State gives counties little power over permits

By Laura Elder, The Daily News | Galveston County, 11/29/2009

http://galvestondailynews.com/story.lasso?ewcd=6d521f460f3c1e0d 

Early last month, some homeowners in the St. Edmunds Green began to worry when they learned the builder of the houses they had occupied for several years never had been issued a permit by the county.

But what surprised and vexed them even more is that a building permit and governmental inspections never were required.

“I had no idea there was no oversight on it, and it came as a real surprise to me,” said Ed Schroeder, who has lived in the 1900 block of St. Edmunds Crossing for a little more than three years.

About half of the 144 houses in the fairly new subdivision east of Interstate 45 between Deats Road and FM 646 are in the unincorporated area of the county. The remainder are in Dickinson and League City.

What Schroeder and some of the homebuyers in St. Edmunds Green didn’t know is that, unlike cities, the county has no authority to create or enforce building codes in unincorporated areas, nor to require inspections.

About the only regulatory power the county has in home building is its agreement with Texas New-Mexico Power Co. to withhold electricity to a house until a builder obtains a “development permit” showing that the house meets elevations rules for the National Flood Insurance Program. But even that measure failed on at least two occasions in St. Edmunds Green.

Paying For Mistakes

Last week, Schroeder was forced to pay $201 for a development permit, a responsibility that was supposed to be shouldered by Mike Bender, whose company built most of the houses in St. Edmunds Green.

When acquiring a development permit, builders must submit plans that show the house meets elevations codes. But the county, which has only one inspector, does not follow-up development permits with inspections.

Bender last week said he was unaware of any lapses on his part in obtaining development permits from the county. Citing a bad cell phone connection, Bender ended the conversation and did not return the call as promised.

County officials said Bender understood and has complied with elevation rules and that Schroeder’s house likely is fine. But until the county inspector visits the house and confirms it’s in compliance with elevations rules, Schroeder must keep a pink permit taped to the inside of his window.

County officials said they don’t know how Schroeder’s house was able to obtain electricity without a development permit.

‘Imagine The Problems’

The issue has left Schroeder wondering about the quality of houses in unincorporated areas, he said. Schroeder would like to see more regulation of residential construction in unincorporated areas of the county, he said.

“I think there are already problems in Texas with contractors as it is,” Schroeder said. “You can see that in rebuilding after Hurricane Ike in areas where inspections are required. Imagine the problems you encounter where they aren’t required.”

Mike Fitzgerald, county engineer, said such lapses in development permits do occur, but not often. Also, the consumer isn’t without safeguards. Before closing on a house, buyers often hire their own inspectors. Mortgage lenders typically require a third-party inspection, Fitzgerald said. Homeowners who want windstorm insurance through the state-backed Texas Windstorm Insurance Association also had to show their houses were built to certain codes.

County Gets More Muscle

Still, counties in Texas long have sought to strengthen their ability to regulate building in unincorporated areas. And this year, lawmakers gave them a little more power.

During the 81st legislative session, which ended in May, lawmakers allowed the Texas Residential Construction Commission, which had been in place since 2003, to expire under the state’s Sunset Act.

The commission was supposed to improve building standards. But critics of the short-lived commission said it did more to protect builders from lawsuits than consumers from shoddy work.

It did, however, offer some standards in unincorporated areas.

The commission required builders and remodelers in unincorporated areas to report online to the state the results of foundation, framing and mechanical systems and final inspections.

The builders were expected to follow the International Residential Code. Information about whether the results were made available to the public wasn’t immediately available.

With the commission gone, lawmakers agreed to allow counties to require builders in unincorporated areas to provide the same information.

‘Wasn’t The Most Desirable’

Last month, Galveston County commissioners adopted a system of notification replicating that of the defunct commission. The order goes into effect Jan. 4.

Builders who don’t report whether properties pass or fail inspections are committing misdemeanors and face court action.

Still, lawmakers didn’t give the county authority to enforce codes or crack down on builders whose properties failed inspections or were not in compliance with International Residential Codes, Fitzgerald said.

“The legislation wasn’t the most desirable,” Fitzgerald said.

The county still is working out several issues with the new requirement, including whether it will accept inspection data from builders online or through a conventional system, Fitzgerald said.

Meanwhile, residents living in St. Edmunds Green subdivision are ensuring they have the proper development permits after their Homeowners Association sent letters to members last month.

The issue arose after Robert Mitchell, who was selling his house, discovered there was no development permit.

Mitchell, retired, had moved into the young subdivision in 2006, and was always curious about why he never saw inspectors at neighboring houses under construction.

When he recently sold his home, the closing was delayed because the buyers had difficulty getting the electricity in their name, he said. Texas-New Mexico Power wouldn’t transfer the power to the new owners until it had proof of a development permit.

Mitchell, who now lives northeast of Bryan, also didn’t know the county is by state law prevented from enforcing building codes in unincorporated areas.

“I think they should be,” Mitchell said.

READER COMMENTS:

James Hime (jimhime) said:

In 22 years I have not seen a mortgage lender require inspections on a new built home (or resale) unless there was a known problem with the property. In the county there has never been building regulation or enforcement as Texas law prevents this. Only cities can adopt and enforce building codes. Increasingly, lenders are turning down newer built homes without windstorm insurance certificates in order to protect themselves.

Builders in all Texas county areas under the short-lived Texas Residential Construction Commission were able to hire their own inspector (like the fox watching the hen house). TRCC never assigned these inspectors nor audited these inspections or had any manpower to "spot check". These were performed on the honor system. The inspector that signed up through TRCC for the three under construction inspections WAS NOT required by TRCC to be code certified. Only the separate inspectors that performed dispute resolution inspections for after closing disputes/arbitration were required to be code certified. So even if you had builder paid inspections performed on a home built in the county the inspector wasn't required to be code certified and a majority are not. Plus, the inspector was a vendor/contractor of the builder; not the TRCC. The builder could hire any inspector he wanted to. Even the majority of private inspectors that inspect new built or resale homes are not code certified as the Texas Real Estate Commission does not require them to be.

The windstorm engineers look at their wind design and do not perform complete and formal frame or mechanical inspections which are outside the scope of windstorm.

Texas never has licensed builders or remodelers. TRCC was a builder and remodeler "registration" process for complaints or dispute resolution after closing to limit litigation. TRCC was not a regulatory agency for home building or construction. There appears to be some belief that homes built in the county have some level of oversight or policing and this has not or is the case. Cities can be lacking as well.

See for yourself - Texas Residential Construction Commission http://www.trcc.state.tx.us/ 

Tip: If the independent inspector you hire is not full code certified then don't waste your money. You can verify a code inspector at www.iccsafe.org/ 

If you are building, buying, have a construction complaint or problem or need a 1-year warranty inspection look for a combination of -

ICC Residential Combination Code Certified

Texas Residential Construction Commission Dispute Resolution Inspector

Texas Professional Inspector

James Hime

Dickinson, Texas

James Hime (jimhime) said:

A Galveston County Daily News article on Wednesday, July 30, 2003 was titled, "Subdivision residents find homes not windstorm insurable" also concerned new built homes in the unincorporated Dickinson area that were stated in the article to not being built to windstorm standards and had no windstorm insurance certificates (WPI-8's) issued by the Texas Department of Insurance. Without due diligence and research when buying real estate anyone of these homes could be yours.

Kim Stellhorn (Kim_Stellhorn) said:

What is the point of this article? It is the same all over the incorporated area of the county, this is nothing new. Until a few years ago most builders did not even worry about windstorm code construction, because a lot of insurance companies carried their own windstorm and did not care about windstorm certificates or inspections.

ernie peeple (weekender) said:

What it's about? Giving Caesar whatever he wants...that's what it is about.

Wayne Caswell (JustLaws) said:

Great reader comments! I couldn’t have said it better.

Why do Texas laws protect homebuilders instead of the public? It’s because special interests have high powered lobbyists standing up for them. “But who stands up for us?” you ask. At least one nonprofit organization does. During the 81st Texas Legislative Session that ended June 1, Homeowners of Texas (HOT) proved that homeowners could actually win legislative battles against the powerful and previously undefeated $35B Texas homebuilding industry, which is dominated by large, mostly out-of-state homebuilders. With help from abused homeowners they convinced lawmakers to abolish the TRCC and worked with the Texas Society of Professional Engineers to pass House Bill 2649, which now requires all Texas homes built on expansive soil to have engineered slabs. Read the whole story on their website under “TRCC Eulogy”.

Unincorporated areas remain a problem and is an issue they hope to address next session by overturning laws put in place by builder lobbyists that prevent counties from making rules governing zoning, building codes and inspections. Other issues on their agenda include restoring homeowners’ legal rights, rolling back exorbitant home insurance rates, and establishing regulatory oversight of insurance and homebuilding.

You can find them at www.homeownersoftexas.org.