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Vegas Makes Its Own Code Rules

Posted by Mike Collignon

May 9, 2014 4:48:00 PM

If you don’t like the energy codes, just get your buddy on the city council to help change them. Is this business as usual in Sin City?

Las Vegas has a long history of passing off the unconventional—and even nefarious—as perfectly Trouble in Vegasordinary. From that perspective, this story is just another chapter in the colorful narrative of the city: Councilman is involved with commercial development. Councilman’s business partner doesn’t like building regulations. Councilman proposes a change to the regulations to benefit his project. The proposal passes by the narrowest of margins and over the objections of actual building professionals.

The Mingo’s Example

If you drive down 1st Street in downtown Las Vegas, you’ll discover Mingo’s Kitchen & Lounge. It’s a fairly non-descript little restaurant & bar, but the controversy it created is far from mundane.

Mingo’s used to be a repair garage, and is part of a larger building. (The larger building is separately owned.) Mingo’s owner, George Harris, wanted to convert the garage into a restaurant/bar and outdoor patio. A Nevada-licensed architect (from Texas) was retained to draw the plans. When the plans were submitted, a plan review could not be conducted because there was too much missing information. Notification was sent to the architect, requesting the needed information. Shortly thereafter, city building department management asked Don White, leader of the downtown development team of plan reviewers for renovations, “What did you do to George Harris?”

Apparently, department management was catching heat because Harris was upset that his project was stalled. Harris had the political aid of his business partner, City Councilman Bob Beers. All the plan reviewers involved agreed that the plans were insufficient. The Texas architect resubmitted the plans three weeks later, but they contained the same (lack of) information. Not surprisingly, the plans were rejected once again.

One day on the jobsite, an insulation contractor hired by the larger building’s owners (a group of California architects) was installing insulation. Harris told the insulation contractor to “leave that crap off my walls” and then kicked him off the job. The insulation contractor called the California architects about the incident, and thankfully they altered the contract so as to leave him whole. The owners then called Harris and stated, “We have to do this per code.” Harris said he wanted the insulation removed and that he would take care of the code. Due to the lack of insulation, the plan had to be revised and subsequently failed a plan review.

Harris demanded a meeting with the plan reviewers. During the meeting, Harris told White in no uncertain terms that he was going to build how he wanted, and that he didn’t care about the codes. Harris went on to allege that since he and Beers were partners, there wasn’t going to be any trouble with the project. Furthermore, Harris didn’t want to adhere to the handicapped accessibility requirements, saying, “This isn’t a place for them. I’m not going to be waiting on any of those handicapped people.”

White had tried repeatedly to contact the Texas architect, to no avail. He reasoned that a conversation would help clear up any misunderstandings related to the missing information. Shortly after the Harris meeting, White filed a complaint with the Nevada state architects’ board against the Texas architect. Just a few hours after the complaint was filed, the Texas architect contacted White. It was during that conversation that critical details were learned.

The Texas architect stated that he had never spoken to Harris. The architect was hired by a subcontractor, and it was the subcontractor who communicated with Harris. Through his relationship with the subcontractor, the architect knew that both Harris and Beers were unreceptive to any advice. The architect was also aware that there were plumbing and electrical problems. After expressing further frustration with his contractual situation, the architect told White, “Do whatever you have to do to get it to pass.” The plans were then red-lined, which means the building department takes the submitted plans, whites out the discrepancies and draws the corrections in red.

Political Pressure

City building department management came into White’s office and inquired about the project and Harris’s concerns. White explained the rationale of the team. It was then revealed that Beers threatened to re-examine the codes if his project didn’t get approved. White defended both the codes and their development process, of which he had been highly involved.

Unfortunately, the pressure didn’t end there. White served on the energy code committee of the Southern Nevada Building Officials group. This particular committee had conducted a review of the 2012 IECC. White presented the committee’s findings, as well as their proposed amendments, to the entire group. During the discussion, the group was warned that Beers was hoping to make major changes to the then-in-place 2009 IECC. Beers had also expressed concerns over the accessibility code. The group obviously viewed this as a bad idea.

A few days later, White was asked to prepare for a defense of the city’s energy code. It was also suggested that colleagues and industry should be alerted for possible testimonials. After conducting a little research on Beers’s voting record and Councilman Bob Coffin’s eerily similar voting record, White reached out to environmental groups and energy efficiency advocates. White and his manager then met with the city attorney, outlining that Nevada was not a home rule state, and that whatever the state fire marshal and building official adopted or approved is the legal minimum. The irony of Beers’s disregard for the well-established process was that he was a former state senator.

The city attorney met with Beers and convinced him that ADA was federal law, and that any attempt to alter or delete portions or all of the city’s accessibility code (ANSI 117.1) would bring federal wrath down on the city, with an indefensible lawsuit as the probable outcome. Upset by this, Beers eventually called the city manager, city building official Chris Knight and White into his office for a meeting. White took this opportunity to explain the code process, but Beers didn’t want to hear from an underling. The explanation continued from the building official and the city attorney. Beers still expressed ambivalence.

The City Council

During preliminary city council hearings, both Harris and Beers claimed that all these added costs were burdensome for their project and would surely stifle future development. The reality of the situation was that only the renovated elements of a project had to comply with the 2009 IECC. For example, if a window was replaced, only the window had to be up to code, not the entire building. Specific to Mingo’s, Harris initially claimed $40,000 in additional costs for code compliance, though he would later shift that figure down to $30,000. White and his team deduced that the extra expense probably fell in a range of $8,000 to $12,000. The irony of the insulation story mentioned earlier is that the California architects, owners of the property that included Mingo’s, had already committed to that work for the entire building, so it wouldn’t have cost Harris any extra money.

Beers knew he needed an ally on the city council, and he found one in Bob Coffin. Like Beers, Coffin is a former state senator, and their voting records are nearly aligned. Coffin co-sponsored (with Beers) a proposal that would rescind the city’s energy code for remodels and renovations only. Originally, the legislation included residential buildings. But since the Southern Nevada HBA members all build to either the Energy Star or Environments for Living programs, they opposed the proposal. To avoid political ramification, they declined to testify publicly, but privately convinced Beers to remove residential from the measure.

White and his team researched the number of permits issued by the building department since the 2009 IECC was adopted by the city. They totaled 1,800, but only three of those 1,800 required a complete overhaul/energy code renovation. Harris’s project was one of them, though the larger building’s owners already knew the rules and hadn’t complained.

The city council review committee examined the viability of the proposal. Consisting of three people, two were Beers’ supporters, but probably didn’t fully understand the issue. Harris and a realtor friend of his spoke in favor. Many spoke against the measure. A 2-1 vote (in favor) brought it to the city council for a full vote.

(An important footnote: In a letter sent to the city council, the local AIA and USGBC chapters cited a conflict of interest in regards to Beers’ business connection to the disputed project, his position as a councilman and any code changes or ordinances that would directly benefit said project. The city attorney didn’t agree with their assertion.)

On June 19, 2013, it was posed to all seven city council members. A number of people (state arch board, local AIA chapter, local USGBC chapter, SWEEP, state energy office, Las Vegas Glazers Association and energy auditors) spoke against the idea of exempting renovations to all pre-2009 buildings from the city’s energy code. Building owners were also opposed to the measure, as they wanted a level playing field. Harris didn’t speak at the city council meeting, but the aforementioned realtor friend did. Beers did not abstain, nor was he asked to by the council or Mayor Goodman. The topic was mentioned in testimony delivered by the local USGBC chapter president. Councilman Coffin considered the notion baseless and said so at length.

Not only did Beers not abstain, at one point he chose to loosely compare the energy code to Nazi Germany in testimony supporting his proposal:

“Having not heard of any problems, having not received any opposition to the concept when it was being formulated is not always a good indicator of propriety. We need look back no further than World War II Germany, although we can look back much further and see it repeated over and over and over again, where government not hearing any opposition believes that it has a good idea at hand.”(a)

He also exalted his service in the state legislature, and then moments later agreed that a state-level appeal process was overly burdensome and undesirable, citing costs as much as 10 times that of a city-level process.

Speaking against the motion was Councilman Ross. He uttered such sentiments as: “I’ve heard no reports of problems from any business,” “Are we here having this discussion over one business?” and “Why are we even having this discussion of going backwards?”

City staff, including Chris Knight, director of Building & Safety, raised the possibility of applying for a DoE or city waiver for this specific project. The city’s energy code didn’t need to be revised for what amounted to one project. The phrase, “Don’t throw the baby out with the bathwater” was voiced more than once.

Ultimately, the vote was split 3-3. That left Mayor Goodman to cast the deciding vote. Throughout the debate on this proposal, she repeated she was torn between the city’s reputation as a leader in sustainability and her desire to re-energize downtown development. She asked her city staff several times for their opinion. While she did not receive a direct answer, staff in attendance sent the subtle message that they did not see the need for the measure. Despite that, Mayor Goodman voted in favor of the proposal. (It should be noted that, according to the Las Vegas Sun, Mayor Goodman’s “biggest contributors were casino honchos and gaming executives, many of whom do business downtown.”(b) Her husband, Oscar Goodman, was the former mayor of Las Vegas, and both spouses made it a priority to re-energize the downtown area.)


The Unresolved Mess

In the three-month time period after the city council’s decision, all plans submitted to the building department continued to comply with the energy code provisions. Meanwhile, the local AIA chapter sent a letter to all its members. It reminded them that architects are required to follow state law, regardless of municipality’s decision.

Along those same lines, the state energy office sent a public letter questioning the legality of the decision. The state attorney general sent a letter to the City of Las Vegas stating the measure was in violation of state law and should immediately be rescinded. The City basically thumbed their nose at the letter. The state attorney general was not going to pursue legal action in the short-term, opting instead to work through state legislature to strengthen the law before bringing a lawsuit.

Finally, Beers applied political pressure to the city manager to terminate White for his persistence on enforcement, and public comments to the media and outside groups. White was a union employee, so there would have been legal challenges surrounding such a punitive action. As it was, White had made it known, well before the Mingo’s controversy ever started, that he planned to retire in mid-October 2013.


Commentary

Las Vegas and the State of Nevada are giving the 2012 IECC serious consideration. Ironically, this was the very code White and others were analyzing when the controversy started. If the state or city council passes it unamended, this dispute becomes an odd footnote in municipal history. However, if the Beers exemption remains intact, an uneven playing field will continue to exist.-MC


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