Travis County Commissioners Court
August 4, 2009,
Item 22
>> 22 is to receive briefing regarding house bill 2833 regarding residential building inspections and notifications in unincorporated areas of Travis County.
joe?
and we have representatives from the home builders here.
they passed a bill in the closing days of the session.
>> we understand that the house bill was originally proposed for the county's along the valley.
and at the last minute it was extended to every county in Texas over a population of 100,000, I believe it is.
it basically enables the inspection of single-family development, new construction after September of 2009, and it would require that the new construction be inspected three times through the phase of the building process and that's to be conducted by either registered engineer, architect or an inspector certified by the state.
the county may at its own discretion have its own building inspector inspect, but the bill prohibits the county from charging for having that inspection.
so it's basically an unfunded mandate if the court decides to inspect on its own.
it is the international business -- international building code, which is fairly well recognized standard for buildings.
it also provides for if the cities already apply a building code in the extra territorial jurisdiction, the city's code prevails over whatever code the state -- in this case the international building code.
i think that's a thumbnail sketch of what is in the bill.
perhaps harry can supplement that.
>> just some additional background.
at the end of the legislative session, the Texas residential construction commission and all of the statutory authority for it went away.
and so what that means is that consumers in unincorporated areas would have been left with essentially no standards at all.
soond what this bill -- so what this bill, as joe mentioned, was amended to allow counties the authority to create or to direct that there at least will be a building code so that consumers as well as builders will have a standard that they know has to be built to.
we are approaching all of the counties in our five-county area, just telling them that this -- this is in effect.
i don't believe that the statute requires you to take action under any time, but we approached Travis County wanting to make you aware that effective September first trcc and the legislation establishing county codes goes away.
and so I think the second key point is unfunded mandates.
you also have the right to require reporting if you ought to go with the third party county inspections, you have the ability to require that they report back to you.
again, there's no money provided for that, so that would be an unfunded mandate.
that's -- those are essentially -- my reading of the bill is that those are the two decisions facing you.
do you want to establish a code in unincorporated areas and do you want the reporting done to the county or not?
>> the reporting basically will be recording all the information about the inspection.
we expect the future homeowners will want access to that information to find out who inspected it, what did they inspect, did it pass inspection.
so much like our on-site sewage program.
we get quite a few open records requests for information, and that takes staffing, it takes a system filing to make sure that we receive the information, keep it up to date and make it available for the public upon demand.
>> do we have any idea of approximately how many filings there would be annually?
>> in an average year not a down year that we're in right now, we do about 2,000 new residential floodplain permits.
and our idea is if the court chose to go forward with the notice procedures, we will attach these to the floodplains, so approximately 2,000 new residential structures.
>> 2,000 annually?
>> annually, yes.
>> I was thinking the obvious public benefit to a consumer would be that if there is a problem and that consumer wondered whether inspections had been done the source of information would basically be Travis County if we were to do it.
if we don't do it, then I guess they would have to rely on the home builder?
sorry.
next to me is paul who is with the Texas association of builders who also worked directly on the bill.
>> thank you, Commissioners.
it is fairly simple.
you adopt the order that says everything in the county must be built to code, either the ric or the code adopted by the county seat that.
automatically requires the builder to do the three inspections.
and if the county wants notice of those inspections they can opt to have notice, otherwise the builder retains those records and they're available to the buyer upon request.
the owner always has the option of going to the builder for those records.
>> so the easiest, least expensive for us is to require that the code be followed.
and if we don't want to receive the notice and file it away, that means that the home builder would keep it.
so if the home buyer and the home builder got crosswise somewhere, they would just deal with each other.
>> excuse me, judge.
or if there was ever in the future a construction defect or a perceived claim of construction defect, the homeowner could obviously get an inspector to come out, the inspector would say boy, this wasn't built to code and the county says you have to build to code, so automatically the builder is sort of put in a bad position right then and there because he did not follow the county requirements.
>> why would be the recourse if that situation occurred for the homeowner?
>> well, that falls -- dropping that question to my lap because it's a hard one.
and we feel badly about, and our association was active in trying to support reenactment of trcc because without it the only recourse that remains -- let me back up.
when someone calls my office, I say look, I work for builders, they pay my salary.
you don't want me working as an arbitrator.
there's no way I could be conceived as independent.
the next question is then what do I do?
and I say, well, normally the county attorney, the district attorney and the attorney general's office all have consumer complaint divisions.
the question comes back, well, have you ever seen anyone do -- act on those?
and I said not unless there's a clear criminal violation, and even then it doesn't rank as high as other violent crimes.
then what's my option?
well, I'm afraid really the only other option is -- I'm sorry.
i do go into you can file a complaint with the better business bureau?
can they do anything affirmatively?
no.
so the only remaining option then becomes to retain an attorney and go file a lawsuit.
often -- the next statement I often receive is -- pardon me -- I put every dime I have into closing this house, I don't have the money to hire an attorney.
will they take it on a contingency?
and usually my response is well, generally attorneys taking cases on contingency want large dollar claims.
if your problem is a 10, 15, 20,000-dollar issue, I suspect you will have difficulties there.
that's a very long explanation, but I want you to understand why we were such strong advocates of if not reenacting trcc, having something there which unfortunately there is not.
>> Commissioner, just to add one more comment.
i suppose this would be a question for the county attorney.
if there was a constructive defect claim, a third-party person came out and said boy, this home wasn't built to code, it should have been, perhaps maybe there is some action that the county could take against the builder because he did not follow a court order.
so the county may have a role to play in there aside from the differences between the owner and the builder.
there may be some sort of a violation of a court order, but again the county attorney would -- I think there are other county attorneys across the state that are investigating the exact enforcement option that they may have should the county take this on.
>> one more question.
if the county took the course of action of approving the code, but letting the reports reside with the builder, what happens if -- some of the smaller builders move around the country wherever the action is.
how accessible are those going to be?
is there anything in the law that would allow future owners to catch up with those reports?
>> the law really doesn't speak to it, but one of the things that -- and I can say this because a lot of them are members of our association, but there are the third-party inspectors normally who retain records also.
and that's one of the things that I was sitting here thinking about that problem as you were talking about it.
what would I do if I needed that information.
and the answer is I would try and find the third-party inspector.
and those folks do tend to stay stable within the area.
in fact, one of the things obviously a lot of our members are concerned about are the fly by night builders, if you will pardon the term.
and they're not members of our association.
they don't do the things that get accreditation or anything else.
>> I'm sorry, Commissioner?
>> I'm done for the moment.
>> thank you.
i guess I had a couple of questions.
and I'm wondering if this particular bill is it a shall or may?
i guess I'm asking the attorney this as far as even though I heard things may have been unfunded, but is it something that come up under the shall or may option?
>> it's at the county's option.
it's not a shall.
>> it's a may, okay.
all right.
since it is a may, I would like to maybe have the c-14-look at this -- have the county attorney look at this bill overall and I'm not comfortable this morning, and I guess it is just for a presentation before the county.
i don't know if we will take action or anything, but I would --
>> this is a briefing.
>> just a briefing?
just for a briefing?
okay.
good.
i'm really not comfortable.
i'm hearing some things, but I guess I need to flush some things out.
i guess I need the county attorney to look at the gravity of this and maybe get back with us.
the second question I need to figure out here is that I understand from what I've heard that this particular law, it's not a bill anymore, but a law, it suggests that if it is in the existing e.t.j.
of a municipality -- in this case the city of Austin -- then the building code standards of the city of Austin would be applicable and it would override any other building code aspects.
is that a correct interpretation?
>> Commissioner, that's my reading also.
it's not something I would have written, but it's there.
>> okay.
all right.
so since that's the case, since it would be the building code of that particular municipality's e.t.j.
if they have a building code applicable, then the point is who would bore the expense or bear the expense of that particular inspection since it now comes out of the hands of just a normal inspection?
>> the expense is paid by the builder, although working for builders I know as well or better than anyone that ultimately that is paid by the consumer.
but I can tell you that if I was the consumer, I would really want those inspections made.
i strongly recommend to any consumer going home anywhere that it be inspected whether it's by municipality or third party.
>> okay.
i just wanted to flush those things out and those are the only couple of questions I had.
>> mr.
davis?
our understanding is the city of Austin does not enforce building codes in the e.t.j.
except where they are the water, wastewater or electric provider.
and they only issue permits in those limited areas.
so the inspection service done by the city as in city limits may not exist in the e.t.j.
>> ah.
>> and I didn't mean to mislead you.
it would be the -- in the e.t.j., for example, let's use Austin.
in the e.t.j.
of the city of Austin, which covers a large amount of Travis County, the code would be the city of Austin's code.
the inspections would still be by third-party inspectors.
>> and I can't --
>> that's a little different twist.
>> yeah.
i'm sorry if I misled you.
>> a little different twist.
>> it's still third-party inspectors, but as was just said, the city of Austin does not inspect outside their corporate boundaries.
and so again as -- as a consumer protection, that inspection needs to be done.
it's not a cost to Travis County and it's not a cost to the city.
it's paid for by the builder and ultimately by the consumer when they buy the house.
it's included in the price of the house.
>> and Commissioner, the bill was written that way because there are some communities in the state that do require structures built in the unincorporated areas to follow the code adopted by the city.
i'm sorry, in the e.t.j.
to follow the code adopted by the city.
there are some cities that do enforce it, some opt not to, and that was the way it was written.
>> okay.
so I guess this is why that may comes in as strong as it does.
all right.
thank you.
>> so today and previously, if a county resident built a home, what code would be in play?
>> keep in mind I argued this, but lost the argument.
previously the code that would apply would be the code of the county seat, which in this case is Austin.
austin, in Travis County.
>> okay.
so enforcement is done by the state agency that was sunsetted.
it's about to go out of business.
>> that's correct.
>> and filing plus enforcement by the state agency.
>> yes.
>> but they had the whole state, so it's tough to do a good job.
i guess that's why they're going out of business, why they were put out of business, I guess.
>> I'm again troubled if I talk about that too much.
>> okay.
you are on television now.
>> well, there was a lot of -- there was a lot of opposition to the whole concept of an agency.
there was -- they had a process for dealing with complaints that resulted in a group of folks that really weren't happy with it.
the sunset commission staff did extensive interviews with the trcc and determined that they preferred a more conventional licensing kind of organization.
i think the perception at the legislature and among some of the public, consumer activists -- and I don't use that in the negative sense -- was that trcc was too dominated by the home building industry itself and preferred a more conventional licensing kind of arrangement that required testing.
there was talk of ponds and bonding -- talk of bonds and bonding authority and things like that.
ultimately by the end they got to the end of the session, I don't think anybody was happy with trcc and as you said it went away for a lot of different reasons.
i don't think the county -- the unincorporated areas of its responsibilities was a major focus.
and that actually is part of -- was part of our concerns is until this amendment was made, unincorporated persons of counties across the state were going to be left totally unprotected.
>> okay.
so come September 1 of '09, if we don't adopt the code, basically in unincorporated areas there is no building code.
>> that's correct.
>> and am I correct that if you have been building in this area to date, you are accustomed to following the city of Austin building code throughout Travis County?
>> that is a requirement.
now, I can't testify of those fly by night guys.
i don't know that it's -- I don't believe it was being adequately enforced.
>> okay.
well, I simply wanted this to be -- for us to get a briefing so we could put it on our radar.
i do think that in a couple of weeks we ought to have it back on and decide what action, if any, we're going to take.
it seems to me that if we can simply adopt the code in unincorporated areas, we ought to at least do that.
but funding kicks in if we want to try to do enforcement.
i assume that we could adopt the code and then later on, say when the economy gets better, address the enforcement issue?
>> your county attorney will address that better than me.
that's my reading of the bill.
>> we'll just get the county attorney to do that for us.
>> judge, we do -- we think the -- tying the notification requirements to another permit that's existing or some innovative approach to implementation, we're searching the entire state to find those counties to take this on and a great way to implement it and enforce it without a burden.
and we will share that with staff and the Commissioners court when we find this out.
>> okay.
can we do that within the next two weeks, you think?
>> yes, sir.
>> county staff will brainstorm and we'll try to figure out the right thing to do.
okay.
>> thank you.
>> anything further?
>> no.
>> thank y'all very much.
we'll have it back on in two weeks.
and that must be the 18th.
okay.
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Last Modified:
Friday, August 7, 2009 3:29 PM
