Why We Say No
To the best of our knowledge, a consumer survey has never been performed asking the question: “Which local government agency/official is the most unreasonable?” We are fairly certain the Building Department or Building Inspector would be at the top or very near the top of the list. Why do we think that? Because for the most part we will tell people “No you can’t do that” or “You can’t start yet because we need to review your application.” Why do we make these statements?
There are two very important reasons we say no.
NH RSA 676:13 Building Permits Restricted
- I. The building inspector shall not issue any building or occupancy permit for any proposed construction, remodeling, or maintenance which will not comply with any or all zoning ordinances, building codes, or planning board regulations which are in effect.
- II. If any building inspector is prosecuted for violation of RSA 643:1 and found guilty of issuing any permit contrary to the provisions of this section, it shall be prima facie evidence that the building inspector has knowingly refrained from performing a duty imposed on the building inspector by law.
NH RSA 643:1 Official Oppression
A public servant, as defined in RSA 640:2, II, is guilty of a misdemeanor if, with a purpose to benefit himself or another or to harm another, he knowingly commits an unauthorized act which purports to be an act of his office; or knowingly refrains from performing a duty imposed on him by law or clearly inherent in the nature of his office.
We believe none of the people we interact with during our daily routines would want us to take actions that would make them subject to criminal charges. Yet almost on a daily basis that is what people unknowingly want us to do. “Can’t you let this go? It’s not off that much. You know my work, I always do it right. If I can’t start right now I’ll lose my tenant! That’s ridiculous do you have any idea how much that is going to cost me! I’ll go over your head!” the statement list is very large and people continue to come up with new ones. Yet they all have one unwitting underlying commonality: We are being asked, commanded, pleaded with, and threatened into committing a misdemeanor.
Following the Rules & Requirements
Most people would agree that is very unfair and may be because of the misconceptions about the power of the inspector when requiring code compliance. Code officials are not allowed to waive code requirements; we are only allowed to consider alternative means and methods as meeting the code intent. As an example, when the code says the guardrail height shall be a minimum of 42 inches, there is no way anyone will ever convince us that 41 ½ inches is equivalent
Considerations of Rule Bending
Do we believe that "bending" a code or regulation for starting work without a permit or issuing a permit to change the use of portion of a large office building to allow a sandwich shop without planning board approval is going to result in a criminal record? Highly unlikely, but it does present the department with two serious considerations.
- The first is the problem at what level does bending become breaking? If we allow individual A to do this why not individual B?
- Secondly we need to be cognizant of what happens when the "waiver" is discovered. By granting the waiver have we incurred a liability to the town for not protecting the public interest and safety? In the case of the change of use has the town been put in a position of not being able to enforce its planning regulations? Is the town liable for the financial investment they have made in a business if they have to close? It becomes a never ending quandary and in today's litigious environment all of these questions must be considered.
Consistency & Flexibility
So the best way for us to operate in a consistent, equitable manner is strict adherence to the rules. However that is not to say we will not be flexible and understanding and the best way to helps us to help you is by communicating with us. Come see us in person, call us on the phone, send an email and explain why you need the exception. If it is within our allowable areas of discretion we will accommodate you the best we can. Just don't leave us in the dark to find out on our own because when that happens frustration sets in, particularly if we have been doing our best effort to get you where you want to be with your project.
So now you know why we say no and at times our frustration shows. All we ask is you understand where we come from because believe it or not we do understand where you are coming from and we do have your best interests in mind.