Addenda: Additional readings regarding the history of codes

Want to Read the Law? It'll Cost You. The fight to make building regulations truly free by Lydia DePillis | April 10, 2013, New Republic

Say you live in Rhode Island and want to upgrade the ancient plumbing in your kitchen. You figure you should be able to save some cash and do it yourself, but want to make sure you're on the up-and-up with all applicable codes and regulations. So you head over to the state’s website to read the plumbing code.

Problem is, the 15-page "code" is actually just a series of modifications to a 156-page volume of standards published by the International Code Council—the 2009 edition of which, according to the introduction to the state regs, “is protected by the copyright that has been issued to the ICC. As a result, the State Building Code is not available in complete form to the public in an electronic format."

Your choice: $89 for a printed copy, or $74 for an e-copy. But why should you have to pay to read laws that you must obey?

You shouldn't, of course. Neither state nor federal law is copyrightable. Nevertheless, standards development organizations—from the American Society of Sanitary Engineers to the National Wood Window and Door Association—insist otherwise, having poured resources into developing long, technical regulations because the government didn’t have the expertise to do so.1 Now, state and federal laws simply reference these industry codes, and allow non-profits to charge for hefty books.

For decades, reading these books for free has required trekking to your state capitol, or if you’re lucky, a local library. But the Internet has created an expectation that everything be made available online, searchable, linkable, printable, and free—especially something that seems as rightfully in the public domain as the law of the land.

Carl Malamud believes this more strongly than most. The open-government activist, who pushed the Securities and Exchange Commission to post corporate documents online and C-SPAN to make its video archive more widely available, has been either scanning or painstakingly re-typing and posting standards on his website Public.Resource.org for anyone to download. He started back in 2008 with California’s codes, and had posted 10,062 standards as of the end of last year. When the standards developers ask him to stop—as six have done so far—he politely refers them to the 2002 decision in Veeck vs. Southern Building Code Congress International, in which a circuit court judge ruled that “as law, the model codes enter the public domain and are not subject to the copyright holder’s exclusive prerogatives.”

Malamud typically doesn’t hear back after sending his response. But the Sheet Metal and Air Conditioning Contractors Association, which publishes standards relating to ducts and ventilation, wasn’t satisfied. In February, they followed up with a letter protesting that that the 9th Circuit had ruled differently back in 1997, and the decision still holds. Malamud, with the help of the Electronic Frontier Foundation, fought back with a complaint against SMACNA, asking that a judge resolve the legal question once and for all: Does the public have the right to the law, or doesn't it?

"This isn't a public statute," says Vince Sandusky, SMACNA's president. "It's a copyrighted document that was developed by SMACNA. We are fulfilling a very important role that government and others have not taken on. It's not a small task. We are entitled, as a matter of sound public policy, to a revenue stream that allows us to do that."

Malamud points out that SMACNA already benefits from the fact that they essentially get to write the law, with the participation of government bureaucrats. "In most cases their members benefit hugely from the fact that these standards exist," he says. "For example, if you're a sheet metal contractor, it's a wonderful thing that every building must be tested for leaks periodically."

The case hits the U.S. District Court of Northern California in June. If the court decides to rule on the merits, its decision wouldn't just make it easier to bring your house up to code. It could also force one of the fastest changes to an entrenched business model in judicial history—a model that shouldn't have been allowed to take root in the first place.

Money is at the heart of most fights over open access to public resources. The federal court system, for example, charges 10 cents per page through PACER because the website generates about $100 million for upgrades to courtroom technology. Malamud had worked with internet activist Aaron Swartz, who committed suicide in January, to "liberate" millions of PACER documents. And a project has been underway since 2009 to do the same thing more gradually, with the help of willing pirates who install a browser plug-in that automatically uploads PACER documents they buy to a site called RECAP (get it?). But the courts are unlikely to stop charging for good if that steady funding stream isn't somehow replaced.

Same goes for state regulations that legal information services like LexisNexis and Westlaw now hold exclusive rights to distribute. Governments haven't had the technical capabilities to maintain their own online legal databases, so they license them to private companies, which results in web pages that can't be linked to or searched (if there's a public version at all). Malamud is also on a crusade to defy those policies—his most recent victory was in Washington, D.C., where he scanned the 32,062-page, leather- bound volume of municipal regulations and posted it online. The next week, D.C.'s general counsel waived the copyright provisions, and made the entire thing available for free download.

In both situations, the government should fund the systems required to make the law freely accessible and reproducable, so that the tech-savvy may find user-friendly ways to display it. Technical codes, however, pose a different challenge. The American Society for Testing and Materials, for example, makes $38.6 million from selling publications—losing even the income from those that have been incorporated into law would be a big hit to its $61 million in total revenue. Another big group, the National Fire Protection Association, relies on the regs for $42.6 million out of its $70 million in revenue. If they didn't distribute the burden across everyone who pays for copies, either government or industry would have to bear most of it, which NFPA president Jim Shannon doesn't think is desirable either.

"The system that we've got now provides us with an independent revenue source," he says. "We don't want any one source, even the government, to pay for them, because ultimately then you're beholden to them." Malamud thinks the standards development organizations could probably find a way to make it work. He points to the organizations' high executive salary packages—Shannon made $1.04 million in 2011, and ASTM president James Thomas made $914,000—and suggests they could compensate for lost revenue by doing more training and certification, selling deluxe editions, and charging higher membership fees. "There is lots of money sloshing around the system, including plenty to pay for public access," he says. Plus, when the NFPA did make the codes available for free in read-only format, it didn't see a big decrease in print sales. It's possible that customers would still want the dead tree version, even if the group gave up its copyright entirely. (Columbia University administrative law expert Professor Peter Strauss, who is also advising Malamud, has put together a comprehensive set of proposals for how this might be accomplished.)

But voluntary change is hard, and it's easier to just try to protect your franchise. The International Codes Council has spent a few hundred thousand dollars a year since 2005 lobbying Congress, and when the National Archives and Records Administration asked for comments on Strauss’ request to change how the federal government incorporates privately-written codes, the American National Standards Institute protested vigorously, arguing that the internet “has not changed the underlying protections of intellectual property, nor has it changed the need and the ability of standards developers to cover the significant costs of creating the documents that are used to further public policy goals in law and rulemaking."

That may be true in the arena of expressive works, like music and literature, which people have a choice to consume or not. But when it comes to the law, the right to read and reproduce rules the public must obey trumps the right of authorship. Legally binding codes and standards should never have enjoyed the protections of copyright, and the internet has only made it easier for them to be distributed free of charge.

Most industries have been forced to adapt to the demands of digital capitalism, after all. It’s time our democracy adapted, too.

Source URL: http://www.newrepublic.com//article/112871/carl-malamud-lawsuit-fight-make-building- regulations-truly-fee

The Code War As governments move toward uniform building codes, they are being lobbied by two rival groups that offer competing sets of standards.

BY: CHRISTOPHER SWOPE | JANUARY 2006, Governing Magazine

Public meetings on building codes are typically subdued. Which is why Glenn Corbett, a fire-safety expert at the John Jay College of Criminal Justice in New York City, found it both satisfying and amusing when a code hearing last winter in Manhattan drew a raucous, standing-room only crowd. "This is a code person's dream city council hearing," recalls Corbett, who has been working with governments on code issues for 20 years. "The place is packed. There's code officials there wearing suits, and union guys in denim jeans with tattoos. It's wild. People are screaming and swearing. The chair is slamming her gavel, threatening to take people out of the auditorium. It's unheard of, for a code hearing." Building codes may be the DNA of all construction, but they are also the sorts of arcane regulations that most people hardly ever think about. What made this riotous council hearing especially strange is that everybody in the room agreed on the basic issue at hand: New York City's voluminous building code desperately needed streamlining. Where the fighting broke out was on a secondary question: Which of the two "model codes" in the United States should the Big Apple use as a blueprint? It is a question that has boiled over, with a curious ferocity, in quite a few places lately. For years, the business community has been pushing governments to standardize building codes from state to state and city to city. The goal is to create enough uniformity nationwide to lower building construction and management costs--while still addressing unique local safety issues, such as hurricanes, earthquakes or, in New York's case, high-rise buildings. If that sounds fairly straightforward, the reality is anything but. Governments face an intensely lobbied choice between two rival sets of codes, each of which has its own fanatical base of supporters. On one side is the International Code Council, a group dominated by government building officers and code enforcement officials. ICC's strongest supporters include architects and people who own or manage buildings in numerous states. On the other side is the National Fire Protection Association. NFPA draws its primary support from fire chiefs and unions representing certain building tradesmen. Not only do the two code-writing groups compete fiercely against each other for state and local business, they're also suing one another, each claiming that the other has ripped off chunks of their model codes. The feud is something of a sideshow to an important and serious task. Model codes aren't just a boon to the building industry. They're also integral to public safety. Both code-writing groups revise their codes every three years--in fact, both have just released new versions for 2006. When states and cities adopt the codes, they are getting the latest thinking on how to handle new building materials and construction techniques. Contrast that to New York City's code--which was last comprehensively updated in 1968-- or to Louisiana, which had no statewide code for single-family houses before Hurricane Katrina hit. "My experience with state and local officials," Corbett says, "is that codes tend to be a very ho-hum kind of thing. But it's also one of those fundamental regulations that, when a building burns down and a bunch of people are killed, it's propelled to the top of the heap." BATTLE LINES The code standardization movement is actually about a century old. As you might expect, the push for uniformity arose out of tragedies. Corbett points to Baltimore's great fire of 1904 as an early rallying point. Others look to New York's Triangle Shirtwaist Factory fire in 1911. To varying degrees, cities across the country had responded to their own local disasters with homegrown codes intended to prevent similar tragedies in the future. What evolved during the 20th century was a regionalized approach. States and cities in the Northeast and around the Great Lakes collaborated on one set of building codes. Southern states developed a separate set. And Western and Midwestern states did their own thing. Other groups, meanwhile, developed ancillary codes that were widely used around the country. NFPA, formed in 1896, wrote model fire and electrical codes. Another organization, known as IAPMO, developed model plumbing and mechanical codes. Pressure built on the code groups to consolidate as building and construction became more of a national business. That's when the current battle lines were drawn. The three regional groups merged to form the ICC, and published one integrated compendium of codes for the first time in 2000. When talks to bring NFPA into the fold broke down, it developed a brand-new building code of its own. It also formed an alliance with IAPMO in order to offer governments another full package of codes to compete with ICC's. This was horrible news, as far as many people in government and industry were concerned. What they had wanted all along was one code for states and cities to adopt as a baseline. What they got instead was two. The result? Governments must choose between ICC and NFPA. If that sounds mundane, consider how intense the lobbying became in Phoenix. When city councilors presented the two codes side by side in 2004, they couldn't believe the volume of e-mail messages that poured in. NFPA supporters besieged residents with automated phone calls, claiming that the NFPA codes were safer. ICC, meanwhile, ran a full- page ad in the Arizona Republic. As in New York, council hearings were jam-packed with partisans on both sides. After leaning initially toward NFPA's codes, Phoenix ultimately picked ICC. "I've been in the code business 38 years," says Larry Litchfield, of the Phoenix development services department. "There was more attention to this code adoption process in Phoenix than anything I've ever seen." A similar story unfolded in California, where a re-write of the statewide building code is now underway. In 2003, the California Building Standards Commission selected NFPA's model code as its baseline. Given the state's size, California's decision sent shockwaves through the building industry. Other than a few small localities in Texas, Maine and Illinois, the Golden State was the first jurisdiction to adopt NFPA's new building code. At the time, the Building Standards Commission consisted mostly of Democratic Governor Gray Davis' appointees. They were largely seen as sympathetic to labor unions, who generally favored the NFPA codes. NFPA's big victory was short lived, however. Within months, voters recalled Davis in favor of Republican Arnold Schwarzenegger, whose appointees changed the commission's outlook. After several tense hearings last winter, the commission reversed course in March. It dropped the NFPA codes in favor of ICC's. NFPA called the change "a purely political move." Not surprisingly, ICC called it a step forward for public safety. MIX AND MATCH To understand the battle between NFPA and ICC, it is useful to avoid thinking of the two groups as associations of code geeks. Rather, think of them as two publishing houses engaged in a war for book sales. Codebooks are a big business in the United States and abroad. When a city or a state adopts one model code or the other, it means that thousands of code officials, architects, engineers and others must purchase new copies to keep on their desks. In 2004, NFPA pulled in $58 million from publication sales, while ICC earned $25 million. (Both are nonprofits.) Both organizations can make big claims when it comes to their influence. That's because jurisdictions commonly mix and match certain codes from each group. NFPA's electrical code is the single most widely used model code in the world. As far as building codes go, however, ICC is way out in front, with its code in use in 45 states. The building industry views ICC's building code the way most consumers view Microsoft's Windows: It's seen as eccentric and risky to test the alternatives. ICC is also helped by the star power of its CEO, James Lee Witt, the former FEMA director who took the job in 2003. While partisans will claim one code to be better than the other, neutral observers generally agree that both are sound. "Building codes are based on physics," says Phoenix's Larry Litchfield. "That doesn't change from one book to the other." The major difference between them is a procedural matter relating to the way they update their codebooks. This, too, is a fine point. But considering that each group writes codes that are used across the country, it is an increasingly important process that receives very little outside scrutiny. Both ICC and NFPA update their codebooks at conventions of their members. In each case, anybody-- members or not--can propose a code change. What's different is how the two groups vote. At ICC, only building officials from government are allowed to vote. ICC believes this prevents special interests, such as trade unions or manufacturers of building materials, from advancing hidden agendas through the building code. By contrast, NFPA opens up voting to all of its members--although checks and balances theoretically prevent any one special interest from commandeering the code. The difference in voting procedure explains why the fire services and trade unions generally support NFPA over ICC. "At NFPA, professional firefighters have a place at the table," says Peter Gorman, President of the New York City Uniformed Fire Officers Association. "The NFPA code addresses building safety from a firefighter's perspective." This also explains another curious wrinkle in the fight between NFPA and ICC--an oddly heated debate over plastic pipe that rears its head in one state after another. ICC codes generally allow plastic pipe to be used in a building's plumbing system; NFPA codes generally do not. NFPA's stance reflects worries firefighters have about the fumes plastic pipe gives off when it burns. It also reflects some job-related concerns of plumbers. Plastic pipe, it seems, is easier for do-it-yourselfers to work with. More plastic pipe means less work for professional plumbers. That's why plumbers turned out in force at that heated New York code hearing. "The national plumbers union is extremely political," says Patricia Lancaster, the head of New York's buildings department, who is spearheading New York's code re-write. "The plumbers' storming of the first hearing was noted by a number of city council members." WINDOW FOR REFORM The plastic pipe question is only one of hundreds that New York has to sort out. Over the years, the city's building code metastasized to the point that it spawned a cottage industry of consultants and "expediters" to help businesses decipher it. Tragically, the collapse of the World Trade Center towers opened a window for reform. Mayor Michael R. Bloomberg ordered an overhaul in 2002, riding an outpouring of goodwill that has, with a few exceptions, quelled political squabbling. New Yorkers usually take pride in being different from the rest of the United States. But in the case of its building code, New York City officials have come to believe they might be better off looking a lot more like other states and municipalities. Bloomberg appointed a commission to weigh the ICC building code versus the NFPA code. It settled on ICC, largely because it's what most other governments are using. What has been going on ever since is a painstaking line-by-line vetting of the old code and the ICC code. New York wants to keep some of the tougher provisions from its existing code, particularly those pertaining to high-rise buildings. To sort through it all, some 400 executives and technical experts from all parts of the building and construction industries have volunteered their time. They've divided into 13 committees and 72 subcommittees, and keep track of each other's work using a special Web site set up by the Buildings Department. There are hundreds of examples of absurd local legacies that will disappear from the building code. Lancaster's favorite one is the initials used to designate "office occupancy" and "residential occupancy." "In the 1968 code," she says with disbelief, "office is called 'E' and residential is called 'J'." The new code, following ICC conventions and common sense, will call office "O" and residential "R." Lancaster says that New York may amend the code in ways that make it different from the rest of the country, "but for the most part we'll all be talking about the same thing." As the committees were quietly working through arcane details, however, NFPA and its allies were lobbying the city council. The push was strong enough to persuade the council to revisit the city's original choice of the ICC codes. That's when the unruly code hearing happened. One plumber after another stood up to testify to the superiority of NFPA's code-writing process. As Karen Headley, a member of the major plumbers' union put it, "Don't you think that someone like me, with years of experience working in construction, would have some valuable input when it comes to safety codes? ICC doesn't really care what I think." In the end, the plumbers' concerns were resolved. The code was amended to limit the use of plastic pipes to certain circumstances. The council went on to unanimously approve the first part of the code re-write in November, by a vote of 48 to 0. Lancaster hopes that the rest will be finished by next year. At last, it seems, New York's bitter debate over model codes is winding down. Just about everyone involved is relieved. "If it were NFPA, it'd be perfectly fine," says Professor Corbett, who serves on one of the technical code committees. "The fact is that years ago, we picked ICC, and that's the horse we're riding. "To tell you the truth," he adds, "I wish we didn't have two building codes." Chapter 1 Trends in Housing

I. The History of Housing

Members of countless communities throughout America are raising critical questions about the adequacy and effectiveness of local housing code enforcement programs. These critics feel deep concern over the fact that 1966 found "some four million urban families living in homes of such disrepair as to violate decent housing standards.''l For this reason, they insist everything possible be done to guarantee that present and future inspection efforts lead to rapid and adequate upgrading of the substandard but salvageable housing in each community and that the neighborhoods be made more desirable places in which to live. In order to meet these demands effectively, inspectors of housing and their supervisors should first acquaint themselves with the origin of public concern about housing problems; the past, present, and new approaches to housing code administration; the expanded role of the inspection function in the neighborhood improvement effort; and the general nature of their role and responsibilities.

The first public policies on housing in this country were established during the Colonial period. Many of the early settlers built houses with wooden chimneys and thatched roofs which were the causes of frequent fires. Consequently, several of the colonies passed regulations prohibiting these. One of the first was the Plymouth Colony, which in 1626 passed a law stipulating that new houses should not be thatched but roofed with either board or pale and the like. In 1648 wooden or plastered chimneys were prohibited on new houses in New Amsterdam, and chimneys on existing houses were decreed to be inspected regularly. In Charlestown in 1740, following a disastrous fire. the general assembly passed an act that declared that all buildings should be of brick or stone, that all "tall'' wooded houses must be pulled down by 1745, and that the use of wood was to be confined to window frames. shutters, and to exterior work. This law was obviously unenforceable because, as we learn from other publications during that period, more Charlestown houses were made of timber than of brick.

Social control over housing was exerted in other ways. Early settlers in Pennsylvania frequently dug caves out of the banks of the Delaware River and used these as primitive-type dwellings. Some of these shelters were still in use as late as 1687 when the Provincial Council ordered inhabitants to provide for themselves other habitations, in order to have the said caves or houses destroyed. In some New England communities, around the turn of the 18th century, standards were raised considerably higher by local ordinances. In East Greenwich, it had been the custom to build houses 14 feet square with posts 9 feet high; in 1727 the town voted that houses shall be built 18 feet square with posts 15 feet high with chimneys of stone or brick as before.

During the early days of this country, basic sanitation was very poor, primarily because outdoor privies served as the general means of sewage disposal. The principal problems created by the use of these privies involved their nearness to the streets and their easy accessibility to hogs and goats. In 1652, Boston prohibited the building of privies within 12 feet of the street. The Dutch of New Amsterdam in 1657 prohibited the throwing of rubbish and filth into the streets or canal and required the householders to keep the streets clean and orderly.

After the early Colonial period we pass into an era of very rapid metropolitan growth along the eastern seashore. This growth was due largely to the immigration of people from Europe. Frequently these immigrants arrived without money or jobs and were forced to move in with friends or relatives. This led to severe overcrowding. Most of the information available pertains to New York City, because the situation there was worse than that in any other city in the country. It received the majority of the immigrants, many of whom were unable to move beyond the city. The most serious housing problems began in New York about ] 840 when the first tenements were built. These provided such substandard housing and such unhealthy, crowded living conditions that a social reform movement was imminent in New York. During the early part of the 19th century, the only housing control authority was that vested in the fire wardens, whose objective was to prevent fires, and the health wardens, who were charged with the enforcement of general sanitation. In 1867, with the passing of the Tenement Housing Act, New York City began to face the problem of substandard housing. This law represented the first comprehensive legislation of its kind in this country. The principal features of the act are summarized as follows: for every room occupied for sleeping in a tenement or lodging house, if it does not communicate directly with the external air, a ventilating or transom window to the neighboring room or hall; a proper fire escape on every tenement or lodging house; the roof to be kept in repair and the stairs to have bannisters; water closets or privies - at least one to every twenty occupants for all such houses; after July 1, 1867, permits for occupancy of every cellar not previously occupied as a dwelling; cleansing of every lodging house to the satisfaction of the Board of Health, which is to have access at any time; reporting of all cases of infectious disease to the Board by the owner or his agent; inspection and, if necessary, disinfection of such houses; and vacation of buildings found to be out of repair. There were also regulations governing distances between buildings, heights of rooms, and dimensions of windows. The terms "tenement house," "lodging house," and "cellar" were defined.

Although this act had some beneficial influences on overcrowding, sewage disposal, lighting, and ventilation, it did not correct the evils of crowding on lots and did not provide for adequate ventilation for inner rooms. In 1879, a second tenement act, amending the first, was passed adding restrictions on the amount of lot coverage and providing for a window opening of at least 12 square feet in every room. Several attempts in 1882, 1884, and 1895 were made to amend this original act and provide for occupancy standards, but they were relatively unenforceable. While these numerous acts remedied only slightly the serious problems of the tenements, they did show the city's acknowledgment of the problems.' This public acknowledgment, however, was seldom shared by the owners of the tenements, or, in some cases, by the courts. The most famous case, in 1892, involved Trinity Church, at that time one of the largest owners of tenements in New York City. In the case, the City of New York accused Trinity Church of violating provisions of the Act of 1882 by failing to provide running water on every floor of its buildings. A district court levied a fine of $200 against the Church. which in turn appealed to the Court of Common Pleas to have the law set aside as unconstitutional. Incredibly the court agreed unanimously to uphold the landlord's position, stating: there is no evidence nor can the court judicially know that the presence and distribution of water on the several floors will conduce to the health of the occupants . . . there is no necessity for legislative compulsion on a landlord to distribute water through the stories of his building; since if tenants require it, self-interest and the rivalry of competition are sufficient to secure it . . . now, if it be competent for the legislature to impose an expense upon a landlord in order that tenants be furnished with water in their rooms instead of in the yard or basement, at what point must this police power pause? . . . a conclusion contrary to the present decision would involve the essential principle of that species of socialism under the regime of which the individual disappears and is absorbed by a collective being called the 'state',a principle utterly repugnant to the spirit of our political system and necessarily fatal to our form of liberty. Fortunately, 3 years later, the city health department was granted an appeal from the court order, and eventually the constitutionality of the law was upheld.

Jacob A. Riis, Lawrence Veiller, and others did much during this period to champion the cause of better living conditions. Their efforts resulted in the Tenement House Act of 1901, a milestone in housing and an extremely comprehensive document for its time. It began with concise definitions of certain terms that were to become important in court actions. It contained provisions for protection from fire, requiring that every tenement erected thereafter, and exceeding 60 feet in height, should be fireproof. In addition, there were specific provisions regarding fire escapes on both new and existing houses. More light and ventilation were required; coverage was restricted to not more than 70 percent on interior lots and 90 percent on corner lots. There were special provisions governing rear yards, inner courts, and buildings on the same lot with the tenement house. At least one window of specified dimensions was required for every room, including the bathroom. Minimum size of rooms was specified as were certain characteristics for public halls. Significantly included were provisions concerning planning for the individual apartments in order to assure privacy. One of the most important provisions of the Tenement Act was the requirement for running water and water closets in each apartment in new tenement houses. Special attention was given to basements and cellars, the law requiring not only that they be damp proof but also that permits be obtained before they were occupied. One novel section of this act prohibited the use of any part of the building as a house of prostitution.

The basic principles and methodology established in the Tenement Act of 1901 still underlie much of the housing efforts in New York City today. Philadelphia, a city that can be compared with New York from the standpoint of age. was fortunate to have farsighted leaders in its early stage of development. Since 1909, with the establishment of the Philadelphia Housing Association, the city has had almost continual inspection and improvement.

Although Chicago is approximately two centuries younger than New York, it enacted housing legislation as early as 1889 and health legislation as early as 1881. Regulations on ventilation, light, drainage, and plumbing of dwellings were put into effect in 1896. Many of the structures, however, were built of wood, were dilapidated. and constituted serious fire hazards.

Before 1892, all government involvement in housing was at a local level. In 1892, however, the Federal Government passed a resolution authorizing investigation of slum conditions in cities containing 200,000 or more inhabitants. At that time these included the cities of Baltimore, Boston, Brooklyn, Buffalo, Chicago, Cincinnati, Cleveland, Detroit, Milwaukee, New Orleans, New York, Philadelphia, Pittsburgh, St. Louis, San Francisco, and Washington. Much controversy surrounded the involvement of the Federal Government in housing. The Commissioner of Labor was forced to write an extensive legal opinion concerning the constitutionality of expenditures by the Federal Government in this area. The result was that Congress appropriated only $20,000 to cover the expenses of this project. The lack of funds limited actual investigations to Baltimore, Chicago, New York, and Philadelphia and did not cover housing conditions in toto within these cities. Facts obtained from the investigation were very broad, covering items such as the number of saloons per number of inhabitants, number of arrests, distribution of males and females, proportion of foreign-born inhabitants, degree of illiteracy, kinds of occupations of the residents, conditions of their health, their earnings, and the number of voters.

The 20th century started off rather poorly in the area of housing. No significant housing legislation was passed until 1929 when the New York State legislature passed its Multiple Dwelling Law. This law continued the Tenement Act of New York City but replaced many provisions of the 1901 law with less strict requirements. Other cities and states followed New York State's example and permitted less strict requirements in their codes. This decreased what little emphasis there was in enforcement of building laws so that during the 1920's the cities had worked themselves into a very poor state of housing. Conditions in America declined to such a state by the 30's that President Franklin D. Roosevelt's shocking report to the people was "that one-third of the nation is ill-fed, ill-housed, and ill-clothed." With this the Federal Government launched itself extensively into the field of housing. The first Federal housing law was passed in 1934. One of the purposes of this act was to create a sounder mortgage system through the provision of a permanent system of government insurance for residential mortgages. The Federal Housing Administration was created to carry out the objectives of this act.

Many other Federal laws followed: the Veterans Administration becoming involved in guaranteeing of loans, the Home Loan Bank Board, Federal National Mortgage Association, Communities Facilities Administration, Public Housing Administration, and the Public Works Administration. With the U.S. Housing Act of 1937, the Federal Government entered the area of slum clearance and urban renewal, requiring one slum dwelling to be eliminated for every new unit built under the Housing Administration program. It was not until the passage of the Housing Act of 1949 that the Federal Government entered into slum clearance on a comprehensive basis.

The many responsibilities in housing administered by various agencies within the Federal Government proved to be unwieldy. Hence, in 1966 the Department of Housing and Urban Development was created to have prime responsibilities for the Federal Government's involvement in the field of housing. II. Trends in Housing Inspection

Historically, local provisions for the inspection of housing have been completely inadequate. Usually the function has been split among two or more agencies, and the pertinent code sections have been spread among several local ordinances. Following the work of C. E. A. Winslow, minimum code standards were made available and resulted in the passing of housing codes. This consolidation of housing requirements resulted in the field of housing inspection. Originally much of the work was devoted to complaint and referral inspections.

A Complaint and Referral Inspections

In most communities the housing inspectors are expected to center their efforts primarily on complaint and referral inspections. This approach satisfies the persons making the complaints and referrals and helps improve some of the municipality's substandard housing. However, it does little to bring about general improvements in any section of the community and actually constitutes an inefficient way of using the available inspection manpower because the men have to spend so much time traveling from one area to another.

Many supervisors and inspectors realize this unsystematic method not only wastes time but also is an ineffective way of upgrading housing and curbing blight. First, on complaint inspections the inspectors are usually instructed to confine their investigations to the dwelling unit specifically involved unless the general conditions are so bad that an inspection of the entire building is deemed necessary. This means most complaint inspections are piecemeal and do not ordinarily bring entire dwellings up to code standards. Second, even though numerous complaints are unwarranted, inspectors are often given so many to check each day that they do not have time to inspect other obviously substandard houses in the vicinity of those complained about. Consequently, these "rotten apples" are left to spoil the block, while the house that has been improved stands alone.

Too often inspection agencies have found they did not have enough facts on hand about the extent and distribution of the substandard housing in their communities. Thus, they were unable to convince their superiors and the public about the inadequacy of complaint inspections as the major method of uncovering violations and checking residential blight in neighborhoods. It is the consensus of housing officials that area inspections are the most effective way of doing both.2 Fortunately, in the 1960's, as one city after another began developing the comprehensive community renewal plans provided for in the Housing Act of 1959, this information finally started to become available. It verified the need for systematic inspections on a neighborhood basis. Congress further emphasized the importance of this new approach by including Section 301 in the Housing Act of 1964. This required all cities engaged in urban renewal to have comprehensive area inspection programs in operation by March 1967, and thereafter, in order to remain eligible for national renewal funds.

B Neighborhood Inspection Technique

The area or neighborhood inspection technique is a more recent type of inspection and one which begins to face up to the problems of saving neighborhoods from urban blight. While this is a step forward, it is merely one of several steps required if urban blight and its associated human suffering are to be minimized or controlled.

Throughout this manual the terms "area" or "neighborhood" are used interchangeably and refer to a readily identifiable portion of a community. Whether this consists of so many blocks, an entire neighborhood, or a section thereof, it should be of such size as to permit the local code enforcement team to inspect and systematically effect minimum housing standards within a manageable time.

This means that area inspection programs involve systematic cellar-to-roof, house-to-house, block-to- block inspections of all properties within the specific area and include all the follow-up work required to bring the substandard housing up to code standards within a reasonable period. By putting major emphasis on this type effort instead of on the complaint-oriented approach, blight is checked and an overall upgrading of residential sections is achieved in one portion of a community after another. Thus, systematic area inspection is both a longer lasting and a much more effective method of improving housing and stabilizing property values than the traditional complaint method.

Usually a municipality combines its area work with some complaint and referral inspections. This is not objectionable so long as major emphasis is given to the area programs, and the inspectors move through the various sections of town systematically. Only in this way can a community's housing inspection program contribute adequately to the municipal efforts to upgrade all substandard housing and stem the deterioration of individual homes and neighborhoods. A percentage of the inspection force should, however, be primarily assigned to complaint and referral work so that prompt action can be taken on all cases in which the problems are too severe to await action in connection with the area inspections.

While the area-wide or neighborhood inspections will correct violations of the housing code, this is all they will accomplish. Once these neighborhoods are brought up to standard, inspectors will move on to other neighborhoods but be forced to return at a later time and repeat the process.

If a neighborhood has declined to the extent that there is a large amount of housing violations, then it is obvious that something or someone or both have caused the neighborhood to deteriorate. Any effort that does not also eliminate the cause for deterioration can only be a token effort and frequently a wasted effort. Unless a housing program evaluates the total neighborhood for both housing violations and for environmental stresses within the neighborhood that may have caused the deterioration of the housing, then the inspectional effort has not been complete.

What then are these "environmental stresses"? Environmental stresses are the elements within a neighborhood that influence the physical, mental, and emotional well-being of the occupants. They include items such as noise, glare, excessive land covering, nonresidential land uses, and extensive traffic problems. If a housing program is to be complete, these stresses must be identified and assessed. Then efforts must be made in conjunction with other departments within the city to program capital improvement budgets to alleviate or minimize these stresses.

These two types of inspection are the field involvement of the housing inspector. He must inspect not only the houses for violations but also the neighborhoods for environmental stresses. This will provide him with knowledge of physical conditions within the neighborhood. As mentioned previously, however, this is not the whole problem in most neighborhoods. Generally, the very difficult problem of the human element is involved. Many buildings and neighborhoods deteriorate because of apathy on the part of the neighborhood inhabitants. Efforts must be made to motivate the slum dweller to work towards a better living environment. Experience by the Public Health Service (PHS) in motivational training has shown it to be very effective in raising the living standards of neighborhood populations.

In summary then, a housing inspection effort should be made up of three parts: First, a neighborhood or area-wide housing inspection procedure; second, a neighborhood analysis procedure to identify, assess, and eventually control environmental stresses; and third, a program of motivational training for slum dwellers to raise the living standards of the neighborhood .

III. Role of Health Agencies in Housing

Up until the end of World War II, most local housing hygiene programs were carried on by the health departments. After WW II! health agencies began to drift away from the field of housing hygiene. This gap was filled by a variety of other city agencies including building departments, police departments, fire departments. and more recently created departments of licenses and inspections. Regardless which department administers the housing code, the health department, if it is to live up to its responsibilities of protecting the public health, must have an involvement in housing. A general statement of PHS policy is that the basic responsibility of health agencies with regard to housing is to see to it that local and state governments take action to ensure that all occupied housing meets minimum public health standards. This basic responsibility falls upon federal, state. and local health agencies alike.

Several kinds of governmental action are required. These include: (I) adoption of minimum health standards in housing, (2) conduct of a program to achieve and maintain these standards, (3) periodic evaluation of the standards to ensure their current adequacy, and (4) monitoring of the standards enforcement effort to guarantee that public health values are provided. Health agencies, in order to meet their responsibilities, must accept the role of either stimulating or carrying out these four required kinds of governmental action.

In communities that have neither standards nor program, the health agency has the responsibility of initiating both by stimulating the required governmental action. Stimulation may be direct, through elected or appointed officials, or indirect, by generating public support that will trigger official action.

IV. Summary

Several basic thoughts are contained in this chapter.

A Housing is an old, well-established but often overlooked topic within this country. Indications are, however, that the broad field of housing will receive much more attention from the policy makers throughout the country within the coming years.

B No single agency can eliminate urban blight. A concentrated effort of all city departments, private concerns, and political bodies must be focused on small sections (neighborhoods) to minimize or control urban blight and its associated human sufferings.

C A housing effort cannot be successful if it is merely an inspection of houses for code compliance. There must also be a united effort to eliminate environmental stresses within the neighborhood and instill motivation in slum dwellers to desire and work towards improving their environment.

REFERENCES

President Lyndon B. Johnson's "Demonstration Cities" message to Congress, January 26, 1966. "Enforcement of Housing Codes," Harvard Law Review, Vol. 78. No. 4, Feb. 1965, p. 807. source: http://aalto.arch.ksu.edu/jwkplan/planimp/Chapter%201%20-%20TRENDS%20IN %20HOUSING.htm

More Recommended Reading, online sources: Pace Law Review Volume 31 Issue 2 Examining New York State Law Spring 2011 Article 6 7-6-2011 No Dwelling Left Behind: Expanding New York’s Uniform Housing Statutes to Single and Two- Family Dwellings Daniel R. Shortt Pace University School of Law http://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=1781&context=plr

Pace Environmental Law Review Volume 10 Issue 2 Spring 1993 Article 2 4-1-1993 The Erosion of Home Rule through the Emergence of State-Interests in Land Use Control John R. Nolon Pace University School of Law, [email protected] http://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=1569&context=pelr