The Oregon Building Codes Division (BCD) sent letters April 23, 2018 to local jurisdictions (mainly cities but also some counties) that are scheduled for renewal of their building inspection program this summer.
The letters require jurisdictions to prove they are in compliance with the new rules enacted by BCD at the direction of the Oregon Deptartment of Justice (DOJ). In a nutshell, the DOJ released an opinion in February stating cities and counties who fully contract out their building inspection programs to private sector companies are delegating discretionary governmental functions in violation of the Oregon Constitution.
Below is an article that ran in yesterday’s Oregonian detailing the challenges likely to result from the changes.
The new rules will require local programs to designate a government employee as the city or county building official, and the city/county must have a certified electrical inspector on staff or under contract with another city/county. If an employee is shared by multiple jurisdictions, the employee cannot provide services to more than three cities or counties, unless a larger number of jurisdictions (four or more) work with the state to create a “regional service center.”
In addition to these new program changes, the person appointed as the local building official must be certified as a building official and A-level structural inspector. Previously, a building official was not required to hold an inspectors license to oversee an inspection program.
We are reviewing the new rules to determine how best to address the new requirements. While most (but not all) counties will safely be in compliance with the new rules, many cities will not and that could result in the county having to run the program for one or more of their cities. It is also conceivable that some of the impacted jurisdictions may pursue litigation to challenge the DOJ opinion and new rules.
Contributed by: Mike Eliason | AOC Legislative Director
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Small cities scramble as Oregon cracks down on private building inspectors
Small cities and counties in Oregon are scrambling after state officials said their building inspection programs violate the state Constitution.
Many small communities have long relied on private companies to run their building departments, including approving building plans and issuing permits. But new rules could bar that practice, busting small-town budgets or forcing cities to shut down their local building programs.
Officials say that could mean delays in communities trying to keep up with growing demand for housing.
“It’s a system that’s worked really well that’s about to be broken,” said Bill Graupp, the mayor of Aurora, one city that contracts out its building services. “It will definitely raise the costs on anybody who wants to develop or work with the cities that are being affected by this.”
The state Department of Justice and Office of Legislative Counsel both concluded such programs are unconstitutional because they deputize private companies to make discretionary governmental decisions. That’s why the state Building Codes Division, part of the state Department of Consumer and Business Services, is forcing cities to make a change.
“The Constitution guarantees adequate procedural safeguards that must exist within the government in order to provide accountability,” said Jake Sunderland, a spokesman for the department. “(These programs) would not survive the scrutiny and the standards of an adequate safeguard under the Oregon Construction.”
The League of Oregon Cities says it disagrees with the legal analysis and would support cities that challenge the new rules in court.
Small communities, some of which have only a handful of employees, have for decades used contractors to run their building and electrical inspection departments. State law requires such programs to be overseen by a licensed inspector, whose salaries can top six figures.
To comply with the new rules, cities can hire those inspectors — if they can afford it.
They could also band together to share publicly employed building officials. But the state has capped the number of cities that can share one building official at three. Larger groups of cities would have to form a new service district, adding a new layer of government.
If a city doesn’t run its own building inspection program, that responsibility falls to the county it sits in. If the county doesn’t have a building program, then it falls to the state.
“Their counties don’t have the resources to cover the additional building inspection that’s going to have to take place,” said Erin Doyle, a lobbyist for the League of Oregon Cities. “Or the waits are going to be so long it’s going to slow down construction in the area.”
The state says it’s ready to meet the needs of cities and counties that give up their inspection programs.
“We’re committed to making sure that service continues in place throughout the state,” Sunderland said.
The issue could also affect larger cities who contract with private inspection companies to keep up with heavier permit volume during busy construction seasons. Without a baseline of business from small cities, it’s possible the contractors won’t stay in business, Doyle said.
About 36 cities and counties will see their programs expire on July 1 unless they find a solution before the new rules take effect. Other cities’ programs are up for renewal over the next three years, but the state says it intends to require those cities to come into compliance by the end of the year.