Someone asked, “A member public agency [of an Alaskan insurance pool] requires building permits when a residential dwelling is being constructed. When the building is completed, a Certificate of Occupancy is required. What has occurred, however, is housing is constructed without a building permit in place, and the dwelling is occupied without a Certificate. The entity does not enforce the penalties outlined within the ordinances. In the event of a loss, is there liability associated with the entity for not enforcing the ordinance. That said, what are the options?”

I replied, “Perhaps the only functions a U.S. local government must reserve to be conducted by the local government itself are its local law making (municipal code and ordinances) and its local land use planning (some might also argue to include local public safety functions to this short list), For land use, these include involvement with the general plan, planning elements, environmental review and approval processes, ordinances, building code, and code enforcement functions. Without such plans and functions in place, a community cannot actively influence its own destiny.

If a public entity chooses not to enforce its own land use and building regulations, the first question is, “Why?” Does this member not enforce its ordinances due to (1) incompetency/ignorance or (2) malfeasance/corruption?

If the answer is (1), is the non-enforcement limited to certain inspectors (without the knowledge of their superiors), or is the non-enforcement known by the member’s management and elected officials? Is the non-enforcement selective (e.g., limited to new housing, limited to existing housing, limited to owner-occupied housing) or universal? Answers to these questions will help determine the reasons for and extent of the problem. If the problem is small scale, the member should seek ways (along with timelines for completion and consequences) to change its processes and work with noncompliant property owners to bring their properties into compliance. If the member does not have the resources or will to enforce its building code, Alaska statutes allow the “state building code” (meaning the standards set out in the version of the Uniform Building Code adopted by the Department of Public Safety under AS 18.70.080 , including the provisions of that code applicable to buildings used for residential purposes containing fewer than four dwelling units, notwithstanding the exclusion of those buildings from the Department of Public Safety’s jurisdiction made by AS 18.70.080(a)(2), the mechanical standards set out in the version of the Uniform Mechanical Code adopted by the Department of Public Safety under AS 18.70.080 , including the provisions of that code applicable to buildings used for residential purposes containing fewer than four dwelling units, notwithstanding the exclusion of those buildings from the Department of Public Safety’s jurisdiction made by AS 18.70.080 (a)(2), the minimum plumbing code adopted for the state under AS 18.60.705, and the minimum electrical standards prescribed by AS 18.60.580) to apply whenever a municipal construction code has not been adopted or enforced by the municipality or in “rural areas” (meaning communities with populations of 5,500 or less that are not connected by road or rail to Anchorage or Fairbanks).

If the answer is (2), the Public Integrity Section of the U.S. Department of Justice should be contacted.

[With respect to liability for not enforcing code, courts typically find public entities liable only if non-enforcement is based on “willful and wanton” conduct. Of course, this varies by venue and facts.]”