—and they would have to be replaced 40 years later—or completely block off the windows, which looked out into an alley anyway. Unfortunately, the amount of windows was so substantial that it fell under the Energy Code, a Massachusetts regulation. Before I could close down those windows and protect my building's occupants from fire, the Energy Code required that I have a study done to examine the energy loss, which would have cost me up to a million dollars to do. So the codes forced me to choose, practically, between safety and cost. I took it to the courts on the state level, and because it was a Bullfinch building in a part of town they wanted to redevelop, I won my case. But if I had lost, I could have endangered the life of the people in that building."
Another example that raises Nason's ire is fire-rated vestibules, which are mandatory in certain zones. "They wanted the vestibule in a particular location that would have confused the occupants in case of a fire. And the fire department would have come in and been confronted by several doors if the building department had it their way."
It's not just fancy buildings that are affected by the building codes when it comes to renovation. Since codes are frequently updated, the requirements that existed when most midcity buildings were constructed are very different from today's codes. The prospect of rehabilitating an older building today opens up such a can of worms that most owners simply cannot afford to even think about it. The drastic reconstruction that may be required in older apartments, for instance, would drive up the rents in those buildings beyond the means of their present occupants.
Even minor alterations can become major projects under the aegis of the building codes. Nason recalls the case of a contractor she knew in a town west of Boston. "It was a family-owned business, been around for 50 years. Well, he got an order to build a simple 30-foot-long sheet rock wall in an existing house, and, because it was for a friend, he said okay. He sent his carpenter out to start on the wall." A building inspector who happened to be in the area noticed the carpenter and ordered him to get a permit. To avoid problems, the contractor got the permit. Then the building department told him he needed to build angled bridging (braces between beams providing added support), with fireproof marks on each piece of bridging. He had to go out and cut the ends of pieces of bridging so that the marks would show. "A simple, inexpensive job turned out to cost him a lot of time and money," says Nason—"plus, he was charged for the building permit and five visits from an inspector!
"The government is making promises of safety that it can't possibly fulfill," says Nason in summing up her evaluation of building codes. US government statistics, she notes, show that codes are not effective anywhere in the United States. "More than 90 percent of the buildings studied were in violation of one area of the code or another." And if the government could fulfill its promises of safety, "we wouldn't have any housing." If you think that's an exaggerated claim, she says, look at the Third World. A few years ago, with the congratulations of many people in the United States, some Third World governments determined to wipe out the spectacle of slums and barrios by requiring that all housing henceforth be built to code. As a consequence, she says, many people there don't have any housing because they can't afford to meet the codes. The difference in a more affluent country is only one of degree. "Building codes cost."
So the building code system is not perfect—but what system is? Are the costs imposed by it simply the costs of protecting homeowners and occupants to the extent feasible? Or is there another way?
Lee Nason would scrap the codes for a system of warranty of merchantability. Builders would guarantee to do what they have contracted to do: keep out the rain, erect a certain floor load, etc. Like doctors, dentists, and other professionals, they would find it advantageous to insure themselves to cover "malpractice" suits. This would protect the purchaser of a building. And the other main concern of building codes—externalities, or adverse neighborhood effects of one owner's use of his property—could be handled by strict application of existing nuisance laws, suggests Nason. Reminding skeptics of the cost and ineffectiveness of the codes, she exclaims: "You're not getting anything with the codes, you know. Without them, you'll at least gain a buyer who'll be more cautious."
Homebru, another of the whimsically named hill dwellers quoted in Dwelling, doesn't put much store by the codes either. "You're not supposed to use home-made or secondhand materials in the building of anything you want to live in. The lumber you use has to be approved and grade marked. Well, how do you grade mark your lumber if you make it yourself? If you're in the shake [wood shingles] business you rent a stamp from a group of Certified Graders who live in San Jose. And you stamp your own shakes. They charge you $75 a month to rent their stamp for every month you operate your mill. And then it's legal."
With that kind of "protection," Homebru doesn't see any necessity for a building code. Let those who think it is necessary use it, he suggests. "Then your deed to your property should specify whether or not the house was built under county supervision. If it was, the county should assume responsibility for any mistakes in it. Otherwise, why build under county supervision? If the roof is put on the way they tell you and the damn thing leaks, they should fix it! Or pay for having it fixed!…But the county assumes no responsibility for what they try and make you do."
William Marina would join Lee Nason in placing responsibility squarely on the shoulders of the builder, with the consumer protected by the warranty system. "This is what sailboats have had for years," he explains. "To sell a boat, you first have a yacht-surveying company look at your boat. The surveyor issues a report, which buyers check before closing a sale. And the survey firms rest their reputation on the accuracy of their surveys. It's a system of infinite flexibility with respect to individual buyers' needs and desires," Marina notes with satisfaction. "Building inspectors needn't feel threatened by this," he adds. "They're not the problem. In a warranty system, they would work for the private survey company."
HOW TO PROTECT
The concept of home warranty is not new. Both France and England operate on such an insurance system.
In France, the only public regulation is of fire safety in larger public buildings. Otherwise, the Code Civile imposes strict liability on the builders themselves for the quality and durability of their work. The builder is liable for up to 10 years on main structural components and for two years on secondary components. Four large insurance companies offer liability insurance to the builder for coverage against this sort of claim. To guard against future liabilities, the insurance companies hire inspectors to check on the structure during construction. In addition, French banks generally do not offer mortgages on any building constructed by a builder who does not carry liability insurance, and casualty insurance companies will not insure such a building.
In Britain the National House Building Council, an independent nonprofit organization made up of representatives from all sectors of the building industry, maintains a register of builders. Each pays a premium guaranteeing compliance with the council's construction standards. Home buyers who select homes covered by this guarantee get a preliminary spot check of the house, a two-year warranty from the builder against defects, a two-year warranty from the council covering noncompliance with its standards, and insurance providing 10-year protection on major structural defects. The warranties carry an arbitration clause, ensuring quick attention to possible claims.
Home warranties are available in the United States, also, and are becoming more and more common, though builders (and ultimately consumers) end up paying twice: to the government for permits and inspections and to the insurer. The best known of these, modeled after the NHBC program in Britain, is offered by the Home Owners Warranty Corporation (HOW), founded in 1973 by the National Association of Home Builders. The buyer of a home covered under the HOW program has two assurances of quality: a written warranty from the participating builder, who has pledged to meet HOW's standards for workmanship and quality of materials, and a policy from the INA Underwriters Insurance Company protecting against the builder's failure to perform as promised. The insurance is funded by a builder's fee based on the home's selling price.
National Commission on Neighborhoods member John McClaughry reports that "the HOW plan now covers 25 percent of all new for-sale single-family housing in America. About 16,500 builders in 47 states build 250,000 homes a year under the plan." McClaughry notes that HOW councils operate a conciliation and arbitration program, as does the British system, in case of disputes—which usually occur when a participating builder goes out of business. Already, some banks and other lending institutions offer preferential interest rates to buyers of homes with a HOW warranty.
PRIVATE ACCOUNTABILITY
HOW is a first step in the direction of more private-sector responsibility for building safety. And that's where the United States should be heading, says the 1977 National Commission on Neighborhoods. Commission member John McClaughry notes that the municipal building code enforcement system is based "on the supposition that in its absence unregulated construction would lead to threats to public health and safety." The French and British models, however, as well as the presence of safe noncode (or nonpermit, in any case) construction in the United States, have shown that this assumption is not warranted.
In its report, finalized in February 1979, the commission recommends that jurisdictions adopt a "basic life safety code derived from present code, covering structural safety, fire safety, and egress," develop a set of performance-based guidelines, and provide for certification by licensed design professionals (architects and engineers) of compliance with, or departure from, these guidelines on larger projects. On all structures, contractors would be required to provide 10-year warranties on major systems and shorter warranties on smaller components. A privately financed arbitration program similar to the one set up by HOW, as well as an information system to publicize the contractors' performance records, would complete the recommended means of consumer protection. Municipal inspections would be reduced only to cases of "specific complaint and a showing of imminent danger to the public." What will happen to these recommendations, like those of all the other commissions set up by presidents and Congresses to address pressing national problems, depends on how the political winds blow.
Patrick Hazel, meanwhile, has broadened his personal battle and is working with California Assemblyman Robert Cline to amend the state's building law. Wending its tortuous way through the legislative process is the State Building Standards bill, which would require California builders to meet the Uniform Building Code. Once an engineering firm certifies that new construction is up to code, an insurance policy can then be issued on the structure. The policy holds the engineer (or builder) liable for any structural defects for the "expected life of the improvement" or 10 years, whichever is less.
"The function of the bill," explains Hazel, "is to transfer responsibility for the building inspection and permit process from the public to the private sector." He sees the bill virtually eliminating the costs to the taxpayer of maintaining a building department, which would merely collect and record documents. And the bill would foster the establishment through the private sector of an insurance program similar to the French system. "An insurance policy not only protects the homeowner but automatically upgrades the level of building in the same manner as the issuing of automobile insurance upgrades competency in driving because the drunk driver is wiped out—he can't get insurance," Hazel points out. He figures that private fees would work out to roughly 10 percent of what the county in which he lives now charges. The county fees on his disputed $100,000 house would come to some $8,100, he says, which would of course be added to the value of his house when it comes time to be assessed for taxes.
It's not just the Patrick Hazels who would benefit from freedom to build. In the book by that title, the authors describe the new vistas that could be opened up to the less well-off: "The contemporary emphasis on what is minimally desirable in the view of authorities with power to impose specific forms would give way to standards which would define what is minimally feasible. That is, instead of exacerbating the gap between the poor and the better-off by insisting that low-income people build or rent what they 'ought' to have, or, if they cannot, stay in their deteriorating slums, low-income people would be encouraged to make the best of what they have and to do so in ways that do not lock them, or future generations, into new slums."
But Patrick Hazel, too, and Anon Forrest, and countless other Americans, each with different dreams, would flourish under the freedom to express their diversity. And that's the stuff America is made of.
Christine Dorffi is REASON's assistant editor and coauthors our Trends department. She has worked for newspapers and general-interest and travel magazines in the Philippines and the United States.
WHAT'S IN A BUILDING CODE?
Depending on where you live in the United States, you're probably covered by some variation on one of these building codes: the Basic Building Code, produced by the Building Officials Conference of America; the National Building Code, by the American Insurance Association; the Southern Standard Building Code, by the International Conference of Building Officials. These codes lay out, in great detail, building specifications pertaining to structural design, light and air, egress, fire protection, spatial design, and mechanical and electrical systems.
One of the codes is usually adopted on a statewide basis, with local communities often adding their own finishing touches. California's Unified Building Code, for example—a 2,800-page affair—is based on the Uniform Building Code. Every three years its authoring body, the International Conference of Building Officials, proposes amendments to the California state legislature.
Adherence to the code is made mandatory via a law prohibiting construction work without a permit, which is contingent upon plans that meet or exceed the code. In the case of the Uniform Building Code, that means, among other things, that the aggregate window area must equal at least one-tenth of the floor area, that there must be at least one room of not less than 150 square feet of floor area, and that ceiling heights must be at least 7 feet, 6 inches—except for baths and halls, which can be at least 7 feet. Garages must not open directly into a sleeping space, and bathrooms cannot open into a food preparation area. Projecting eaves or cornices may not take up more than two inches per foot of land between the building and the property line. A multistory home may not exceed 20,200 square feet of floor area. And so on.
It's up to the plan reviewer in the building department to make sure that all such details have been incorporated into the plan, and it's up to the building inspector to make sure they're carried out. The plan reviewer, however, is not liable for any oversight that the field inspector may notice later; it's up to the builder to amend the plans. Otherwise, once a plan is approved, the building must be built exactly as designed, even when the code has been exceeded.
In certain states, the plan reviewer must enforce the regulation that buildings over a certain valuation, size, or complexity be designed only by persons professionally licensed by the state. Sometimes, the municipality licenses only a few particular plumbers, for example, whose fees naturally rise with the degree of monopoly they enjoy.
In addition, the building department is obliged to enforce zoning laws, and the plan reviewer must check for particular conditions pertaining to the building's proposed location. The zoning ordinances determine occupancy (use to which the building is put), type of construction materials allowable, location of property, occupant load, and fire zone.