October 2006
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Protection vs. private property rights: Building codes spark debates

By Barbara Westmoreland

Imagine you are a newcomer to Montezuma County. You buy a beautiful piece of land. You hire a local builder to construct your architectdesigned dream home. You move in.

A hairline crack in the living-room floor begins to widen. Inches. Sheetrock cracks gape as the underlying structure moves. You can now see daylight next to the ridge beam.

Opponents call codes unnecessary regulation

By Gail Binkly

A mandatory building code is an infringement on individual freedom and a sham that provides only the illusion of protection for homebuyers, local code opponents say.

Many newcomers to Southwest Colorado simply take it for granted that building codes are already in place.

But 13 of Colorado’s 64 counties do not have a mandatory residential building code for their unincorporated areas — and Montezuma and Dolores counties are among them.

Many builders, developers and ordinary citizens would like to see that change. A question on the general-election ballot in Montezuma County will ask voters whether they want a mandatory residential building code throughout the county. The question is non-binding — it’s essentially a poll — but the results will likely be influential in guiding future policy for the county commissioners.

However, local property-rights advocates are passionate about their opposition to a mandatory code, which they see as a threat to personal freedom and a thinly disguised way for an elite club of contractors to acquire a monopoly on the building market.

“Montezuma County was fine without building codes this far and they’ll be fine without them for another 100 or 200 years,” said Miscelle Allison of Pleasant View, who vehemently opposes the adoption of such a code. “Everybody wants to come here, everybody wants a piece of it, because it’s been so well taken care of.”

The ballot question doesn’t specify what type of code would be adopted, but the Four Corners Builders Association has suggested to the commissioners that they adopt a six-part inspection process based on the International Building Code. Allison said that means adopting the companion International Property Maintenance Code as well.

“That’s the kicker,” she said. “The International Maintenance Code says they can have random inspections, even when you’re living in it. It’s your residence. It’s not the public domain. This is nothing but a communist, socialist thing. I don’t want Big Brother in my home.”

Allison also believes that although the proposed code would exempt outbuildings, that would soon change. “First it will apply to homes, but eventually it will affect the barns and every building on the property. The only people who will be able to afford to build here are the ones who don’t need the codes because they can pay for what they want anyway.”

Allison said she knows there are bad builders, but she doesn’t believe a code will end the problem.

Ideally, she said, you do your own construction so that you know it’s done right. When a house is resold, Allison said, the buyers just have to examine the house and take their chances. “We can’t be in fear of everything everywhere we turn,” she said. “You sell it as is. The people that buy it can gut it and fix it if they want.”

Don Denison of Cortez agrees. He said there is no guarantee that a code inspector will do a thorough, consistent job. He believes codes will be used to get back at people.

“They will selectively enforce this code to keep people in line, just as anybody that is against this Iraq b.s. is labeled as a traitor,” he said.

Denison said the county’s current, voluntary code system works fine — if someone wants to build to code, it can be noted on the home’s plat. “To make it mandatory — that’s the problem,” he said. “Any time you have any encumbrance on your private property it becomes less private. And without private property this country is nothing.”

Although most counties do have a mandatory residential code, Allison said the county doesn’t need to follow in the steps of other locales. “This is a unique place,” she said. ‘It’s not Ohio or New York or California. It’s not Durango. It needs to stay Montezuma County.”

Snow drifts in. Your concern turns to alarm. The consultant you hire pulls off sheetrock and finds your 6-by-12- inch ridge beam is resting on a 2-by-4 at one end, fastened with finishing nails. The doors and windows are not nailed in at all, but held by the siding. One structural beam is missing altogether; a mockup is tacked to the sheetrock in its place.

Your alarm now includes concern for your safety. You move out.

This real-life saga happened to a Montezuma County couple who asked to remain anonymous.

Walter Stramel, then-president of the Four Corners Builders Association, saw the house after sheetrock removal had exposed some of the problems.

“It was terrible,” Stramel said. “In places, the beams and posts had warped and twisted so much that you could see daylight from inside. Amazing. I might have been on ‘Candid Camera.’ But I wasn’t. It was real.”

The builder denied responsibility. The owners received a partial settlement from the builder’s insurance company but took a large loss. The house had to be demolished, which wasn’t difficult: The entire structure toppled with a shove from a track hoe. Little could be salvaged; the debris filled 45 dump trumps on its way to burial in the Montezuma County landfill. The cost of removal, including the foundation, was $20,000.

These homeowners just moved into the second version of their home, built from the same plans by a reputable local builder. They want to put the painful three-year experience behind them.

They believe Montezuma County needs a mandatory building code.

Whether it will get one is uncertain. Conservative, agricultural and independent- minded, Montezuma County has long been resistant to government regulation. Although the county mandates that commercial and industrial buildings follow codes, there is no mandatory building code for residences.

In November, voters will have a chance to voice their opinion on whether that should change. A nonbinding question in Montezuma County will ask: “Shall a building code be adopted and made mandatory as to all future construction of residential structures in the unincorporated areas of Montezuma County?”

Although the county commissioners don’t have to abide by the results of the vote, it’s likely to have a strong influence on future county policy.

“As I said when I ran four years ago, before I would support mandatory building codes, I wanted the question to go to the electorate to see if people would accept and abide by them,” said Commission Chair Dewayne Findley. “It is not necessary to see it pass, but we need to see that opinion, especially out in the county, has shifted.”

In the minority

Thirteen counties in Colorado have no mandatory residential building codes and inspections. (Within those counties, however, some municipalities do have codes such as Cortez, Dolores and Mancos; and some don’t, including Dove Creek and Rico.) The counties, in order by descending population, are Delta, Montezuma, Yuma, Broward, Saguache, Custer, Costilla, Kit Carson, Baca, Cheyenne, Dolores, Sedgwick and Kiowa, according to the International Code Council in Denver.

Montezuma (population 24,551) and Delta (population 29,662) are the only counties with populations over 5,000 that remain codeless. Moves to implement residential codes have been defeated recently in Delta County.

However, the municipal code of the town of Delta has been extended into the corridor of future annexation.

To a large extent, the residential code issue in Montezuma splits down old-timer/newcomer lines. Old-timers, hooked into a grapevine of personal contacts, know who the good builders are and which ones are shoddy or johnny-come-lately.

Newcomers, on the other hand, usually expect the licensing, bonding, codes and inspections typical of the rest of the country.

“I warn newcomers that we don’t have residential building codes here,” said Katie Koppenhafer, a Realtor with Mesa Verde Realty in Cortez. “And I ask sellers to get an inspection, as part of the listing process. Some problems, such as dangerous stairs, balustrades and railings, are obvious, but you can’t see the problems behind the walls.”

Some newcomers, armed with this information, decide not to buy but to build instead. But building can have its own pitfalls.

Dick and Carol Massey moved here from Arizona. They have lived through a nightmare building their house in Mildred Estates.

Their builder was recommended by their real-estate agent. They drew up a contract. The lending institution checked that the builder had insurance. The Masseys made sure they had the final say on all checks going to pay the builder. They arranged to pay the subcontractors themselves.

Construction began in December 2003. In March 2004, they said, they could see that the several 6-by-6 uprights supporting the massive log ridge beam were separating. The second floor was sagging.

A consultant bore the bad news that there was grossly inadequate foundation support. The builder, when asked to correct the errors, packed up his tools, left and never returned, according to the Masseys.

There followed a complicated dance of liens, bonds and attorneys. One surprise for the Masseys was their inability to get a copy of the builder’s insurance policy to determine what, if any, damages were covered, without suing in court. They finally fired the builder and hired a contractor to correct the mistakes and ensure structural safety. They did much of the finish work themselves, to reduce the large cost overruns that the initial poor workmanship created.

“People are getting hurt and losing life savings in our county,” Dick Massey said. “We need codes and inspection and builder licensing.”

Massey jokes that he could run seminars on how to build in Montezuma County. His advice? Don’t trust your real-estate agent or your lending institution to clue you in to bad builders. Instead, ask around about builder satisfaction. Get recommendations from building-supply businesses or general contractors who do the kind of construction (logs, stick, etc.) you have in mind. Find good subcontractors (e.g., electricians and plumbers) and ask them about builders. Check every reference a prospective builder gives you. Listen for the word “lien.” Hire your own inspector. Watch out for materials delivered to your site that aren’t used for your project: you may be getting billed for them. And require your builder to get a performance bond.

Many reputable local builders are members of the Four Corners Builders Association, a non-profit affiliated with both the national and Colorado Assocation of Home Builders. They have been pressing the Montezuma County Commission to put in residential building codes. This year they proposed a simplified six-step code, including inspections of rough framing: foundation footings and stem walls (separate inspections), insulation, drywall and final (Certificate of Occupancy).

Agricultural and other non-residential buildings would be exempted and owners could still do their own work, subject to inspection.

Dean Matthews, president of the builders association, said implementing codes and inspections provides no financial gain for the builder. “The flat permit fees are just passed through to the homeowner. There would be absolutely no effect on existing housing, unless large structural changes or additions were made.”

Possibly gun-shy

Montezuma County commissioners could implement residential codes without any say-so from the voters. But t this is a hot-button issue.

Findley believes his support for putting the code question on the ballot may have hurt him in the August primary, which he lost to challenger Steve Chappell.

“I think the positions I took on individual area plans and on maybe requiring minimal but mandatory residential building codes that address foundations and sound construction were a factor in my defeat,” he said. “I wouldn’t be surprised if that made the next commission gun-shy on the issue.”

The two candidates for Findley’s seat, Chappell and Democrat Galen Larson, hedged their positions.

Larson stated, “I strongly believe in personal property rights. [Building codes] must have guidelines that are equal and equitable for everyone.”

Chappell commented, “The county commissioners are commissioned to oversee the health, safety and welfare of the citizens of Montezuma County. Building codes embrace both health and safety issues. Codes and inspections for plumbing are necessary and we have that, as well as soil percolation and septic requirements. Heating and air conditioning and the ventilation for both are also important, as well as electrical codes, which are state-mandated. But some contractors have been shortchanging homeowners on foundations.

“It's good that the residents of Montezuma County have the opportunity to express their feeling concerning building codes. The commissioners will get first-hand direction from their constituents as to their desires for more or less control in the area of codes, permits and inspection.

“It's a shame when the construction trades become driven by greed for profit rather than quality of workmanship and, in so doing, lose the freedom that we all enjoy in any given occupation in America.”

Lack of licensing

Montezuma County Commissioner Larrie Rule, a concrete-company owner for many years, supports a code. “I’ve seen the problems,” he said. “I’d like to see a residential building code.”

But Commissioner Gerald Koppenhafer said if the question passes he will have to see which parts of the county voted for it before making a decision. “I’ll have to look at the vote, district by district,” he said.

“It won't affect Cortez, for example, so it has to pass out in the county for us to act on it. People are resistant to the cost of a permit, the possibility of unfairness and regulation getting out of control.”

Koppenhafer said the best way to protect homebuyers would be for builders to be licensed. Colorado has no licensing or bonding of builders, unlike New Mexico and Utah. “I think the State of Colorado has fallen down in not requiring builder licensing and bonding. This route would be less of a burden on the homeowner.”

As Bob Sawyer, of CoWest Insurance in Cortez, commented, “With no licensing in Colorado, anyone with a 4-foot level and a Rottweiler can call himself a builder.”

Voluntary registration

Plumbing and septic-system inspections have been mandated in Montezuma County for only the last few years. (Electrical inspections are state-mandated.) There have been some problems with their use. The plumbing inspector, for example, hired by the state, comes to Montezuma County just one day a week. So walls must be left open until his arrival and sheetrock installers are unusually busy the next day.

Some builders and homeowners already hire their own independent inspectors. Matthews, a builder and developer who follows this practice, said, “You can’t be everywhere at once. Inspection only adds about 1 percent to the cost of building.”

The county maintains a list of certified residential-building inspectors. Homes that are built to the UBC residential code and inspected step-bystep can be voluntarily registered for $125 with the county as having been built to code.

Foundations are the greatest source of structural failures in Montezuma County. Jerry Giacomo, a residentialbuilding designer and certified residential- building inspector, said, “Montezuma County has some highly expandable clays and unstable shales. A structural analysis of the soil can be done at the same time as the required percolation test for an extra $300 or $400.”

Ryan Griglak of Stoner Engineering, added, “It doesn’t take a whole lot to do it right. And it can be a huge cost to try to fix after the fact.”

When approving a new housing subdivision, the county can, and frequently does, ask that foundations be engineered. But no inspection and enforcement follow. It is essentially an honor system.

‘Ungraded’

The presence/absence of codes is not yet a factor in insurance rates, but may become one. The Insurance Services Organization is the non-profit that furnishes the insurance industry with fire-risk protection classes. To do this, they rate virtually every fire district in the country on a scale from 1 to 10 (e.g., 3 in Dolores; 4 in Cortez ).

The cost of fire insurance for homes varies accordingly. In 1995, in response to huge losses in earthquakeand hurricane-prone areas, the ISO began a Building Code Effectiveness Grading Schedule. The ratings, also on a 1-to-10 scale, can now be done throughout the country at the request of public officials.

One hundred fifteen ratings have been done in counties and municipalities in Colorado. As the ISO states, “The concept is simple: municipalities with well-enforced, up-to-date codes should demonstrate better loss experience.” The BCEGS is voluntary.

But Bob Sherman, an insurance broker in California, where the ratings are widely used, believes the BCEGS will be increasingly used by insurance companies because it will accurately predict loss.

“Fire-department ratings are also ‘voluntary,’ but try getting insurance without one,” he said.

Homeowners’ fire-insurance rates change if the fire-risk protection class of their fire district changes. But the BCEGS rating is different in an important way. The grade given to the building depends on the county or municipality’s grade for the year in which it was built. That score then travels with the building, regardless of how local code enforcement changes.

This means that new buildings in Montezuma County are at present “ungraded,” along with all the pre-1995 buildings in the country.

“‘Ungraded’ will effectively become a grade when a significant portion of the country is using the BCEGS,” Sherman commented. “And ungraded buildings will pay more.”

Voters on Nov. 7 will have to weigh such considerations against the desire to avoid more government regulation.


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