The city has scheduled two public meetings on possibly adopting the 2009 International Property Maintenance Code (IPMC) into the Boulder housing code. This is a change that will apply to all residential property owners in the city, unlike the rest of the SmartRegs ordinance package.
The city will hold two “open houses” to discuss the IPMC: At 6 p.m. July 26 at the West Boulder Senior Center, 909 Arapahoe Ave., and at 6 p.m. July 29 at the East Boulder Community Center, 5660 Sioux Drive.
Note that the Boulder Housing Code is generally enforced via a complaint-driven process, but compliance can also be triggered by the process of obtaining a rental license or remodeling or expanding one’s own home.
While many of the code changes are simple, safety-oriented changes, others may require substantial expenditures on the part of a homeowner to comply, and a few others simply may not be feasible for older homes. The IPMC, as with all standardized building codes, was written primarily with newer homes built to current building code in mind.
Reading the proposed changes is a challenge because a reader must flip back and forth between three documents: (1) the 2009 IPMC, (2) but because only certain sections are being adopted verbatim while others are being deleted or replaced by city-authored text, a reader must also consult Attachment A of the SmartRegs draft ordinance, and (3) the list of possible changes to the IPMC provisions included or not included in the draft ordinance as requested by council member Macon Cowles and others at the council meeting on 1 June 2010 and responded to by city staff in Attachment 6 of Agenda item 6a for the 6 July 2010 council meeting (pp. 40-43).
See also the Daily Camera article announcing the public meetings.
The International Code Council, Inc. (ICC) has now made not just the 2009 International Property Maintenance Code (IPMC) freely accessible online to the general public, but the entire ICC family of building codes. We at FairFAR.org want to offer our heartfelt thanks to the City of Boulder for pressing the copyright and public access issues with the ICC. While the copyright and private ownership issues with standardized codes remain intellectually troublesome, having free public online access to the proposed code and codes already enacted into law makes an enormous practical difference.
This is a tremendous improvement with with respect to where the public stood previously when they attempted to read their own building codes online, and we want to acknowledge that all parties have moved a long way from a situation in which citizens engaged with their democratic process online were faced with Caligulan restrictions on their ability to access, read and know the laws that applied to them.
We still hope to see the city release a version of the draft ordinance that won’t require readers to switch back and forth between the draft ordinance and the IPMC model code to determine whether a particular IPMC subsection is to be adopted with no changes, or is instead marked as to be deleted or replaced by city-authored text; that would certainly make the draft ordinance read more intelligibly.
The 2009 IPMC is also linked from the City’s SmartRegs webpage.
 The Roman tyrant Caligula placed his new laws so high on a pillar his citizens couldn’t possibly read or know what to do to obey them, in order that he could delight in tormenting them. This historical episode is generally regarded as one of the bases for the legal principle known as the promulgation of the law, and is cited in one of the foundational federal cases establishing that laws are citizen-owned and hence not copyrightable (Banks & Bros. v. West Pub. Co., 27 F. 50 C.C.D. Minn. 1886) [see p. 57]. And, as William Patry implied when he quoted from this case while reviewing the relevant chain of federal court decisions concerning Oregon’s aborted attempt to claim copyright on their state laws, for the full text of the law to remain inaccessible online for free in the 21st century would be analogous to Caligula’s placing the laws atop a high pillar–in both cases, the law would be placed unreasonably out of reach for ordinary citizens.
The morning of Tuesday, July 6th the Daily Camera has published a guest commentary from FairFAR.org on the city staff’s proposal to adopt a privately-owned and copyrighted law.
Please note one small correction, which came up in a discussion with Carl Malamud of resource.org after the commentary had been submitted: the 1834 Wheaton v. Peters case was actually over whether the official court reporter, not a journalist per se, could claim copyright on the Supreme Court’s opinions. The mistake stemmed from the editing process of shortening it to fit the 750 word limit–we had shortened “court reporter” to “reporter”, which then was inadvertently replaced with “journalist” for stylistic reasons. Our mistake.
We are working on a short primer about what we’ve learned about the complicated legal history of the issue of whether the law can be privately owned and copyrighted or not, and hope to make it available shortly. Check back soon or subscribe to our RSS feed.
* FairFAR.org note: As the result of our critiques and the hard work of others, the IPMC and other ICC building codes are now publicly accessible online for free.
The following is our email to council on the copyright and related issues with the IPMC portion of the SmartRegs ordinance. While we sent this to email@example.com last week, it apparently got stuck in their spam filter, and, until an alert council member who I bcc’d notified the city IT dept (and us), it wasn’t redistributed to all of council. So Council just received it the morning of July 6th. Note to everyone–don’t count on your email actually reaching council unless you get an acknowledgment back email. If not, contact us and we’ll put you in touch with the City IT guys.
As an interested group of homeowners, we (FairFAR.org) are writing you with our comments on the SmartRegs ordinance. We are not commenting in this letter on the proposed Energy Conservation [Efficiency] code and Rental Licensing code update, as those will only affect residential rental properties.
Instead, we are commenting on the wholesale replacement of much of the Boulder Housing Code with the 2009 International Property Maintenance Code (IPMC), a change that will affect ALL residential property owners in the city of Boulder. (See the 1 June 2010 Council Agenda Attachment A, section 10-2-2, IPMC section 101.2–the wording specifically states “all existing residential” properties.)
Our concerns and proposed remedies are summarized as follows:
(1) A Lack of Communication with and Public Debate by All Affected Property Owners. While the City has made a substantial effort to obtain public input from the owners of rental residential properties on the SmartRegs, it has not made a similar effort to obtain public input from ordinary, non-landlord homeowners who will be equally affected by the IPMC. For example, the City’s SmartRegs website states that it sent SmartRegs invitation postcards to 16000 rental property owners, but ordinary residential property owners were not similarly invited to the public process. The failure to properly notify all of the affected public has led to the widespread public misperception that the scope of the proposed code revisions will only affect rental residential properties.
Proposed remedies: FairFAR.org believes Council should consider separating the Housing Code revisions from the rest of the SmartRegs regulatory package, delaying their adoption while making a public outreach effort, targeted at all residential property owners and then scheduling a separate public hearing to hear issues with the IPMC code from all affected property owners.
Alternatively, Council could consider restricting the IPMC scope to rental residential properties.
(2) Adopting Privately-owned, Copyrighted Model Codes Inhibits Public Access, Discussion and Criticism of the Proposed Law. Our current housing code is owned by the citizens and is available online on the city’s website, but the IPMC is privately owned, copyrighted and our understanding is that the copyright holders have denied the City permission to republish the law on its website. As a result, the full text of the proposed law is not available online in attachment A, nor was the printed form available for review at the public library before the May 18 public hearing. In fact, as late as June 2, the IPMC was still not available at two of the four locations at which it was supposed to be available. While the City has now made some strides toward making the IPMC available to interested property owners at the public library and elsewhere, the barrier posed by the copyright to free, public and online access is proving more intractable.
Council members should be aware that the copyright holder of the IPMC, the International Code Council (ICC), has engaged in a pattern of aggressive copyright litigation that has had a chilling effect on the public’s ability to disseminate, discuss and criticize the law. Two of the three organizations which merged to form the ICC (see p. iii of the IPMC volume), BOCA and SBCCI, have sued to keep members of the public from publicly disseminating the law. In our case, FairFAR.org considered putting the missing portions of the proposed property maintenance law online in blog or wikipedia form to disseminate and foster public discussion and criticism of it, but we were advised not to do so after we consulted with an intellectual property lawyer.
The use of copyrighted code as law thus poses both principled and pragmatic fairness concerns and other challenges to open and transparent government. For example, and from the legal principle known as “the promulgation of the law”, the federal courts have long held that the citizens own and have access to the laws which govern them; and have established that that right extends to the exact language of the law, and not some mere paraphrase of it (e.g. Wheaton v. Peters 1834; Banks & Brothers v. West Publishing Co. 1886).
Pragmatically, FairFAR.org believes the City should want to promulgate its property maintenance law by making access to it as easy and simple as possible, because it is not fair to expect residential property owners (whether they occupy or rent their property) to comply with a law they cannot easily find or read. Nor are such impediments to access to the law fair to those tenants, or to those neighbors of a rental property, who wish to determine whether a landlord is in violation of the city’s property maintenance code. Those adversely affected by such failures to comply with the city’s housing code also deserve to be able to access and read the law as easily and simply as possible.
Lastly, and unlike the other portions of our law in which we have adopted copyrighted codes by reference, Council should note that the IPMC concerns the routine and ordinary maintenance duties that property owners ordinarily perform themselves. By contrast, and for the type of work covered by the copyrighted electric, plumbing, mechanical or structural engineering code, one typically hires a licensed professional who one may reasonably expect to have purchased the copyrighted codes as a cost of doing business. This constitutes a significant difference between the proposed copyrighted code and those copyrighted codes we have already adopted, and Council should not lightly impose maintenance duties on ordinary residential property owners that it cannot freely promulgate to them.
Proposed remedies: FairFAR.org believes Council should not adopt the IPMC as law until the ICC grants its permissions to promulgate it via free, online, public access for at least those sections that the City of Boulder adopts (or is considering adopting) into law. (Note that the City of Olympia, Washington was apparently able to obtain such permission upon their adoption of portions of the 2006 IPMC.)
Alternatively, Council could direct the city attorney’s office to investigate Veeck v. SBCCI and related federal cases to determine whether, upon enactment into law (as opposed to while being proposed as law), the federal case law is sufficiently clear as to permit the City to assert the rights of its citizens and place the full text and exact language of any enacted IPMC sections on the city’s website. However, we caution that this alternative should still include a more substantial public outreach for commentary since the city would still be limited to distributing the privately-owned versions of the model code among the citizenry for discussion and criticism prior to its enactment. (Note that as we read Veeck v. SBCCI the court ruled that the sections of model code enacted into law lose their copyright protection only upon enactment and not while being proposed.)
(3) Substantive Concerns with IPMC to date. While we have only had limited time to analyze the proposed ordinance due to our also being subject to the misperception that the SmartRegs package of ordinances would concern only rental residential properties, we have identified several areas of substantive concern for owner-occupied properties. The first concern is a general concern about the potential unintended consequences of adopting a model code which was written for new-build situations and suburban design patterns. Boulder, by contrast, is a 150-year old small city with a divergent housing stock originally built under building codes that range from the modern-day codes through post-war codes and antiquated, historic codes to properties built prior to any building code whatsoever, and that is not even to mention that we also have a long history of annexations of existing properties originally built outside of city code regulations.
This general concern results in numerous specific concerns, such as the fact that bedrooms in finished basements in post-war and pre-war neighborhoods do not comply with the 7’ ceiling heights required by the IPMC in 404.3. Nor do we expect that all rooms in the older, historic, pre-war buildings will comply with the minimum 7’ room width dimension of IPMC 404.2. Similarly, windows in the pre-war and post-war neighborhoods were smaller than prescribed by the current codes—and this is again especially true of basements, where the original window wells also do not meet current fire egress requirements. Complying with such changes could pose considerable potential costs to property owners, and have in fact caused the City of Arvada to consider emergency ordinances to repeal and/or modification of its adoption of the 2006 IPMC. While we understand that one of the offending sections (IPMC 107.6) that “triggered” the problem has already been removed from the code Boulder is considering adopting, we suspect that in a city with a considerably larger percentage of older homes, such as Boulder, there are many more such landmines in the 2009 IPMC waiting to be unearthed should Boulder adopt it.
Another recurrent concern we noted is that the IPMC often seems to be written with apartment or condominium complexes in mind and not with individual homeowners and their single-family homes in mind–though the ordinance would apply to both types of property owners. For example, in IPMC 303.2, gates which only open from the inside (or at a minimum height from the outside) are specified for hot tubs, and while that rule would seem to be sensible in the case of a open hot-tub next to a pool at an apartment complex, it is probably overdone in the case of the single-family home with a hot tub on their back patio. (Presumably, the exception included for covered hot tubs has some bearing on the matter, but it is far from transparent how the referenced ASTM standard would apply to the ordinary homeowner–and how such a homeowner might actually know whether their hot tub cover meets the ASTM standard.)
In other cases the proposed ordinance, which we wryly note has already been passed on first reading by Council, contains sloppy inaccuracies that evidence the haste with which it has been moved forward. As a model code, the IPMC uses terms in brackets that are supposed to be replaced by content in the actual ordinance, but in some sections we observed that no such replacements had been made and yet the sections are marked as to be adopted with “No changes.” In other places in the text, the IPMC uses a capital letter in brackets within the section head as an indexical to indicate the ICC committee responsible for revising the model code language, and city staff have faithfully copied it into the proposed ordinance–even for those sections for which the City has written its own language (*). Does it make sense to include such indexicals in our code?
We had similar concerns about how the definitions in the IPMC would conflict with definitions and usage of terms in the rest of the Boulder city code. For example, “habitable space” is given a definition in the IPMC that is clearly different in scope than the notion of habitable space that would apply, for example, with respect to the floor area ratio (FAR calculation) in the land use code. Similarly, “uninhabitable space” is given an explicit definition in our existing land use code. By contrast, the existing definition of “habitable room” in the Structures Title of the existing code (10-1) is quite similar to the IPMC code language; and both of these definitions do not, but probably should, clarify the issue of whether a laundry, utility or mechanical room should be considered habitable (as does the definition of “uninhabitable space” in Title 9).
Proposed remedies: All of these substantive concerns underscore the need for Council to allow the public process more time and solicit more involvement from ordinary homeowners with respect to any such blanket replacement of our current housing code with the IPMC. For example, more time is needed for FairFAR.org to complete a point-by-point substantive comparison of the proposed code with what will be lost from our existing code from our perspective as homeowners. Given what we know of the makeup of the Community Working Groups–and we would note that several weeks ago a FairFAR.org steering committee member requested but still has not received a list of those persons on the Community Working Groups and their affiliations–we do not have reason to believe that the proposed housing code revision has already been closely examined from the perspective of ordinary homeowners, but instead was examined primarily from that of landlords, property managers, and CU and city housing officials. To minimize unintended consequences of its code revisions, the City needs to solicit not only our but other homeowner groups’ perspectives before implementing such sweeping changes to the housing code.
While we recognize that the City may intend for these revisions to improve the neighborhood conditions particularly for those of us who own and occupy properties in neighborhoods with a large proportion of rental properties, the new IPMC provisions (as currently proposed) will also apply to us as well. Those of us who live in older, character-filled neighborhoods are genuinely concerned that the IPMC embodies the sort of “building codes infected with suburban DNA” that would unnecessarily lead to character-less structures and cookie-cutter neighborhoods. I think most of Council would agree that we do not to want to see the trend toward adopting standardized building codes lead to a Boulder housing code that encourages more scrape-offs and replacements of older homes whenever it doesn’t make economic or practical sense to modify a structure to comply with new codes–whether that compliance is “triggered” by a code complaint, obtaining a rental license, or an improvement to or sale of one’s home.
* P.S. FairFAR.org Note: We have just reviewed the current ordinance document online and noticed that we can’t find a section where the indexical is in a section that the city rewrote, so we either were working off an earlier version or made an error here. But the central two points stand–we have the indexicals appearing in at least one other section ordinance title with no explanation of what it means, and there are at least two places where the model code is to be adopted with no changes yet contains words in brackets that need to be replaced with locally determined content.
** FairFAR.org note: As the result of our critiques and the hard work of others,the IPMC and other ICC building codes are now publicly accessible online for free.
About a week before the 18 May 2010 council meeting, I sat down at the computer to review the proposed SmartRegs regulations. Because the city had communicated that the SmartRegs only affected rental property landlords, I thought it was more a matter of curiosity about what energy efficiency standards the city might eventually require for all homeowners than anything that would need immediate action on FairFAR.org’s part as a homeowners’ group. However, as a FairFAR.org founder, I thought it important to at least read the proposed legislation.
- Part of the SmartRegs will affect ALL residential property owners. In one of the three proposed ordinances, the City is proposing adopting the 2009 International Property Maintenance Code (IPMC), and at the outset of that ordinance it clearly states that this part of the SmartRegs proposal will apply to ALL of the city’s homeowners. (See the 1 June 2010 Council Agenda Attachment A, section 10-2-2, IPMC section 101.2–the wording specifically states “all existing residential” properties.)
- When I went to try to read what the new parts of the ordinance would say about the new property maintenance regulations that every homeowner would have, I couldn’t find the exact words of the proposed law online at the city’s website. This struck me as odd, because our existing city housing code was available online, and past proposals to change our land use code had been placed online. Google provided me with a bit more insight: the proposed law was a privately owned, copyrighted model code, and the only way to obtain an online copy of what was actually being proposed as law was to pay money to the corporation that wrote the model code.
The first point came as a shock because in every public outreach communication from the city about the SmartRegs, the city indicated that the SmartRegs would apply only to rental residential properties. For example, on the city’s SmartRegs webpage it states that 16,000 postcards were sent out to rental property owners. Or, as another example consider this text quoted from the “Proposed Housing Code and Rental Licensing Changes” pdf written for their community Open Houses:
“The Housing and Rental License Codes are the base documents for the residential rental licensing program. The SmartRegs proposal would integrate pertinent sections of the Housing Code into the 2009 International Property Maintenance Code (IPMC) published by the International Code Council (ICC), and then adopt the amended document. The Rental License Code, a separate document, is also being updated with amendments as part of the SmartRegs Update.”
Would any reasonable person reading the first sentence of that quote think that the city intended to make changes to the Boulder Housing Code that affected all residential properties? Though no one from the FairFar.org steering committee attended the open house–as we were misled by communications like these into believing that the SmartRegs were not an issue of general interest for homeowners but only for landlords, we did follow the SmartRegs process online. In fact it is a testament to the good faith effort the city made to reach out to landlords that there exists such a widespread public misperception that the SmartRegs only affect landlords, when in fact parts of it affect all residential property owners.
As it if it wasn’t absurd enough that the city was proposing to enact into law standards of property maintenance that it could not make freely available online to the general public, it is with reference to the second surprise that the story starts to get really weird. I quickly checked the Boulder Public Library online records, and sure enough, it wasn’t listed as available there. That didn’t surprise me–knowing that the City deposits its public documents at the main branch of the Boulder Public Library, I figured I might encounter a printed copy behind the reference desk. As I ordinarily go to the library about twice a week after work, and I decided I would stop by the next day to look for it. But I really couldn’t believe I couldn’t find it on Google–because I knew that the full text of the law is in the public domain, and unless no other municipality had adopted the IPMC it should be too. With considerable effort I eventually unearthed a pdf copy of the sections of the 2006 International Property Maintenance Code that the City of Olympia, Washington had adopted–not the 2009 version Boulder was proposing as law, but close enough for me to see that there might be serious substantive problems with some sections of the proposed law. In the process, I also discovered why the IPMC wasn’t freely and publicly available online: the building codes’ author, the International Code Council, Inc. (ICC) and the predecessor organizations to the ICC, had been quite litigious in their attempts to keep their privately owned, copyrighted model code from being disseminated publicly and/or online, even after it was adopted into local law–suing not just a company that had republished the Massachusetts codes but even a private citizen who had the audacity to put the full text of his local law online. It seemed that, by the simple act of trying to read the proposed city law online, I had rather quickly blundered into an arcane and highly complex legal debate.
Remember however, that I expected the Boulder Public Library would have a print copy of the proposed law. I looked for a print copy of the IPMC there on three separate occasions–on May 16th, shortly before the first reading of and public hearing on the ordinance on the 18th, again on the 19th of May (the day after the first reading) and on June 2nd, the day after the ordinance was passed on first reading by the Council. Each time, I enlisted the help of the reference desk librarians to find the document. All three times we all failed to find the IPMC at the library. It wasn’t there in time for anyone to read it prior to the Council Public Hearing on the 18th (or apparently for the Public Hearing for the Planning Board back in April), nor was it there after the hearing, nor was it there after the ordinance was passed on June 1st. How is a citizen, or a citizens’ organization, supposed to know what is being proposed or passed as law?
After the first trip to the library I contacted the city and tried to reach someone who knew something about the IPMC, as well as bringing the rest of the FairFAR.org steering committee up to date and starting us on an independent review of the proposed law. After several rounds of baffled and bemused front desk referrals to part-time city staff who didn’t answer their phones or seem to return calls, I eventually called, about 8 am one morning, the manager who had signed the SmartRegs memo given to the Planning Board. He couldn’t answer my substantive questions, but promised to have the planner in charge of adopting the IPMC call me back. Later that day I received the callback, and we had a long conversation about the code and the shortcomings I had spotted in it that was made much more difficult because I had only been able to obtain a partial copy of the 2006 IPMC prior to that occasion. Nonetheless, I communicated both my and other FairFAR.org members’ initial substantive objections and our general concern about adopting into law privately owned, copyrighted code that we citizens weren’t free to read, reproduce and criticize online and in their full form. I pointed out that the property maintenance code affected all homeowners mundane and routine activities, and not just electrical, plumbing or other work for which one would reasonably be expected to contract a licensed professional. I also asked for a list of the members of the Community Working Groups and their affiliations because I was concerned that the representation on those groups might not have represented all stakeholders in the SmartRegs process–a verbal request that was denied, ostensibly due to the claim that it would take too much time of the staff member with whom I was speaking. A bit later I followed up the request in an email, but to date I have not received the information nor a written reply.
Since that conversation ended on a rather unsatisfactory note, I also contacted two council members privately with my concerns about the barriers posed by the copyright to free and public access to the full text of the proposed law both online and at the library, and they each raised the issue to staff during the 18 May meeting. As the wheels of government turn slowly sometimes, I thought it was reasonable to wait and see if the IPMC would eventually show up at the library reference desk, even when I didn’t find it there on the 19th of May. But when it wasn’t there on June 2nd, I decided to get a bit angry. I wrote both the council at large and the city manager complaining about the lack of access to the proposed law at the library, and, by showing them the memo where the city manager had said that they were supposed to have the IPMC, I made the kind reference librarians upset enough to call the city at the same time. The city finally made the IPMC available at all three branches of the library, and they were cataloged and available to the public within about a week.
For my trouble, the city PDS office gave me my own copy for free, apologized profusely for the screw-up, and promised that any citizen could now order a copy of the IPMC for free as well at PDS. But my copy was different from the ones I had seen council refer to, however, in that mine came still in the shrink wrap. Now normally, that wouldn’t be too important, but the shrinkwrap also bore a large white sticker informing me that opening the package constituted my “acknowledgment that this is a copyrighted work owned by the ICC, Inc.” The license, which should be legible in the photograph accompanying this post, is the sort of thing one ordinarily sees on commercial software, not on a book. Of course, since I had been slowly digesting the legal arguments over whether the law could ever be copyrighted, I had no intention of acknowledging that my local law could be copyrighted–and so I decided against opening the shrink wrap. I would just have to make do with reading the library’s copy.
I was still concerned that the city manager and other high-level staff were considering these complaints to be a mere access problem and not seeing it as symptomatic of a larger problem with adopting privately-owned, copyrighted works as law, so I called the city manager’s office and attempted to schedule an appointment with her. After several rounds of phone calls, I eventually reached a staff member of the city manager’s office on June 4th, and she assured me the physical access problem was being fixed and there were now copies at the library, though she also made the dubious claim that one had been already sent to the library a long time ago. I pointed out that library access was only one part of the problem with adopting privately owned and copyrighted works into law, and reiterated that we were losing online access to our city code. Immediately afterward, and on my way to the gym late on a Friday afternoon, I checked with the government documents and reference desk librarians to make sure the IPMC hadn’t arrived earlier and gotten lost in the catalog process or somewhere, and they assured me they had never seen the IPMC book before and it had been not been sent.
My curiosity piqued, I engaged in a little more detective work that same day–I decided to see if the IPMC was actually available for public review at all four of the locations that the city’s manager’s memo setting the agenda for the 1 June meeting had said it was. Of course, I had already received a copy at PDS and I had already straightened matters out with the library, so that left just the Office of the City Manager and Central Records. The kind folks in the Office of the City Manager could produce it, but the equally nice folks in Central Records couldn’t–and didn’t recall having received it. After a short chat with the Central Records office, a possible reason emerged–Central Records receives its agenda unbound because it microfiches them. But the copy of the IPMC I had seen in the city manager’s office, and the ones council received, were in three-ring binders–and the IPMC was neatly tucked into the binder’s inside pocket. I walked back over to the library to double check my memory, and sure enough, the agenda at the library had a comb binding–with no pockets. I took a photo or two to jog my memory of it and decided to go back to the city manager’s office to take a photo of that copy of the agenda so I could post the differences here. Ironically, I may have encountered the city manager at the front desk and not recognized her–I was just the odd guy in biking clothes obsessively taking photos of an agenda volume, not a founder of a relatively largish citizens’ organization. And I’m sure that did wonders for my request to meet with her about homeowners’ concerns re adopting the IPMC into law, a meeting request which was eventually denied a week later.
I took advantage of that denial, however, to bring up FairFAR.org’s concerns about copyright again with the city manager’s office. In another somewhat contentious conservation, the city manager’s assistant defended the city’s commitment to open government and mentioned that the city had placed its codes online whenever it could, excepting only the other copyrighted codes–such as the plumbing, electrical and mechanical/structural engineering codes–that were adopted by reference and (from the city’s perspective) can’t be published on its web site. I replied that there were two important differences between those codes and the IPMC. First, because it concerns property maintenance, the IPMC regulates the sort of mundane and routine maintenance obligations most ordinary homeowners would do for themselves, and not the sort of work for which a homeowner would ordinarily expect to hire a licensed professional who already owns and is trained in those codes. Curiously, she seemed confused by the fact that I was not talking about rental properties but instead about ordinary homeowners, and I had to backtrack to point out that the proposed law applied to all homeowners, though I didn’t have the citation at my fingertips–and I mentioned that I wasn’t even sure that council as a whole was aware of the difference in scope between this part of the SmartRegs law and the rest of it, especially given their comments concerning the IPMC’s effect on rental properties. Second, and with respect to the legal principle of the promulgation of the law, the two types of code differ in that one is proposed law and the others are already enacted laws. I mentioned that the ICC and its predecessors had sued a private Texas citizen named Pete Veeck when he placed his local building codes online, and though the ICC had eventually lost the case on its second round of appeals before the Fifth Circuit Court, the grounds on which they lost were narrow and applied to enacted and not necessarily to proposed law. I pointed out that FairFAR.org had considered putting the missing text of the IPMC up on its website, but after consulting briefly with a IP attorney we concluded it would expose us to a lawsuit if we were put the full text of the proposed law up onto the web in order to foster a discussion of the law–i.e., we would not be able to take refuge under the Veeck decision if we published the proposed law (the IPMC), as we would be able to if we were to republish the other codes the city had already adopted by reference. This, I pointed out, is not open and transparent government practice; instead, doing business with a corporation that engages in litigious behavior toward private citizens who disseminate the law, posts warning labels on printed books, and otherwise obstructs the public’s right to know, read, reproduce and criticize the law itself–whether enacted or proposed–is not just un-open or not-transparent government practice, it’s the very definition of what it means for the abuse of copyright law to have a “chilling effect” on democratic government.[*] Citizens deserve a chance to criticize the exact words of the law, because the exact words of the law are what govern them.
At the time, I thought our arguments had once again gone unheard, but a few days after that, and rather unexpectedly, I did at least receive a nice call from the Chief Building Official and I was finally able to convey FairFAR.org’s initial concerns to someone senior in the city management. We discussed the copyright litigation issues, our initial substantive issues, and the differences between a law governing ordinary property maintenance and one governing the work of licensed contractors. We also discussed at length the problems that the City of Arvada has experienced with its adoption of the 2006 IPMC, and its recent emergency efforts to repeal and modify the IPMC code it adopted. I can honestly say that I think the city staff is at least aware of the seriousness of the copyright issue now, and I hope that the issue of whether the City of Boulder should do business with a corporation that is being unreasonable about giving online public access to its privately-owned, copyrighted work so that the citizens may freely reproduce, discuss, and criticize our proposed laws will be considered by Council.[*] I also hope that Council will also voice an understanding that this part of the SmartRegs will affect both owner-occupied and rental residential properties, and consider the related issue of whether the city has actually done any meaningful outreach to ordinary homeowners concerning the vast change to the housing code it is now proposing. It may be that the city is hoping to rein in only landlords with this code revision, but the net is cast wide enough to cause unintended consequences for all homeowners in the city.
(The author would like to thank the other members of the steering committee and membership at large who contributed to the analyses and insights raised in this post.)
[*] FairFAR.org note: As the result of our critiques and the hard work of others, the IPMC and other ICC building codes are now publicly accessible online for free.
FairFAR (http://FairFAR.org) has endorsed 5 candidates for the 2009 Boulder City Council elections. We urge you to vote in the upcoming election–you will receive a mail ballot sometime after 13 October 2009. While we give details and rank all of the candidates below, the five candidates we endorse (listed in the order in which we have ranked them) are:
- Fenno Hoffman
- Suzy Ageton
- KC Becker
- Barry Siff
- George Karakehian
As most of you are aware, the city council passed the house size limit regulations on third reading late Tuesday evening (6 October 2009). The regulations were essentially unchanged from the 17 September meetings–a 35% building coverage ratio, a .5 floor area ratio, 45-degree side yard bulk plane standards, wall articulation standards and a host of other revisions to the code. They will take effect on 4 January 2010, after a 90-day implementation period has passed. To be considered under the existing rules, a building permit needs to be considered complete by the City prior to that date.
We still see several difficulties with the regulations, including:
- The building coverage ratio still makes no sense, particularly for majority of the city’s neighborhoods which do not have alleys. It will encourage popping up rather than bumping out, and the increased building heights will actually work against several of council’s goals (perceived mass/or bulk, reducing the height of tall “looming” walls, the loss of rear-yard privacy, and the impact on views). A better regulation would have focused on limiting the amount of second story coverage.
- For single-story ranch homes, the building coverage of 35% is equivalent to the .35 FAR that was floated by council as an interim measure–and was roundly rejected by the public. So after 2 years of debate, ranch home owners are in only a marginally different boat than they were when this process started.
- There remain substantial issues with sloped lots, including counting toward the FAR significant portions of basements with no exterior access due to the fact that a lot slopes from side to side.
- There are similar problems resulting from how the bulk plane standard interacts with sloped lots, particularly in that they work to push the building upslope by measuring the building envelope from ground level at the side property lines, rather than averaging their elevations together. Buildings that are off-center on their lots and lean upslope will be perceived as taller and more massive due to being situated higher on the hill.
- The interactions between the existing solar plane standard and the bulk plane standard on sloped lots have still not been adequately studied. In many cases, these standards will interact with slope to produce a building envelope that forces homes to be off-center on their lots, with second stories and above crammed into a narrow corner nearer to one of property lines than the other. Not building the upper floors centered on the lot could result in a loss of privacy for the neighbors and contribute to their sense of looming walls.
- Significant increases in both the document preparation costs and permit fee for homeowners preparing even modest additions.
As Macon Cowles noted, FairFAR did not attend the public hearing at the third reading to reiterate the same objections we have been making for months. However, he was wrong to assume that our absence meant that we felt the “compromise” regulations were fair or even adequate. Rather than seeing little to nothing change again at a public hearing, we have chosen to focus our time and energy on making endorsements in the upcoming City Council Elections.
We have updated the FAR and building coverage calculator to reflect the house size limit ordinance language that Boulder City Council has passed on second reading on 17 September 2009 and on thrid reading on 6 October 2009. The ordinance will take effect on 4 January 2010. For comparison purposes, the former versions are still available as the Staff Memo and Planning Board versions.
After the Council seemed to settle on a 35% building coverage and .50 FAR at Tuesday night’s meeting, several people have written to ask whether we will be posting an updated FAR calculator. The answer is yes, but not until Council actually passes a reading on the ordinance, which would happen tonight. While it seems unlikely to fail, strange votes are always possible–for example, a house-size limit proponent like Cowles could decide to vote against it in hopes of forcing a more restrictive set of numbers later. And since it is a bit of work to tune the calculator, we’ll wait and see if they actually pass the revised numbers on second reading.
The first thing to note is that there are now a plethora of complex variations contained in the 70+ page 4 September 2009 staff memo that would interact with each other in even more complex ways, as well as a highly questionable “analysis” of how the proposed bulk plane ordinance would work on sloping lots.
- The staff recommendation has increased to a 35% building coverage and a .50 FAR. The bulk planes remain unchanged, and would still force the mass of a home on a slope uphill (see our previous articles for illustrations).
- The report contains a number of alternative tradeoffs, including a small 240 sf exemption from the FAR for a one-car garage (but not for building coverage).
- There are two options for recommended starting points for Council to start redrafting the ordinance. Option 1 uses the old numbers (30% and .45) as a starting point, while Option 2 uses the new staff recommended numbers.
- At the last Council meeting, Council asked for analysis of a building coverage/no-FAR/tighter bulk planes ordinance as proposed by Mayor Appelbaum. There is an analysis in the last 20 pages of the staff memo. However, we have discovered that the analysis that was performed by Winter and Company and staff may have failed to apply the proposed bulk plane ordinance correctly for sloped lots. Hence, we still have no idea how well the Mayor’s alternative proposal would work. Moreover, we don’t have a sound analysis of how the staff’s bulk plane ordinance would work on sloped lots either.
We would like to see council pursue further and more accurate information about how the bulk plane standards would interact with slope before taking any action. We also strongly oppose the building coverage limit at 30%, and while 35% is a more reasonable number, we would suggest instead that council seek a different way to restrict the impact rear detached garages have on the effective building coverage after setbacks. We would suggest that the current effective building coverage limits of just under 40% on a suburban 7000 sf lot and 42.5% on the old Boulder 6250 sf lots are just about right; the problems come in when–especially on the narrow old Boulder lots where alleys are common–rear detached garages occupy another 7 to 8% of the lot.
We have proposed two ideas to address this issue. First, a rear yard setback of 25% instead of 25′ would increase the overall size of the rear yard on the narrow and deep (50′x125′) old Boulder lots, so a large two-car garage in the rear setback would cover around a third rather than nearly half of the rear yards. Second, and alternatively, we could simply require those with detached rear garages to preserve that much open space within the primary building envelope on the lot–that is make detached garages count against the size of the building envelope that your main home must sit within, just as having an attached garage already does for suburban homes.
Lastly, we would like to point out that should council adopt a FAR of .50 or .45, as still seems likely, having a larger building coverage limit means that if first story construction is maximized, there will necessarily be a smaller second story and above. In other words, if a home were to be built out to the limit of 35 or 40% on the first floor, the second floor would be limited to just 10 to 15 % of the size of the lot.
As we have repeatedly pointed out, most of the neighborhood compatibility concerns result from mass contained in the second story and above; the upper stories are what contribute most to perceived bulk and mass, generally require taller and looming walls, block neighborhood views, and decrease the neighbors’ rear yard privacy. If instead Council persists in ratcheting down the building coverage limit, those problems will become worse, not better, as a result of an action that forces anyone expanding their home to build up and not out.