Right of Owner Builder Plumbing/Electrical

[Bob Orts]

quote:

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Originally posted by JWFITZ

Isn't this all a clear 5th amendment issue where the state forces private individuals to bear private costs against the value and enjoyment of their property, both real and intellectual?

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No. There is no taking in code enforcement. If requiring adherence to regulations resulted in a 5th Amendment violation, government could not force you to have a sanitary waste system, require you to have windows, force you to have indoor bathroom, or even prevent your neighbor from opening a crematorium or rendering plant right outside your window.

The US Supreme Court has already ruled that legitimate planning, zoning and building regulations are constitutional and well within the powers of the State to regulate. So long as these regulations do not violate takings, due process, equal protection, and that the basis is not an unconstitutional condition, all these codes are perfectly legal.

As an example, I bring up the case cited earlier in this post, Dolan vs. Tigard. The US Supreme Court was actually dealing with TWO issues. The first was if the government actually had the legal ability to impose conditions on the property using building, zoning or planning codes. The second was if those conditions were appropriate or were they a taking. The court affirmed the governments legal ability to set standards via regulations (This part seems to be skipped over by many). It was the second part where the US Supreme Court said the requirements in this specific case, exceeded the benefits particularly since the property owner was required to dedicate the land to the government. That is covered by the 5th amendment as a taking. That was the part the court ruled in favor of the property owner. But let’s not try and ignore the first part, which goes directly to what everyone is talking about.

And, don't be too proud of this. Developers on Hawaii have been using Dolan to frustrate Hawaii County from implementing shoreline access. [:0]

[DanielP]

In Dolan v. Tigard, I believe, the issue which was ruled in Ms. Dolan's favor was the issues of nexus and proportionality. Those issues shouldn't apply to shoreline access.

My point in mentioning the case is that it was a small individual fighting against a big city for her constitutional rights. And she won.

What gives the State the authority to deny Plumbing and Electrical permits to unlicensed individuals?

Dan

[JWFITZ]

Simply because a court has ruled one way in the past doesn't mean it will rule that way again. Courts make mistakes and correct them. I suspect this may be one of those issues.


http://sensiblesimplicity.lefora.com/

[Carey]

Many states do have permit laws that include separate plumbing & electrical permits. Although many do offer homeowners exemptions, there are many municipalities that do not. Although Illinois has the permit rule, most municipalities offer a homeowner exemption, Chicago does not.


I am wondering what many of the posters on this thread would say if the county actually enforced the ZONING that this county has. It would be a lot different to get permits if the zoning were enforced (there are ag zoned areas in the country have proportional residential requirements - making a 1 acre ag lot all but useless.)

[Bob Orts]

Nexus was granted in favor of the city. The right to place conditions on property via zoning codes, building codes, development codes, etc. are legal for government. The unconstitutional condition was granted in favor of Dolan. The degree of the conditions amounted to an unconstitutional taking by government. But the issue we are discussing is codes, permits and regulations and that part was upheld as a legal right of government. Even Dolan agreed government had a legitimate right to use permits and codes.

The case was legitimate because it was a taking under the 5th Amendment. But the court noted that permits required by government is also legal and was not a violation of law. As I said, we are talking permits and codes, both of which the US Supreme Court ruled are legal for government to require going back to 1904.

The government has the right to require permits; it’s not a legal issue that will ever succeed in a challenge. Its been tried and failed since the 1900's with the Supreme Court. Now is Hawaii’s absolute prohibition on owner/builder from doing any electrical or plumbing work legal? That depends if you can show that that requirement is inconsistent with law or is fatally flawed to rise to being unconstitutional on other grounds. That's what I'm searching for on the other post about this.

As far as shoreline access is concern, Hawaii law requires the private property be open to public use without control of the property owner. The property owner can not limit, restrict or bar passage. That is a taking. That is what Dolan won on. Developers know that and use the wording of Hawaii's shoreline access laws against the county.

[DanielP]

I am afraid that my mention of Dolan may have hijacked this thread. Therefore my last comment on Dolan. I believe that there was found to be no Nexus between the proposed expansion of the store and the "Greenway".

[Wao nahele kane]

Dan,
The Dolan ruling was about municipal coercion to promote land takings. In other words, the city of Tigard would only grant the permit if Dolan were to relinquish a portion of property for public purposes. The courts found that taking a portion of Dolans land for granting of the permit was unconstitutional. This was a key case that was used to regain property rights in wetlands situations also. For a long time in the PNW the ESA act was instrumental in providing an excuse for municipalities to stop people from building on their residential zoned parcels if that land was within wet land regions. Later it was found that these lots were to be allowed the right to build regardless of the many setbacks wetlands protections that had been established in the past decade. So there eventually became exceptions to these newly contrived set backs to allow house construction on lots that were otherwise not large enough to facilitate the legal setback requirements from the water to the home.

In any case, the Dolan case is similar to the O/B issue because it also revolves about governmental takings. As Bob has pointed out in the other thread, we are also looking at an unequal application of statute amongst the construction trades.


E ho'a'o no i pau kuhihewa.

[Wao nahele kane]

Article 4, Section 2, Paragraph 1.

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

If the citizens of Texas, Nevada, California, Washington, Oregon, ETC etc etc etc. can do it, the citizens of Hawaii can do the same.

Article 4 section 2 does not say some privledges and immunities, its says "ALL" privledeges and imunities.



E ho'a'o no i pau kuhihewa.

[Wao nahele kane]

Who's doing the lobby work for these constitutional intrusions?
Hmmmm what do we have here?
http://www.capitol.hawaii.gov/session201...-04-09.pdf

My hats off to HAR as per the rest of the testimony participants... a snake is a snake and Hawaii is not devoid of them.
Shame on the DCCA, CLB and SAH. These morons still don't get the fact the very law they are pushing is promoting the very activities they are frowning upon... the double edge sword of promoting the avoidance of permit use by making the owner builder exemption that much more difficult to cope with when desired by the intended owner builder.
The folks they aren’t finding are the ones that are the real problem; the guys who literally buy property in isolated places build a house without a permit and sell it when finished. These are the guys who are making affordable houses and making the cash sale. That’s the underground market! They aren’t the guys who are painting a house here and there and wandering off with a little chump change now and again.
Until these property rights intrusions are lifted, the non permit building issue and non licensed tradespersons will continue and it will only get worse the harder they squeeze.

This is absolutely absurd!
After working in construction and as a contractor for the better part of 30 years in Constitutional abiding States with regard to construction licensing and owner builder property rights... I would rather spit in the face of CLB than be affiliated with such a filthy organization. This is simply a rotten tyranny based organization and a bleeding cancerous tumor in the state of Hawaii that needs to be cut out and removed immediately. I will never lower myself to work in the construction industry in Hawaii, no damn way, not as long as this pile of garbage organization continues.
Only pure snake scum would come up with the following.
http://132.160.246.3/session2008/testimo...-08_3_.pdf

Ask yourself why the board that is tasked to determine the standards of the contractor license and whom is to receive a contractors license is somehow stepping beyond its intended scope of existence and wasting the tax payers money by addressing issues such as making a requirement that home owner built houses should be publicly designated as such as a warning to the public? Who in the hell are these people on the board and where and why in the hell would the tax payers money be allowed to be squandered to pay these jackasses to address issues they have no business to be addressing? Evidently these jack asses don’t have enough work approving licenses and setting those standards and side step dabble their intended scope of work and reach out their like “mini me” administrative appointed legislators. What the hell sort of administrative department sub board is this?

E ho'a'o no i pau kuhihewa.

[Carey]

Hope this helps:
Good ol' Wikipedia has this on Article 4 of the Constitution:
"Clause One of Section 2 requires interstate protection of "privileges and immunities". The ambiguity of the clause has given rise to a number of different interpretations. Some contend that the clause requires Congress to treat all citizens equally. Others suggest that citizens of states carry the rights accorded by their home states when traveling in other states.
Neither of these theories has been endorsed by the Supreme Court, which has instead held that the clause means that a state may not discriminate against citizens of other states in favor of its own citizens."