Do housing codes violate civil rights

by Shalonda

Last Reviewed: July 4, 2024

Visitor Question: It seems like many housing codes are very restrictive about what my neighbors and me can and cannot do on our own property. The housing inspector in our town is very strict and issues tickets for stuff like peeling paint. Some of us cannot afford to do better. We highly suspect that outside of our minority neighborhood, the inspectors aren't as strict. Do you think we could sue to get fairer enforcement on the grounds that the housing code is violating our civil rights?

Editors Reply: Just on the face of it, the answer is that no, housing codes don't violate civil rights. But let's look at some of the ways that enforcement of those codes or even the pickier provisions of those codes might violate civil rights.

Remember that the purpose of any type of housing code is to preserve the integrity of the building and make it safe and healthful for its residents. By the way, the "housing code" might be what the International Code Council calls the residential code or it might be a property maintenance code or existing building code, as described in our code enforcement section of this website.

To use your example, paint that is peeling off would allow the eventual decay of the underlying wood or drywall, or rusting of metal. So the theory behind the quite common code citation for peeling paint is that paint acts as a preservative for a building material and thus is an important preventive maintenance item.

We say all of this just to remind you that housing codes or building codes have their public purposes and have been upheld by courts time and time again.

Now let's think about whether some aspects of a locally adopted housing code based on an international code might be unnecessarily strict. Certainly this could be the case. For instance, in your town, elected officials might see very little reason for government interference to force builders and residents to plan for seismic safety, wind damage, or even energy efficiency. It is a good practice for local governments that plan to adopt a housing code or any other standardized code to establish a citizen advisory panel prior to doing so. The committee should include knowledgeable local tradespeople, builders, and residents who can evaluate whether any local amendments to the code are desirable. It is perfectly legitimate for a city council to adopt an international code but note the local exceptions or modifications in the adopting ordinance. You and your neighbors will want to push for a voice in code adoption whenever it comes up. Most municipalities adopt more up-to-date codes every few years, so establish a relationship at city hall that will allow you to know when later versions of a code are being considered for adoption. This probably will occur with very little fanfare or public notice, once the housing code has been adopted for the first time. But the adoptions of more recent standard codes are the appropriate times for local amendments to be added.

But we think that by far the most likely time for housing codes to violate civil rights is during enforcement, as you seem to indicate in your community development question. Most code enforcement in the U.S. is complaint-based, meaning that the inspector only comes by when someone complains about a particular structure. A secondary source of code violation tickets is the inspector's personal observation during driving around the city.

However, some cities establish what is known as systematic code enforcement in a particular part of town, meaning that the intention is to inspect every home within that geography. This could be done for valid public purposes, comprising a part of a neighborhood revitalization effort or addressing a particular vulnerability of typical residential types in a neighborhood. In times past, and therefore we feel sure still today, there have been instances when this type of enforcement has been used as a weapon against minority neighborhoods or neighborhoods that are in transition from majority white to other races and ethnicities.

Although we are not aware of any successful court cases alleging infringement of civil rights because of concentrated code enforcement in a neighborhood dominated by a protected class, we think there could be reason to consult an attorney or the local legal aid office if you suspect this in your own city. Certainly an individual might be able to bring a suit against the city on the basis of unequal code enforcement, an argument that could be supported by photos from different parts of town as compared to code violation citations in the different neighborhoods.

Of course, short of lawsuits, it also is appropriate for you and your neighbors to complain about differential enforcement in the public comment period at your city council meeting. Be sure to jot down some examples and show photos if possible. You also may be able to interest local media in this topic, and definitely such comparisons are suitable for social media accounts of activists, and civil rights and community development groups. In sum, we aren't discouraging you from trying the civil rights angle in raising the twin issues of unfair enforcement and the financial burdens of code compliance.

Our advice is to form alliances with other people and organizations that would join you in this fight. If you have a neighborhood association in your area, raise the issue there and secure the support of that organization. This would bolster your case with adjoining neighborhoods. Civil rights organizations also may be interested in the code enforcement differences that you see locally. Some legal aid offices will take on a cause such as this, so it is worth exploring how much time and effort that office can devote to this issue. Each of these possible allies will be more likely to join with you if you have good documentation, so start collecting specific examples of what you see as code enforcement overreach in your particular neighborhood. Also begin to explore how much the city government will cooperate with you in making available data on code enforcement in other parts of town, as you will need to know that if you make a fairness argument.

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