|Legal Opinion: |
Text of Document: January 20, 1998
You have the following question: Is there any legal way to require the local Farmer’s Coop to demolish a large cattle feeding bin on its property? The cattle feed bin abuts a railroad track, and in the past was used by the railroad to feed cattle being transported by train through the area. The bin is old, dilapidated, and unsightly.
There are two possible routes the city could take to require the Farmer’s Coop to remove the cattle bin:
1. The city could adopt the Standard Building Code, 1997 edition, and the Standard Unsafe Building Abatement Code, 1985 edition, both of which are produced by the Southern Building Code Congress, International, Inc.
2. The city could adopt the BOCA National Property Maintenance Code, 1996 edition, which can be obtained from the Building Officials &Code Administrators International, Inc., 4051 Flossmoor Road, Country Club Hills, Il. 60478-5795.
Option 1 Analyzed
The city has adopted the Standard Building Code, 1982 edition, in Section 4-101, of your municipal code, but I do not recall if that version contains the same or similar provisions. MTAS keeps old copies of the building, utility and housing codes, but only two editions back from the current one. In any event, the 1982 version of that code is obsolete. The city has not adopted the Unsafe Building Abatement Code. Copies of both codes can be obtained from the Southern Building Code Congress International, Inc., 900 Montclair Road, Birmingham, Alabama 35213-1206. Together they are too voluminous to fax and are copyrighted.
The term “building” in the Standard Building Code appears to be broad enough to cover all kinds of structures, including the cattle bin. That code applies to “every building or structure or any appurtenances connected or attached to such buildings or structures.” [Sec. 101.4.2.] In addition, a “building” is defined as, “Any structure that encloses a space used for sheltering any occupancy....” A “structure” is defined in that code as “That which is built or constructed.” That code also lists various occupancies, including “Group S--Storage.” [Section 304.1] Group S occupancy “is the principal use of a building or structure, or any portion thereof, for storage that is not classed as Group H occupancy [hazardous occupancy], including buildings or structures used for the purpose of sheltering animals.
Under Section 103.5 of the Standard Building Code, unsafe (on a number of grounds) buildings can be abated by “demolition in accordance with the provisions of the Standard Unsafe Building Abatement Code.”
The Standard Unsafe Building Abatement Code, 1985 edition, is short and sweet, and contains the provisions for the actual abatement of the building. In theory, because the Standard Building Code, 1997 edition, says that unsafe buildings will be abated in accordance with the Unsafe Building Abatement Code, the city would not have to actually adopt the Unsafe Building Abatement Code. However, the city should probably also adopt that code so that there is no question that code is a part of the city’s ordinances.
In the Standard Unsafe Building Abatement Code the definition of “building” is tighter than it is in the Standard Building Code: “[A]ny structure built for the support, shelter or enclosure of persons, animals, chattels or property of any kind which has enclosing walls 50% of its perimeter....” [Sec. 202.] The term “structure” is defined as “that which is built or constructed.” [Sec. 202.] The term “unsafe building” is also defined, and the definition contains a set of standards that covers both buildings and structures and that is probably broad enough to include the cattle feed bin. [Sec. 202.] For that reason, if the term “building” in the Standard Building Code and/or the Standard Unsafe Building Abatement Code is not broad enough to include the cattle feed bin, the term “structure” in both does appear broad enough. In addition, Section 9 of the adopting ordinance of your municipal code also says that where there are conflicts in provisions of the municipal code, “the provision that establishes the higher standard for the promotion and protection of the public health, safety, and welfare shall prevail.” That provision indicates that the broader term “structure” in the Standard Building Code and in the Standard Unsafe Building Abatement Code would apply to building abatement; they establish the higher standard for public safety.
A disadvantage of demolishing the cattle feed bin through the Standard Building Code and the Standard Unsafe Building Abatement Code is that they do not permit the city to do the demolition and collect the costs of the demolition through a tax lien against the property.
Option 2 Analyzed
The term “building” in BOCA National Property and Maintenance Code, 1996 edition, means “Any structure occupied or intended for supporting or sheltering any occupancy. [Emphasis is the code’s] [PM-202.0] The term “structure” means “That which is built or constructed or a portion thereof.” Those definitions, and other standards contained in the code defining and relating to unsafe buildings and structures appear to include the cattle feed bin.
Under the BOCA Code, the costs of closing a vacant structure can be charged against the real estate. [Sec. PM-108.2]. In addition, where the city bears the cost of the demolition of the structure, the cost can be recovered against the real estate, “and shall be a lien upon such real estate.” [Emphasis is mine.] [PM110.---110.4.]
For that reason alone, the BOCA Code is probably the best of the two options the city has in this case. However, let me sound a cautionary note: liens imposed against real property by municipalities are probably not legal unless authorized by statute. Liens are authorized by both Tennessee Code Annotated, section 13-21-101 et seq., and Tennessee Code Annotated, section 6-54-113 et seq., for, respectively, the clean-up of property, and the demolition of structures designed for human habitation. We discussed those statutes on the phone the other day and determined that neither of them were suitable for the cattle feed bin. But can the city bootstrap the provision for the lien in the BOCA Code through Tennessee Code Annotated, section 6-54-501 et seq. That statute authorizes municipalities to adopt various building and utility codes. Arguably, if the property lien provision is a part of one the codes a municipality is authorized by state statute to adopt, it represents authority for the lien.
I am not sure how the courts would view that bootstrap; I have been unable to find any cases in that area. But it is a bootstrap worth trying.
Let me know if I can help you further in this or any other matter. If you decide try either of the above approaches (or any other you might think of) give me a call after you have obtained the appropriate code, and I will be glad to give you a hand drafting whatever it takes to put them into force.
Sidney D. Hemsley
Senior Law Consultant