Commissioners support new building codes policy, say Kobach did not get special treatment; others not so sure

Two Douglas County commissioners say they have been asking County Administrator Craig Weinaug for some time to adopt a building codes policy that was more instructional and service-oriented and less punitive, and they are set to discuss that relatively new approach at a meeting June 3.

Commissioners Michael Gaughan and Jim Flory said they support the way Weinaug and Jim Sherman, director of Douglas County Zoning and Codes, treated Secretary of State Kris Kobach after he was found illegally building a residence inside a steel barn last year.

Kobach had sworn in an affidavit in 2013 that the 2,520-square-foot steel building in north Douglas County would be used for agriculture purposes and not as a residence. The difference between residential and agricultural buildings, in terms of code requirements and expense, is substantial.

But last year, a county inspector found Kobach building a two-bedroom residence in half of the building without notifying the county or obtaining a building permit.

Gaughan and Flory said last week that Kobach was not treated any differently from anyone else under the new unwritten policy that Weinaug implemented in March last year. Kobach was just one of the first people in the county to experience the new policy, they said.

“I feel OK with the overall direction we are heading in the county,” Gaughan said. “These cultural shifts we are trying to achieve in the office have to be partnered with clear policy changes that we obviously haven’t done yet.”

Reporting by the Journal-World last Sunday found that county officials gave Kobach several passes even though he violated the county’s building code by not obtaining a residential construction permit:

• Kobach did not have to pay a fine for beginning to build without a permit, as the code requires.

• Sherman did not make Kobach tear out the concrete floor so that the plumbing beneath could be inspected.

• Sherman also issued Kobach an occupancy certificate in September even though Kobach has no approved water source.

County officials said others have been treated like Kobach, but they have not yet provided examples.

Code change coming

County commissioners said they had not realized the building codes mandated that a violator pay a fine until the newspaper story was published. As a result, they say they plan to discuss the issue and possible changes to the code at the June 3 County Commission meeting. They also said the new unwritten policy requiring codes employees to be more consumer-friendly needs to be clearer.

“When we brought Jim Sherman on, we did so knowing his charge was to change the culture of the zoning and codes office,” said Gaughan, who was the executive director of the Kansas Democratic Party for four years. “Believe me, there is probably nobody in the state of Kansas who I would rather fine the heck out of than Kris Kobach, but we have been deliberately moving toward a more service-oriented office and not a punitive approach.”

Kobach is a Republican.

Weinaug said the commission at the June 3 meeting would specifically address changing the code that requires a fine for people who begin construction without a permit. He said he would like the word “shall” pay a fine to be changed to “may” pay a fine.

The code had not been changed to agree with the new policy, he said.

“As a result of the story, I moved that to the front burner,” Weinaug said.

Questions remain

Others in the area’s construction industry aren’t ruling out favoritism, especially because they were unaware of the county’s new unwritten policy to be more service-oriented.

“I don’t buy that,” said Don Orlowski, a retired civil engineer and vice chairman of Douglas County’s board of construction codes appeals.

“Kobach obviously was treated with kid gloves. I think (the new policy) was an excuse they dreamed up when they got caught. I don’t even understand what they mean when they say they have been over restrictive,” Orlowski said.

But Flory said he has been talking to Weinaug for six years — since he was elected — about his concerns that the codes department is too punitive.

“When I first campaigned I received a number of anecdotal pieces of evidence from people throughout the county who had concerns about the zoning and codes and the approach that was taken,” Flory said. “One of my first conversations with (Weinaug) is how do we become more cooperative in our approach to people. (Weinaug) was trying to be more customer friendly and approach issues with more cooperation than confrontation, and that certainly is consistent with what I have been telling him for the last six years.”

Flory said he did not realize that the code regarding fines was mandatory and said the commission needs to discuss changing that.

“Permissive language I think typically is better,” he said.

Another member of the construction appeals board disagreed with Flory, saying that more permissive codes could result in more people believing they can avoid building their projects to code.

Stephen Lane, an architect and chairman of the construction appeals board, also questioned whether people had really been treated unfairly by code inspectors in the past.

“It’s hard to have a code, a legal requirement, and adjust it on a case-by-case basis,” Lane said. “It’s like ‘maybe we have a speed limit, maybe we don’t.'”

Challenge pending

Laura Green, a south Douglas County resident, filed an appeal with the construction appeals board two weeks ago, saying the building codes were not 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 the required penalty fee for Kobach beginning construction without a permit.

The county has appraised the property at $145,000. Kobach’s building permit was based on a valuation of $70,000, making his fee $700.

Sherman denied her appeal and told her in an email that she had no standing because she was not the person seeking the permit, based on a finding by the county attorney. This week Green emailed the appeal to the individual construction appeals board members.

After reviewing the appeal, board member Orlowski sent an email Thursday to Lane, the chairman, and Green, who shared it with the Journal-World.

“This application clearly needs to be reviewed by the Board of Construction Appeals,” Orlowski wrote to Lane. “This whole thing is starting to smell like a cover-up to protect the Sec. Of State after he lied on his permit application.”

The right path

Gaughan said Kobach’s project was an example of how the more consumer-friendly codes department should operate.

Once an inspector finds a builder like Kobach hasn’t obtained the proper permits, the inspector should explain to the builder that the project should not be done that way and explain the correct way, he said.

“The new approach is to get (the builder) on the right path and move forward from there,” Gaughan said. “Once he is on the right path … we will help them achieve their goals and do it safely.”

County Commissioner Nancy Thellman said commissioners have had several emails and phone calls regarding the Kobach case.

Ellen LeCompte, a county resident, wrote in a letter to the commissioners that the chief building officer should still make Kobach do the work that he didn’t have to do.

“No one should be exempt from fines, inspections, or official appraisals in Douglas County,” LeCompte said. “Kobach, like everyone else, should have paid double the fine for starting construction without a permit, obtained a legitimate appraisal in line with the County appraisal, torn out the concrete so his plumbing could be inspected, and had proof of a water supply before getting a certificate of occupancy.”

Thellman apologized that the commission would not discuss the policy until June 3, but said she thought it would be an important meeting. She said she would delay discussing the merits of the new policy until that meeting, when she would have more information.

“There has been enough public discomfort with what is a hard conversation,” Thellman said. “Definitely folks are paying attention and hoping for a strong response from the County Commission. I hope the folks who have concerns will be attending the meeting.”