City Seeks Approval of Property Code: Indiana Fire Prevention & Building Safety Commission Meeting 04/02/2019

Screen Shot 2019-04-02 at 3.18.15 PMThe Indiana Fire Prevention and Building Safety Commission met for a regularly scheduled meeting on Tuesday, April 2 at 9:00 AM at the Indiana Government Center in Indianapolis. On the agenda was a request from the City of Charlestown to approve Ordinance 2019-OR-04, which amends the city’s Property Maintenance Code (PMC) for the third time. Following is a brief history of the amendments and a summary of today’s meeting with full audio of the portion that addressed the Charlestown ordinance:

  1. HISTORY OF AMENDMENTSThe City of Charlestown initially approved a Property Maintenance Code in February 2008 with Ordinance 2008-OR-01 (available here – 2008-OR-01). The City failed to submit this ordinance to the Fire Prevention and Building Safety Commission as required. In February 2018, following the issuance of a preliminary injunction in the Pleasant Ridge Neighborhood Association lawsuit, the Charlestown Common Council amended the PMC with Ordinance 2018-OR-6 to allow for immediate, daily, accumulating fines. (available here – 2018-OR-6). The city initially failed to submit this ordinance to the Fire Prevention and Building Safety Commission as required, but filed a variance request and the ordinance appeared on the July 2018 meeting agenda. The ordinance was tabled at that meeting (meeting minutes available here – July 2018 FPBSC Meeting). Ordinance 2018-OR-6 was also tabled by the Commission at the August 2018 meeting (meeting minutes available here – August 2018 FPBSC meeting). Ordinance 2018-OR-6 was found to be in non-compliance at the September 2018 meeting and was denied. (meeting minutes available here – September 2018 FPBSC meeting)
    • In December 2018 the Charlestown Common Council amended the PMC with Ordinance 2018-OR-23 (not available on City’s website but unsigned version here: 2019-OR-23)Ordinance 2018-OR-23 was tabled by the Commission at the January 2019 meeting (meeting minutes available here – January 2019 FPBSC meting)Ordinance 2018-OR-23 was found to be in non-compliance at the February 2019 meeting and was denied. (meeting minutes available here – February 2019 FPBSC meeting). 
    • In March 2019 the Charlestown Common Council amended the PMC with Ordinance 2019-OR-4 (not available on City’s website pending approval but unsigned version here: 2019-OR-04). This version of the PMC was the subject of the April 2019 FPBSC meeting and was tabled. A summary of this meeting follows (agenda here – April 2019 FPBSC meeting agenda)
  2. SUMMARY OF APRIL MEETINGMark Crandley, attorney from Barns & Thornburg, spoke on behalf of the City of Charlestown. He said that the City has endeavored to make sure the ordinance is without conflict and he believes that addressing swimming pool covers in the current version should bring the ordinance into compliance. He asked the commission to focus on the issue at hand and not consider the constitutionality of the ordinance since that matter will be adjudicated in court.
    • Anthony Sanders, attorney from the Institute for Justice, spoke on behalf of PRNA. He said that he has previously submitted material that outlines the facts of the case. He said that litigation in state court is up for a new preliminary injunction on June 4th, however, the city is not waiting on that ruling and has scheduled inspections resuming tomorrow (April 3) in anticipation that the commission will pass this ordinance today.He said the commission can deny the ordinance for two reasons. First he said that state codes do not allow or address immediate fines. Second, he said that the statute the commission works under does not limit the commission’s authority to only their administrative code. He said they have the ability to deny ordinances that violate state laws. He said the commission can deny this ordinance because it does not offer equal protection and it sets up a situation in which excessive fines can be applied, which violates the US constitution.He introduced David and Ellen Keith.
    • David Keith spoke. He said he and his wife Ellen have lived in their current home for 40 years. He said he is against the ordinance for one reason, because it is designed to allow the city to take away his home.
    • I (Treva Hodges) spoke next. My written statement, from which I read: My name is Treva Hodges and I live at 1136 Main Street in Charlestown. I am here today as a concerned homeowner in Charlestown. I am concerned because I believe the city is using building and fire safety laws to circumvent due process and as a substitution for eminent domain.My husband and I acquired our home in 2017 upon the passing of his mother, a gift she was proud to bestow. This is the first home that we have owned free and clear of any debt. This is the home in which we intend to spend the remainder of our lives. Our home was built in 1937, and although indoor plumbing was installed about a decade later, the home retains many of its original features.Time has had its effect on our home and before we could move in we used the total of our small monetary inheritance to make necessary repairs to areas affected by water damage and to update the electrical service. Our home, like many in Charlestown, would benefit from some additional renovation, but my husband’s fixed retirement and my modest teaching income dictate that those projects will have to wait.
      • It is important to note that my home is not unsafe, nor is it a fire hazard, nor is it by any definition a blighted property, yet, if Charlestown’s proposed Property Maintenance Code, the ordinance before you today, passes, our home is subject to selective enforcement that could result in thousands of dollars of fines levied against us, fines that we would not be able to pay.
      • My fear of being fined out of my home is reasonable. The city is purchasing an abandoned property that adjoins my property and has made it clear that they intend for the area to be the site of a major redevelopment project. The events going on in other redevelopment areas including the Pleasant Ridge neighborhood have set precedent that the city will use excessive fines as an alternative to eminent domain in their redevelopment plans.
      • I understand that this Commission is tasked with assessment and approval of ordinance measures that deal only with the state’s building and fire safety laws. I understand that the ordinance before you offers far more specifics than just those two laws. If you approve this PMC today, however, you are approving it in its entirety. And in doing so you are approving a code under which the corrective actions and sanctions defy those expected of this very Commission. Indiana Code 22-12-7-5 provides that this body “must grant a reasonable time in which to cease and correct a violation of law covered by the order.” And although 22-12-7-7 allows corrective action including civil penalties for noncompliance, nowhere in this code are immediate, accumulating, daily fines mentioned or explicitly allowed. For this reason, I ask that you reject this version of the code today.
      • Second, the Ordinance before you states in section 101.2 that the code applies to “all existing residential and nonresidential structures” and makes no clear or adequate provision for construction that occurred before the International Property Maintenance Code of 2006 that provides the basis for this code. Furthermore section 101.3 of the PMC requires “Existing structures and premises that do not comply with these provisions” to be altered or repaired. These sections do not conform to the existing buildings clause under your own code in section 675 IAC 12-4-12. I also ask that you reject this code today for this reason.
      • I was present at the City Council meetings during which city attorney Michael Gillenwater told council members that laws can be bent to meet their needs and that the property maintenance code can be selectively enforced to fulfill the city’s purposes. This code is now the subject of three separate lawsuits in both state and federal court. This code is unlike any other property maintenance code in the state of Indiana and far exceeds its stated purpose of providing for the safety and wellbeing of Charlestown citizens. In fact, this code creates space for the city to work against us.
    • Mr. Crandley spoke again and said that everything said by the other speakers are allegations in the existing lawsuits. He said he does not know me, but he has met the Keiths. He said the Keiths have no reason to fear fines from the city because their home is fine. He said that this issue has been debated for years now and that no one can identify anyone who has been forced out of their homes. He said that fines have only been applied to homes that were extremely dangerous or with major flaws. He said that there is nothing in Indiana code that gives the Commission the ability to deny this on constitutionality. He said that the Commission has not pointed out any other errors at previous times.Commissioner Scott Pannike asked why Charlestown feels the need to have immediate fines when other cities in Indiana allow a grace period to make repairs.Mr. Crandley said that the City’s thought process is that if an owner violates the law they should not just be able to walk away. He said there was an accountability problem in Charlestown. He said that the fine acts as a motivating tool to keep people in compliance.
    • Justin Guedel, staff attorney for the Indiana Department of Homeland Security spoke. He said that there are numerous sections in the PMC that require building owners to come up to a code standard different from a code of record. Generally, the Commission only requires that structures meet the code of record at the time of construction. The PMC contains at least 20 variances on this topic.
    • Director Boyle spoke. He said the Commission recommended denying this ordinance with it was 2018-OR-06 based on general concerns with the entirety of the ordinance. He said that existing structures should be maintained under the code of reference active at the time of their construction. He specifically mentioned chapters 3, 4, 5, and 6 of the PMC. He said they have tried to do a thorough review in the last few weeks, but does not feel that he or the Commission are at the point where they can agree to approve. He said he’d like more time for the Commission to do proper due diligence. He said what’s difficult about this ordinance is that it adopts the International Building Code and that’s ok, but others do not. He said he saw some concerns with things that relate to how things should be installed or where they should be installed.He said some sections are likely to have some conflicts still. He recognized that this ordinance has been before the Commission several times, but it is a complicated law and the Commission has the responsibility to make sure that things in the Ordinance are proper and acceptable based on their guidelines and rules.
      • He recommended tabling the ordinance until the next meeting.
    • Motion to table was made and secondedDuring discussion of the motion legal counsel for the Commission said that it is the jurisdiction is to identify conflicts within an ordinance based on their administrative code. He said that adequate questions have been raised in that jurisdiction.Director Boyle said he has never seen an ordinance with this scope and breadth
      • Motion to table the ordinance until the next meeting was approved unanimously.
      • Mr. Crandley said that the city is very concerned with getting this ordinance correct but asked for more direction from the Commission. Director Boyle said that the original letter they sent to the city addressed 20 items that needed correction and that have not been corrected or addressed in subsequent versions.

Audio (25:44)

***EDIT***

The ordinance (2019-OR-4) tabled at this April meeting was tabled again at the May meeting and was DENIED at the June meeting on 06/04/2019. To be reconsidered by the Commission the ordinance will require another revision through the Charlestown City Council.

 

Author: Treva Hodges

Resident of Charlestown, Indiana. Advocate.

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