Tribal Legal Code Project: Tribal Building Codes
Introduction
The goal of building codes generally is to protect the health and safety of
persons using a structure. Building codes may cover every aspect of the design,
construction and renovation of these structures from specifying aesthetically
appropriate architecture to regulating private sewage disposal. Many
jurisdictions are looking to update codes in order to be current with new
materials and technology, to lessen susceptibility to natural disasters, and to
make ecologically sound use of resources. Tribes face additional obligations
such as protecting the health, safety and welfare of the community as a whole,
covering the costs of administering and enforcing rules with limited financial
resources, and respecting unique historic housing and building practices of the
communities.
Considerations In Developing Tribal Building Codes
Getting Started
The starting points for developing a tribal building code are identifying
local needs and gathering resources:
Gather all the tribal enactment’s currently in place likely to be
affected by a building code such as those related to housing, zoning,
planning, business or economic development;
Determine specific, building-related, community needs that call for
immediate attention and those that also call for longer-term solutions. Some
examples of the first might be inadequate drainage, lack of proper heating,
deteriorating mobile homes, and severe overcrowding. Some examples of the
second might be encouraging traditional building designs, promoting use of
locally available materials, and advancing environmentally sound use of
resources; and find examples of codes addressing the needs. Building
Officials & Code Administrators International, Inc. (BOCA) http://www.bocai.org
publishes a series of national and international comprehensive model codes
that form the basis for nearly all building related codes adopted by
governments located in the United States. The International
Conference of Building Officials also publishes some building standards
on-line at http://www.codes.org.
The governing body for the tribe will set the overall policies guiding
development of the code. Ideally, the policies will become part of its
legislative purpose. This may include a broad statement that establishment and
enforcement of the code are essential to the public health, safety, and general
welfare of persons
Some Specific Considerations
Monitoring & enforcing compliance; code administration
Will the tribal official (called inspector here) responsible for enforcing
the code be governed by a separate board/the tribal council/housing director?
What can the inspector do to enforce the code? Assist the homebuilder or
resident with compliance by finding financial or other assistance to encourage
compliance but assess fines, seize equipment and materials, enter into homes and
businesses with or without notice, and write "tickets" into tribal
court when compliance still not there?
How will the tribe’s costs for personnel, equipment, and supplies be
covered? Licenses and permit fees that are waivable under specified
circumstances or for good cause? Some costs are reimbursable with federal
dollars, such as environmental review costs. Some costs may be absorbed within
the current tribal structure, for example, appeals of permit denials or of the
imposition of fines may be handled at less cost within the current tribal court
rather than by creation of a separate administrative review board.
How can an understanding of the need for the code and of its enforcement be
promoted in the community? What kind of publicity is effective in the community?
The inspector can speak to school and community groups, place articles in a
tribal or local newspaper. Prior to drafting and enacting building codes,
community input can be requested through public meetings or by one on one
contact with members likely to have special concerns and with experienced
builders in the area.
Meeting federal requirements and following federal guidelines
The federal
rules governing implementation of the Native American Housing Assistance and
Self-Determination Act of 1996 contain requirements that may be addressed in a
tribal building code. The official rules were published in the Federal Register,
Vol. 63, No.48/Thursday, March 12, 1998, pages 12334-12374 and as corrected in
Vol. 63, No. 51/Tuesday, March 17, 1998 and are found in sections of 24
CFR Parts 950, 953, 955, 1000, 1003, and 1005.
Tribes must follow 24
CFR Part 58 in complying with environmental review requirements. (§1000.20)
Tribes must comply with flood insurance requirements under the Flood Disaster
Protection Act of 1973 (42 United
States Code 4001-4128) and cannot acquire, construct or rehab in a flood
hazard area unless the community is part of the National Flood Insurance Program
or it has been less than a year since FEMA notification. (§1000.38)
Tribes must comply with the lead-based paint poison prevention requirements.
(§1000.40)
HUD’s review for compliance with performance measures may include on-site
evaluation of the quality of work performed. (§1000.526)
The tribe’s building code may need to address having builders, owners, or
inspectors gathering this information and maintaining it to document compliance
with HUD requirements.
Some federal guidelines may affect a tribe’s approach to building codes, as
well. For example, the Fair Housing Accessibility Guidelines, published in the
Federal Register, Vol. 56, No. 44/March 6, 1991, pages 9472-9515, as corrected
on June 24, 1991, guide builders and developers in building spaces that can be
negotiated by a person in a wheelchair and that is safe and useable by persons
with differing abilities. These guidelines follow '504 of the Rehabilitation Act
of 1973 (29
USC 794, 24 CFR Part 8) and the Architectural Barriers Act of 1968 (42 USC
4151-4157, 24 CFR Part 40). The tribe may choose to incorporate such guidelines
into tribal law.
Enacting uniform standards
How can a uniform code meet specific community needs? One way is to enact a
specific version of a uniform code, for example, the 1998 International Plumbing
Code, to apply except under specifically listed circumstances or except when
good cause can be shown. The code may also approach using a uniform code by
stating it applies except where tribal law imposes stricter requirements
If uniform codes are used, copies should always be easily available through
the library, the inspector, and at least one other tribal office. The code
itself should also state where the uniform code can be found and reviewed.
One advantage of using uniform standards is that the requirements are
familiar to builders and suppliers. The uniform codes do not necessarily assist
a tribe interested in promoting the use of locally available resources,
respecting historic building practices within the community, or advancing
environmentally sound building methods. Separate provisions that specifically
state they apply instead of, or in addition to, may be necessary.
Affecting other tribal enactment’s
Tribal enactment’s on jurisdiction may be affected by the building code.
For example, builders on the reservation may include special provisions in their
contracts with suppliers to meet code requirements and the tribe’s
jurisdictional enactment’s should be designed to allow disputes about the
contracts to be resolved within the tribe’s system.
The imposition of fines and forfeitures by the inspector may need to be
coordinated with general provisions on the enforcement of civil laws. If appeals
of fines, forfeitures, and denials of permits and licenses may be made to a
tribal court, the court’s rules and procedures may need modification.
Keeping up to date with technology and innovations in materials and
techniques and protecting historic practices
The code’s purposes section may state an intention to encourage both using
innovative materials and techniques and relying on historic or indigenous
designs and methods. The tribe may include keeping informed on developments as
part of the job description for the inspector and ask for periodic
recommendations to the tribe’s governing body from the inspector on updating
the code to allow for using new technology and innovations that fit the
community’s needs. A tribe may also support and help maintain traditional
methods by exempting structures being built using historic designs and methods
from some or all code requirements.
Typical code contents for a basic housing-property maintenance code
General Provisions
Title, purpose, matters covered
What the code applies to, conflicts with other ordinances
Who has the duty to enforce, liability for enforcement, right to enter for
inspections
Condemnation, defining dangerous structures, notice to vacate requirements
such as service and posting
Procedure for prosecuting violations of
Appeal rights
Definitions
Environmental Requirements
General application
External property areas, sanitation, drainage, weeds, insect and rodent
controls, unregistered motor vehicles
External structure, foundations, walls, roofs, stairs, handrail, windows,
doors exits, screening
Interior structure, dampness, supports, interior stairs, repairs, interior
walls ceilings, and floors
Space and occupancy requirements, sanitary facilities, sinks, bathtubs,
water closets, heating, rubbish storage and disposal
Installation and maintenance, standards, plumbing, electrical
Occupancy requirements, ceiling heights, space, access, use of basements
Light and ventilation, overcrowding, eating areas, habitable rooms,
workspaces, storage of flammable liquids, cooking and heating equipment
Responsibilities of Persons
Maintenance, cleanliness, disposal of garbage and rubbish
Conclusion
Tribes can modernize the regulation of building activities to promote the
health and safety of individuals without sacrificing community needs or historic
housing and building practices. An assertion of jurisdiction over building
activities can be within a tribe’s financial ability and offers a means of
encouraging environmentally sound use of local resources under local control.
Postscript on Use of Resources
Buildings account for one-fourth of the world’s wood harvest, two-fifths of
material and energy usage, and one-sixth of fresh water use; building use
accounts for one-fourth of the rise in carbon dioxide levels in the past
century; and two billion of the six billion people on this planet live and work
in resource intensive buildings. (Taken from "Sustainability and the
Building Code," a paper for the BETEC Symposium on Emerging Technologies,
Washington DC, November 19, 1997 by David Eisenberg, Director of the Development
Center for Appropriate Technology).
Building Code Development Resources
Building Officials & Code
Administrators International, Inc.
1313 East 60th St.
Chicago, Ill 60637
(312) 947-2580
http://www.bocai.org
(Publishes national & international building & related codes)
American Indian Council of Architects and Engineers
11675 SW 66th Ave.
Portland, OR 97223
(503) 639-4914; (503) 639-2743 fax
(Publishes booklet of design principles for Indian Housing)
International Conference of
Building Officials
(Sample building standards on-line, products, links)
http://www.codes.org
Civil Engineering Research
Foundation
1015 15th St. NW Suite 600
Washington, DC 20005
(202) 842-0555; (202) 842-2943 fax
http://www.cerf.org
National Association of Home
Builders
(Technical assistance to building industry, benchmarks for quality business
practices, information on products and systems)
http://www.nahbrc.org
Development Center for
Appropriate Technology
PO Box 41144
Tucson, AZ 85714
(520) 624-6628
http://www.azstarnet.com/~dcat
Partnership for Advancing
Technology in Housing (PATH)
E-mail: pathnet@pathnet.org
(Good links to resources on-line)
http://www.pathnet.org
International Association
Managers, Inc.
1224 N Nokomis NE
Alexandria, MN 56308
(320) 763-5190; (320) 763-9290 fax
http://www.iami.org
Inspections Resources
National Association of Housing
& Redevelopment Officials
630 Eye St. NW
Washington, DC 20001
(202) 289-3500; (202) 289-8181 fax
http://www.nahro.org
Resources for Accessible Housing and Barrier-Free Design
American Association of Retired
Persons
Publication: The DoAble Renewable Home, A Perfect Fit
1-800-424-3410
http://www.aarp.org
Center for Accessible
Housing School of Design
North Carolina State University
Box 8613
Raleigh, NC 27695-8613
(800) 647-6777
http://www.design.ncsu.edu/cud
The Center for Inclusive
Design & Environmental Access
School of Architecture & Planning-University at Buffalo
Buffalo, NY 14214-3087
(716) 829-3485 ext329; (716) 829-3861 fax
http://www.ap.buffalo.edu/idea/indexwelcome.html
E-mail: idea@ap.buffalo.edu
American National Standards
Institute
1430 Broadway
New York, NY 10018
(Publishes standards referenced in Fair Housing Act Accessibility Guidelines)
http://www.ansi.org/
Architectural and
Transportation Barriers Compliance Board
1111 18th St. NW Suite 501
Washington, DC 20036-3894
1-800-USA-ABLE
http://www.access-board.gov/
Paralyzed Veterans of America
801 18th St. NW
Washington, DC 20006
202-416-7710
http://www.pva.org/
Best Practices: Building Codes
Colorado River Indian Tribes Building Code
Basic Structure
The code is identified as a Health and Safety Code and by ordinance number
and contains eight chapters. The first chapter covers general provisions while
the remaining chapters adopt specific editions of commonly available uniform
codes with special clauses relating to local needs such as using specialized
building materials (adobe).
Overall Comments
When adopting a uniform code, each section plainly specifies which edition is
being used, allows for automatic updates as new editions are released, and
notifies code users that copies of the uniform code being adopted are filed with
the office of the Chairman. If a tribe will be making use of the uniform codes,
these sections represent good practice on how to notify experienced builders and
suppliers as well as persons unfamiliar with building requirements where to find
information. The adoption of automatic updates increases the Tribe’s ability
to be current on using new technologies and materials.
Overall, the language of the code, even where giving technical descriptions
of materials, is easy to read and understand.
The code offers a good example of considering some tribal specific needs such
as using adobe and respecting traditional builders by exemptions from uniform
code requirements
Analysis of Specific Sections: Chapter 1
The general provisions allow the Tribal Council to appoint a Building
Inspector from time to time, by resolution, to issue permits and enforce
compliance. For tribes with limited resources, this approach can help control
costs by allowing the tribe to contract for inspection and enforcement services
as needed, such as when a multi-unit housing project is underway. The language
also allows this to happen without amendments to the code.
An additional provision further controls the costs of issuing permits and
enforcing compliance in a unique way. The inspector gives a written estimate of
inspections needed to monitor compliance for each permit issued and the
permittee pays extra fees if they are responsible for a greater number of
inspections being needed. This system also allows the Tribe to monitor the
likely costs of upcoming inspections and not have liability for unanticipated
inspection expenses.
The general provisions also waive check, permit and supplemental inspection
fees for construction actually performed by members. This is a useful way to
promote more affordable housing for members and member operated construction
firms.
Chapter 2
This chapter adopts a uniform building code using the language described
above. It contains extensive amendments to the uniform code covering unburned
clay masonry specifications and is supplemented with diagrams.
The chapter also amends the uniform code by exempting certain types of
structures from the permit process. Some of the exemptions are part of the
uniform code, but at least one is clearly based local needs in that traditional
dwelling constructed either by or for members do not require permits. This
offers a direct, practical example of how to use model codes but limit their
interference with traditional housing practices.
The practice of re-stating the language from the uniform code subsection with
the amended language incorporated into the tribal code was also used here. This
allows the user to understand the particular subsection without requiring the
full uniform code for reference.
Chapters 3-7
These chapters adopt the uniform housing, abatement of dangerous buildings,
plumbing, electrical, and mechanical codes using identical language. No
exemptions are specified.
Chapter 8
Originally, the Uniform Fire Code had been adopted. This section was crossed
out by hand with a cross-reference to the cite of a Fire Prevention and Safety
Code. This demonstrates an easy, straightforward way of tracking code updates if
the jurisdiction does not regularly publish cumulative codes that contain all
recent changes enacted by the tribal governing body. Including the date of the
change may also be useful.
Best Practices: Building Codes
Standing Rock Sioux Building Code
Basic Structure
This is a comprehensive code of ten chapters covering minimum housing
standards, mapping of communities, structural requirements for new homes and
major improvements, design standards for new homes and major improvements,
plumbing, electrical installation, yard maintenance, fire prevention, and code
administration and enforcement.
Overall Comments
The first applicable chapter on minimum housing standards is the most
extensive and covers the following topics;
- general provisions, enforcement, creation and authority of a board of
appeals,
- definition of unfit dwelling,
- sanitary facilities, plumbing, and drainage,
- heating and refrigeration,
- lighting and ventilation,
- electrical,
- space and crowding, use, and access,
- safe and sanitary maintenance,
- responsibilities of owners, operators and occupants, and
- standard provisions like conflict of ordinances, severability, and
effective date.
This code offers a good example of using uniform code language modified to
address specific community needs.
The enforcement of housing standards process described in chapter 2 offers
several unique solutions to common concerns. The appeals process is designed to
value cultural and historic buildings and the tribal official is required to
assist with compliance, not merely enforce it.
Analysis of Specific Sections
(Chapter 1 is not part of the building code so is omitted from this analysis)
Chapter 2 Minimum Housing Standards
The general provisions include the title, statements on policy and purpose,
and applicability of the code to human occupied dwellings. The policy and
purpose statements reflect that the code is designed to address specific
problems with existing, significantly substandard housing and that the code is
intended to be commensurate with existing economic conditions. The language
affirms the Tribe’s authority, or jurisdiction, over activities related to
housing standards and rehabilitation of housing within its geographic
boundaries. This is a useful example of a comprehensive statement of policy and
purpose that incorporates local needs.
The subsection on applicability carefully describes that the code applies to
occupancy of buildings for human use. It includes a useful reference that the
chapter does not replace or modify other, related standards on construction, and
other listed topics. This clearly informs the user when the code applies.
The enforcement provisions establish the responsible tribal agency, set out
appointment procedures and a comprehensive list of responsibilities, authorize
access to dwellings, authorize notices and hearings on violations, permit
demolition as compliance, and create an appeal and review procedure.
The subsection describing the appointment and duties of the public officer
implementing the code gives a complete, specific list of priorities. This is
worthwhile guidance to the person in the job and may aid in avoiding conflicts
about responsibilities at a later date.
The subsection on access authorizes entry but demonstrates respect for those
occupying the dwelling by requiring reasonable notice and stating entries shall
be done in a manner which causes the least inconvenience to the occupants. The
language is much less harsh than most model codes.
The provision on notice of violations require informing all interested
parties and also requires a hearing with the public officer within 30 days. The
public officer is then required to give an order on what specific alterations
are needed and to assist the owner in estimating costs, securing financial
assistance, and finding skilled labor to do the work. These sections respond to
the reality faced in poorer, remote communities and offer a good example of a
code that balances community needs and costs along with individual health and
safety needs.
The code authorizes demolition as a way to comply with a notice of violation
and again requires the public officer to help find financial assistance for the
demolition.
The remaining subsections on enforcement cover appeals from the public
officer’s order about compliance. First, they create a Housing Board of
Appeals through Tribal Council designation of either a tribal committee or
organization. The language is drafted to allow flexibility for the Council and
offers a way to deal with conflicts of interest that might arise in a small
community. The procedures for appeal are short and straightforward, allowing 20
days to petition and requiring a hearing within 60 days. Last, the review
process is described permitting an affirmation, modification or vacation of e
officer’s order. The Board is required to consider not only compliance with
the code, but cultural considerations and possible historic preservation in its
decision. This appeals process is a powerful way for a tribal governing body to
protect the cultural and historic practices in a community. It allows for a face
to face discussion with the officer whose purpose is to aid compliance. When
there is disagreement, a group of members will consider cultural and historic
needs in making a decision.
The next subsection describes what dwellings will be treated as unfit. It
includes a list of conditions and cross-references to other sections of the
chapter. The list is complete, easy to understand, and offers another place to
customize the code to particular local needs.
The following subsections all draw language from early editions of uniform
codes;
- sanitary facilities,
- plumbing and drainage,
- heating and refrigeration,
- lighting and ventilation,
- electrical,
- space and crowding,
- use, and access,
- safe and sanitary maintenance, and
- responsibilities of owners, operators and occupants.
There is no reference to uniform codes, but the language will be familiar to
builders and suppliers. This is an alternative way to incorporate model or
uniform codes into a tribal code instead of incorporation by reference.
Remaining parts of the minimum housing standards address conflict,
severability and effective date. The conflict section explains that whenever the
chapter conflicts with another tribal enactment, the one that establishes the
higher standard applies. The effective date allows the Tribal Council to
designate areas coming under the code gradually with the full reservation in
compliance within six years. This allows the work to build gradually for the
public officer responsible for compliance and limits potential claims that
enforcement for a particular dwelling is politically motivated.
The final part of the chapter is an extended list of definitions of terms
used earlier in the chapter. It includes both uniform code words and words
specific to this enactment.
Chapter 3
(This chapter covers zoning and is outside the scope of the analysis of
building codes)
Chapter 4 General Structural Requirements for New Homes and Major
Improvement: Alterations and Additions
This chapter states an objective, "to obtain a well built and durable
dwelling which provides weather resistant shelter" and then sets out
structural requirements that follow selected uniform code requirements. As with
the earlier use of uniform code language, this provides familiar requirements to
builders and suppliers and avoids incorporating parts of documents that might be
unavailable to the user.
Chapters 5, 6, & 7 Building Design Standards, Plumbing, &
Electrical Installation
Each of these chapters uses language selected from uniform codes.
Selected provisions are modified to fit tribal needs. For example, Public
Health Service approval of water and sewage systems is incorporated into the
appropriate subsections.
Chapter 8 Rural Area Sanitary Facilities
The sections on outside toilets, garbage pits and incinerators also refer to
Public Health sanitary standards. These standards are likely to be accessible to
code users in the community, but a statement about how to find the standards or
who to contact could also be included.
Community wishes are considered in this subsection by a requirement that
outdoor toilets be painted as well as other buildings to present a neat looking
appearance.
Chapter 9 Yard Maintenance
The two brief requirements are primarily aesthetic, requiring lots to be
maintained in a neat and tidy condition without an accumulation of debris,
garbage, or inoperative automobiles, and encouraging the growth of grass, trees,
flowers and shrubs.
Chapter 10 Fire Prevention
The section starts by describing its application to new and existing
conditions. It contains a list of examples of dangerous or hazardous conditions
and authorizes the Code Supervisor to order their removal or remedy.
The methods of serving the order are described and distinguish the
responsibilities of an owner and an occupant.
Enforcement and sanctions are available through the Tribal Court and are
criminal in nature allowing fines and imprisonment as well as removal of the
prohibited condition. Some tribes may consider using only civil sanctions to
avoid conflicts about the extent of authority to impose sanctions over absent,
non-Indian owners.
The fire regulations for buildings in this chapter follow those found in
versions of uniform codes.
Chapter 11 Administration and Enforcement of Chapters 3-10
The final chapter in this code begins with an overall statement of purpose
and policy on enforcing the earlier requirements. It requires that efforts be
made to have people understand that fair code enforcement benefits themselves
and the community and penalties are used only when efforts at persuasion fail.
The language demonstrates the cooperative intent of the code.
This chapter also establishes a position of Code Supervisor to enforce
selected chapters. The position is created using a procedure referenced in
another part of tribal law, the qualifications are listed as well as
responsibilities. The chapter also authorizes assistants as the Tribal Council
determines. The responsibilities are clearly separate from the enforcement of
the minimum housing standards in chapter 2.
Best Practices: Building Codes
Grand Traverse Band Building and Related Codes
Basic Structure
The code is set out as Title XII with four chapters. The first establishes a
Utility Authority for the community water system, the second details use of the
community water and sewage system, the third adopts primarily national standards
for building and related codes as an interim measure, and the final, brief
section places reservation roads in the Bureau of Indian Affairs Reservation
Road Need Inventory.
Overall Comments
This code contains definition sections in each chapter, a good practice.
It offers a code that combines adoption of national standards with sections
addressing locally specific needs. The standards adopted are listed and
references are made to specific state and local codes that use t standards.
The code includes "Historical and Statutory Notes" which explains
the enactment of the Building Code in some detail. The explanation cites the
Tribe’s intent to regulate and license all activities on tribal lands, and
identifies it as an interim measure for the purpose of continuity until the
Tribe adopts a comprehensive plan. A "note" or comment section allows
the Tribe to offer the user insight and details about the code that aid in its
application.
The notes include several useful kinds of information such as dates of
enactment, Tribal Act number and cross-references to other code provisions.
The grouping of these chapters under one title and the notes showing some
sections were adopted at different dates show the code is organized by subject
matter rather than by date of passage. This makes it easier to locate provisions
of interest.
Analysis of Specific Sections: Chapter 1
The Purpose section in the first chapter explains the purposes of the Utility
Authority, not of the whole title.
This chapter also contains definitions based on common usage's of the terms
and clarifies that the Housing Authority is the same entity as the Utility
Authority. The list of powers covers primarily the financial operations
necessary to operate the water and sewer facility.
Chapter 2
This section establishes both civil and criminal penalties for failing to
comply with its provisions. A tribe that is located in a PL 280 state should
review the enforcement provisions and consider limiting the possibility of
imprisonment.
The code provides primarily for connection requirements rather than for
operating requirements. Codes are often "works in progress" requiring
updating as needs change. This section covers the Tribe’s immediate needs for
connecting the community to the water and sewer system without adopting
extensive provisions about needs that have not yet arisen.
Exceptions are available for some requirements. For example, specifically
described, temporarily occupied buildings may be exempted from connection
requirements if the owner demonstrates the water source and sewage and waste
disposal is safe and adequate to protect the public health.
Authority to adopt rules and regulations under the ordinance is delegated to
the Utility Authority with requirements about public posting. The Tribal Council
must approve selected rules and retains approval authority, at its option, for
others. The Council determined some decisions needed its direct oversight and
others could be left to the regulating board. This is an example of the extent
and type of authority delegated being specifically covered in the language of a
code. This delegation will vary widely from community to community.
Chapter 3
The practice here of linking administrative responsibilities for the building
code to the zoning administrator’s duties is logical for a smaller tribe.
Local needs are addressed in this code by allowing the Tribal Council to
waive standards for good cause. This is one way to accommodate local historic or
traditional practices. The section could also have defined good cause or given
examples to clarify for users of the code what was acceptable.
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