Update: BCD Delegation Ruling

Unsealed pipe penetration in 2-hour concrete block wall: Smaller Oregon communities require timely inspections of the kind private, third-party inspectors can provide to identify code violations like this.

Royal Mortier sent me an update regarding the proposed program delegation rule governing local municipalities’ use of third parties to provide the services of a building department. In a fit of uncommon good sense, the Oregon Building Codes Division has decided to rescind the emergency rule, choosing instead to give the matter more consideration and analysis before determining exactly how to proceed, if at all, with its application. This stay is a definite win for the numerous smaller jurisdictions who were subject to the ruling.

The League of Oregon Cities, which represents many of the affected communities, reports work remains. When all is said and done, it’s conceivable the BCD may reassert its authority based on the Oregon Department of Justice interpretation. The Oregon Administrative Rules make a distinction between “ministerial” and “discretionary” actions. BCD’s interpretation, affirmed by the DOJ, views the assignment of discretionary powers to private contractors as unlawful. Interpreted most narrowly, this means the current practice wherein private third-party building officials, plans examiners, building inspectors, and electrical inspectors render decisions may be unconstitutional. As I suggested in my previous post on this topic, the arguments posed by the BCD in support of the delegation rule appear specious and motivated by reasons other than constitutional fidelity.

Everyone is interested in reaching a considered and legally defensible solution. I believe it would behoove the BCD and the DOJ if such a solution would continue to allow cash-strapped small communities to contract with third-party “building departments” for services these smaller cities and counties cannot otherwise provide for themselves in a cost-effective manner.

The League, as well as the Association of Oregon Counties, thanks all interested stakeholders for their efforts in keeping this issue in the news and in front of state policymakers. I’m happy to do my small part by reporting this news here on my blog.