Stoneham Inspectors interpret State Building Code to allow questionable practices
Published on July 19th, 2000
Stoneham, MA - Two policies of the Stoneham Inspectional Services Depart-ment don't jive with logic and the law.
Preliminary inspections
Building Inspector Gene Argiro interprets a section of the State Building Code that grants him authority to do preliminary inspection as an unlimited sanction to inspect the entire property of a person requesting a permit. If John Doe requests a permit for an above ground pool, Argiro can look in Doe's attic.
Section 780 CMR, 115.1 of the Code reads as follows: "Preliminary inspection: Be-fore issuing a building permit, the building official shall, if deemed necessary, examine or cause to be examined all buildings, structures and sites for which an application has been filed for permit to construct, enlarge, repair, remove, demolish, or change the use or occupancy thereof (bold added)."
In the opinion of Attorney Stephen Columbus of Stoneham, the preliminary inspection of an area outside the scope of a permit is illegal.
"Such a search is an unreasonable search without probable cause," Columbus said.
Columbus is the son of former inspector Robert Columbus, who sued the town. But professionals outside Stoneham, who asked not to be named, read the Code like Columbus.
A looser interpretation of the 115.1 language could understand the code to mean that any time a permit is drawn the inspector can look at any areas for which a permit has ever been drawn.
This would allow inspectors to get a second look at real and potentially dangerous violations that may have come into existence over time.
But, this logic seems to trample on property rights and has no logical bounds.
Showing contracts
Nothing in the Building Code explicitly grants the inspector authority to see a contractor's contract.
Under federal law, the contractor does not have to submit the contract into the public records of the building department.
The Stoneham Inspectional Services Department, similar to the City of Boston, request to see contracts to verify signatures and contract prices.
"We don't keep the contracts, and we only look at the signatures and the price," Argiro said.
Homeowners must sign on the building permit to allow the contractor to become "the agent" for the homeowner. This means the contractor can let the inspectors into the home for the necessary inspections.
According to Argiro, contractors sometimes forge the homeowners signature on the permit.
"I saw people do it right in front of the office," Argiro said.
Viewing the contract is a method of verifying the signature on the permit.
"How does he know that the contract wasn't forged?" Columbus asked.
An inspector from another community asked what kind of expertise the Stoneham inspectors had in handwriting analysis.
Using the contract price to determine the cost of the permit is another tricky issue.
The Code instructs inspectors to use the Means Square Foot Estimator, a standardized rate book, to calculate permit cost.
Many contractors say the Means rates are out of whack and prefer to use the contract price. But other contractors say that the bottom line can include incidentals like painting that are not subject to a permit. These items, contractors argue, should not be included in calculating the permit cost.
Also, permits should ideally cost the same for similar work; the spirit of the Code embraces consistent, equitable enforcement. And contract prices can vary.
Both policies are well-intentioned, but also susceptible to legal challenge and of questionable effectiveness.
Subscribe and get Home Delivery of The Independent
Save 36% off the newstand price — that's like 18 FREE issues!