# Challenging an inspection approval by the city building official



## Jeff8737 (Jan 17, 2022)

Hi, has anyone here ever challenged an inspection approval (that by all standards, should have been declined) issued by the city building official? What was your experience, what did it entail, were you successful? Any advice, tips, or suggestions are appreciated.


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## e hilton (Jan 17, 2022)

Never in the history of the world has an inspector been challenged.  

Can you give a few more details.  What type of inspection.  What are you unhappy with.


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## classicT (Jan 17, 2022)

Well, I suppose your results will heavily depend on how you bring this up with the BO.

You believe that you have identified items that the BO approved, that should have been rejected? Let the BO know, he/she will probably tell you that they can revoke the CO and require correction.

That is where the fun begins. CO gets rejected; but if you have paid the contractor, then you have an uphill fight to get the corrections made. And that fight is between you and the contractor. The BO will not (well, should not) get involved.


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## Mark K (Jan 17, 2022)

Challenging the inspector for approving work on the project is likely something a third party such as a neighbor would do.  While there may be the option of appealing to an appeals board my sense is that the most productive approach is to sue the building department

If the property owner believed that the work was not appropriate, I would expect the owner would modify the construction documents, if necessary, and have the work done correctly


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## ICE (Jan 17, 2022)

Jeff8737 said:


> Hi, has anyone here ever challenged an inspection approval (that by all standards, should have been declined) issued by the city building official? What was your experience, what did it entail, were you successful? Any advice, tips, or suggestions are appreciated.


I have done that so often that I don’t have a reliable number…


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## steveray (Jan 18, 2022)

Depends on your angle.....You can always fix what is errantly approved...


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## classicT (Jan 18, 2022)

Mark K said:


> Challenging the inspector for approving work on the project is likely something a third party such as a neighbor would do.  While there may be the option of appealing to an appeals board *my sense is that the most productive approach is to sue the building department*
> 
> If the property owner believed that the work was not appropriate, I would expect the owner would modify the construction documents, if necessary, and have the work done correctly


This is such a horrible idea. Instead of having a productive conversation expressing concerns over what may have been missed items, your answer is to just sue the building department?

*Mark*, you really do just hate building departments or something. I really wish you would get off your high horse, stop railing against code officials, and start promoting code officials and design professionals working together. You have some really great ideas, and a tremendous amount of knowledge. That said, your message is often lost on deaf ears because of your chronic denouncing of code officials.

*For the OP*, Building Departments are pretty much indemnified unless it is an act of malfeasance. Good luck proving that. All the BO has to say is "Oops, didn't see that." Lawsuit dismissed. Dont waste your time and money suing the BO. Even if you do prove the malfeasance (a one-in-a-million shot), the AHJ still wouldn't be the one on the hook for the repairs. The AHJ didn't do the shoddy work, the contractor did. The contractor should fix it.

Now, if the work (the home) is not code compliant, working with the BO may be able to get the CO revoked. With the CO revoked, you now have a solid case of presenting damages for suit against the builder. The builder would then be on the hook (depending on your contract with him/her) for making the necessary repairs, as well as any damages incurred due to their sub-code standard work.

*For the OP, and Mark - *Remember that it is first and foremost the contractors responsibility to perform construction in accordance with the adopted codes. The BO and his/her delegates are not present to guarantee, warranty, or provide any other assurance that a structure is code compliant. The role of a BO is to perform quality assurance and to spot-check the work of the contract to catch as many issues as possible. Will they catch everything? No. The contractor was responsible to build it right in the first place. The contractor is responsible for performing quality control over their own work, and the work of their subs.


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## steveray (Jan 18, 2022)

*R105.8 Responsibility.* It shall be the duty of every person who performs work for the installation or repair of building, structure, electrical, gas, mechanical or plumbing systems, for which this code is applicable, to comply with this code.


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## classicT (Jan 18, 2022)

steveray said:


> *R105.8 Responsibility.* It shall be the duty of every person who performs work for the installation or repair of building, structure, electrical, gas, mechanical or plumbing systems, for which this code is applicable, to comply with this code.


And....

*R104.8 Liability*
The building official, member of the board of appeals or employee charged with the enforcement of this code, while acting for the jurisdiction in good faith and without malice in the discharge of the duties required by this code or other pertinent law or ordinance, shall not thereby be rendered civilly or criminally liable personally and is hereby relieved from personal liability for any damage accruing to persons or property as a result of any act or by reason of an act or omission in the discharge of official duties.


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## ICE (Jan 18, 2022)

There's more to suing an AHJ than just malfeasance.  A second element is malice aforethought.  They would have to do you wrong on purpose because they bear malice towards you.  The odds of that being the case are slim and were it true, proving it is a challenge.

My experience on both sides of the counter has shown that publicity is a greater threat to an AHJ than a lawsuit.  Hells Bells, I've witnessed egregious criminal acts go unpunished rather than expose the AHJ to public scrutiny.  Of course I suppose it depends on the particular AHJ.  I doubt that any of tthe forum members would tolerate much of what I experience.....but who knows.....you may be in a similar environment as I.

Jeff,
So what brought the skunk to your party?  Well I reckon it's a big deal to you ..... even a picayune violation can get under one's skin and turn into an itch that can't be scratched....or there is actual danger to be dealt with.  Do tell.

Oh and pay no attention to the bloviating about who can blame who....none of that matters....not at all.


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## mtlogcabin (Jan 18, 2022)

classicT said:


> All the BO has to say is "Oops, didn't see that."


That's the same thing I tell them when one inspector missed something and the next inspector sees it and has it corrected and the contractors argues that it already passed

[A] 110.1 General.
Construction or work for which a permit is required shall be subject to inspection by the building official and such construction or work shall remain visible and able to be accessed for inspection purposes until approved. Approval as a result of an inspection shall not be construed to be an approval of a violation of the provisions of this code or of other ordinances of the jurisdiction.* Inspections presuming to give authority to violate or cancel the provisions of this code or of other ordinances of the jurisdiction shall not be valid.* It shall be the duty of the owner or the owner’s authorized agent to cause the work to remain visible and able to be accessed for inspection purposes. Neither the building official nor the jurisdiction shall be liable for expense entailed in the removal or replacement of any material required to allow inspection.


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## Mark K (Jan 18, 2022)

I do not hate building departments and recognize that they have a role to play.  I just want the building departments to follow the laws.  Having said that my comments are informed by my personal experiences and the experiences of others.  If you want to have a productive conversation then you need to pay attention to what others say about what you are doing wrong.  Or do you just want to shoot the messenger.

If there is a clear code violation, I have no problem with recognizing that it needs to be corrected.  I may disagree with the code provision but that is a different issue.

How can you work together if the plan checker says do it my way or the highway.  When I asked one plan checker what was the code basis for one of his plan check comments he said there was no code provisions but I either did what he said or we did not get a permit.  Pardon but I do not take kindly to autocrats.

I am willing to admit that many plan checkers and inspectors do a fair job but the ones that go off the rails get all the attention.  There is a general problem in the code enforcement arena where building departments are not willing to deal with the bad actors.

I do believe that in general building inspectors have an impossible job in that they are given authority but in many cases do not have the necessary understanding of the codes and understanding of the basis for these codes.  This is not about intelligence but about training.  You  will not get this training from ICC certifications.  Even in my area of specialty It was a challenge to keep up with all of the provisions and all of the code changes and I spent more time that most other engineers.  Based on this experience I believe it is unreasonable to expect plan checkers and inspectors to have in depth understanding of all of the codes that they deal with.  Do I see some humility?

Experience is that when challenged the department circles the wagons.  An appeals court ruled that the appeals process by a local city was not independent and thus not fair and unbiased.  Thus, I suggest I have a basis for suggesting that the appeals process may not be effective.  When the fix is in the courts may be your only real option.

While building departments have broad immunity against monetary claims the reason for suing the department in this case is to force the department to recognize that they made a mistake.  While the building department may not have to pay compensation the courts can still issue a writ of mandamus compelling the department to change its ruling.

Building departments should understand the limits of their immunity.  When they are acting outside of their authority, outside of the codes, they can have liability.  Building departments should train their personnel regarding the limits of their authority.  In all too many cases the real protection is that it is cheaper for the applicant to do what the department says than to fight it.  I consider this a form of extortion and I suggest that some plan checkers and inspectors are guilty of it.

The original posting was about an inspection that was approved by the inspector that the poster believed should not have been approved.  This is not normal.  My only awareness of similar situations is when some third party, often a neighbor, has an agenda. What is the rest of the story?


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## classicT (Jan 18, 2022)

Mark K said:


> If you want to have a productive conversation then you need to pay attention to what others say about what you are doing wrong.


How do you know that I do not do this? Your overarching generalizations spoil your message.


Mark K said:


> How can you work together if the plan checker says do it my way or the highway. When I asked one plan checker what was the code basis for one of his plan check comments he said there was no code provisions but I either did what he said or we did not get a permit. Pardon but I do not take kindly to autocrats.


Ok, so you have worked with one bad apple. Are all apples bad now?


Mark K said:


> I am willing to admit that many plan checkers and inspectors do a fair job but the ones that go off the rails get all the attention. There is a general problem in the code enforcement arena where building departments are not willing to deal with the bad actors.


Gee, you mean we don't provide top-notch customer service to those who approach us aggressively? That we don't go out of our way to help the likes of yourself that take the approach of 'Just sue the AHJ'. Gee, why would we have that attitude. Your behavior and attitude is creating your own reality here. 


Mark K said:


> Experience is that when challenged the department circles the wagons.


Do you think it is unreasonable to circle the wagons when you yourself are on the attack? Remember, your approach is 'Just sue the AHJ'.


Mark K said:


> the reason for suing the department in this case is to force the department to recognize that they made a mistake.


Simplest approach, show them the mistake that the contractor made, see if they agree, and then give them the opportunity to recognize the contractors mistake and revoke the CO. Do not 'Just sue the AHJ'.


Mark K said:


> Building departments should train their personnel regarding the limits of their authority.


I do regularly get this training, and also share it with my team.


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