To: City Manager Mike Wildgen
From: Victor Torres, Director of Neighborhood Resources
David Corliss, Assistant City Manager
Date: July 29, 2004
Re: Wood Shingles and Shakes
Mr. Stu Nowlin, 4609 Harvard Road is requesting the City draft an ordinance to eliminate covenants that require wood shingles or wood shakes. Mr. Nowlin provided a report from the Kansas State Fire Marshall’s Office and the following list to support his request:
1) A report in the Lawrence Journal World on 3/21/4 on page 8B on the Federal Emergency Management Administration's study of tornado damage in Wichita and Haysville on 5/3/1999 noted improvements in construction techniques to withstand strong storms and high winds. This report included the recommendation for the use of composite roofing shingles.
2) It takes away from the homeowner the right to purchase roofing products in the marketplace. It restricts fair trade.
3) The covenant singles out roofing material in home construction. This has no more merit than requiring foundations to be made of concrete blocks or for exterior walls to be clad only with cedar.
4) Mr. Dennis Garrison, State Farm agent, offered Mr. Nowlin a 17% discount to go with a new product that is steel based but looks like a shake. He added that State Farm knew the fire hazard with wood and offered this discount to replace wood with safety approved materials.
5) Of all roofing material the least durable is wood.
Current City Laws
Roof covering materials shall conform to the requirements of the 1997 Uniform Building Code, Section 1507. The use of Wood Shakes and Wood Shingles are an approved roof covering material and permitted in the city.
Fire Marshall Rich Barr reports that the National Fire Protection Association provides the following guidance on their views on this issue:
“NFPA 203, Guide on Roof Covering and Roof Deck Construction:
Untreated wood shingle roofs have been looked at with disfavor by the NFPA for many years. NFPA statistics indicate that wood shingles have been a contributing factor in more conflagrations than any other of 27 factors from 1901 to 1967. This was particularly true in the first half of this period, before the full impact of modern building codes, which restricted the construction of wood shingled roofs. If wood shingles or shakes are to be used, they should be fire-retardant treated by impregnation with chemicals by the full-cell vacuum-pressure process, in accordance with AWPA C1, All Timber Products - Preservative Treatment by Pressure Processes, and classified in accordance with NFPA 256, Standard Methods of Fire Tests of Roof Coverings. Untreated shingles or shakes should not be used.”
Fire Marshall Barr also reported that the greatest hazard with shake roof construction is associated with the danger of fire spread – fire spreading from one structure to another (versus the danger of a fire initiating in the roof itself). Setback requirements for structures assist in deterring the danger of fire spread.
Many Lawrence residential subdivisions have restrictive covenants governing the use of roof materials on houses, such as a requirement that a roof material be wood shingle, wood shake, slate, tile clay or concrete. Restrictive covenants are private contracts running with the land and which typically govern uses, materials, common maintenance and other issues on the property covered by the covenants. Municipal governments do not have the legal authority to enforce restrictive covenants, instead the covenants typically contain enforcement and amendment provisions that allow the property owners to enforce the covenant restrictions through litigation and also provide a procedure for amendment.
Authority of a City Prohibition Against Wood-Material Roof Restrictive Covenants
Some communities have sought to prohibit the enactment and/or enforcement of restrictive covenants requiring wood-material roofs. This local legislation has been the subject of litigation. Significantly, the City of Shawnee, Kansas enacted a series of ordinances prohibiting the establishment or enforcement of restrictive covenants that permit wood shingle or wood shake shingles, but do not allow for asphalt shingles. (Many covenants typically provide property owners with the option of wood shake, slate, tile clay or concrete, with the wood-material option being the least costly and the most popular option.) Last year, United States District Judge Carlos Murgia issued a preliminary injunction against the City of Shawnee prohibiting the enforcement of these ordinances. The Court found that the ordinances violate the Contract Clause provisions of the U.S. Constitution. This litigation is currently on-going. Because of this Kansas litigation, staff can not recommend the enactment of an ordinance similar to that of the City of Shawnee until the case is resolved.
Authority of a City Prohibition Against Wood-Material Roofs
Some jurisdictions have prohibited the installation of wood shingles on new residential roofs, based on the potential threat to public safety associated with these materials. This prohibition removes the wood material choice from the property owner. In his opinion Judge Murgia stated: “If wood shingles, wood shake shingles and other roofing materials rated less than Class C truly ‘present a substantial threat to public safety,’ the City should pass an ordinance specifically directed at keeping those roofs from being installed on homes built within the City’s borders. Simply put, if the problem is wood shingles, the City should ban them.”
Texas Property Code Section 5.025 provides that “To the extent that a deed restriction applicable to a structure on residential property requires the use of a wood shingle roof, the restriction is void.”
Enacting an ordinance which would prohibit restrictive covenants which require wood shingles similar to the above-cited Texas law may not be viewed as a viable solution to most homeowner concerns because the alternative materials allowed by those covenants (tile, slate etc.) are significantly more costly. If shakes are prohibited by City law, the homeowner then is required to install a tile, slate, etc. roof. This restriction would apply differently to homeowners depending upon whether their restrictive covenants would then require more expensive roof materials (e.g. tile, slate, etc.). There is also a legal and policy question of why a prohibition against restrictive covenants requiring wood materials is in the public interest but a complete ban on the wood roof materials is not in the public interest. If the policy basis is fire safety, is the policy goal achieved with only a prohibition on restrictive covenants?
Next Steps in Consideration of Issue
If further consideration of this issue is desired, it would be appropriate to refer this matter to both the Uniform Fire Code Board of Appeals and the Uniform Building Code Board of Appeals. If justification for the safety hazard of wood material roofs is sought, these boards can provide their viewpoints. These boards are familiar with both safety and construction concerns. Additionally, input from interested citizens or stakeholders in the community should be sought.