Thursday, May 17, 2012

Killing a Housefly with a Sledgehammer

Having worked in the mortgage industry for over fourteen years, I have seen more than a few property owners who skipped part of the permits process when either building or renovating a property. Normally, these infractions result in the part of the structure that was illegally altered being "red tagged" by the city inspectors until the work meets city standards, and the owner pays the cost of a building permit.  A few years ago I talked to a homeowner in Nevada who had completed a massive remodel and addition to his already expensive luxury home completely without permits.  No lender would refinance his property because the appraiser reported that the renovation on the house had been done without a permit. The homeowner staunchly refused to obtain the permit for the same reason that he had refused to get proper permitting at the beginning of his project--he did not want the county taxing authority to recalculate his property taxes based on the additional square footage on the house.  So he was trapped in a higher interest rate loan than he would have normally qualifed to have in exchange for paying property taxes on a home half the size of the one where he actually resided.  Normally, these are about the worst penalties a property owner can expect for skirting the permitting process.

Not so with the owner of a Massachusetts ice cream stand located at the Great Brook Farm State Park.  Mark Duffy has owned and operated the stand for 26 years, and until last Friday he employed 13 high school and college students to dispense ice cream. But Friday night, armed environmental police showed up at the ice cream stand and forcibly closed it down. According to the article in today's Independent Journal Review, the police posted armed guards at the stand over Mother's Day weekend to make sure that it could not reopen and to turn away potential customers who might want to treat Mom to an ice cream.

What was Duffy's crime that required that armed agents be posted at his business?  He made improvements to the property without proper permission.  According to the Lowell Sun,  Duffy has made “countless improvements to the farm over the years without permission.”  His latest infraction involved creating an area in his building where he could show instructional videos produced by the Massachusetts Dairy Industry.  Duffy told the Lowell Sun, "The reason I’m here and the purpose of having me here is to improve the facility and operate a commercial dairy farm.”   Apparently, he actually has improved the property--he just didn't have permits to do so.

I understand that states and counties have a permitting process in place which is primarily designed to raise revenue and secondarily designed to protect the public safety. (I realize that a building inspector would take exception with this statement, but it is my observation nevertheless.)  But to send armed guards to shut down an ice cream stand and make sure that it cannot reopen is not just a case of over-regulation; it is a ridiculous case of over-enforcement.  Why should the the state version of the EPA even have jurisdiction in a case like this one?  This should be an issue for the local building inspectors or the city health inspectors, if appropriate, but not a state environmental agency with armed police.

Massachusetts is a state notorious for its restrictive building and planning codes and its commitment to density, Smart Growth and New Urbanism.  In an environment where citizens are not allowed to make simple choices about where they will build, how they will build, and how they will live, sending armed guards to shut down a business for a violation which is not a threat to public safety may seem perfectly acceptable. Those of us in the rest of the country are more inclined to see this for what it is--an overly aggressive government entity terrorizing  and destroying a small business owner simply because it can.

As the rest of the nation embraces the same types of restrictive building codes that define Massachusetts, we may find that we, too, are receiving visits from armed environmental police if we fail to follow the many new regulations being implemented in our communities.  And we will see more and more of our tax dollars being used to enforce unreasonable rules and regulations which overburden small businesses such as this ice cream stand. 

It's the equivalent of using a sledgehammer to kill a house fly.

Alexandra Swann is the author of No Regrets: How Homeschooling Earned me a Master's Degree at Age Sixteen.   For more information, visit her website at Frontier 2000

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