State eases rules on building officials
SALEM — The state has rolled back a new regulation that threatened to effectively shut down the building programs of dozens of small municipalities, by requiring them to hire a building official and an electrical inspector within a matter of weeks.
Many small cities and a fewer number of counties use third-party building and electrical inspectors to conduct their building programs because the municipalities cannot afford to hire their own.
The rule would have halted that practice.
The decision came after pushback from city officials and state lawmakers who were concerned about the effect the new regulation would have on building new housing and economic development, especially in light of the state's affordable housing shortage.
"I have become concerned that the division's temporary rule, while certainly a good faith effort to address the serious and legitimate policy and legal concerns, may have adopted a policy approach broader than strictly necessary to bring municipal inspect programs into legal compliance," Cameron Smith, director of the Oregon Department of Consumer and Business Services, wrote in a May 14 letter to cities.
The state Building Code Division, within the DCBS, repealed the April 23 temporary rule that upped the certification building officials are required to have and the requirement that cities hire an electrical inspector.
The division approved a new rule that still requires cities to have a building official on staff. The division also has postponed all building program renewals until July 2019. Cities could continue to operate with third-party inspectors until that point but would do so at their own risk.
"I understand that while we wait for the Attorney General's Office to prepare an authoritative legal ruling, there will remain doubt about the legality of municipal inspection programs that use private inspectors," Smith wrote. He recommended that cities seek advice from their attorneys.
The division has asked for an official legal opinion on the matter from the Attorney General's Office. There is no timeline for when that legal opinion will be available, said Mark Peterson, a spokesman for the Department of Consumer and Business Services.
Meanwhile, a group of at least four state lawmakers are looking at what can be done legislatively to address the dilemma. Sen. Chuck Thomsen, R-Hood River, Sen. Betsy Johnson, D-Scappoose, and Rep. Caddy McKeown, D-Coos Bay, met earlier this week in a closed-door meeting to discuss the issue. Sen. Arnie Roblan, D-Coos Bay, also is involved in the group.
"It is incomprehensible to me that Building Codes Division has engaged in a process so completely lacking in transparency or collaboration," Johnson said in a statement, released after the meeting. "BCD actions pose incalculable risks to local government, jeopardize the construction of badly needed housing, create unnecessary confusion and potential legal liabilities and/or litigation."
Peter Watts, who serves as city attorney for the affected municipalities of Estacada, King City and Gearhart, said cities need additional clarification to operate their building programs.
Municipalities have been using third-party inspectors for decades, but memorandums released earlier this year from the Oregon Attorney General's Office and Legislative Counsel indicated that the practice violates the Oregon Constitution.
The amended rule "has added even more ambiguity" about how city building programs may operate in the meantime, Watts said.
He and Erin Doyle of the League of Oregon Cities said they disagree with the preliminary analysis by the Attorney General's Office and Legislative Counsel.
Provisions in state law already provide an appeal process for developers when a municipal building program rejects their plans, Doyle said. She said she thinks those provisions provide the oversight required in the Constitution.
"I think that prior to taking any step this big, it would be nice if they could get legal validation to determine whether that opinion is valid or not," Watts said. "The other part of this is, what problem are we trying to fix here? I am not aware of any problems. I really don't understand what the emergency is and why this is happening right before the building season."