Dunes City announces legal action against State of Oregon

March 12, 2018 — On Wednesday, Dunes City announced its intention to take legal action against the State of Oregon.

After a special session on May 7, in which Dunes City councilors listened to legal counsel and public opinion, the council “gave direction to the city administrator to contact the League of Oregon Cities to give them our intent to take legal action against the state and the Building Codes Division (BCD),” said Dunes City Mayor Robert Forsythe.

The city’s move is in response to new rules handed down by the BCD last month which re-strict cities from contracting with third-party building inspectors. Oregon cities in violation of the new rules were issued notifications that they must hire building inspectors as city employees by July 1 or else hand over their building programs to county or state control.

Only cities with programs up for renewal this July were notified, though many more are thought to follow. Dunes City and Florence were among the first wave.

“This process in our opinion is draconian and overreaching and it really needs to be stopped,” Forsythe said at Wednesday’s City Council meeting.

Stopping the process through litigation would require substantial backing. Although at least 32 Oregon cities have been notified of being in violation, it is yet unclear how many are willing to join Dunes City in taking legal action.

“We are the only one that I am aware that has actually voted to pursue litigation,” said Dunes City Recorder Jamie Mills. “We can’t take on the state all by ourselves. We’re only willing to do this if a number of other cities are willing to do this as well.”

Florence has yet to announce a decision.

“We have spent the last several weeks since we’ve gotten our notice from the BCD collecting information and deciding what recommendations to make to the council moving forward,” said Florence City Manager Erin Reynolds. “We are impacted by these new rules and decisions, just like Dunes City. While we have the same rules and things we have to comply with, we’re in a different position and have some other things to consider.”

A decision by the Florence City Council is expected at its next meeting on Monday, May 21.

“It’s a very dynamic, evolving process,” said Reynolds. “We’re taking it very seriously and we’re committed to finding a solution.”

While Dunes City has drafted a letter to the BCD requesting more time to come into compliance, budgets are being prepared for other options under the expectation that the request for more time will be denied.

Litigation remains the only constant among the options.

First among the city’s options is to give up its building program. Should Dunes City not enter into compliance by July 1, its building program would automatically revert to Lane County and the city would be prohibited from applying for its own building program again until 2021.

Alternatively, the city could voluntarily enter into an intergovernmental agreement in which Dunes City pays Lane County to oversee the program, thus evading the probationary period. Both options, however, would surrender a degree of local control none on the council are keen to yield.

The city may also choose to simply comply with BCD rules, hiring on the required building official and electrical inspector. The estimated cost for new employees, however, runs as high as $140,000 per year, a potentially destabilizing cost for a municipality with no property tax revenue.

Whichever the choice, Forsythe made clear “abandonment” would not suit the tone of their decision and placed blame squarely at the feet of the BCD.

“We’re not abandoning our program — we like our program and we have a pretty good program,” he said. “They have changed the rules so that we cannot comply, so that does not fit the term ‘abandonment.’”

The timing of the BCD decision is also particularly disadvantageous as the end of the fiscal year obligates notified cities to simultaneously prepare balanced budgets and find new staff in a reportedly sparse inspector market.

“There are no available qualified and certified, licensed inspectors right now for hire. Cities are hiring them away from each other,” said Mills, who has exhausted numerous lists of candidates. “There’s so much demand and nobody available.”

The lack of attractive options is particularly deleterious for small cities where minor shifts in funding and municipal autonomy are easily felt. Just how deeply the BCD move may affect state remains to be seen — and small municipalities like Dunes City may serve as canaries in the coal mine.

“I feel this is the biggest assault on Dunes City … in the history of Dunes City,” said Councilor Duke Wells. “It will fundamentally change the way we live here in Dunes City if this goes through. … I’d like the people of Oregon to know, this isn’t just Dunes City. We’re in the first 32. It’s going to affect if not every, nearly every city in Oregon.”

Dunes City councilors encouraged the public to get involved.

“Get a hold of your various representatives at the state and federal level,” Forsythe said. “Please write, call, whatever you need to do to get this moving forward. We have a very short period of time.”

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