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A rookie Oakland judge is set to invalidate hundreds of pages of building codes that the city of Alameda has used to prosecute homeowners in criminal court. Alameda County Superior Court Judge Lawrence Appel’s April 2 preliminary ruling has caused a stir in the sleepy island city, which sometimes uses criminal charges to prod property owners to make repairs to blighted properties. The dispute has highlighted stringent city codes that have riled local property owners and are the focus of at least one other pending case. Many of the city’s building codes are probably “unenforceable” because local officials failed to get state approval for the changes, the Gov. Gray Davis appointee wrote. Appel was appointed to the bench last year. “Rather than enact ordinance(s) imposing the same requirements as are published in the California Building Standards Code, the city of Alameda enacted � several �model codes’” published by groups such as the International Conference of Building Officials, Appel wrote. Since city leaders failed to file those changes with the state building standards commission, the model codes rules “are without legal effect and are unenforceable,” he concluded.
SLUMLORD? John Mitcheom faces 121 misdemeanor charges for code violations in Alameda. Instead, his lawyer may get the building codes invalidated. Image: Jason Doiy / The Recorder

Appel also noted it would be nearly impossible for a homeowner to comply with the city’s rules. To avoid criminal charges, an owner would have to be familiar with city ordinances and the model codes and interpret the model codes in light of the California Building Standards Code, the judge wrote. Appel’s April 2 order was preliminary, but he strongly suggested he would invalidate the codes. The Alameda city attorney’s office will try to change Appel’s mind when the case goes back before the judge on Thursday. The defendant’s attorney, San Francisco lawyer Vernon Grigg III, praised the tentative ruling. “John Mitcheom is no slumlord,” said Grigg, who argued in his motion to dismiss that Alameda’s laws were improperly adopted. “He is a responsible property owner and a taxpayer who should not be prosecuted as a criminal.” Alameda’s city attorney’s office said it will clear things up on Thursday. “It’s a misunderstanding,” said Assistant City Attorney Teresa Highsmith. Highsmith said the model codes Appel refers to in his order are already part of state law. “They are one and the same,” she said. “I think because he has not handled municipal law before � there was a miscommunication,” said Patricia Aljoe, an Alameda solo who’s handled the Mitcheom case and other code prosecutions for Alameda and other cities for years. “It’s hard for a new judge.” The 81-year-old landlord in People v. Mitcheom was charged with 121 misdemeanors for failing to make a series of building repairs at 1547 Sherman St. and 1125 Regent St. The 59-page criminal complaint alleges code violations that range from a poorly secured water heater �� which Aljoe says was propped up on a garbage can �� to remodeling that was done without permits. City officials say that they have tried to get Mitcheom to upgrade his rental properties for 10 years and with little success. The city initiated administrative proceedings to vacate both properties, Aljoe said, including one that was uninhabitable under Section 8. “Basically we had no choice but to file criminal charges,” Highsmith said. Grigg says that the case stems from an investigation that began a few years ago. Federal housing officials and Mitcheom disagreed about installing a handrail for a tenant, but the Section 8 program never ruled the property to be uninhabitable, the San Francisco solo said. “It’s disappointing that when presented with the deficiencies of their code scheme, that [the city] would try to sully the reputation of my client with untrue statements,” Grigg said. Highsmith later said Aljoe was mistaken about the Section 8 charge. The city has always had the power to charge people with misdemeanors for code violations, but has stepped up enforcement in recent years, Aljoe said. Aging structures on the island are in need of repair or have been remodeled without proper permits, Aljoe said. There are roughly 450 open code enforcement cases, but the city attorney pursues criminal charges in one or two cases each year. Poor workmanship or working without permits can be deadly, added Highsmith, the assistant city attorney. Last year a man died in a fire caused by improper electrical work, she said. One Alameda lawyer, Laurence Padway, says that city code enforcement has gotten out of hand. Padway will go to trial next week to defend a homeowner charged with 19 code-related misdemeanors. The lawyer has also filed a federal civil rights suit against the city on behalf of his client. “In the past couple of years, they have turned into the gestapo,” said Padway, adding that he’s personally had bad experiences with city code enforcers. It’s unclear whether the Mitcheom order will affect other cities. In Oakland, “model codes are used as a resource for staff,” said deputy City Attorney Demetrius Shelton. “Our municipal codes are based on state statutory law as opposed to model rules,” he added. The city does not usually criminally prosecute property owners for building code violations, but does file civil suits, Shelton said. Sometimes, however, the city attorney’s office will work with law enforcement when suspected criminal activity is occurring at a problem property, he said.

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