# Private for profit company on US Govt real estate



## jar546

A cell phone company is putting a tower on govt land that they leased.  They are claiming that they are exempt from permits because it is govt land.  The installation is not part of government service and just a convenient location for them.  Since the installation an equipment are owned by a for profit company and it is not for government use, would they still be exempt?


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## Frank

In VA those on VDOT land are subject to regulation by the state not local building officials, unless the state asks us to look at it.  When on state of fedral land it is outside the local jurisdiction but subject to their building official.


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## fatboy

Around here, if it is US Gov. owned property, then they would be exempt from permitting with us, regardless of the end user.


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## steveray

I'd agree......around here, if the property is OWNED by state or feds.....we don't even go there....If the government is renting or leasing from a private company, game on....


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## Wayne

Re: Private for profit company on US Govt real estate

In Nevada unless the Federal Government is building it they are not exempt from local permitting.


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## mtlogcabin

We would get permits for the tower foundation and any supporting equipment structures. No permits for the tower itself, we do require a copy of the third party inspector who climbs that tower.

Unless you are actually doing inspections on that tower why would you require a permit regardless of who owns the land

http://radiomagonline.com/transmission/radio_getting_tower_inspections/

http://www.trylon.com/pdfs/Sample%20Tower%20Inspection%20Report.PDF


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## conarb

The states and their municipalities have no jurisdiction on federal government land, look at the Indian casinos, since they are located on federal land in the hearts of cities people can gamble, smoke, and do all kinds to things not allowed by state law.


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## cda

Boy all over the board answers

Pick one

So is this fed land ,,  state land??? Other???

Is the land surrounded by your city??


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## north star

*= = + +*







> "A cell phone company is putting a tower on govt land that they leased.   They areclaiming that they are exempt from permits because it is govt  land.  The installation is
> 
> not part of government service and just a  convenient location for them.  Since the
> 
> installation an equipment are  owned by a for profit company and it is not for government
> 
> use, would  they still be exempt?"


Typically, whenever a lease agreement is formed, there are stipulations of who does what,when , where, yadda, yadda, yadda !..........Also, if this a private for profit company, who

will be receiving the revenues this cell tower will generate, ...who is supplying the

electrical power to the site, ...the  911 addressing , etc. ?

By simply being located on gub `mint property does not necessarily remove from the

local AHJ from having jurisdiction over it ?........I recommend that contact be made

with both the gub `mint property owner and the cell tower company, to perform a

"due diligence" investigation on the property, and to obtain a written response that

outlines the details of the lease agreement  [ *EX:* Someone is working on the cell

tower.........That someone has a heat stroke, or heart attack...  Does the local Fire Dept.

respond, if not then who does ?   ].........Jurisdictional Authority simply has to be

established.......Even if the lease contract has already been executed, a Lease Rider

can be added to the contract.



*+ + = =*


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## Frank

In Virginia the cell tower companies started locating on VDOT land (typically in limited access intechanges) to avoid local zoning regulations.

Locality does provide fire protection etc.  Years ago a high rise state office building under construction had a fire on the umpteenth floor and there was no temporary standpipe.  The Richmond fire chief asked the state for temporary standpipes and was told he did not have the authority to order them.  He responded ok I cannot make you provide it, but if you don't be ready to fight your own fires--it was up within the week.


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## jar546

Well,  I did my digging and knew the answer, even after the site engineer for the US Govt. said not permit was needed.  After I questioned them more and asked them to please read the lease this was the response that I received:



> Jeff, My apologies.  I just read the lease.  You are correct.  I should have done that 2 weeks ago.
> 
> The permit application & applicable documents & drawings are with FedEx and will be delivered to you tomorrow.


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## conarb

jar546 said:
			
		

> Well,  I did my digging and knew the answer, even after the site engineer for the US Govt. said not permit was needed.  After I questioned them more and asked them to please read the lease this was the response that I received:


Interesting, there must be a clause in the lease that the work on government property be inspected by a specified agency, I wonder which jurisdiction will get the fees?  Federal Government property is not governed by any county or municipality.  I've had contracts on both Federal and State buildings and there was never local inspection, all inspections were done by the Feds or State.


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## TheCommish

on an interesting note here in Massachusetts in the Town of West Springfield every September there is the Big E, formal know as the Eastern States Exposition, think of the county or state fair, but really BIG mostly new England  is billed as "New England's Great State fair". It is the largest agricultural event on the eastern seaboard.

On the Avenue of States each New England state has a building to show case their state products, each building and the lot surrounding it is considered sovereign  property belonging to each respective state.  So the State of Maine need to do some fire sprinkler work and decided it did not need a permit from the local fire department (by the way the fair is so big the West Springfield FD has a substation a real building on the property for the  duration of setup and take down for the 3 week event) to which the Fire Marshal said you are quibbling over $50.00 if you don't apply and pay and you have a fire, well just wait for the State of Maine FD to come down and put the fire out, the fee and permit application was promptly filed.


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## jar546

conarb said:
			
		

> Interesting, there must be a clause in the lease that the work on government property be inspected by a specified agency, I wonder which jurisdiction will get the fees?  Federal Government property is not governed by any county or municipality.  I've had contracts on both Federal and State buildings and there was never local inspection, all inspections were done by the Feds or State.


It's actually in the law depending whether or not it is a straight lease or lease with option for US Govt to purchase.


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## conarb

jar546 said:
			
		

> It's actually in the law depending whether or not it is a straight lease or lease with option for US Govt to purchase.


Jeff:

From Post #1 I thought it was government owned land that the cell phone company was leasing?



			
				Jeff Post #1 said:
			
		

> A cell phone company is putting a tower on govt land that they leased.


Now you are saying it's privately owned land that the government has leased with an option to purchase?  Big difference.


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## jar546

No government owned land with private structure being built on it.  Govt has an option to purchase the structures or they can tear it all down.  They are leasing the land but own the structures.


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## conarb

jar546 said:
			
		

> No government owned land with private structure being built on it.  Govt has an option to purchase the structures or they can tear it all down.  They are leasing the land but own the structures.


Jeff:

That explains it, when you said: "A cell phone company is putting a tower on govt land that they leased." I thought you meant that the cell phone company (they) leased the land from the government, what you meant was that the cell phone company was putting a tower on land that the government (they) had leased.  Title runs with the land, if the government owns the land there is no local jurisdiction, if the government leases the land then there is local jurisdiction.


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## jar546

conarb said:
			
		

> Jeff:That explains it, when you said: "A cell phone company is putting a tower on govt land that they leased." I thought you meant that the cell phone company (they) leased the land from the government, what you meant was that the cell phone company was putting a tower on land that the government (they) had leased.  Title runs with the land, if the government owns the land there is no local jurisdiction, if the government leases the land then there is local jurisdiction.


Let me try this again:

Land is owned by the govt.

Private company wants to build on it

Private company signs lease with govt in order to build on govt land

Local permits required per  govt lease.


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## Frank

jar546 said:
			
		

> Let me try this again:Land is owned by the govt.
> 
> Private company wants to build on it
> 
> Private company signs lease with govt in order to build on govt land
> 
> Local permits required per  govt lease.


The last line gives jurisdiction back to the locality

That old Federal supremacy thing


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## jar546

So the lesson learned here is to not think that we all know the answer based on past history.  Get a copy of the lease and you may be surprised at what you find out.


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## north star

*= = + +*





> "So the lesson learned here is to not think that we all know the answer  based on past history.  Get a copy of the lease and you may be surprised  at what you find out."


Unfortunately for most of us, ..we tend not to learn from our past !  D`OH !      

*+ + = =*


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## steveray

How or why do we enforce the conditions of the lease?.....Other than a phone call to the property owner.....


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## conarb

steveray said:
			
		

> How or why do we enforce the conditions of the lease?.....Other than a phone call to the property owner.....


Steve:

It's none of the AHJ's business since they have no jurisdiction on government land, Jeff is attempting to enforce a private contract.  A case could be made that the AHJ is a third party beneficiary of the contract, but to prove the case the AHJ would have to prove monetary damages which would entail proving lost profits, at least in California it's illegal for government agencies to make a profit.  In states without such a law do you really want to go to court and prove that you are making a profit off building inspection?


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## jar546

Not my first dance with this and they are required to notify you of the planned construction.  The lease requires that they pull a permit and get inspections by the local authority which is me.  They have an obligation to pull a permit and have inspections performed anyway so I was just helping them by having them read their contract after I received the notification.  The govt should not be wasting their money and resources to inspect a for profit company when the lease requires he lessee to have those services provided by the local AHJ.  This is pretty simple and I'm not attempting anything, just doing my job and providing a required service. Since I too am a for profit company this is good for me.  It's the lazy local ahj on salary that does not want the extra work, not me.  I'll take it all day long.


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## ICE

jar546 said:
			
		

> It's the lazy local ahj on salary that does not want the extra work


You really should be smarter than that.


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## conarb

jar546 said:
			
		

> Not my first dance with this and they are required to notify you of the planned construction.  The lease requires that they pull a permit and get inspections by the local authority which is me.  They have an obligation to pull a permit and have inspections performed anyway so I was just helping them by having them read their contract after I received the notification.  The govt should not be wasting their money and resources to inspect a for profit company when the lease requires he lessee to have those services provided by the local AHJ.  This is pretty simple and I'm not attempting anything, just doing my job and providing a required service. Since I too am a for profit company this is good for me.  It's the lazy local ahj on salary that does not want the extra work, not me.  I'll take it all day long.


Jeff:

I guess you said it all, if the parties to the contract decide not to honor that clause in their contract, which is their right, I guess you, not the AHJ, could bring a third party beneficiary contract action on the basis that you are damaged by their failure to enforce that clause in their contract.  Interesting that you see it as your job to run around and enforce private/public contracts for your profit, almost like the handicapped running around suing people for their profit.


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## jar546

conarb said:
			
		

> Jeff:I guess you said it all, if the parties to the contract decide not to honor that clause in their contract, which is their right, I guess you, not the AHJ, could bring a third party beneficiary contract action on the basis that you are damaged by their failure to enforce that clause in their contract.  Interesting that you see it as your job to run around and enforce private/public contracts for your profit, almost like the handicapped running around suing people for their profit.


Because it is my job when they contact me as ask me if they need a permit.  I can only answer them after I see the contract.  I don't go around calling them.  They call me first.  The other part is that capitalism is alive and well and embraced by everyone.  I would like to retire one day ya know.


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## Mark K

In California and I would assume some other states the State regulates public utilities and their construction standards.  The local jurisdictions have no authority.  The question is this cell phone company considered a public utility.  If so you have no jurisdiction whether it be on public or private land.


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## conarb

jar546 said:
			
		

> Because it is my job when they contact me as ask me if they need a permit.  I can only answer them after I see the contract.  I don't go around calling them.  They call me first.  The other part is that capitalism is alive and well and embraced by everyone.  I would like to retire one day ya know.


At least you are being honest and I can't knock that.  If you are really working to retire get a government job with a pension, I'm going to be 79 next month and am still working, my friends who had government jobs are floating around the world on cruise ships plunking quarters into slot machines while I work and pay over half of what I make in taxes to help pay their retirement costs.


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## jar546

conarb said:
			
		

> At least you are being honest and I can't knock that.  If you are really working to retire get a government job with a pension, I'm going to be 79 next month and am still working, my friends who had government jobs are floating around the world on cruise ships plunking quarters into slot machines while I work and pay over half of what I make in taxes to help pay their retirement costs.


At your age that is pretty sad to hear.  It does seem like the govt jobs from the muni level on up are the ones with the good benefits and retirement.  I don't plan on being able to retire anyway.


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## conarb

Mark K said:
			
		

> In California and I would assume some other states the State regulates public utilities and their construction standards.  The local jurisdictions have no authority.  The question is this cell phone company considered a public utility.  If so you have no jurisdiction whether it be on public or private land.


It goes even further than that, I've done work on two private hospitals on private land, all permitting and inspections were done by the Division of State Architects, no city permits at all, I've done remodeling on two state buildings and I've built a couple of city schools too, no permits there either, the DSA does *schools* *too*.  On schools, hospitals, and state buildings the local fire marshal did inspect them.  On the Federal projects I don't remember any inspections, there was a government employee assigned to my jobs and he reviewed what I did for contract compliance when I applied for payment, but I wouldn't call his reviews building inspection.  I guess the government accepts their designs as compliant, so all building inspection amounts to is plan and spec compliance.  I've done several jobs at the Lawrence Radiation Laboratories, all design and inspection was done by their in-house engineers, this is state land sitting within the City of Berkeley, no Berkeley or state permits or inspections, and this is the location of our building science laboratories. I built two cyclotrons there, on the first one the inspector was an engineer, I ended up remodeling his home and building him a new duplex, on the other one of the inspectors was an engineer and was my neighbor.  I remodeled the building department in the basement of the old San Leandro City Hall, no building permit there, the CBO (and later one of his inspectors when he went on vacation) reviewed my work but nothing like an inspection.


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## Frank

conarb said:
			
		

> At least you are being honest and I can't knock that.  If you are really working to retire get a government job with a pension, I'm going to be 79 next month and am still working, my friends who had government jobs are floating around the world on cruise ships plunking quarters into slot machines while I work and pay over half of what I make in taxes to help pay their retirement costs.


I retire on my modest VRS pension tomorrow.  Some time after that I am looking at setting up as code consultant and independent consulting engineer.


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## conarb

Frank said:
			
		

> I retire on my modest VRS pension tomorrow.  Some time after that I am looking at setting up as code consultant and independent consulting engineer.


Obviously you didn't spike your pension if you still have to work.  It may be too late for you, but for other civil servants *here's how it's done*.  We make a big deal here about the handicapped blackmailing us, our servants are blackmailing us too.


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## Min&Max

Ultimately you only get on the property if the feds or state allow/request that you be there. If they do not you are done. If they do, why not go? Collect the fees and do what you do.


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## conarb

Min&Max said:
			
		

> Ultimately you only get on the property if the feds or state allow/request that you be there. If they do not you are done. If they do, why not go? Collect the fees and do what you do.


And ultimately isn't that what it's all about, collecting the fees, with the rationalization that you are protecting the health and safety of the public?


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## steveray

Conarb....It is not rationalization...It is reality, have you seen any of ICE's pictures? The quality (builder, electrician, plumber, architect, engineer, and maybe even inspector) are in the small minority in my world at least.  Just the things that I have seen that would have gone unchecked and then repeated exponentially without anyone teaching someone is insane. I give at least $200,000 back to my taxpayers (by that I mean general fund) from my fees, and up to $500,000+ on a big year on a 1 and 1/3 person budget...I couldn't care less about the money, I just want to see things done properly....

Example: New $20 mil school, firewall detail on plans shows it stopping short of the roof deck with arrows going over it marked airflow....Being the "everyone makes a mistake" kinda guy that I am, I asked the lead architect on the project what the air over the firewall detail was about.  He said "we have to vent the roof" ......I said, not at the expense of not having a firewall....

Ohhhh......and not all municipal employees get a pension...but I do get to get out of bed in a blizzard at 3 AM to look at trees through houses in my own vehicle, for "free"....So it all balances out.....


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## Frank

conarb said:
			
		

> Obviously you didn't spike your pension if you still have to work.  It may be too late for you, but for other civil servants *here's how it's done*.  We make a big deal here about the handicapped blackmailing us, our servants are blackmailing us too.


Conarb Virginia has rules in place to exclude those things from the pension calculation, uses a 3 year average final compensation, and collective bargaining for public employees has been illegal forever --sometimes sensible government can hurt lol


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## Min&Max

Obviously collecting fees is important. If we do not collect fees the average taxpayer is going to pay for the inspections at the new Walmart Supercenter,  "non-profit" medical facility or detached garage in their neighbors back yard. As a taxpayer I do not want my taxes going towards the improvements on someone else's property. Fees collected over a five year time period should, ideally, cover the cost of running a jurisdictions inspection program, no more no less. Not all govt. employees have the old school pension plan. Through my employer I have a self-directed 401(k) with absolutely no opportunity to "spike" my future retirement income.


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## Mark K

If the local agency does not have jurisdiction I do not understand on what basis they can perform plan checks and inspections.  The contract between the Feds and the party building the building is irrelevant.

Even if you did review these projects there would be no enforcement powers.

If a local jurisdiction were to perform these services where they did not have jurisdiction it would appear that they would not be able to rely on the governmental immunity from liability.


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## conarb

Mark K said:
			
		

> If the local agency does not have jurisdiction I do not understand on what basis they can perform plan checks and inspections.  The contract between the Feds and the party building the building is irrelevant.


I think they can, one governmental agency and a private corporation enter into a contract, a clause in that contract requires another government agency to provide inspection services, I think that's an acceptable civil contract unless there is something in the government code that forbids it.



> Even if you did review these projects there would be no enforcement powers.


Enforcement would be an action filed in a civil court just like any contract between two parties, but no police powers.  I assume that the contract clause requires the cell phone company to obtain the permit, that being the case I would think that the AHJ would be subject to all other subcontractor requirements like insurance and bonding.  It's like when I employ special inspectors to comply with Chapter 17 requirements, they have to provide me with insurance naming me and my customer as additionally insured, that is a requirement of my liability carrier, along with approved Hold Harmless and Indemnification clauses.  I'm sure that the cell phone company's liability carrier(s) have similar requirements.  I think the city/county attorneys and cell phone company's attorneys are going to spend a few months on this one.  I had one where my attorneys and a corporation's attorneys spent three days over one word in my AGC standard form Hold Harmless and Indemnification clause.  Jeff is a sub-subcontractor and would have to also provide liability insurance cross indemnifying all other parties, he should probably consult his attorneys on this one.



> If a local jurisdiction were to perform these services where they did not have jurisdiction it would appear that they would not be able to rely on the governmental immunity from liability.


I agree with this point, the AHJ would be acting as a private contractor and would lose any sovereign immunity.  Since the AHJ would be contracting for a profit this would be illegal in California but I think we are the only state with a law banning government agencies from making a profit.


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## Mark K

Conarb

I believe that the California statute that you are referring to simply says that over a relatively moderate period of time that the amount of the fees that they collect cannot exceed the amount that they spend to provide the services associated with the fees.  In practice this allows the local jurisdiction to roll over some excess funds to the next year but over the long term there should be no excess.  Thus if the fees charged were justified by the hours spent there is no foul.  Also a profit on one project would not be a problem if it was offset by other expenses directly associated with the enforcement activities not necessarily tied to that project.  This was adopted to prevent cities from using building permit fees to fund the city's general fund.

I believe that there is a similar constraint on fees associated with planning approval.  For example the City could not require a developer to build a new road on the other side of town that was not tied to the project being approved.

The fact that the Feds and a private enterprise enter into a contract that requires a state or local agency to do something does not create an obligation for that local agency to do what the contract says.  This is a states rights issue.  We are then faced with the question as to whether the building department can perform the service being requested?

My impression is that if a local building department were to agree to provide services where they do not have enforcement authority they would need the approval of the City Manager or the City Council, which would probably involve the city attorney in reviewing the contract.  Given how risk adverse most cities appear to be and the loss of governmental immunity I do not see why a city would under take such an effort.


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## Mark K

I have done some research and it appears that there are situations where state and local jurisdictions can have jurisdiction for activities on federally owned property.  They differ dependent on the type of federal property we are talking about so an attorney should be consulted.  This jurisdiction is defined by law and court cases and not by contracts although the contracts may restate the feds understanding of jurisdiction.  In such situations the project should be with in the boundaries of the jurisdiction.


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## conarb

Mark said:
			
		

> I believe that the California statute that you are referring to simply  says that over a relatively moderate period of time that the amount of  the fees that they collect cannot exceed the amount that they spend to  provide the services associated with the fees.  In practice this allows  the local jurisdiction to roll over some excess funds to the next year  but over the long term there should be no excess.  Thus if the fees  charged were justified by the hours spent there is no foul.  Also a  profit on one project would not be a problem if it was offset by other  expenses directly associated with the enforcement activities not  necessarily tied to that project.  This was adopted to prevent cities  from using building permit fees to fund the city's general fund.


Mark:

I don't think it's as detailed as that, in 1978 we had the tax revolt and overwhelmingly passed Prop 13, Prop 13 allowed government agencies to levy fees for services rendered, but anything over and above that became a tax subject to a vote of 2/3 of the electorate.  Jurisdictions immediately started raising fees  to make up for lost tax revenue calling everything a fee and not a tax.   Building departments were the worst offenders since builders weren't necessarily voters and finally the NAHB started suing AHJs for levying taxes disguised as fees and winning, many of the greedy cities paid the judgments and kept right on levying the fees, figuring that they were money ahead paying the judgments and continuing to collect the fees, probably because most of the judgments were covered by insurance.

Of course this and all following statutes were initiatives from the electorate and not legislation from the legislature, some of the following initiatives were *Prop 218 in 1996* and *Prop 26 in 2010*, there was another in there that I am trying to remember.

The greedy cities continue to evade the intent of the laws by developing workarounds to continue to fund their operations and pay city/county outrageous pensions and other benefits, the big workaround that I see is incorporating other money losing services within the building departments, the most outrageous is the affordable housing mandate, a mandate passed without funding, so building departments now assess large fees to fund their affordable housing mandates and those fees are all part of the operating expenses of the building departments so we can't sue on the basis that they are taxing us for affordable housing, they are assessing us a fee to fund their department which is "serving" us along with housing "poor people" and socially engineering society by moving poor people into wealthy communities.


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