This April 24, 2014 photo from a Douglas County inspection report shows the north side of a building constructed on land owned by Kris Kobach.

Members of a board that oversees construction complaints in Douglas County are raising concerns that county officials never told them about a new policy that requires building code enforcement staff to be more customer-service oriented.

In addition, County Commissioner Mike Gaughan said the county “messed up” in dealing with a building project of Secretary of State Kris Kobach in north Douglas County, and said the county will have to look into that case.

County officials say the new code enforcement policy, which has not been put in writing, was put in place before a county building inspector found last year that Kobach was building a residence inside a steel barn that had been designated only for agricultural use. The chief building official took over the case from the inspector, and Kobach did not have to pay a mandatory fine, install an approved water source, or dig up the foundation for a plumbing inspection.

County Administrator Craig Weinaug said that policy was part of a larger, long-term strategy to focus on helping builders get into compliance with codes rather than focusing on penalties.

Two county commissioners — Gaughan and Jim Flory — say they had for years encouraged county staff to be more customer-service oriented and less punitive on code enforcement.

But J. Stephen Lane, the Board of Construction Codes Appeals chairman, raised several concerns in an email exchange with Flory and in an interview with the Journal-World:

• During a major overhaul of the building codes over several months in 2012, the County Commission held two public hearings before approving changes. Although the opportunity was there, the commissioners and Weinaug never discussed the policy to be more customer-service oriented, Lane, a local architect, said.

• The new policy was never conveyed to the appeals board that he chairs, and some construction board members only heard about it in recent weeks, Lane said.

• The chief building official may have waived fines when such discretion is not permitted, Lane said.

“I have become concerned recently that the construction codes adopted by Douglas County have not been enforced appropriately for all projects over the past few months,” Lane wrote in an email to county commissioners. “Or at least that is the appearance. If our codes are not enforced ‘with the intent and purpose’ with which they were adopted, there is not much point in adopting them in the first place.”

Weinaug said the board was not told about the shift in policy because the board hears appeals and complaints about code enforcement and not policy.

“They are not a policy board; they are an appeal board,” Weinaug said. “That is a policy issue for the county commissioners and not the board of construction appeals.”

Mike Gaughan, candidate for Douglas County Commission.

Gaughan said the county had made mistakes in the way the Kobach case was handled.

“We messed up on that,” he said Thursday. “We are definitely going to look into this… .

“At no time was anybody ever told not to enforce the codes,” Gaughan said. “We are attempting to change the culture of the zoning and codes office but the codes are still the codes, and they still need to be enforced.”

Discussions planned

The commission plans to discuss the issue at 6 p.m. Wednesday during its regularly scheduled meeting. The commissioners are also set to discuss a code change that would give the chief building official, Jim Sherman, more discretion in issuing fines.

Douglas County Commissioner Nancy Thellman.

County Commissioner Nancy Thellman said she has had numerous comments from the public about enforcement of the building codes and said a meeting was important so residents can ask questions and air out the issue.

“There hasn’t been an official loop in terms of a discussion of a newly written policy,” Thellman said. “I think I was aware of the intention of the county administrator and the county in general trying to have our zoning codes department to be viewed as more customer-service oriented and less punitive,” Thellman said. “While we all have been aware of that, I can’t say I have been aware of all the internal ins and outs of it.”

The county’s attempts to change the culture of the codes department has been difficult, Thellman said.

“It’s off to a rocky start,” she said.

Lane said he was unaware of the county’s belief that a culture change was needed for the codes enforcement department.

“I had not heard about the kinder, gentler policy until the last few weeks,” he said.

Lane’s construction appeals board also plans a meeting to discuss the issue this week, at 4 p.m. Thursday in the County Commission meeting room.

The five-member board hears appeals about code enforcement and acts in an oversight and advisory role. Board members are appointed by the County Commission for four-year terms. Each member must have at least 10 years of experience and training in building construction,

Douglas County Commissioner Jim Flory

and members must represent a variety of professions or trades.

Flory reacts

On May 22, Lane informed the county commissioners via email of the board’s intent to meet.

That news “raised serious concerns” for him, Commissioner Flory said.

In response to Lane’s email, Flory questioned whether the construction board would benefit from the discussion. Flory said he did not believe the county codes gave the board the authority to supervise code enforcement. That responsibility, he said, belongs to the county administrator and the county commissioners.

“I sincerely appreciate the service of the board members in that capacity, however, I do not believe that the expanded role envisioned by your email and letter are appropriate,” Flory wrote.

Lane responded to Flory that he was not seeking an expanded role for the board.

He said the board has certain roles to fulfill to ensure the codes are enforced properly, including its involvement in the codes overhaul in 2012.

Recent reports in the press indicate a major change has taken place in the level of code enforcement in the county, Lane wrote. “It is not clear whether or not this change was made with the knowledge of the County Commission, but the shift in direction, if it has occurred, has not been announced to the Board.”

Lane said he had received information that the County Commission plans to hear a change in the code — from “shall” to “may” — that would give the chief building official more discretion in levying fines. In addition, he said there was an appearance that other segments of code enforcement, such as a number of building inspections, might also be waived at the discretion of the chief building official.

“If true, this concept seems counter-intuitive…,” Lane wrote. “It is my belief that building codes are minimum standards set forth and adopted in order to provide for the health, safety and welfare of the county citizens,” he continued. “Therefore the codes should be enforced to the level intended when they were adopted.”

On Friday Flory said he wanted to reserve any further comments for the Wednesday County Commission meeting.

Questions about consistency

Don Orlowski, a retired civil engineer and vice chairman of the construction appeals board, said Weinaug has given Sherman too much discretion to enforce the building codes. He said he had heard from one contractor who reported that Sherman had not required him to provide detailed construction plans, and other requirements also were waived.

“The way the county administrator has instructed Jim Sherman is that it is totally his discretion in how he interprets what the law is,” Orlowski said. “We totally disagree with that.”

Orlowski said if the county doesn’t plan to enforce the codes, then there probably is no need for the construction board.

“If you are not going to consider anything we say, and you are going to run and do whatever you want and have the support of the County Commission, what is the point of having the oversight committee?” he asked.

The Kobach case

Kris Kobach

This April 24, 2014 photo from a Douglas County inspection report shows the north side of a building constructed on land owned by Kris Kobach.

In 2013, Kobach told the county’s codes department that he was planning to build a 2,250-square-foot steel barn on his 159 acres. Kobach signed an affidavit stating the building would be used only for agricultural purposes and would not be “a place for human habitation,” “a place of employment” or “a place used by the public.”

The county gave Kobach an agricultural use designation, which means Kobach didn’t have to meet more stringent residential building codes. Ultimately, the owner spends less on construction and pays lower property taxes for an agricultural building than a residence or business.

But in spring 2015, a county inspector found Kobach was building a 1,250-square-foot, two-bedroom living space inside the barn. The inspector wrote in his report that he had found numerous violations.

At Weinaug’s direction, Sherman pulled the inspector and took over the case.

He issued Kobach an occupancy permit even though Kobach did not have an approved water source and the plumbing beneath the concrete foundation had not been inspected. Kobach also did not have to pay a mandatory fine for beginning construction without a permit. In the Kobach case, that fine would have been $700, based on the $70,000 valuation of the building suggested by Kobach and accepted by Sherman. Kobach paid $700 for a building permit and would have paid $1,400 with the fine.

Later, the county appraiser determined that the building’s value was $145,000.