Protecting Residents of Unpermitted Housing: How the Exigent Circumstances Standard Applies to Code Enforcement

By Chelsea Lalancette

Following a deadly fire at the Ghost Ship live-work warehouse in Oakland, California in December 2016, the local government has been tasked with balancing an affordable housing crisis with a need for safe residences.  Ghost Ship was an arts collective that also served as an unofficial residence and event space, providing affordable, albeit unpermitted, housing to its residents.[1]  While the city gathered to mourn the tragic loss of friends and family, many also began to worry that fallout from the tragedy would cause further harm to the community by displacing others who depended on such spaces as their homes.[2]  Their fears materialized when, in the weeks following the fire, residents in live-work warehouses not only in Oakland, but even in such far-reaching cities as Nashville, Baltimore, Austin, and Philadelphia received eviction notices.[3]

Following the Ghost Ship fire, Oakland Mayor Libby Schaaf released an executive order, which laid out promising new policies to advance safety while minimizing evictions and displacement.[4] In what is at best a pattern of overcautious enforcement and at worst acts of corruption, city code inspectors have consistently failed to follow the order.[5] The executive order mandated that in cases in which an inspection of an unpermitted residence reveals no conditions that pose an “immediate threat to life safety,” the property owner should enter into a compliance plan with the city to cure code violations and secure necessary zoning permits rather than evict tenants.[6]  Despite the executive order, inspectors issued notices of violations ordering landlords to discontinue residential use of unpermitted live-work units without citing life-threatening code violations, and in some cases without even seeing the inside of the building.[7]  Such Notices of Violation serve as de facto eviction notices, but the majority of notices made only brief, conclusory statements about code violations without any description of specific dangers.[8]  Despite the promises of the mayor’s executive order, evictions have continued, following orders by city inspectors that owners cease residential use of the building or face fines.[9]  These Notices of Violation are a direct violation of the mayor’s executive order, which allows code inspectors to mandate eviction only when conditions at an unpermitted residence present an “immediate life hazard.”[10] Some unfounded orders to vacate may also have been issued in bad faith; Oakland’s Public Ethics Commission recently found repeated acts of corruption and acceptance of bribes by at least one code inspector, and the Commission is now investigating complaints that another code inspector colluded with a landlord to push out tenants.[11]

While the executive order does not define “immediate threat to life safety,” and the standard may appear unclear, case law in the area of housing conditions and procedural due process establishes an applicable standard for when code violations necessitate evacuation. Individuals have protected property rights in their homes and cannot face removal without a pre-deprivation hearing.[12]  However, summary removal may be justified and due process foregone in the case of an exigent circumstance.[13]  To show an exigent circumstance, various courts of appeal have required both 1) a fact based showing of specific harms likely to befall residents and 2) a conformity with existing statutory definitions regarding unsafe housing conditions.[14] This standard should be employed in implementing the mayor’s executive order in Oakland so that, if a code citation does not cite specific hazards and rise to the level of established health and safety standards, the tenants should be allowed to maintain their residence and work toward curing violations.

The Notices of Violation that the Oakland code inspectors issued against unpermitted residences cited code violations such as unpermitted construction of partitions or unpermitted installation of kitchen appliances, but made no explicit mention of safety issues.[15]  They additionally do not cite an existing legal standard for hazard or nuisance.[16]  Therefore, the Notices of Violation do not meet the high standard for “exigent circumstances” established in case law, and the orders for immediate eviction are unwarranted.  Although safety of residents is tantamount, and code inspectors are justified in being overly cautious, overenforcement of codes in non-dangerous cases and in violation of the mayor’s executive order forces residents out of marginal housing and potentially into homelessness.

 

[1] Mathias Gafni et. al, What Was in Original Ghost Ship Lease?, East Bay Express (May 7, 2017), https://www.eastbaytimes.com/2017/04/24/exclusive-ghost-ship-lease-specified-illegal-use/.

[2] See Sam Lefebvre, Evictions After Ghost Ship, East Bay Express (Nov. 29, 2017), https://www.eastbayexpress.com/oakland/evictions-after-ghost-ship/Content?oid=11223343.

[3] See Conor Dougherty, Oakland Fire Leads to Crackdown on Illegal Warehouses Nationwide, N.Y. Times (Dec. 8, 2016), https://www.nytimes.com/2016/12/08/us/oakland-fire-illegal-warehouses.html?mtrref=undefined&gwh=F3258B7BEC96F4194013D2AC9DB627C6&gwt=pay (reporting on increased evictions as a reaction to the Ghost Ship fire).

[4] See Oakland Exec. Order No. 2017-1: Improving Safety of Non-Permitted Spaces While Avoiding Displacement (Jan. 11, 2017), available at http://www2.oaklandnet.com/w/OAK062364 [hereinafter Exec. Order No. 2017-1].

[5] See Lefebvre, supra note 2.

[6] See Exec. Order No. 2017-1.

[7] See Erin Baldassari, Post-Ghost Ship: Despite Mayor’s Promises, Oakland City Inspectors are Telling Residents to Leave Unpermitted Spaces, East Bay Express(June 18, 2017), https://www.eastbaytimes.com/2017/06/18/in-post-ghost-ship-oakland-city-tells-artists-to-leave-livework-spaces-despite-mayors-promises/ (providing three examples of Notices of Violation that ordered vacation of tenants without citing specific dangers); Lefebvre, supra note 2.

[8] See, e.g.,Notice of Violation Code Enforcement Case No. 1700435, City of Oakland Planning and Building Department (Dec. 12, 2017); Notice of Violation Code Enforcement Case No. 1702241, City of Oakland Planning and Building Department (June 13, 2017); Notice of Violation Code Enforcement Case No. 1702625, City of Oakland Planning and Building Department (June 13, 2017); Notice of Violation Code Enforcement Case No. 1701145, City of Oakland Planning and Building Department (May 9, 2017); Notice of Violation Code Enforcement Case No. 1700851, City of Oakland Planning and Building Department (May 8, 2017); Notice of Violation Code Enforcement Case No. 1604563, City of Oakland Planning and Building Department (April 20, 2017); Notice of Violation Code Enforcement Case No. 1604623, City of Oakland Planning and Building Department (Jan. 23, 2017); Notice of Violation Code Enforcement Case No. 1700146, City of Oakland Planning and Building Department (Jan. 12, 2017); Notice of Violation Code Enforcement Case No. 1700095, City of Oakland Planning and Building Department (Jan. 10, 2017); Notice of Violation Code Enforcement Case No. 1604540, City of Oakland Planning and Building Department (Dec. 1, 2016).

[9] See sources cited supra note 8.

[10] See Exec. Order No. 2017-1.

[11] See Darwin Bond Graham, Corruption Probe into Oakland’s Code Enforcement Inspectors Widens, East Bay Express (Nov. 6, 2018), https://www.eastbayexpress.com/SevenDays/archives/2018/11/06/corruption-probe-into-oaklands-code-enforcement-inspectors-widens.

[12] Grayden v. Rhodes, 345 F.3d 1225, 1234 (11th Cir.2003) (acknowledging that tenants had a protected interest in their continued residence and that the emergency eviction was a state action, but finding that an exigent circumstance justified foregoing a pre-eviction hearing).

[13] See id.

[14] See, e.g.,Grayden, 345 F.3d at 1234 (noting that code inspectors were bound to only order summary evictions when housing conditions met the statutory definition of “nuisance”); Flatford v. Monroe, 17 F.3d 162, 170 (6th Cir. 1994) (finding no due process violation in a summary eviction by a code inspector who noted that exposed electrical wiring posed a fire hazard, and who relied on the health and safety standards in a “narrowly drawn statute.”); Exendine v. Sammamish, No. C05-436P, 2006 WL 2927726, at *1 (W.D. Wash. Oct. 11, 2006) (finding that a  building’s conditions endangered residents and fell into the statutory definition of “nuisance”).

[15] See sources cited supra note 8.

[16] Id.