FairFAR.org

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 council@bouldercolorado.gov 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.

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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.

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* 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.