Religious code waiver could lead to case’s dismissal

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A state budget amendment may mean that Eau Claire County won’t seek more than $42,000 from an Amish family that failed to obtain a building permit for a home.

An amendment approved by a state budget panel on Thursday would let Amish families and other groups cite religious objections to obtain waivers of various parts of the state’s dwelling codes. The waivers, if approved by the full Legislature and signed by Gov. Scott Walker, would apply to codes calling for the installation of smoke and carbon-monoxide detectors, as well as plumbing and electrical fixtures.

“I’m very excited and happy that the amendment went through … I think this takes into account the reality of the Old Order Amish and any group out there that has these beliefs,” said Matthew Krische, attorney for a number of Amish families in Eau Claire County.

In light of the amendment’s adoption, he said he plans to see if county officials will agree to cease pursuing his clients in court for failing to obtain a building permit for the construction of a house in the village of Fairchild.

Krische at one time represented five Amish families in Eau Claire County who faced fines and eviction over failing to obtain building and sanitary permits for their houses. The state’s dwelling code requires that houses have smoke and carbon-monoxide detectors, and plumbing and electrical fixtures. Even so, many Amish continue to use outhouses and rely on gravity systems to bring water into their homes.

Early on, the county was seeking a total of about $60,000 in civil forfeitures from the families.

Krische said the case was an uphill battle because he had to prove two contentions: that his client had a sincerely held religious belief, and that that religious belief was burdened by the application of the state’s dwelling code and the county ordinance.

It was the second part of that argument that the circuit court did not agree with. The court ruled in September 2014 that the families’ religious beliefs were not burdened by their signing the building permits.

In September 2014, Judge Kristina Bourget ruled in favor of Eau Claire County, giving the families in three of Krische’s cases a year to obtain building permits. If they failed to meet the deadline, they would be evicted and their houses would be placarded.

The families in two of the cases, said Krische, eventually settled. Their settlement agreements required them to obtain building permits, although it was not clear Friday whether they had ever installed smoke and CO detectors and electrical and plumbing fixtures.

In the remaining case, one of the families involved appealed. The case records were transferred from Eau Claire County Circuit Court to the state Court of Appeals on Thursday, Krische said.

“Now that there is a process to get a waiver, my hope is that the whole issue will be dropped completely,” he said.

Krische said the families found him through an accountant they shared. He started representing them in spring of last year. The families are part of the most conservative sect of Amish, the Old Order, whose members usually don’t use the court system.

“They realized this was something bigger than they were able to handle,” Krische said.

He had to meet with his clients in person, and he quickly found that it was easier gather with a lot of them at once, rather than try to get together with one at a tim3e. They also communicated by letter, or the families’ neighbors would call Krische on their behalf.

Krische said it was a tough case. He argued in court that the law, although valid, should not apply to his clients, citing of their religious beliefs.

“When you mix law with religion,” he said, “it’s going to be volatile not matter what side you land on.”

The amendment that would allow the building-code waivers passed on 12-4, party-line vote on Thursday. State Sen. Alberta Darling, R-River Hills, and state Rep. John Nygren, R-Marinette, introduced the motion at a meeting of the state’s Joint Finance Committee on Thursday afternoon. The panel is now going through the state’s proposed 2015-17 budget line by line.

State Rep. Kathleen Bernier, R-Chippewa Falls, has been in talks for months with state Rep. Dean Knudson, R- Hudson, about getting the amendment into the budget bill, said Matt Rossetto, Knudson’s research assistant.

Bernier and her staff employees, as well as drafting attorneys, worked with the Wisconsin Builders Association and other groups over the past few months to draw up the amendment allowing building-code waivers.

If eventually allowed by law, the waivers would be issued by the same agency that signs off on building permits in a particular place. If the issuing agency found that an applicant did not qualify for a waiver, it would have to notify the state Department of Safety and Professional Services, which would then review the request.

Thursday’s amendment differs significantly from a similar bill that Bernier introduced last session. That legislation would have allowed Amish homebuilders to obtain an exemption to certain parts of the state’s uniform dwelling code for one- and two-family homes, letting them forgo the need to first get a waiver.

The exemption was too broad, said Brad Boycks, vice president of advocacy for the Wisconsin Builders Association, a trade group that opposed Bernier’s previous bill.

“The waiver concept came to light as something we wouldn’t have an issue with,” he said. Follow @erikastrebel