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A tempest in a tiny teacup

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By Jim Flynn

A small news item about a homeowner who balked at a notice to remove a boat from a driveway prompted a recent Star-Banner editorial chastising the city code enforcement personnel for bad public relations.

The editorial suggested that simple code enforcement matters aren’t all that simple, and even used the word “harassment” a couple of times. We think that’s bunkum.

Cities, counties, and deed-restricted communities have codes intended to make living among other humans peaceful and orderly. Restrictions are also intended to preserve and enhance property values.

The best-known code is a requirement to put out trash barrels only on the day refuse is to be collected, and take the containers off the streets by sundown – hardly unreasonable. Otherwise neighborhoods would look like a dump. Some do, and it isn’t the fault of the city, county, or state.

Similarly, code provisions designed to keep homeowners from using residential properties as storage, display, or collection facilities are not difficult to understand. That’s why there are rules about putting out and removing political posters, among other things.

Reasons for resisting code requirements are many. One favorite is a complaint of selective enforcement, a plea that everyone else is doing it. The logic is no one should have to follow the code unless everybody is following the code. In other words hire enough code enforcers so that every violator of every code will get a notice of violation on the same day. Silly stuff.

Then there’s the expiration of enforcement argument, a wishful assumption that every rule must have some sort of time limitation. If authorities fail to notice and challenge a code violation within a year or two, it must mean the enforcers have waived the violation. Nice try, but no cigar.

A variation of the expiration argument is the automatic grandfather exemption. It says because I’ve always fished here, the old rule should apply. Nobody should have the right to tell me I have to go fish some place else.

There is also the my-day-in-court assertion. The fairness fiction of this complaint is a failure to convene conferences to hear every objection to every violation, no matter how trivial. Administrative agencies would need to double their staffs and spend most of their time holding hearings.

A contention worthy of every outhouse lawyer who ever looked for an excuse is the “how-was-I-to-know?” argument. The sequence is that for every violation there should be a letter of attention, followed by a letter of suggestion, followed by a notice of violation, followed by an invitation to discussion. The tactic is to wear down code enforcers with proceedings that drag on as long as felony trials.

A tried but untrue fallback position is that there should be a variance available for every rule or regulation. In zoning matters, “variance” means permission to do something contrary to the rule, for a reason that is not injurious or bothersome to others. Many variance requests are just excuses for non-compliance in search of an official blessing.

When we step back and think a little about living among other humans, it should be obvious that there is no one on the planet, including lawyers and judges, who has any idea how many laws, codes, and restrictions apply to our every act and omission, but we all have a pretty good idea what’s allowed and what is not.

The editorial suggestion was that code enforcers should ramp up public education about what homeowners and businesses can and cannot do. The tunnel-sized hole in that suggestion is that our city, county, and state agencies have filing cabinets full of rules and regulations, and have many cubicles in which civil servants labor diligently writing and rewriting codes.

Another reality is that homeowners and businesses are moving in and out constantly, even during a real estate downturn. Those who miss code changes are usually those who don’t read the local newspapers.

An inconvenient reality of life is that we live in a world full of laws, rules, and regulations. There is a pervasive fiction that liberty entitles us to do whatever we want when we want, except maybe the big stuff, like murder and mayhem.

We’d have a lot less need for codes of behavior if all homeowners and businesses accepted their obligation as citizens and neighbors to find out what they can and cannot do – before they do it. It’s a slightly dead doctrine called personal responsibility.

Jim Flynn was formerly a corporate counsel, served in military intelligence during the Korean War, and once aspired to be a newspaper columnist.