Douglas County says Kobach was not shown favoritism in building case; failure to be strict on building codes was result of new, unwritten policy
Early last year, Douglas County administrators decided that they needed to repair their reputation for being inconsistent in their code enforcement with people building in the county.
Instead of being known as an operation trying to fine and punish people for failing to “dot i’s and cross t’s,” the county needed to be an agency that helped builders get into compliance, County Administrator Craig Weinaug said. Safety was still the goal, but officials wanted to be approachable and helpful.
Weinaug had recently hired a new building officer, Jim Sherman, and at the beginning of March 2014 Weinaug gave him those marching orders, he said.
A few weeks later, in April, it came to light that Secretary of State Kris Kobach was preparing a building in rural Douglas County as a residence, even though he only had permission to use it as an agricultural building. The difference between residential building and building for agricultural use, in terms of code requirements and expense, is significant.
The county code calls for a fine equal to the cost of the building permit fee for those who start to build without a permit — a fine that would have been $700 in Kobach’s case. But the fine was not assessed.
County officials also could have made Kobach tear out the floor so inspectors could look at already-installed plumbing, as they had in a similar situation with a builder a year earlier. They could have made him hook up to a water supply before granting a certificate of occupancy.
They did neither.
A county resident filed an appeal with the board of construction appeals 10 days ago alleging that the rules were not applied as required in the Kobach case. The county has denied the appeal, but the resident said she planned to take her case directly to board members.
Weinaug and other county officials say others also have benefitted from the new, more helpful approach the building department is taking, that Kobach was not the first nor the only one. With the exception of the failure to double Kobach’s building permit fee — which Weinaug acknowledges was an error, was his responsibility and had happened with other builders as well — the county has discretion over application of the rules in question, he said.
What’s really at play, Weinaug says, is an ongoing effort to rein in what he perceived to be inconsistent and sometimes overly harsh application of the county’s rules.
“The implication that we would treat Mr. Kobach more favorably than somebody else because of who he is is simply laughable,” Weinaug said in an interview.
Moreover, Weinaug said, it was important that Douglas County not be seen as beating up on Kobach, a controversial conservative politician, in the middle of the 2014 election season.
The risk, Weinaug said, wasn’t that Kobach would get special treatment. He said it was “that anything we did with Mr. Kobach would be viewed as punitive and a reflection of what the attitude of the average Douglas County resident was toward him. And so we needed to make sure that he was not being treated in a way that was more negative than was appropriate or how we wanted everybody else in Douglas County to be treated.”
How it started
In 2013, Kobach owned 159 acres in northern Douglas County and wanted to construct a 2,520-square-foot Morton-brand steel barn building, according to county records. He grows soybeans on the land.
At that time, the county gave the building an agriculture use designation after Kobach, an attorney, signed an affidavit saying the building would be used only for agricultural purposes and would not be “a place of human habitation,” “a place of employment” or “a place used by the public,” according to county records.
When Kobach signed the affidavit to receive the agriculture use designation, he wrote on the certificate that “part of the building will be used for a farm ‘office,’ however there is no electricity or water service at the present time.”
An agriculture use designation means the owner doesn’t have to get a permit and doesn’t have to meet more stringent residential building codes. Ultimately, the owner spends less money on construction and pays lower property taxes than if the building were designated a residence or business.
By April 2014, electricity was being installed in the building and a county codes official visited for an electrical inspection.
The inspector, Pat Wempe, discovered interior framing and wiring for bedrooms and other living space that covered half of the building.
“This is not an ag building,” Wempe wrote in his report. “It is a 2 bedroom home with kitchen, bath, laundry.”
Kobach told the inspector he had done the wiring inside the building with advice from a church friend, Wempe’s report said. Kobach had hired an electrician to hook up the meter and for panel installation, the report said.
Plumbing also had been installed and buried under a concrete floor without an inspection, the report said.
Kobach “claimed that it could not be a house because he could not get rural water because he was at the end of the line and they would not allow any more meters …,” Wempe wrote in his report.
Wempe said he did not do a complete inspection except for the electricity, and he wrote, “There are code violations with the installation as it is.”
He explained to Kobach that a number of inspections were needed and that “everything to be inspected is required to be open for inspection and this could cause a problem” with the plumbing under the slab, the report said.
Kobach had not installed a sanitary septic system, the report said.
The director takes over
After Wempe filed his report, Kobach obtained a building permit.
Sherman, the new department director, took over the case and performed all subsequent inspections between late June and early September. He did that at Weinaug’s direction, Weinaug said.
In his notes in the inspection file, Sherman noted that work on under-slab plumbing and rough-in plumbing was done before a building permit was issued. In his interview with the Journal-World, in discussing his plumbing inspection, Sherman said Kobach and the plumber were on site, they ran tests and the plumber left before Sherman arrived. Sherman approved the plumbing.
Kobach was not required to dig up the concrete for an inspection.
Wempe’s notes on his one visit to the Kobach property were relatively detailed. Sherman’s notes were relatively sparse, sometimes only one word: “passed.”
Weinaug said the county’s building officer can decide how detailed reports should be and whether the owner needs to dig up the floor for the plumbing to be inspected.
On Sept. 2, Sherman conducted the final inspection and wrote “passed” without comment.
A certificate of occupancy is a document issued by a government agency that certifies a building is in compliance with building codes and is in suitable condition to be lived in.
Weinaug and Sherman said they believe the county’s building officer has the discretion to issue a certificate of occupancy even though Kobach’s residence is not compliant with county codes.
Sherman said Kobach is using a cistern, a tank that holds water, but has a plan to hook up to a water main later this summer.
“The decision of issuance of that occupancy permit is within the discretion of the building official,” Weinaug said. “So our building official made the determination that since (Kobach) had a plan to hook up to rural water, that a temporary arrangement with the cistern was adequate until that was done. Again that is within the discretion of the building official.”
Sherman was put on the case, Weinaug said, so that Kobach would be treated fairly.
“I had some specific concerns that Kobach was being treated in a way that reflected the political biases of the inspector,” Weinaug said. “I specifically asked Jim to take over the handling of that inspection to make sure that Mr. Kobach was treated just like everybody else and not in an onerous way.”
Wempe told the Journal-World he was surprised to hear that he expressed a political bias. He said he doesn’t pay attention to politics.
“If I had to say, I would say I was probably a conservative Republican,” Wempe said. “But I don’t think I have a political bias toward anyone. That is just not true.”
He had no further comment.
Kobach told the Journal-World earlier this month that he someday plans to build a house on the property. In the meantime, he said, he uses the barn-residence to visit and stay occasionally.
“Basically, it’s sort of a small office, a place where you have a bathroom and a kitchenette, a small bedroom, if a person needs to spend the night there,” he said.
Kobach told the Journal-World in June 2014 that he hadn’t gotten a building permit and opted for an agriculture use designation back in 2013 based on advice from Morton Buildings.
During the 2014 inspections, Kobach told Wempe he had hired a plumber and an electrician to do some of the work at the building.
Rick Fischer, the plumber, and Steve Billbe, the electrician, told the Journal-World that normally they call for their own inspections, but in this case Kobach said he would take care of the paperwork.
“I told him I don’t think they are going to go for that,” Fischer said. “Usually I call for my own inspections. Kobach said, ‘I will handle all that.’ So I put it off on him.”
In an interview with the Journal-World, Kobach said he hadn’t hooked up to a water main because it is about a half mile away and will cost thousands of dollars.
“We’re hoping to do it later this year … but definitely before we build a home,” Kobach said.
Stephen Lane, a local architect who is the chairman of the Douglas County Board of Construction Codes Appeals, expressed surprise that the county issued an occupancy certificate without an approved water source.
“It’s hard to have sanitary conditions if you don’t have water — assuming you are using toilet facilities,” Lane said.
On May 7, county resident Laura Green filed an appeal with the board of construction codes appeals. She says that the rules weren’t correctly applied to Kobach in two ways: The county gave his property a low valuation that resulted in a relatively low permit cost, and it failed to assess a required penalty fee for his beginning to build without a permit.
The cost of a building permit is based on the value of the building. Green says the county’s value of Kobach’s building, set by Sherman, was below normal and resulted in a “favorable and low fee to the owners.”
“It is inconceivable that the 1250 sq/ft living space inside the total 2500 sq/ft building could be valued at only $70K,” the appeal said. Green’s appeal points out that the county appraiser has found the value of the building to be $145,000.
Sherman said he relied on figures that Kobach presented to him.
“I just agreed with his valuation,” Sherman said.
Weinaug said before the Kobach case, there had been cases where valuations seemed high. Weinaug said he issued a new directive in computing the value to try to make it more fair.
“We worked out another method,” Weinaug said. “So on this one (Kobach), you will probably find it was lower than the subsequent ones, but this was (Sherman’s) first shot at my directive to him. It’s better to have it on the low side than higher than it should be.”
Green also objects to Sherman’s decision not to fine Kobach for building without a permit. The county code calls for a fine equal to the building permit fee, meaning those who start to build without the permit have to pay twice as much as those who get the permit first as required.
Green wrote in her appeal that she had taken this action for “reasons of fairness in local government. I claim that the true intent of the applicable codes have been incorrectly interpreted by the chief building official.”
Green said if Sherman does have the discretion to exempt owners from fines and produce lower valuations, she was unaware of it.
“If the building official has this discretion, then it has not been communicated to the public,” she told the Journal-World. “We all should be following the same set of criteria.”
Last week, Sherman sent Green a notice that she had no standing to appeal because she was not the person seeking the permit, based on the county attorney’s legal opinion.
Green said Friday that she questioned Sherman’s ability to deny the appeal before it was presented to the appeals board. She said Sherman had given her contact information for the appeals board members and she intended to send her appeal directly to them.
Fines and fees
Weinaug said he did not believe anyone has had to pay the building-permit fine since the Kobach case.
“I doubt if you look after that date that you will find anybody that we doubled it on since that date,” Weinaug said.
Green lives in south Douglas County near 600 acres of farmland owned by Olathe resident John M. Brulez. He already had a barn on his land in 2013 when he decided to build a one-bedroom residence with a loft inside. Brulez said he and his son stay there when working on the farm.
Brulez said in an interview that when he started the construction he didn’t know he needed a building permit, and got caught by a county inspector in April 2013 and was told he would have to get one.
Brulez was “well into it” with the construction when the inspector showed up, he said.
Brulez had to pay a fine, 100 percent of the cost of the building permit, as required by the code. He had to dig up his floor for inspection of plumbing underneath. He said he spent thousands of dollars tearing apart the structure bringing it up to code. He had to hire an engineer and has multiple pages of blueprints and plans for the building. Kobach’s construction plan in the county file, in contrast, is hand-drawn on a single 8-by-10-inch sheet of paper.
Brulez said once he understood he needed the permit, he believed he had been treated fairly by the county.
When told that Kobach didn’t pay a fine or have to dig up the floor for plumbing inspection, Brulez said: “Wow, how did (Kobach) get by with that? They were pretty tough on me.”
Weinaug said he believes Brulez was singled out and treated unfairly, and it’s because of him in part that Weinaug said he decided to implement a new direction for the codes department.
While the county’s new approach to violations was never put into writing, Weinaug and Sherman say they agreed verbally that the policy would be a dramatic change in the way building codes are enforced in Douglas County.
Weinaug said he was able to set the new direction without the County Commission’s authorization because he believes the county’s building officer has wide discretion to determine whether a builder is in compliance.
He did acknowledge that failing to assess fines might not be allowable.
“If that was done improperly that’s my responsibility,” Weinaug said.
Stephen Lane, a Lawrence architect and the chairman of the Douglas County board of construction codes appeals, said he was unaware of the county’s new direction.
“I’m surprised,” Lane said. “I would think that any design professional would have been aware of it and especially those of us on the board of construction appeals.
“I’m not aware of anyone else who hasn’t had to pay double fees when they tried to build something without a permit,” he said. “I’m not aware of anyone else who has not had to meet the codes before being issued an occupancy permit. This is new to me.”
Not just Kobach
Weinaug said he began talking about a change in approach on code enforcement three years ago with Sherman’s predecessor, Keith Dabney. Dabney, a 20-year county employee, left the department in May 2012 after being placed on administrative leave. At the time Weinaug declined to discuss specifics because it was a personnel matter.
Linda Finger was an interim director and was in charge during the Brulez case. The method used on his case, she said, was the same that had been in place for years. Sherman came on board Feb. 28, 2014, and changing the focus of the department was a goal Weinaug set for him, Weinaug said.
The issue, said Assistant County Administrator Sarah Plinsky, was that enforcement had been inconsistent. Some builders got a “How can we help? How can we be proactive?” approach from county officials and others got a more punitive approach, she said.
“So in an effort to try to create a consistent approach that we wanted to have moving forward, we wanted to create a culture of customer service, a culture of being proactive, a culture of trying to get people into compliance as opposed to punishing them with fines and fees that were inconsistently applied. You understand why we would not want fines and fees to be inconsistently applied,” Plinsky said.
In an interview May 7 Plinsky offered to provide examples of other builders who were shown a more helpful enforcement effort before Kobach’s residence in the barn came to light, but the Journal-World does not yet have those examples.
A sentence has been clarified to reflect that Laura Green lives in Douglas County near property owned by John Brulez, not near Brulez’s Johnson County residence.