Idaho AG gives opt-out a thumbs down

COEUR d’ALENE — Commissioners’ March decision to overturn an ordinance allowing contractors to opt out of Kootenai County’s building rules has found some high-level support: the Idaho Attorney General’s Office.

In a letter to the county, Deputy Attorney General Spencer Holm said the option that was approved by county commissioners last year, allowing builders to disregard codes, was probably illegal because it did not conform to state laws.

“Adoption of the opt-out provision does not appear to be consistent with the authority granted to local governments,” Holm said in a May 29 letter.

While the state grants local governments the authority to adopt and enforce building codes, the authority is limited by state law, Holm said. Governing bodies can amend codes, but the final product must still afford a level of protection equal to what was amended.

“The statute does not appear to authorize a local government to amend the adopted codes to reflect local concerns in a way that allows a property owner to opt out of obtaining a building permit, plan review or inspection,” Holm wrote.

Commissioner Bill Brooks, whose election platform last year included canning the opt-out provision, said the AG’s letter confirms the veracity of his position.

Brooks and Commissioner Chris Fillios voted to overturn opt-out in a March hearing, while Commissioner Leslie Duncan supported opt-out. The opt-out also was supported by the Kootenai County Republican Central Committee.

Fillios, who was the sole commissioner to oppose opt-out two years ago while former commissioners Marc Eberlein and Bob Bingham were pro opt-out, said the idea to allow builders to shun codes was poorly thought out.

“As far as the AG’s opinion,” Fillios said, “I’m not the least bit surprised.”

The former commission adopted the opt-out plan in March 2018 following a four-hour public hearing that was attended by more than 400 people, most of them opt-out advocates.

Since then, approximately 1,370 opt-out permits, called location permits, were issued by the county. Of those, roughly 280 were for single family dwellings while the bulk of the permits were for other types of construction, including out-buildings such as barns and shops, as well as decks and porches.

“The vast majority were for accessory buildings,” Fillios said.

Although the permits that were issued are still valid, the decision by a 2-1 vote two months ago to opt back in seems to have the AG’s blessing.

“By adopting an opt-out provision, a local government would create building standards within its jurisdiction that would be both consistent with, and less restrictive than, the building standards adopted throughout the rest of the state,” Holm wrote.

Brooks said the AG’s letter puts an end to any speculation that opt-out is still an option.

“It’s a dead issue,” Brooks said. “It’s a decided issue.”

Duncan, however, thinks the issue can be resuscitated.

“It is just that, an opinion with no binding effect,” Duncan said. “I still believe property owners should have a choice on who to use for their building inspections.”