Local Regulatory Obstacles

to Affordable and Green Construction

 © Bradford Hatcher, 2007


        The saying “think globally, act locally” tries to leave us with some hope that we can take our greater vision and just dig right into our own back yards and start trying out inventive solutions to the habitation problems cropping up around the world. But, surprisingly only to some, a huge amount of resistance to the local application of innovative design comes from local government. Great obstacles to the design and the construction of eco-friendly structures and more sustainable human communities are built into the boilerplate verbiage of local regulations. Most of these obstacles are set in our way by the very entities that claim to constitute our local leadership, and who praise themselves for their local concerns.

        Part of the problem is that the very institution of an idea, no matter how liberal at the root, seems to put it into a defensive or conservative position. Also, when those in power and office represent only the majority, and the majority has no clue about the extent of the trouble we are in, the visionary will be marginalized and denial will be the norm. Neither is any sort of institutionalized entity likely to give much encouragement to an entity seeking to replace it. Fear and ignorance combine to build a regulatory wall against the unfamiliar.

        Another difficulty lies in the fundamental differences between the regulatory mentality in general and the sort of problem solving behavior that leads to optimum solutions to specific design problems. The foremost among these differences lies in the approach to risk. The regulators tend to identify worst-case scenarios independent of local contexts, identify design solutions to eliminate all risk of design failure anywhere, and then multiply the strength factors of these designs by a safety factor of two for an extra margin of safety. While they may claim they are doing this for reasons related to public liability, they fail to grasp that the public entity incurs no liability at all until these regulations are put into place. This circular reasoning more often than not leaves local, niche- and context-specific design solutions four to eight times as strong as they need to be, and thus using twice as much material as necessary.

         I share a few examples of the economic effects of misguided local regulation, drawn from experience in my own region of southwest Colorado:

         A few years ago, a private non-profit was formed in my community to construct an eight-foot wide hiking trail and bike path from the town park to the reservoir. It was nearly three miles long and involved the restoration of an old railroad bridge and a new public park. They passed their hats and brought the completed project in at a very reasonable cost of $12 per running foot. At about the same time the government of the nearby town of Telluride constructed a very similar project, an eight-foot wide asphalt path, three miles long, including an underpass beneath a rural highway. This public entity brought its project in at a cost of $170 per running foot. Granted, fourteen times the cost is not the norm for public works, but public projects and works are always at least double what the private sector would pay. Why? When the public acts they act with free money from the taxpayers. With responsibility spread around and nobody being held accountable there is nothing personal perceived to be lost. Not even jobs are at stake when everyone acts the same way. Plus, they are being "extra safe" and not sorry. It is always worth a chuckle when a government hires an ultra-conservative engineering firm to put the thumbscrews on local developers, but then turns around and hires that same firm for its own project. Then it screams and whines when the bids for its new bridge come in at triple what they should be. This would be more comical if the pathology were not gradually being forced onto the private sector, precisely concurrent with the transition of the society from “land of the free” to “land of the lawyers.” But who else did “the people” think would rule them, once the rule of law was entrenched? This illness is spreading. This is in part because the waste is more expensive, and so it contributes to job growth, the economy and the GNP.

         Governments are set up to grow, and not to shrink, and they will tend to move rather mindlessly towards their most nourishing food sources and to establish new outposts and departments wherever they can. This is “growth for the sake of growth, the ideology of the cancer cell,” as Edward Abbey warned. It is self-organization run amuck. You can call this “mission creep” or metastasis: either way, it refers to parts of social organisms that have moved beyond their limits and designated places and don’t know how or where to stop. If a government derives revenue as a percentage of gross construction costs, it will not be very eager at all to take steps to reduce these costs. If it derives revenue from a sales tax on building materials, it is not likely to implement measures to reduce material use, even if these mean a great reduction in waste. If it derives most of its revenue from the appraised value of land and improvements, it can be counted upon to do all it can to keep those appraisals inflated and growing, even if its stated intentions are otherwise. This is why your community has no more affordable housing, or even small houses. In most cases, small houses are even prohibited under zoning law: they drag the appraisals down. This is another part of the reason that your local codebooks get lots of new added standards that cost the private sector more millions, but none that will save it a dime.

         The bureaucrat’s habit of mandating professional studies and certifications in situations where common sense, basic arithmetic or simple thought experiments would provide ample justification for a design, amounts to unfunded mandates on the private sector and adds large sums of money to unnecessary project costs. These unnecessary expenditures, when totaled across the bureaucrat’s domain, normally well exceed the bureaucrat’s salary. This should start registering somewhere on somebody’s books if the true costs of government to affordable construction are ever to be made widely known. Such requirements for studies and certifications are always encouraged at least tacitly by the guild monopolies of architects, engineers, surveyors, etc, but often concerted lobbying efforts by monopolies have led to the requirements being mandated by State law. Even here, laws might only read that an official may require a particular study or stamp. The tendency of the official of course will be to interpret may as shall because this increases his sense of power and authority and decreases his sense of liability and accountability. For the large numbers of bureaucrats with passive-aggressive personality disorders, this may is a gate to heaven. Since state law is so difficult to change, it is up to local pressure on local government to prevent this.

Much of the machinery of local government is justified on the grounds of reducing the public liability. But with regard to liabilities incurred in commitments to the enforcement of building-and-zoning standards and codes, we are seldom reminded that no liability is incurred by this entity at all until such standards and codes are voluntarily adopted and enforced. This convenient omission seems to cast some suspicion on the question of this being a question of public liability at all. Perhaps it is more a matter of the employees and appointees of government justifying their workloads and evading personal accountability. This is the problem of standing governments.

         There never seems to be enough micromanagement and meddling in the public arena. And the voters refuse to learn, granting more power and money and less accountability to their so-called public servants with every new request. This seems to increase geometrically with community size. Throw more government at the problem and eventually it will get governed? Both elected and appointed boards and commissions, in addition to attracting occasional able-minded members, seem more often to attract the meddlesome citizens. This is too often like putting art critics in charge of art, and it tends to place the amateurs on an unequal footing above the professionals. Entrenched positions involving the interpretation and enforcement of codes and ordinances, particularly where there is limited accountability, are especially attractive to the passive-aggressive personality types, who can just hide behind rules and enjoy telling others what they may not do. And, finally, let’s face it: the pay in the public sector does not tend to attract the finest of minds to begin with.

         A subset of the metastasis problem is the mindless replication of “boilerplate,” the verbiage passed from community to community by second-rate attorneys who are reluctant to attempt localized reformulations. These paragraphs are usually adopted wholesale into local codes with perhaps a few additions, but seldom any deletions. This is a form of peer pressure writ large: we do it this way because this is how all of our neighboring communities are doing it. It is too seldom asked, however, whether what the neighbors are doing actually works. It is more important that we are the same.

         An adversarial relationship is usually assumed between the public and private interests. The public interest, having no actual mind of its own, is quick to understand itself as more sovereign than the individuals, who do possess real-live minds and consciences. It will see itself as the source of such things as property rights and civil liberties, and then, often successfully, will convince its subjects of this truth. This synthesis of parts eventually mistakes itself to be the original reality. Ross Perot said this about that: “As a private citizen, believe me, you are looked on as a major nuisance. The facts are, you now have a government that comes at you and you're supposed to have a government that comes from you”. That’s that in a nutshell.

         A truly sustainable design is going to be a localized, creative response by an entity, organism or population to a very specific environmental niche, one with a known climate, a realistic set of anticipated stresses, etc. It will employ a working knowledge of the materials it is proposing for use and what their limitations are. Then it will meet these needs with an economy of materials and costs and try to minimize waste. The public design philosophy, in contrast, as it is most often expressed in the adoption of codes and standards, is to find a worst-case scenario occurring in nearly any niche or climate, double the anticipated severity of this, just to be safe, and then prescribe a generalized design solution to be everywhere applied. But just to be safer still, the materials used in this solution are to be assumed to have only half of their measured strength. And of course a public entity will have an entirely different understanding of the word “economy” when setting forth the materials list. What you tend to get from all of this non-specific engineering is bad design decisions made into law by ignorant politicians on the advice of second-rate consultants, lawyers, planners and engineers and then interpreted by people with little or no understanding of the engineering involved. The material waste factors involved can often run much higher than fifty-percent. And then there are the labor costs required to install all of the useless material, and the assessments on these labor costs for workman’s compensation. These things add up quickly, but it isn’t the bureaucrats’ money.

         The use of local, non-manufactured materials, such as adobe, straw bale, cob, or rammed earth, is a poor source of public revenue. But it is also problematic to the standardizers because the priests of the established faith have not blessed the structural or strength ratings of these materials. On occasion it is possible to locate a professional engineer willing to use common sense to quantify his level of risk without doubling all of the numbers, and to put his insurance on the line with his stamp. But otherwise, one again must use at least twice the material needed. Even free materials require twice the labor.

         Here is an example of the problem with the multiplying of safety factors: I live in a location where, over fifteen years, I have observed up to two feet of fresh snow on the ground after a storm, and up to fifteen inches of more compacted snow, but I have heard from the old timers of events with 2 1/2 feet and 1 1/2 feet respectively. This makes me want to design for three feet and two feet for a 100-year event. I want to see what the material I will be using is really capable of, so I build a press and break several samples under known stresses and calculate their strength. Just to be safe, I add a 25% safety factor. My roof has a 45-degree slope, and I know from avalanche reports that beyond 20 degrees (30 percent) the snow will resist accumulating and will avalanche over itself, so I factor this into my design. Of course if I have a north-facing valley, I will treat this as a special condition and design that part of the roof accordingly. I now have a roof that will resist anything that a 100-year storm will throw at me. Three feet of snow comes down, half slides off. Sound rational and sensible? The local ordinance says I need to design for a snow load of forty-seven pounds per square foot. On top of this, the adopted code says that my rafters are only half as strong as they really are. On top of this, the building inspector has made a little policy that says snow will not slide off a roof unless the roofing material is slick. So, how much snow do they want me to design for? It is now eighteen feet deep, and this is not even trying to slide from a 12-in-12 pitch. Since lumber depth varies with the square of the load for breaking strength, my rafters must be twice as deep to accommodate four times the load. Our houses will be standing in 300 years, but our forests will not. The builders in nearby Telluride, where snowfalls can be as much as 42 inches deep, need to build for a thirty-one foot pasting, using double the wood in the process. But out of their other faces their oh-so-hip and liberal bureaucrats are congratulating themselves on their greenness.

         Here is an example of the problem with generalizing designs to worst case scenarios: There can occur, in certain soil conditions, a phenomenon called frost heave, which can create uplift forces due to the formation of expanding ice lenses within the soil. The building code recommends a 12-inch minimum foundation depth to penetrate below this phenomenon, in the absence of a foundation investigation. It has been observed in my community that on a plowed surface in deep winter shade the frost may be expected to penetrate a full 40 inches during a 100-year winter cold snap. The government amends the building code accordingly. It wants to generalize the condition, and perhaps, in the interest of fairness, eliminate the clause referring to site-specific foundation investigations. And, just to be safe, the frost penetration is assumed to be no different beneath a south-facing wall with no plowing than it is beneath a plowed, north-facing driveway, even though the former will never exceed three inches. And, to be safer still, the county building inspector insists that frost depth be measured to the top of the footing, regardless of its thickness, instead of the depth to which it actually penetrates as the code reads. Please note that the purpose of all this is not to keep concrete from freezing: in theory it can do this anywhere above the frost depth. So, being an obedient designer, I specify a concrete stem wall foundation system that is 54 inches high instead of 22 inches. How much safer are we now? Frost heave requires a pre-existing soil condition where there is high silt content in close proximity to both frost line and groundwater. More than a century of building in this County has not uncovered a single instance of this phenomenon. Further, the scary term “heave,” as this phenomenon occurs in it’s nearest location, refers to movements of less than a sixteenth of a inch under forces smaller than the dead weight of the unloaded foundations. So, in following these rules, all I have done is use three times the necessary concrete and money. It wasn’t the bureaucrats’ money, and the voters will not think to account this as an unnecessary cost of government, but when you add up all the waste across all of the building permits, it certainly exceeds the cost of the building department salaries several times over. And, of course, the manufacture of concrete does account for seven percent of global warming.

         Here is an example of what happens when you think outside the box: I have a great idea for a south-facing mass wall, maybe adobe, maybe cob. It will sit in the sun all day, warming up, tempering my direct solar gain and radiating it into the house at night when I want it. What a wall! What a great thing to do to save a third of the energy costs over ordinary construction. Unfortunately, the new energy code requires that I make this wall behave exactly like ordinary construction, with the minimum R-value placed somewhere in the wall thickness to block the same transfer of heat that saves me so much energy. I can only get around this by hiring an engineer to bless this idea, at a cost roughly equal to the cost of the wall itself, and also equal to the cost of the energy that this wall design will save me. This is an energy code? I also have to burn a lot of hydrocarbons driving to work to get the money to pay for this waste. Go GNP.

         Here are two examples of another problem with redundancy requirements for unfamiliar methods and materials: It doesn’t really matter that straw bales have been holding up floors and roofs for centuries - modern bureaucrats and engineers were not employed to supervise this way back then. If I want to build a straw bale wall, I might be allowed to do it, if I build another wall system around it to do all the work of holding up the floor above and the roof. Similarly, I might be allowed by the State to install a composting toilet and gray water septic system, as long as I place an even more expensive conventional system right alongside it. Just to be extra safe.

         The above examples of waste might add up to a fourth of the cost of my house. If I want to look at what I will really be paying, I might triple this figure so that it includes the long-term financing costs. Being just an ordinary slob, this comes out to about 500 days of commuting back and forth to work, burning up fossil fuels on the drive, and participating in a globally devastating and unsustainable economy. While this may be the biggest environmental cost of them all, it keeps the wheels of progress turning.

         The above items concerned impediments to the goal of sustainable building design, most of which will treat much truly green building as code and standards violations. There is another set of impediments to sustainable community design, most of which will treat such communities as a set of zoning violations. “You are being cited for having more than two adults with different last names living together,” and other horrors like that. You have more than two poultry-type entities, instead of two bird-killing cats. You have a goat instead of barking or deer-chasing dogs. The goal seems to be one monotonous, homogeneous spread of expensive sameness across the land.

         In rural Colorado the state establishes a minimum property use- by-right of one residential unit, with a well, per thirty-five acres. In a very large number of cases, the process required to further subdivide this, or to exercise anything other than this use by right, is so arduous, drawn out and costly that a majority of developers simply elect to dice their larger parcels into process-exempt 35-acre ranchettes and move on. A great deal of whining is heard from the public entities about the consequent sprawl and their seeming inability to do anything about it. But this problem is entirely the local government's fault. Believing itself to be the source and wellspring of all things of value, believing that its act of granting permission to do something is the same thing as granting a right, indeed, refusing to comprehend what a property right really is, they are too dense to understand that a property owner also has a right to the same return on his investment that a use by right confers. Anything less is confiscatory, or a de facto taking. If he is being asked to drastically reduce the 35-acre parcel size to provide large tracts of open space, he can only recover this loss by being allowed more lots with more residential units. Period. Yes, there are savings in reduced road and infrastructure costs associated with the clustering of permitted numbers of units into hamlets, and there may be a conservation easement opportunity in the deal. These do not cover the loss. The county board says we cannot just "give" you that density bonus. But even if they do have the sense to do that and to find a fair equation to conserve comparable land values, the neurotic and compulsive urge of the planning and zoning board members to micromanage the project and meddle with its design will only ensure that the developer will still spend his next two years being sodomized in public forums. Again, he makes process-exempt ranchettes walks away.

         Evolutionary psychology is starting to point to an optimum size or scale for human communities, or at least for community-like cells within larger populations. This represents the levels of familiarity, intimacy, social complexity, emotional stress, novelty, child safety and supervision, etc., that we have genetically adapted to over the many millennia prior to civilizing ourselves. Not surprisingly, this is pointing to group sizes typically seen in extended families, small villages, tribes and hunter-gatherer bands. These days we may use terms like neighborhood, intentional community, think tank, co-housing development, or eco-village. We can no longer use the words commune or even community in these parts, or we risk getting on the wrong side of the war on communism, which to stupid people isn’t over yet. Certainly there is a great public suspicion held out against many communities of this size, even monasteries, or the Amish and Mennonites. There’s polygamy and devil-worship going on there. There’s mandatory Kool-aid and space ships hiding in the comet’s tail. There are groups that dare to practice both the First and Second Amendments at the same time, even when the FBI threatens to burn them down and kill all their children. Xenophobia has always been a problem with groups of this size, whether inside looking out, or vice versa. The problem is, the larger groups aren’t working out very well at all, and they may need to be replaced soon. It really is long past the time to start experimenting again. And this must begin with newer and more visionary ideas about zoning, both urban and rural.

         Communities or populations, just like organisms, also occupy and adapt to environmental niches, such as watersheds. This long-term process of adaptation is supposed to change them: this is the nature of adaptation. The real nature of fitness is the talent for fitting in, not some ability to be the biggest bully, as this term is commonly misunderstood. These small communities and neighborhoods are supposed to be unique. To stay unchanged by a place is to be maladaptive. Also, and this is very important, the ones which are maladaptive, or founded upon bad ideas, are supposed to fail. They need to be permitted to try out their bad ideas and fail. That is precisely how everybody else gets to see and learn just how bad those ideas really were. This is the greatest lesson about liberty – it teaches. Failure is actually one of the finest reasons that exists for tolerance. This is one of the reasons that a system’s diversity is the best measure of its strength: it is a measure of a system’s ability to learn.

         Local governments, on the other hand, do not seem so interested in learning. This is because they already know everything that they will need to know over the next two years. The budgets are already projected. And besides, Jesus is supposed to be coming in two years and nobody except our enemies is going to be held to account anyway. And boy, are they going to burn for what they made us do. We need to learn to let go of our obsession with standardization and uniformity. We need the diversity right in our own back yards, where the health can be more contagious and better examples can be set. But to do this is a long process of educating our local officials, or replacing them with people more capable of learning and courageous enough to overturn old errors. Is this even remotely possible until “business-as-usual” has proven itself a failure, beyond the vast human potential for denial, and civilization has gone into a steep enough decline to force a search for design solutions that actually work in an economical way? We are going to be able to answer this question quite soon.