Montana Judge Invalidates Fire-Resistant Roof Ordinance

June 4, 2013

A Montana judge has invalidated Helena’s 2008 fire ordinance restricting exposed wood building materials and requiring fire-resistant roofs on new or extensively renovated buildings.

The Independent Record reported that District Judge Kathy Seeley made the ruling late last month in a court case the city brought against a homeowner replacing wood shingles.

Seeley ruled the city didn’t have the authority to create building regulations when establishing a citywide wildland-urban interface district. City Attorney Jeff Hindoien says the city will probably appeal to the Montana Supreme Court.

“As things stand right now, the wildland-urban interface zoning ordinance has been declared invalid, so we’re certainly not enforcing it at the moment,” he said.

The city sued Scott and Megan Svee in 2011 after issuing the couple citations for replacing old wooden shingles on their Harrison Street home with new wooden shingles. The city ordinance allowed only fire-resistant shingles.

The city eventually dropped most of the civil suit and all the criminal charges. But Scott Svee, an attorney, filed a motion asking Seeley to declare the ordinance invalid.

He argued the city could enforce such things as height and building size but, under state law, couldn’t enforce a building code unless the code was certified by the Department of Labor and Industry. Allowing a ban on wood shingles, Svee argued, would create a patchwork of codes around the state.

“The statute does not authorize the City to adopt building regulations under the guise of a zoning ordinance,” Seeley wrote in agreeing with Svee. “In addition, simply labeling a building regulation a zoning ordinance does not alter its conclusion.”

Svee said he only wanted to repair his roof, not fight the city.

“Through this whole process, we’ve continually tried to get this resolved without voiding the ordinance, but we’ve really never had anyone meet us at the table at all,” he said.

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