June 7, 2001
Dear City Recorder:
You have four principal questions (some of which have sub-questions) as follows:.
1. Currently the town charges for a building permit a base rate of $25.00 for the first
$1,000 and $5.00 for each additional $1,000. The town pays $25.00 per inspection to the
building inspector. Can the $25.00 per inspection fee become the property owner’s
responsibility? If so, does an ordinance need to be drawn up? Is a public hearing required?
Could it be done on a majority vote of the city council?
I am at a loss as to why the city would want the $25.00 inspection fee to become the
property owner’s responsibility. Such a policy smacks of a fee system for public service, and
would simply be bad policy and would not look good, even if it were legal. But it is also of
doubtful legality. It is said in Bayless v. Knox County, 286 S.W.2d 579 (1956), that:
It is a well-settled policy of the state, determined by statute and
judicial decree, that public officers can receive no fees or costs
except as expressly authorized by law. [Citing an earlier case] [At
587]
I find nothing in the city’s charter [Private Acts 2000, Chapter 151] or general law that
authorizes the city to create fee offices, or that otherwise authorizes the city to provide that a city
employee derive income from fees collected directly from property owners.
With respect to the adoption of any policy by the Town generally, municipalities in
Tennessee can act by ordinance or resolution (which also includes motions). Unless there is a
specific charter or general statutory provision that requires a thing to be done by ordinance, a
city can act by resolution. The city’s charter does not prescribe any procedures or formalities by
which ordinances or resolutions are passed. In such a case, it is legal for both forms of city
action to be passed on one reading, and they need not be published.
Likewise the charter does not prescribe how many votes are required to pass measures.
When that is the case, the common law prevails. Under the common law, measures are
passed by a majority of those present and voting, assuming the presence of a quorum. [Collins
v. Janey, 147 Tenn. 477, 249 S.W. 801 (1923).] Abstentions are not votes and do not operate
as either an aye or a nay vote.
2. Is the town required to have a licensed building inspector? Can the city recorder
issue building permits?
The answer to the first question is yes. Tennessee Code Annotated, ' 68-120-113, and
the state rules and regulations issued under the authority of that statute [0780-2-16-.01 et seq.]
required that after July 1, 1994, municipal and county fire prevention and building officials that
June 7, 2001
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have the authority to enforce fire and building codes, must be certified. Such officials employed
on July 1, 1994, had one year to achieve certification. I am attaching both the above statute and
state rules and regulations.
The answer to the second question is yes. However, in such a case, the city would not
be using a building permit system to enforce a building code, but (I assume) as a means of
keeping track of construction occurring within the city. In such a case it is easy for a city to run
into a problem of charging excessive building permit fees. A licensing or fee system is
supposed to generally reflect the rough cost of the regulatory scheme it supports. If the recorder
issues permits, and there is in fact no building inspection, your permit costs may be too high.
I am also attaching some additional information regarding small city building permit
problems.
3. Can the current building inspector be held legally liable for any permits issued in
violation of the code of ordinances for the city?
I cannot answer that question without knowing the facts behind it. The fact that “permits
[were] issued in violation of the code of ordinances for the city” does not in and of itself tell me
anything of legal significance with respect to the building inspector’s potential liability under
those circumstances. Under the Tennessee Tort Liability Act municipalities are immune from
injuries arising from various negligent aspects of inspection, but the municipal employee may be
liable for such negligent aspects of inspection. [Tennessee Code Annotated, ' 29-20-205(4)].
However, that bare proposition tells us nothing. I am not even sure that you are speaking of
liability in that sense. In addition, the latest municipal code I have for the city is dated 1978, and
it reflects the adoption by the city of the 1978 building code. That building code is obviously
obsolete.
4. Can the city cite delinquent water/sewer customers into city court?
That is a good question, the answer to which is not clear. Generally, water and sewer
systems that have issued bonds are authorized by statute to collect delinquent utility by
termination of one or both utility services, utility deposits, or through the collection of the bills by
a contract action. [Tennessee Code Annotated, ' 7-35-201] Similar rules exist with respect to
sewer bills. [Tennessee Code Annotated, ' 68-221-208] However, I think that cities probably
also have the authority to make the refusal to pay a water or sewer bill a civil offense punishable
by civil penalty in municipal court. The only way we will know for sure is for a city to try it.
Let me know if I can help you further in these or any other matters.
Sincerely,
Sidney D. Hemsley
Senior Law Consultant
June 7, 2001
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