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Chapter 6 - Plumbing Elements Of A Housing Inspection

When a person buys or builds a house or other structure in a municipality that has a zoning ordinance in effect, he is presumed to know and obliged by law to comply with the zoning regulations governing the use of buildings and land in the section of the community in which his property is located. If he either erects a structure or converts a house or building that is within that particular district by the local zoning ordinance into another type of use he still has acquired no property right to continue the forbidden use. An example would be the conversion of a single family residence into multifamily units. Even if the owner has obtained a building permit for this work already completed, the building permit would be voided, because the work was started in violation of the zoning code and because a building permit can be valid only when issued for a lawful purpose. The building inspector is therefore obliged to refuse issuance of a building permit if the proposed work is in violation of the zoning ordinance.

It is very important that the housing inspector know the general nature of zoning regulations, since properties in violation of both the housing code and the zoning ordinance must be brought into full compliance with the zoning ordinance before the housing code can be enforced. In many cases the housing inspector may be able to eliminate some of the properties in violation of the housing code through enforcement of the zoning ordinance.

Zoning regulations have been used for several centuries. In the early settlement of our country, gunpowder mills and storehouses were prohibited from being located within the heavily populated portions of town, owing to the frequent fires and explosions. Later, zoning took the form of fire districts, and under implied legislative powers, wooden buildings were prohibited from certain sections of the municipality.

Massachusetts passed one of the first zoning laws in 1692. This law authorized Boston, Salem, Charlestown, and certain other market towns in the province to assign certain locations in each town for the establishment of slaughterhouses and stillhouses for currying of leather.

Act and Resolves of the Province of Massachusetts Bay 1692-93 C.23

"Be it ordained and enacted by the Governor, Council and Representatives convened in General Court or Assembly, and by the authority of the same,

Sect. 1  That the selectmen of the towns of Boston, Salem, and Charlestown respectively, or other market towns in the province, with two or more justices of the peace dwelling in the town, or two of the next justices of the country, shall at or before the last day of March, one thousand six hundred ninety-three, assign some certain places of the said towns (where it may be least offensive) for the erecting or setting up of slaughterhouses for the killing of all meat, stillhouses, and houses for trying of tallow and currying of leather (which houses may be erected of timber, the law referring to building with brick or stone not withstanding) and shall cause an entry to be made in the townbook of what places shall be by them so assigned, and make known the same by posting it up in some public places of the town; by which houses and places respectively, and no other, all butchers, slaughtermen, distillers, chandlers, and curriers shall exercise and practice their respective trades and mysteries; on pain that any butcher or slaughterman transgressing of this act by killing of meat in any other place, for every conviction thereof before one or more justices of the peace, shall forfeit and pay the sum of twenty shillings (shilling worth about 12-16¢); and any distiller, chandler or currier offending against this act, for every conviction thereof before their majesties justices at the general sessions of the peace for the county, shall forfeit and pay the sum of five pounds (a pound equals 20 shillings and was worth somewhere between $2.40 and $3.20); one-third part of said forfeitures to be the use of the majesties for the support of the government of the province and incident charges thereof, one-third to the poor of the town when such offense shall be committed, and the other third to him or them that shall inform and sue for the same...."

A  Accessory Structure -  A detached building or structure in a secondary or subordinate capacity from the main or principal building or structure on the same premises. Example: garage behind a single-family dwelling.

B   Accessory Use-  A use incidental and subordinate to the principal use of a structure. Example: a home-located physician's office.

C   Alteration -  A change or rearrangement of the structural parts of a building, or an expansion or enlargement of the building.

D  Building Area -   That portion of the lot remaining available for construction after all required open space and yard requirements are met.

E   Dwelling   - Any enclosed space that is wholly or partially used or intended to be used for living or sleeping by human occupants provided that temporary housing shall not be regarded as a dwelling. Temporary housing is defined as any tent, trailer, mobile home, or any other shelter designed to be transportable and not attached to the ground, to another structure, or to any utility system on the same premises for more than 30 consecutive days.

F  Dwelling, Two Family   - A structure containing two dwelling units and designed for occupancy by no more than two families.

G  Dwelling, Multifamily   - A residential structure equipped with more than two dwelling units.

H   Dwelling Unit   - Any room or group of rooms located within a dwelling and forming a single habitable unit with facilities that are used or intended to be used by a single family for living, sleeping, cooking, and eating.

I   Exception -  Sometimes called "special use." An exception is a land use that can be made compatible with a district upon the imposition by the board of adjustment of special provisions covering its development, even though it would not otherwise be permitted in the district. Example: Fire substation being permitted to locate in a residential area.

J   Family - One or more individuals living together and sharing common living, sleeping, cooking, and eating facilities.

K  Home Occupation - An occupation conducted in a dwelling unit subject to the restrictions of the zoning ordinance. Limitations of interest to housing inspectors are the following: (a) Only the occupant or members of his family residing on the premises shall be engaged in the occupation, (b) the home occupation use shall be subordinate to its use for residential purposes and shall not occupy more than 25 per cent of the floor area of the dwelling unit, (c) the home occupation shall not be conducted in an accessory structure, (d) no offensive noise, glare, vibration, heat, smoke, dust, or odor shall be produced.

L   Lot- Parcel of land considered as a unit devoted to either a particular use or to occupancy by a building and its accessory structures.

M   Lot Depth - The average horizontal distance between the front and rear lot line measured at right angles to the structure.

N  Lot Width - The average horizontal distance between the sides of a lot measured at right angles to the lot depth.

O  Nonconforming Use - (a) Use of a building or use of land that does not conform to the regulations of the district in which located. (b) Nonconforming use also means a building or land use that does not conform to the regulations of the district in which the building or land is but that is nevertheless legal since it existed before enactment of the ordinance.

P   Open Space - Unoccupied space that is open to the sky and on the same lot with the building.

Q   Variance - Easing or lessening of the terms of the zoning ordinance by a public body so that relief for hardships will be provided but with the public interest still protected.

Inspectors should refer to the definitions in the zoning ordinance of their municipality for additions and changes.

As stated earlier, the purpose of a zoning ordinance is to ensure that the land uses within the community are regulated not only for the health, safety, and welfare of the community but also in keeping with the comprehensive plan for community development. The objectives contained in the zoning ordinance that help to achieve a- development providing for the health, safety, and welfare are the following:

A   Regulate Height, Bulk, and Area of Structure. In order to provide established standards of healthful housing within the community, regulations dealing with building heights, lot coverage, and floor areas must be established. These regulations then ensure that adequate natural lighting, ventilation, privacy, and recreational area for children will be realized. These are all fundamental physiological needs that have been determined to be necessary for a healthful environment.

Safety from fires is enhanced because of building separations needed to meet yard and open-space requirements.

Through prescribing minimum lot area per dwelling unit, population density controls are established.

B   Avoid Undue Levels of Noise, Vibration, Glare, Air Pollution, and Odor. By providing land use category districts, these environmental stresses upon the individual can be reduced. As in the first item, the absence of these stresses has been determined to be a fundamental physiological individual need.

C   Lessen Street Congestion Through Off-Street Parking and Off-Street Loading Requirement.

D   Facilitate Adequate Provisions of Water, Sewerage, Schools. Parks, and Playgrounds.

E   Secure Safety From Flooding.

F   Conserve Property Values. Through careful enforcement of the provisions property values will be stabilized and conserved

In order to understand more fully the difference between zoning and the other devices such as subdivision regulations, building codes, and housing ordinances, the housing inspector must know the things that cannot be accomplished by a zoning ordinance.

Items that cannot be accomplished in a zoning ordinance include:

A   Correcting Existence of Overcrowding or Substandard Housing. Zoning is not retroactive and cannot correct conditions such as those cited. These are corrected through enforcement of a minimum standards housing code.

B   Materials and Methods of Construction. Materials and methods of construction are enforced through the building codes rather than through zoning.

C   Cost of Construction. Quality of construction and hence construction costs are often regulated through deed restrictions or covenants. Zoning does, however, stabilize property values in an area by prohibiting incompatible development such as the location of a heavy industry in the midst of a well estahlished suhdivision.

D   Subdivision Design and Layout. Design and layout of subdivisions as well as provisions for parks and streets are controlled through subdivision regulations.

In general these permitted land uses are based on intensity of land use, a less intense land use being permitted in a more intense district but not vice versa. For example, a single-family residence is a less intense land use than a multifamily dwelling. A multifamily dwelling would not, however, be permitted in a single family district.

In recent years, some ordinances are being partially based on performance standards rather than solely on land use intensity. For example, some types of industrial developments may be permitted in a less intense use district provided that the proposed land use creates no noise, glare, smoke, dust, vibration, or other environmental stress exceeding acceptable standards and provided further that adequate offstreet parking, screening, landscaping, and other similar measures are taken.

To further achieve the earlier stated objectives of the zoning ordinance, other regulations within a particular zoning district are imposed to gain control of population densities and to provide adequate light, air, privacy, and other elements needed for a safe and healthy environment.

Most early zoning ordinances stated that within a particular district the height and bulk of any structure could not exceed certain dimensions and specified that dimensions for front, side, and rear yards must be provided. Today some zoning ordinances use floor area ratios for regulation. Floor area ratio is the relationship between the floor space of the structure and the size of the lot on which it is located. For example, a floor area ratio of I would permit either a two-story building covering 50 per cent of the lot, or a one-story building covering 100 per cent of the lot. This is illustrated in Figure 5-1. Other zoning ordinances specify the maximum amount of the lot that can be covered or else merely require that a certain amount of open space must be provided for each structure and leave the flexibility of the location to the builder. Still other ordinances, rather than specify a particular height for the structure, specify an angle of light obstruction within a particular district that will assure air and light to the surrounding structures. An example of this is shown in Figure 5-2.

Figure 5-1. Floor Area Ratios of 1.

Figure 5-2. Angle of Light Obstruction.

Zoning ordinances also contain yard requirements that are divided into front, rear, and side yard requirements. These requirements, in addition to stating the lot dimensions. usually designate the amount of setback required. Most ordinances permit the erection of auxiliary buildings in rear yards provided they are located at stated distances from all lot lines and provided sufficient stated open space is maintained. If the property is a corner lot, additional requirements are set to allow visibility for motorists.

Space for offstreet parking and offstreet loading is also contained in the ordinance. These requirements are based on standards relating floor space or seating capacity to land use. For example, a furniture store would require fewer offstreet parking spaces in relation to the floor area than a movie theater would.

Since zoning is not retroactive, all zoning ordinances must contain a provision for nonconforming uses. If a use has already been established within a particular district before adoption of the ordinance. it must be permitted to continue. Provisions are, however, put into the ordinance to aid in eliminating nonconforming use. These provisions generally prohibit the following: (1) An enlargement or expansion of the nonconforming uses, (2) reconstruction of the nonconforming use if more than a certain portion is destroyed, (3) resumption of the use after it has been abandoned for a period of specified time, and (4) changing the use to a higher classification or to another nonconforming use. Some zoning ordinances further provide a period of amortization during which the nonconforming land use must be phased out.

Zoning ordinances contain provisions for permitting variances and providing a method of granting these variances subject to certain specified conditions. A variance may be granted when, owing to a particular lot shape, topography, or other lot characteristics, an undue hardship would be imposed on the owner if the exact content of the ordinance is adhered to. For example, assume we have a piece of irregularly shaped property located in a district having the side yard requirements of 20 feet on a side and total lot size requirement of 10,000 square feet. Suppose that our property contains 10,200 feet and thus meets the area requirements; however, let us further assume that, owing to the irregular shape of the property, we can provide side yards of only 15 feet on a side. Since a hardship would be imposed if the exact letter of the law is held to, the zoning board of adjustment could be asked for a variance. Since there is sufficient total open area and since a lessening of the ordinance is not detrimental to the surrounding property,a variance would probably be granted.

Before a variance can be granted, it must be shown that (l) there is a practical hardship, (2) that the variance is needed for the owner to realize a reasonable return on the property, (3) that the original intent of the ordinance will be adhered to, (4) that the character of the neighborhood will not be changed, and (5) that the public's safety and welfare will be preserved.

An exception is often confused with a variance. In every city there are some necessary uses that do not correspond to the permitted land uses within the district. The zoning code recognizes, however, that if proper safeguards were to be provided, these uses would not have a detrimental eftect on the district. An example would be a fire substation, which could be permitted in a residential area provided the station house is designed to resemble a residential dwelling and further provided the property is properly landscaped.

The key man in the zoning process is the zoning inspector, since he must come in contact with each case. In many cases the zoning inspector may also be the building inspector or the housing inspector. Since the building inspector or housing inspector is already in the field making inspections, it is relatively easy for him to check compliance with a zoning ordinance. This compliance can be checked by comparing the actual land use against that allowed for the area and shown on the zoning map.

Each zoning ordinance has a map as a part of the ordinance giving the permitted usage for each block. By taking a copy of this map with him, the inspector can make a preliminary check of the land use in the field. If the use does not conform, the inspector must then check with the Zoning Board to see if the property in question was a "nonconforming use" at the time of passage of the ordinance and if an exception has been granted. In cities where up-to-date records of existing nonconforming uses and exceptions granted are maintained, the inspector can check the use in the field against the records.

When violation is observed and the property owner is duly notified of the violation, he then has the right of hearing before a Zoning Board of Adjustment (sometimes also called the Zoning Board of Appeals). The Board may uphold the zoning enforcement officer or may rule in favor of the property owner. If the action of the zoning enforcement officer is upheld, the property owner may, if he so desires, seek relief through the courts; otherwise the violation will be corrected to conform to the zoning code.

It is of critical importance for the housing inspector, the building inspector, and the zoning inspector to work closely together in cities where these positions and responsibilities are separate. Experience has shown that when illegal conversions or uses of properties occur, these illegally converted properties are often among the most substandard encountered in the city and often contain especially dangerous housing code violations.

In communities where the zoning code is enforced effectively, the resulting zoning compliance in new and existing housing helps advance, as well as sustain, many of the minimum standards of the housing code such as occupancy, ventilation, light, and unimpeded egress. By the same token, building or housing inspectors can often aid the zoning inspector by helping eliminate some nonconforming uses through code enforcement.

The following cases will illustrate these relationships:

Two and one-half-story, 13-room house. Originally it had these features:

a  Five-room dwelling unit on first floor including a three-piece bathroom.

b  Eight-room dwelling unit occupying the second and third floors including one bathroom of three pieces on the second floor. The second and third floors are served by only one staircase.

c  Two oil burners, one heating first floor, the other the second and third floors.

It is located in a residential zoning district where two-family housing is the maximum use permitted.

Five years later, while making a regular inspection, the zoning officer found this house in the process of being converted into a three-family use in violation of the zoning ordinance. The owner has already done these things.

a  Made second floor into a separate five-room dwelling unit.

b  Started converting the three rooms on the third floor into another apartment by:

1  Installing a three-piece bathroom, 35 square feet in area, against the windowless west wall of the center bedroom, the habitable area being thus reduced to 40 square feet, and setting up the remainder of the area as the living room by providing a coffee table, lamp, and two overstuffed chairs;

2  Putting in a wall kitchenette consisting of a sink with cold water and a stove, plus a table, lamp, and cupboards in the rear bedroom that is 60 square feet in area;

3 Equipping the front bedroom that is 90 square feet in size with two beds, chest of drawers, and other bedroom furnishings for two.

He admitted, however, that he had not checked on state tenement house law requirements since he did not realize multiple dwellings of three families or more are covered by this law.

Two and one-half-story. 13-room house. Originally Question: How many violations (either housing or it had these features: zoning) can you find?

Answer:  As a result of these actions by the owner, the house now has one more dwelling unit than is permitted by the zoning ordinance in this residential district and also contains these obvious housing code violations:

(a)  Threatened over occupancy of the third-floor dwelling unit (only 190 square feet available, but 250 square feet habitable floor space is the minimum required for two occupants).

(b)  Size of the front bedroom inadequate by 30 square feet if it is used by two occupants. The back bedroom lacks the requirements needed for occupancy by one person (70 square feet). If a third person lived in the dwelling unit the minimum required habitable floor area would then become 350 square feet.

(c)  The bathroom does not meet the light and ventilation requirements. (d)  The kitchen sink does not have hot water.

(e)  No refrigerator is provided.

(f)  From the description it sounds as if one might have to go through a sleeping room to reach the bathroom. This would be a violation.

(g)  Both the second and third floor units are in violation since they lack two means of egress.

Assume that a three-family dwelling unit is the largest size permitted in the zoning district where the building in question is located. The housing inspector's investigation of the three-story dwelling from cellar to roof showed that it contained:

1  Four dwelling units, two with six rooms each and two with three rooms each.

2  Five families, three in separate dwelling units and the two on the third floor in one unit.

3  A bathroom and a kitchen on the second floor shared by two families.

4  The bathroom and kitchen on the third floor also being shared by two families.

5  Inadequate means of egress from the dwelling unit in the third floor.

Question:  If you were the housing inspector, what actions would you take?

Answer:  In this situation there are definite housing code violations. The housing inspector also knows there is a zoning violation. Because he knows that the property must meet zoning requirements before complying with the housing code, the inspector would refer this case to the zoning department for action.

The housing inspector should never speak for the zoning department and tell the owner that he is in violation of a zoning ordinance unless he and the zoning inspector are the same individual. The housing inspector should complete his housing inspection and leave. Responsibility for informing the owner of any zoning violation lies with the zoning department.

In this particular case, some housing code violations will be corrected through enforcement of zoning. However, there are still violations of requirements for egress, a third kitchen, and a third bathroom.

After compliance with the zoning ordinance has been obtained, the zoning department should notify the housing inspector so that he can then enforce any housing violations that may still exist.

Mr. Jones, a zoning inspector, gets a report that at 1212 Oak Street the owner, Mr. Smith, is converting his single-family house into two apartments and has already started alterations. Investigations of the zoning map shows that in this district, apartments, up to four, are permitted if 1,500 square feet of open land area is provided for each apartment. Mr. Jones checks and finds that no building permit has been issued. A site investigation reveals that Mr. Smith has only 2,000 square feet of open area available. He then informs Mr. Smith that he is in violation of the zoning ordinance.

Mr. Smith then appeals to the Zoning Board of Adjustment for a variance to allow him to have two apartments even though he does not have the required 3,000 square feet of open area. His appeal is denied by the board since no real hardship exists. As a result, Mr. Smith must rent the property as a single-family dwelling and is unable to recover the money he has already spent in starting alterations.

Discuss: 1  The actions of Mr. Jones. Answer: Mr. Jones was justified in citing Mr. Smith for a zoning violation since the proposed open area would have been inadequate.

2  The action of the Board of Adjustment.

Answer: The Board of Adjustment was also justified in upholding the zoning regulations. If the board had not acted in this manner, the crowding on this property could well have started deteriora- tion in surrounding properties.

3  The action of Mr. Smith. Answer: Mr. Smith had no legitimate complaint when the Board ruled against him. If he had first sought to obtain a building permit, as required by law, he would have been told that his proposed alterations would not meet zoning regulations and hence would not have suffered a monetary loss.

Mr. Edwards requests a building permit to change a three-story single-family house into a two-family unit. Since two-family units are permitted in this district and he has sufficient open area, the permit is granted.

Six months later, the housing inspector, while making a systematic code enforcement inspection, finds that the converted house now has an apartment on each of the three floors. The bath on the second floor is shared by families on the second and third floors. This is a violation of the housing code.

Knowing that all the other houses on this street are only one- or two-family units, he also suspects a zoning violation. After returning to the office, he contacts the zoning department and learns that Mr. Edwards is in violation of the zoning ordinance as well as of the housing code.

Question:  Which ordinance must be enforced first and why?

Answer:  The zoning ordinance must be enforced first, since a zoning ordinance is a "primary" ordinance and determines the land use of a particular property. A housing code ordinance is a "secondary" ordinance and sets standards of residential usage on the property.

During a routine inspection, the housing inspector finds a house with three families, one of which is living in a cellar apartment.

Question:  What actions should he take? Answer:  The inspector should immediately cite the owner for a violation of the ordinance and then follow through to see that the situation is corrected. If the family living in the cellar requires housing assistance as a result of corrective measures taken, the housing inspector should inform them of public agencies available for assistance.

During a routine inspection of a district zoned for up to three-family use, the housing inspector encounters a house that the owner says contains two dwelling units in addition to his own, and also one rooming unit. The inspector finds a cookstove in the "rooming unit."

Question:  What actions should he take?

Answer:  Although a rooming unit would be permitted in this district, the addition of a cookstove changes the rooming unit into a dwelling unit.

The inspector should refer this case to the zoning department for immediate action and then follow up for housing violations at a later date.

The housing inspector is investigating a complaint of alleged housing violations. The owner refuses to admit the inspector inside the building and becomes belligerent .

Question:  What should the inspector do next?

Answer:  The inspector should remain courteous and not lose his temper. If the inspector is not able to obtain permission to inspect without further arousing the owner, he should leave.

Since recent decisions of the U.S. Supreme Court have dictated the inclusion of requirements to obtain a search warrant in cases where entry to the inspector is denied, the inspector should obtain a warrant. He will then return at a later time with someone to serve the warrant.

During an inspection in July, the housing inspector finds a house that has been converted into two apartments. While checking the basement, he sees that the furnace appears in an unsafe condition. Further checking reveals that there is no provision for heat in the second apartment.

Question:  What action should the inspector take since it is July and heat is not now needed. Besides, how does he know that the owner will not install heat before winter?

Answer:  The inspector should cite the owner for a violation of the housing code anyway. In his notice of violations, because it is July, he can give the owner sufficient time to comply. He would also send a copy of the letter to the heating inspector for follow up.

During an inspection, the housing inspector is greeted at the door by a 10-year-old boy who is alone. The boy says it is all right to make the inspection.

Question:  Should he? Why?

Answer:  No. Permission to enter must be obtained from a responsible adult. Suppose that instead of the 10-year-old boy, he had found a 16-year-old girl. Question:  How would this change things? Why? Answer:  It would not change things, since the 16-yearold girl is not considered a responsible adult. For the protection of the inspector, some housing departments would not permit him to enter alone when the house is occupied by only a female, especially one under age.

During his inspections the housing inspector finds a house that has no bathroom but does have an outside pit privy.

Question:  What action should be taken?

Answer:  The inspector should issue a violation for lack of indoor toilet facilities and follow through the regular steps established by his housing department. A copy of the violation should also be sent to the health department for any actions that they may wish to take for elimination of the privy.

A number of violations are found in a residence, but the family is occupying the unit under a land purchase contract agreement with the landlord. The owner holds title until enough rent is paid to equal the sale price. The repairs needed are more than the family can afford and are such that the building should be declared unfit for occupancy. The family now has $2,000 worth of equity in the property.

Questions:  What actions should the inspector take? Who is responsible for repairs? Who will lose money?

Answer:  The inspector would cite the owner of record for a housing violation, since the owner of record is responsible for repairs. If the owner will not bring the building into compliance with the code, the building should be posted as unfit for habitation and the family removed.

The family buying will probably lose in this situation. Before contracting to buy, they should have obtained a certificate of inspection from the housing department showing any violations existing at the time of purchase.

The property at 112 East Street is owned by an out-of-state individual. The housing inspector found the property unfit for habitation and has had the family renting the property removed. The house is now vacant and the out-of-town owners will not make the repairs since the cost of the necessary repairs would be too great in relation to the value of the property. The property is in an area that will probably be included in a future urban renewal project within the next few years.

Complaints have been made to the housing department by the neighbors that the house has its windows broken out and its doors broken open. Children play inside during the day and have almost set the building on fire several times. Moreover, vagrants occasionally sleep inside at night.

Question:  What action would you take if you were the housing inspector?

Answer: After following standard department procedures, the housing inspector should recommend that the house be demolished and this cost assessed as a lien against the property. If allowed to remain, the house will be a detriment to surrounding properties and also to the neighborhood.

During a routine inspection, you find a house with very poor premises sanitation and evidence of roaches, flies, and rats. The property meets minimum housing standards otherwise.

Question:  What action can you take?

Answer:  The action depends on local regulations and procedures. In many communities the housing program is organizationally located within the health department. In that case, the housing inspector would probably follow through in requiring elimination of the infestation. If the housing inspection program were located within a department other than the health department, the housing inspector may refer the case to the health department for action.

N  Case 14

While making a systematic code inspection, the housing inspector encounters a lady who questions the inspector regarding his findings on the house next door, which she is sure is much worse than hers.

Question: How should the inspector deal with the lady?

Answer:  The inspector must be very courteous and tactful in his conversation and inform her that he is not permitted to discuss his survey findings for other properties.

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