Building Codes: Back to Feudalism

I'm not sure when exactly private property rights became a historical curiosity in the United States, but it was before Arizona's Yavapai County, where I live, translated an obscure fragment of the old Soviet Union's laws into English and enacted it as a building code.

I jest. While they reek of totalitarianism, building codes are home-grown devices for making homeowners become legal scholars or scofflaws in their quest to add a deck to the house. Justified as a defense against unscrupulous and incompetent contractors, building codes have become an increasingly popular means for tying do-it-yourself homeowners in knots and forcing them to hire professionals for home-improvement projects. Dissidents can be fined and deprived of their property -- for their own "protection."

Of course, many solid citizens among us work on our homes in blissful ignorance of local regulations Ð or in defiance of them. Some years ago, David Crabtree, president of Gutenberg College in Eugene Oregon, wrote a column beginning, ÒI am a criminal.Ó To what crime did the leader of a religious college admit in public? Ò[M]y wife and I spent the Christmas break remodeling our kitchen, and we did this work without getting a building permit.Ó

Crabtree found compliance with the law intrusive and time-consuming, and complained that "inspectors impose silly and costly modifications."

The hurdles that building codes represent for handy homeowners are substantial. Even as a law school dropout, I find myself intimidated by Yavapai County's maze of permits, regulations and inspection requirements for the additions my wife and I plan to make to our newly purchased rural home. Then there's the troubling demand that we allow inspectors access to our property pretty much at their whim -- and a provision that "If entry were refused, the building official shall have recourse to the remedies provided by law to secure entry."

All we want is a covered patio, not a siege.

Actually, there's good reason to think of medieval sieges in the context of building codes. In "The Noblest Triumph," a 1998 book on the history of property rights, Tom Bethell of the Hoover Institution warned that legal scholars who dislike the idea of private property as a protection against government power are deliberately reviving feudal notions of state supremacy over property.

"[T]here is nothing particularly radical in visualizing land being owned by the sovereign and being channeled out again to persons who would hold it only as long as they performed the requisite duties which went with the land," wrote E.F. Roberts in an influential article in the Cornell Law Review.

There's nothing radical about that indeed -- if you're accustomed to bowing before the king's officials.

Feudal power for politicians explains why so many elected officials are enthusiastic about building codes. But there's another constituency for these regulations: the professional builders supposedly targeted by the codes.

When mandatory building codes were proposed in Montezuma County, Colorado, in 2001, the Cortez Journal reported, "the Home Builders Association of Southwest Colorado -- made up of contractors, builders and real-estate agents -- has been pressuring the commission to adopt minimum building standards for residential homes..."

An earlier effort to impose codes in the county succumbed to fears that do-it-yourself homeowners would be forced to hire contractors to navigate the legal complexities of laying bricks. Experienced builders on a first-name basis with inspectors are in a much better position to comply with red tape than are small trades people and homeowners.

Even if we assume that government building codes are needed in an age of readily available home-improvement advice, there's no justification for making homeowners jump through -- or evade -- regulatory hoops to work on their own property. Building codes could be made voluntary, setting recommended standards appropriate for local conditions. Homeowners might reject them wholly or in part, comply with them voluntarily, or abide by them at the request of mortgage lenders and insurance companies.

Alternately, if building codes are really meant to protect against crooked contractors, homeowners could be excused from them when they work on their own property or serve as their own general contractors.

If local officials insist on regulating our home-improvement projects on safety grounds, they're claiming that contractors who can be denied payment or sued for shoddy work, and homeowners living amidst their own projects, are less trustworthy than government regulators explicitly protected by law from liability for their professional screw-ups. That's a tough argument to swallow.

But I doubt that politicians will willingly loosen regulations. Absolute power is an irresistible temptation for totalitarian commissars and feudal lords -- and for their heirs in local government.