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A District Judge has ruled invalid Helena’s fire ordinance, adopted in 2008 to restrict exposed wood building materials and require fire-resistance roofing materials on new or extensively repaired structures.
In a court case the city brought against a homeowner, District Judge Kathy Seeley wrote May 23 that the city had no authority to enact the building regulations as part of its establishment of a citywide wildland-urban interface district.
City Attorney Jeff Hindoien said the city will likely appeal the matter to the Montana Supreme Court. Whether the city seeks a stay on Seeley’s order is not clear.
“As things stand right now, the wildland-urban interface zoning ordinance has been declared invalid, so we’re certainly not enforcing it at the moment,” he said.
The issue arose when Scott and Megan Svee started repairing the roof on their Harrison Street home.
Scott, an attorney, was replacing the old wooden shingles on a portion of his roof with new wooden shingles; but the ordinance allowed only fire-resistant shingles when more than 10 percent of an individual plane of a roof, or 50 percent of an entire roof, was being replaced.
So the city tried to get Svee to stop, issuing citations and finally suing the couple in late 2011. It eventually dropped the criminal charges and most of the civil suit.
Svee responded with a motion asking Seeley, among other things, to declare the ordinance invalid.
Svee argued under that state law, a city may not enforce a building code unless the code is certified by the Department of Labor and Industry. He said the city’s zoning authority is limited to issues such as the height and size of structures, the percentage of a lot that can be occupied, and the uses of buildings, such as commercial or residential.
Allowing the city to ban wood shingles as part of a zoning ordinance would result in a “patchwork” of building codes around the state, which is what the Legislature sought to prevent when it passed the building code law in 1969.
Seeley agreed.
“The statute does not authorize the City to adopt building regulations under the guise of a zoning ordinance,” she wrote. “In addition, simply labeling a building regulation a zoning ordinance does not alter its conclusion.”
Svee also said the ordinance would be very expensive to comply with. The wooden shakes breathe on their own, while asphalt-shingled roofs require venting systems and effectively force the replacement of the entire roof, he said.
The city had argued that the law specifically allows cities to “regulate and restrict the erection, construction, reconstruction, alteration, repair and use of buildings, structures or land,” and to make zoning ordinances that promote the health, safety, morals or general welfare of the community.
Svee said the case is not done; the parties are still awaiting a final judgment from Seeley, wrapping up remaining issues.
He said one good outcome is that it will make the city reassess how it wants to address the fire issue in ways it is allowed. But he said his intention was only to repair his roof, not to change the law.
“Through this whole process, we’ve continually tried to get this resolved without voiding the ordinance, but we’ve really never had anyone meet us at the table at all,” he said.
In a court case the city brought against a homeowner, District Judge Kathy Seeley wrote May 23 that the city had no authority to enact the building regulations as part of its establishment of a citywide wildland-urban interface district.
City Attorney Jeff Hindoien said the city will likely appeal the matter to the Montana Supreme Court. Whether the city seeks a stay on Seeley’s order is not clear.
“As things stand right now, the wildland-urban interface zoning ordinance has been declared invalid, so we’re certainly not enforcing it at the moment,” he said.
The issue arose when Scott and Megan Svee started repairing the roof on their Harrison Street home.
Scott, an attorney, was replacing the old wooden shingles on a portion of his roof with new wooden shingles; but the ordinance allowed only fire-resistant shingles when more than 10 percent of an individual plane of a roof, or 50 percent of an entire roof, was being replaced.
So the city tried to get Svee to stop, issuing citations and finally suing the couple in late 2011. It eventually dropped the criminal charges and most of the civil suit.
Svee responded with a motion asking Seeley, among other things, to declare the ordinance invalid.
Svee argued under that state law, a city may not enforce a building code unless the code is certified by the Department of Labor and Industry. He said the city’s zoning authority is limited to issues such as the height and size of structures, the percentage of a lot that can be occupied, and the uses of buildings, such as commercial or residential.
Allowing the city to ban wood shingles as part of a zoning ordinance would result in a “patchwork” of building codes around the state, which is what the Legislature sought to prevent when it passed the building code law in 1969.
Seeley agreed.
“The statute does not authorize the City to adopt building regulations under the guise of a zoning ordinance,” she wrote. “In addition, simply labeling a building regulation a zoning ordinance does not alter its conclusion.”
Svee also said the ordinance would be very expensive to comply with. The wooden shakes breathe on their own, while asphalt-shingled roofs require venting systems and effectively force the replacement of the entire roof, he said.
The city had argued that the law specifically allows cities to “regulate and restrict the erection, construction, reconstruction, alteration, repair and use of buildings, structures or land,” and to make zoning ordinances that promote the health, safety, morals or general welfare of the community.
Svee said the case is not done; the parties are still awaiting a final judgment from Seeley, wrapping up remaining issues.
He said one good outcome is that it will make the city reassess how it wants to address the fire issue in ways it is allowed. But he said his intention was only to repair his roof, not to change the law.
“Through this whole process, we’ve continually tried to get this resolved without voiding the ordinance, but we’ve really never had anyone meet us at the table at all,” he said.
