Building Code Official Discretion

[Lone Walker]

Hello,
I live in a city in NW Montana where we get considerable snow. Last fall, a commercial property owner near me constructed a new porch roof over their main entry to a nearly 30,000 sq. ft. warehouse that is partially being converted to retail space. Being somewhat familiar with building construction and concerned the new roof seemed inadequately constructed, I requested a copy of the building permit from the city. They sent me a permit with nearly all the information required by the building department not completed and no records of any inspections. They also sent me a hand-sketched drawing and some photos of some of the construction details. I asked about the lack of the required information and inspections. A building official responded that they approved the application and the issuance of the permit, and that no on-site inspections have been conducted for this permit. The photos the city sent me appear to show an OSB rim board ledger nailed to a fascia with side mount joist hangers for the rafters. The porch posts are attached to the footing with light guage steel straps and the only diagonal bracing is some short wood blocks attached to the posts and beam with screws. The roof beam looks homemade. Last week we had a 6" daily snowfall, which is common here. As the snow melted and slid down the warehouse roof, a lot of it accumulated on the new porch roof - two or more feet in places. This is a link to the building permit, the city's photos and my photos -

160 8th Ave WN - Google Drive

drive.google.com

I tried to notify the state because there are additional safety issues (lack of sprinkler system, multiple instances of collapsed roofs, charred structural members from a warehouse fire, to name a few) but it appears they defer to city authority. My questions are - do building code officials really have this much discretion and do they have another authority to answer to besides the state, similar to other professionals?

 

[SCBO1]

Snow drift has to be accounted for as well as accumulation, typically on commercial projects my BO discretion requiring the design to be done by a RDP Registered Design Professional (Architect or Engineer) is often questioned on small projects.

 

[tmurray]

Generally, building officials do have some measure of discretion is interpreted and applied, but it largely does not extend to completely flouting requirements.

 

[BN4537]

I tried to notify the state because there are additional safety issues (lack of sprinkler system, multiple instances of collapsed roofs, charred structural members from a warehouse fire, to name a few) but it appears they defer to city authority. My questions are - do building code officials really have this much discretion and do they have another authority to answer to besides the state, similar to other professionals?

I can think of a handful of reasons where all that you mention may actually be okay. Without being there to judge, I hesitate to throw another jurisdiction under the bus.

However, to answer your question, the building official always has a boss unless he is also the city manager and the mayor and the city council. Whether the state gets involved or not varies by state.

In Kansas, the building official does not answer to the state unless he commits a state crime. The state allows local jurisdictions to enforce codes, but does not require any enforcement at all - if the city doesn't care, the state doesn't care (with the exception of ADA regulations, if we issue a permit we have to look at ADA stuff.)

 

[Inspector Gift]

Please contact the Building Department and request a meeting with the Building Official. He will appreciate your taking the time to personally meet with him and share your concerns. (If I am not mistaken, he is also a member on the forum.) And please let us know the outcome of your 2nd contact with the Building Department.

 

[Lone Walker]

However, to answer your question, the building official always has a boss unless he is also the city manager and the mayor and the city council.

A few years ago, the city manager combined the building department with other departments, and appointed the planning director as the "boss" of the building department. It appears that these building decisions are based on land use occupancy, rather than fire and building code occupancy. I don't know which takes precedence.

 

[tmurray]

A few years ago, the city manager combined the building department with other departments, and appointed the planning director as the "boss" of the building department. It appears that these building decisions are based on land use occupancy, rather than fire and building code occupancy. I don't know which takes precedence.

I ran into a similar belief by the manager of the planning department at my last job. He thought that there should be alignment of both planning and building code requirements. He felt I was undermining him when he saw something one way in regards to zoning, but I saw it another way from the building perspective. While zoning and building sometimes look similar, the intent is rarely aligned, which means that a decision from one side should not be considered to influence a decision on the other side.

To answer your question, really, neither one takes precedence. Both are laws and both must be complied with. Interpretation should never be based on a judgement from another law unless the law specifically directs us to do that.

 

[Lone Walker]

which means that a decision from one side should not be considered to influence a decision on the other side.

I'm sorry, tmurray, but I think most of the public, including me, think public safety is a much higher priority than land use decisions. Otherwise, why bother having building and fire codes if they're just suggestions? I think the building department dropped the ball here.

 

[Yankee Chronicler]

A few years ago, the city manager combined the building department with other departments, and appointed the planning director as the "boss" of the building department. It appears that these building decisions are based on land use occupancy, rather than fire and building code occupancy. I don't know which takes precedence.

It may depend on the state's laws. In my state, the appointed Building Official is the authority having jurisdiction. The appointing authority (mayor, city manager, etc.) may supervise the BO administratively (checking his/her time sheet, approving vacation requests, etc.) but canNOT (legally) in any way interfere with decisions regarding interpretation or enforcement of the building codes.

I don't think there's any state in which a zoning code can override a building code adopted in accordance with the applicable statutes. In case of a conflict, the more restrictive would apply.

 

[Tim Mailloux]

A few years ago, the city manager combined the building department with other departments, and appointed the planning director as the "boss" of the building department. It appears that these building decisions are based on land use occupancy, rather than fire and building code occupancy. I don't know which takes precedence.

zoning codes dictate how parcels of land can be used and what types of buildings can be constructed on that land. Building codes dictate how those buildings are to be constructed.

 

[Yankee Chronicler]

zoning codes dictate how parcels of land can be used and what types of buildings can be constructed on that land. Building codes dictate how those buildings are to be constructed.

Correct. Despite the appearance of using similar terms, they are two completely separate animals. Even where they appear to overlap -- they don't Zoning setback is measured perpendicular to the property line. Building setback (fire separation distance) is measured perpendicular to the face of the building. It's a subtle distinction and usually doesn't matter, but there are instances where this can make a significant difference. (Just one example.)

 

[Lone Walker]

If I am not mistaken, he is also a member on the forum.

Yankee Chronicler, I agree that it seems the building and fire codes should be higher priority than zoning. I just brought these issues to you code official's attention in this forum because I doubt that I'm in the only locality in America having these issues. Rather than lecturing me on jurisdiction, and if he's a member of your forum, why don't you ask him why he's not asserting his code authority over his planning department "boss"?

 

[Sifu]

zoning codes dictate how parcels of land can be used and what types of buildings can be constructed on that land. Building codes dictate how those buildings are to be constructed.

Yes. I call it the IF/HOW process. PZ determines the IF, building determines the HOW.

So many have decided the IF can run concurrent to the HOW. So many times the HOW is determined before the IF and the IF says no. Then the fun begins.

 

[Yankee Chronicler]

Yankee Chronicler, I agree that it seems the building and fire codes should be higher priority than zoning. I just brought these issues to you code official's attention in this forum because I doubt that I'm in the only locality in America having these issues. Rather than lecturing me on jurisdiction, and if he's a member of your forum, why don't you ask him why he's not asserting his code authority over his planning department "boss"?

I disagree. From a philosophical perspective, it might be argued that building and fire codes should be higher priority than zoning regulations. From a legal perspective, any such argument is completely irrelevant. As Tim Mailloux noted, zoning regulations regulate the use of land, and building codes regulate the design and construction of buildings. It doesn't matter which anyone thinks is more important -- they operate in different universes.

Back when I started practicing as an architect, my state used BOCA for the building code and NFPA 101 for the fire safety code. The building code was enforced by building officials, and NFPA 101 was enforced by fire marshals. There were a number of areas back then where NFPA 101 was in pretty much direct conflict with the BOCA National Building Code. Architects had to thread the needle to design buildings that satisfied both -- because both applied to the design and construction of the building.

That was completely separate from zoning. We could get zoning approval before doing anything more than the most basic of schematic design, because zoning was basically only concerned with where the building would sit on the parcel and how much ground it would cover. Owners were (naturally, and rightly) reluctant to commission a complete design and construction documents unless and until they had assurance that zoning would allow the building to be constructed.

We still have at least one municipality in this state that has NO zoning regulations -- but buildings in that municipality are still subject to the building codes.

 

[steveray]

Didn’t fall with all that snow on it…seems field tested…

 

[arwat23]

Yankee Chronicler, I agree that it seems the building and fire codes should be higher priority than zoning.

To say one is more important than the other when they're typically completely different things seems like an error imo. Sure, life safety could (and should imo) be argued to be "more important" than how far a rear-yard setback is, but both need to be followed. Zoning should not conflict with Building and Building should not conflict with Zoning since they address completely different things. Zoning shouldn't tell you what the life-safety or seismic requirements, like how the building code won't tell you where on a lot you can place a structure. At worst, a municode could amend (mostly additions to) building code, but shouldn't negate Building Codes outright, at least in my experience.

If someone using zoning ordinances to circumvent building code, something's wrong.

 

[Inspector Gadget]

We've had some extensive discussions on this matter in our office. One of our municipalities has a set of zoning regulations that are ... quite detailed and often restrictive.

The general guidance is that in case of a conflict between zoning and Code, the most restrictive shall prevail. However, the way it's been explained to me is that zoning is empowered at the municipal level while Code is empowered at the provincial level - meaning if a development officer and a building official get into a pissing contest, the Code prevails.

Had a very similar conversation last week with a guy who replaced a 24" guard on a "designated historic home" with a 32" guard. He tried to argue that the "historic designation" allowed him to avoid the Code requirement for a 36" guard. He's flat-out wrong.

 

[tmurray]

I'm sorry, tmurray, but I think most of the public, including me, think public safety is a much higher priority than land use decisions. Otherwise, why bother having building and fire codes if they're just suggestions? I think the building department dropped the ball here.

It's an apples to oranges comparison.

It might be a little flawed to think that zoning does not provide for safety of the public as well. For instance, the building code would allow you to build a school next to an ammunition factory. Now, this is obviously a terrible idea. The buildings would need to be a certain distance from one another, but otherwise, no big deal. Zoning on the other hand, could be used to restrict those buildings from being located adjacent to one another.

Ultimately, they are both laws, so they are both important.

 

[TheCommish]

Zoning has place in community safety by separating buildings from each other, while the building code offers additional protection by regulating types of construction and fire safety features.

The purpose of this bylaw is to promote the health, safety, convenience, amenity and general welfare of the inhabitants of the Town of Charlton, through encouraging the most appropriate use of the land as authorized by Article 89 of the Amendments to the Constitution of the Commonwealth of Massachusetts, as amended, with the objective as follows:

To preserve health; to secure safety from fire, flood, panic and other dangers; to lessen congestion in the streets and ways; to provide adequate light and air; to prevent overcrowding of land; to avoid undue concentration of population; to recognize the need for housing for persons of all income levels; to facilitate the adequate provision of transportation, water, water supply, drainage, schools, parks, open space, and other public requirements; to preserve the value of land and buildings, including the conservation of natural resources, protection of aquifers, and the prevention of blight and pollution of the environment; to encourage the most appropriate use of land throughout the Town, including consideration of Town plans and programs, and to preserve and increase amenities.

 

[Lone Walker]

If someone using zoning ordinances to circumvent building code, something's wrong.

Thanks to all of you for contributing to this discussion. In the last couple of months, I have filed three complaints with the city. Generally, they refer to structural integrity, land use and fire codes. This is a link to these complaints and some supporting documents provided by the city. Since they're public documents, anyone can view them. I'm not concerned about my privacy. Just so you know, my only professional credential is a high school diploma.

160 8th Ave WN Complaints - Google Drive

drive.google.com

The response so far from the head of the building department, who is the planning department "boss" and is not certified by the state building department, is "City staff inspected the property last week and did not see any building or zoning violations as alleged in the attached complaints." My original question to you was whether or not building code officials have another authority to answer to, similar to other professionals (in order to maintain their credentials). I have notified the State Fire Marshal and the State Building Department Bureau Chief, and have had no response. It doesn't appear there is a peer review authority for building code officials, which is unfortunate because I think the inability of local code officials to assert their authority will result in giving your profession a negative opinion by the public. I was hoping to avoid that, but the public safety risk is too great and I feel I have a civic obligation to do something about it. It's not my responsibility if you can't police your own profession.

One of your forum colleagues messaged me a couple of days ago-
"Write it up nicely, with documentation. Send to city manager, all council people and city attorney. Till you find intelligent life. If that don’t work send to all tv stations, always looking for a story." That made me laugh, I guess I'll have to think about it some more.

 

[Joe.B]

What's your stake in all this?

 

[Lone Walker]

My property is literally 50 ft. from this warehouse. If that thing burns down, it's going to scorch the entire neighborhood. The 2012 fire required seven fire engines and over 20 personnel. And they still don't require a sprinkler system or an engineer's structural analysis.

If it falls down, people may die. The 1949 bowstring truss roof has collapsed twice and the fire exacerbated its weakness.

Since I worked next to it for four decades, I know its history.

 

[arwat23]

My original question to you was whether or not building code officials have another authority to answer to, similar to other professionals (in order to maintain their credentials).

I'm not a Building Official (I'm a Accessibility Specialist and Interior Designer), but in my experience the CBO or the head of the Director of Community Development (or similar) is the authority. Inspectors are there to inspect and should, especially when given a complaint, inspect a property thoroughly. If they say all is good, then all (should) be good.

CBO is a job title. You need credentials, usually from ICC, to get the job, but as far as I know there's no licensing board type thing for CBOs (someone correct me if I'm wrong)

Looking at the city's website, it looks like the CBO's boss is the Development Services Director. You could try going to them if you haven't already. If that doesn't work, go to the city's elected officials / city manager.

However, a bad design or different design / use of materials than what you're use to by itself does not necessarily mean there's a code issue. It's possible that there are no code-related issues and everything you're seeing is just crap design. Complaint with code, safe, but looks bad.

It doesn't appear there is a peer review authority for building code officials, which is unfortunate because I think the inability of local code officials to assert their authority will result in giving your profession a negative opinion by the public. I was hoping to avoid that, but the public safety risk is too great and I feel I have a civic obligation to do something about it. It's not my responsibility if you can't police your own profession.

No design professional has a peer review thing, unless you're talking about filing a formal complaint and getting a Board to look at an individual.

Don't worry, Building Officials, Architects, Interior Designers, etc. etc. already don't look great in the public's mind. An Architect will do a crap job on their plans, blame the Building Official for not approving the plans, and the client gets mad at the extra time and money "wasted" and blames the Building Department. Interior Designers don't know what they're doing half the time and blame an Architect or Building Official for ruining their designs (despite their designs not complying with code). Contractors will blame inspectors for not approving their crap work / field changes and the client gets upset at all the costs needed to redo the work.

 

[Lone Walker]

CBO is a job title. You need credentials, usually from ICC, to get the job, but as far as I know there's no licensing board type thing for CBOs (someone correct me if I'm wrong)

Looking at the city's website, it looks like the CBO's boss is the Development Services Director.

That's him, the planning department "boss" with no building code credentials and no state certification. He is the one that wrote "City staff inspected the property last week and did not see any building or zoning violations as alleged in the attached complaints.", as if he would know what the violations pertained to.

If that doesn't work, go to the city's elected officials / city manager.

Not much help there. The city manager appointed the Development Services Director (planning department "boss"). Elected officials do not approve city manager appointments.

No design professional has a peer review thing, unless you're talking about filing a formal complaint and getting a Board to look at an individual.

That might be my next step. It's just figuring out where to file the complaint. I'd rather not if I don't have to.

I was in the building industry, so I understand the perception problems you refer to because I spent a lot of time working with the building department. I worked with some very smart and considerate inspectors. I had a good relationship with them before I retired. So, it concerns me that code official profession gets discredited because of this. Regardless, I think you folks in this forum have a role in this, even if it's not legally binding, it just might take a few emails and/or phone calls.