Thoughts On This

[Sifu]

Our professional liability insurance company encourage us to write our contracts with dispute resolution language that bypasses arbitration, if the client will accept that clause. The insurance companies trust judges and juries to more correctly assign % of liability / responsibility than arbitrators, who will often just "split the baby" to make the process go faster and to maintain their ratings for impartiality.

My arbitrator split the baby I guess. I wanted some of the money I had already spent back, but he said to leave it alone, lick my wounds and go home satisfied it was over. I didn't let the door hit me in the arse on my way out.

 

[Yankee Chronicler]

Sadly, I have witnessed this much too often. Judges have waved fines, in favor of the non-compliant home owners who has done their own work without permits. And Council members have criticized and impugned department heads and building officials, suggesting that the inspectors, who called out the fire-life-safety violations, should be disciplined.

My former boss was harassed to the point that he was forced to resign when the town administration changed and the new town manager couldn't understand why the building department wouldn't just issue permits for all his pals even though either what they proposed didn't meet code, or their "construction documents" were just chicken scratches on the back of a grocery sack.

The scary part is that the new town manager is an attorney. He should know that not doing the job correctly leaves the town open to lawsuits basically forever.

 

[ICE]

I had to interview at a contract city. The city mananger said that their were a few contractors that lived in their city. She wanted to know if I would give them special treatment. I told her that every city has contractors living there. I said that there is no such thing as a hometown advantage. I didn't have to work there.

It wasn't like I was rude about her rude inquiry. I made it clear that I could be attentive to their needs for timely inspections etc. but the code is the same for everyone. The person that I would have replaced was not much of an inspector and I suspect that she understood the difference between us. It is a small city and the daily load would be five or fewer inspections, which would drive me crazy. When I have too much time on my hands, I tend to get into trouble.

 

[steveray]

I had to interview at a contract city. The city mananger said that their were a few contractors that lived in their city. She wanted to know if I would give them special treatment. I told her that every city has contractors living there. I said that there is no such thing as a hometown advantage. I didn't have to work there.

Yep...they get a shorter commute when they work in Town....

 

[ICE]

Yep...they get a shorter commute when they work in Town....

It's a dinky little town of 16,000 people. I would not have lasted more that a few months.... mostly because I dislike contract cities. Word has it that LA County is dropping all contract cities by the year's end. Third party companies will be hiring. Inspectors can expect $65 to $80 per hour with some benefits like medical and 401K. The only requirement is ICC certifications and a heartbeat.... you don't even have to be an inspector. There will be turmoil.

 

[BayPointArchitect]

Rather than go into the details, I know that my jurisdiction was sued for not allowing "reasonable accommodations" for a group home and was charged with discrimination against the disabled (ie: group home for recovering alcoholics). After the city paid out an untold amount of money, the reasonable response from the city was to not regulate group homes of any kind. However, group homes need to be licensed by the State and part of that licensing process requires certification of code compliance. So the city is stuck in a catch 22 and forced by the politicians to review these plans where old single-family homes are being converted to institutional I-1 group homes. My opinion is that this was not a fair judgement against the AHJ who was trying their best to apply the rules as they are written and understood. We learned that alcoholics are a protected class under the ADA and making "reasonable accommodations" translates to giving them a building permit without looking too hard at any floor plans.

 

[Amy Reineri]

It is strange that there is a system where you expect the building inspector to act in the best interest of society as a whole, but then when they fail to do this, there are functionally no consequences for this failure.

I can understand the argument that a building inspector must act with the benefit of society in mind, and that one person may find themselves on the short end of that stick, so there must be some level of protection there. I just really question if statutory immunity is the vehicle to get there.

The reality is that enforcement of the codes benefit society and the owner the overwhelming amount of time, so why would there need to be statutory immunity? Why not the Anns test or a similar legal test?

Codes benefit not only the current owner/tenant but all future owners and tenants. When a build-out or addition is done illegally or includes non-compliant new work, that work will need to be checked against the standards at the time it was built in order to know if it was code-compliant or not. If it wasn't code-compliant when installed, it should never be considered legal - and laws in Virginia agree with this.
I encounter tenants who were rented a space built out for the same use they have - however, the build-out was had no permit and no certificate of occupancy, so now they're signed to a space where they thought they could use it right away, but instead they have to tear out and redo parts of it - sometimes major parts, sometimes it can't be occupied for their use at all. But you still wind up with these and often a municipality will decide to only require remediation of egress and safety items. But future users of these space won't be expecting that this newish space has non-conforming work either.
A car dealership is accepted though they bought a house-load of residential doors for their offices and used them all - including the 30" bedroom doors and 24" restroom doors - for their offices. It was allowed that since they had some compliant sliders and 36" doors for the offices (mostly pre-existing this build-out) it would be OK to have some other non-ADA doors. But the accessibility of those spaces and limits on what can and cannot become part of a hallway - all of that will be imposed on future users as well.
Reframing and replacing all those doors would be expensive (found a human services space had framed for a "house load" of doors, but they hadn't gotten to the drywall yet, so they were able to fix it more readily) but leaving them there is a risk that can trap future users. Home inspections often turn up unpermitted/illegal work that has to be fixed, but commercial buildings don't get the same benefit - when the building is measured up for a new tenant/owner the facts will often emerge, but the idea that grandfathering applies to everything existing is difficult to erase from the real estate sales and leasing mindset.
When I took a course on laws on construction in Virginia, we were told that whoever controls the space when non-permitted work is discovered is the one on the hook for it. So it falls to the tenant or owner to fix it. That can be a massively expensive discovery for start-ups or people who are relatively new to owning commercial buildings. We make people have an asbestos inspection filed if the building was built in 1984 or earlier, but what do we do to help business people know if the space/building they are looking at is code compliant when an inspector or RDP isn't involved? When non-compliant work done without a permit is allowed to stand, the cost of fixing it is being passed along to the next owner, who typically knows nothing about it.

 

[ICE]

When a build-out or addition is done illegally or includes non-compliant new work, that work will need to be checked against the standards at the time it was built in order to know if it was code-compliant or not.

That is a novel approach that I never tried. The usual was application of current codes rather than sorting through history. In fact, it never even occurred to me that bootlegged construction would need to adhere to codes that were initially ignored.

 

[steveray]

That is a novel approach that I never tried. The usual was application of current codes rather than sorting through history. In fact, it never even occurred to me that bootlegged construction would need to adhere to codes that were initially ignored.

Not how it works here...new code....

 

[Yikes]

If you're looking for a really novel approach from other arenas of local regulation:
I recall that in highway safety design there was something called the 85th percentile rule. As is the case in many areas across the nation, people often drive faster than the posted legal speed limit. Regardless of the legally posted speed limit, if a traffic study determines that the 85th percentile of vehicles actually travels at a higher speed limit, that actual speed is allowed to be adopted as the new speed limit.

https://www.maine.gov/dot/sites/mai.../docs/trafficissues/eightyfifthpercentile.pdf

 

[Amy Reineri]

That is a novel approach that I never tried. The usual was application of current codes rather than sorting through history. In fact, it never even occurred to me that bootlegged construction would need to adhere to codes that were initially ignored.

The trick is being confident of the code under which the bootleg work was done. If it was clearly the initial build-out of the last (non-C.O.) occupant, then neighboring units or commercial RE sites or older shopping center directories will give the information. The owner should be a source for this as well - sometimes the center or building has been sold in the meantime. Parking lot views from Google Earth have clues, which adjacent tenants do and don't remember the occupant are clues. The website (sometimes still there even if the business is gone entirely) for the bootleg occupant is a clue.
The other POV is that an illegal build-out can't be grandfathered at all, which is fair, but if the people doing the work knew their job and didn't know it would not be inspected (or would work to current code regardless) it should be in compliance. Often there is a mix of earlier work that was permitted and subsequent work that wasn't - but with the more relaxed code views on flammable materials in a non-flammable construction types, it can be hard to tell one way or the other. (And that change alone could mean that some work not compliant in it's installation might be accepted now ... it's complicated.) To make matters more complex, I've created construction documents to current code and had tenants hire a plumber who was quite out-of-date and instead installed a 10 years earlier ADA version multi-user toilet layout. If they had done that work without inspection, it wouldn't age properly just looking at it. As it was, they had to rip it all out because it didn't conform to what they had submitted (my drawing) either. There are people who rip off churches and don't get permits either - if a municipality will be merciful for a portion of that work that would have been done differently, it can become a problem for the next church occupant who wants to make a few changes and is told that what is where was non-conforming to the date it was put in, so you hope that municipalities keep some kind of record when they pass something from compassion when the tenant/owner is not the one at fault - but is the next tenant or owner now on-the-hook the church that was ripped off has been let off from? This ties in with the large amount of "one hour acoustic tile ceiling" build-outs that are still in existence and with more recent tenants. (I've salvaged some by dividing the exiting paths into occupant loads less than 30, but there are typically still some areas that need a fire-rated perimeter (ravine) or a fire-rated wall/cap (tunnel) solution.)
We have a fairly large area annexed to one city where code enforcement wasn't really done at all until 1983, so nothing is what it seems to be and a lot of it is hinky - and still occupied/in use. They have had to bless some weird stuff - and there's no water pressure for fire-sprinklers, either. There need to be beginnings, edges and ends to municipal building code "indulgences" though, or it's chaos. Flagging a building that is - say - known to have non-conforming construction and what the city-agreed construction type now is - that all needs documentation somewhere in notes what decision (including why, when and by whom) was made. Equal application of indulgences is what helps reduce individual liability - when you are working on a hinky building inside that known code-hinky part of town, the building code office knows that things won't line up 100%. What percentages and where are critical is the municipality's call. Buildings built after 1983 don't get the same measure of grace.

 

[Amy Reineri]

Not how it works here...new code....

Also true in areas where the Existing Building Code isn't accepted. Our state had very little grandfathering until the legislators forced the IEBC into the laws. (Then it was gutted the following round, then it's been restored this last round - how to be sure which grandfathering status was in place is a patchwork at this point.)

 

[tmurray]

When a build-out or addition is done illegally or includes non-compliant new work, that work will need to be checked against the standards at the time it was built in order to know if it was code-compliant or not.

This is not how it works here. Things under previous codes are only acceptable if it was built to the code that was in effect when it was constructed, however, that is only possible if a building permit was issued. Illegal construction is a poison pill to any form of "grandfathering". The settled case law here that makes it so there is no presumption that work done without a permit can be expected to be to code. This means that work done without a permit needs to be inspected to the same level as if it had a permit when the work was undertaken (including all necessary uncovering).

Allowing people to retroactively meet a previous code incentivizes not getting a permit as the worst thing that can happen is they might have to justify the construction later on. The effective result of this is that people getting permits are being penalized. Laws that have the effective effect of incentivizing non-compliance are bad laws.

 

[steveray]

Also true in areas where the Existing Building Code isn't accepted. Our state had very little grandfathering until the legislators forced the IEBC into the laws. (Then it was gutted the following round, then it's been restored this last round - how to be sure which grandfathering status was in place is a patchwork at this point.)

I would be very curious to see how that code is written....I guess you maybe use this?

301.3​

The alteration, addition or change of occupancy of all existing buildings shall comply with one of the methods listed in Section 301.3.1, 301.3.2 or 301.3.3 as selected by the applicant. Sections 301.3.1 through 301.3.3 shall not be applied in combination with each other.

Exception: Subject to the approval of the code official, alterations complying with the laws in existence at the time the building or the affected portion of the building was built shall be considered in compliance with the provisions of this code. New structural members added as part of the alteration shall comply with the International Building Code. This exception shall not apply to the following:

1. 1.Alterations for accessibility required by Section 306.
2. 2.Alterations that constitute substantial improvement in flood hazard areas, which shall comply with Sections 503.2, 701.3 or 1301.3.3.
3. 3.Structural provisions of Sections 304, Chapter 5 or to the structural provisions of Sections 706, 805 and 906.

 

[tmurray]

I would be very curious to see how that code is written....I guess you maybe use this?

301.3​

The alteration, addition or change of occupancy of all existing buildings shall comply with one of the methods listed in Section 301.3.1, 301.3.2 or 301.3.3 as selected by the applicant. Sections 301.3.1 through 301.3.3 shall not be applied in combination with each other.

Exception: Subject to the approval of the code official, alterations complying with the laws in existence at the time the building or the affected portion of the building was built shall be considered in compliance with the provisions of this code. New structural members added as part of the alteration shall comply with the International Building Code. This exception shall not apply to the following:

1. 1.Alterations for accessibility required by Section 306.
2. 2.Alterations that constitute substantial improvement in flood hazard areas, which shall comply with Sections 503.2, 701.3 or 1301.3.3.
3. 3.Structural provisions of Sections 304, Chapter 5 or to the structural provisions of Sections 706, 805 and 906.

I'd suggest that not getting a required permit would make the construction ineligible for that exception since it did not comply with the laws that required a permit.

 

[Sifu]

Things under previous codes are only acceptable if it was built to the code that was in effect when it was constructed

I have raised this question before. What is approved? If it was approved, did it "meet code". Some very astute code gurus have argued that if it was "approved" it met code. So in a situation where something did not meet code, but was "approved" it is deemed to have met met code. It is argued that it was acceptable to the authority having jurisdiction at the time since they approved it. It could also be argued that approval isn't permission to violate code.

I document any modification or acceptance that doesn't meet code on the plans so they become a part of the plan forever. So if something has a modification, approved by the AHJ the reason and conditions are made known and available. Sadly, few others do this so people are left scratching their heads later.

 

[steveray]

I'd suggest that not getting a required permit would make the construction ineligible for that exception since it did not comply with the laws that required a permit.

And I would likely agree and not give my approval to use that exception....It is a very weird exception, I shall have to look at commentary at some point....

 

[warmer]

I’m an electrical plans examiner/ inspector for a municipality. For context, this is the only location I’ve held this position so not much to compare it to; I still think our records are trash. Addressing is a mess and doesn’t match information on the property appraisers website (I still can’t wrap my head around that). Nothing in our system links properly, especially when it comes to information that transferred from our previous system (we had trakit and switched to IMS) so I can’t find all the associated permits when I search by parcel or by address because of slight variations in how the address was written before or if there are unit numbers involved make them not link. Everyone is aware of this issue so it’s not just my ineptitude - I’ve asked and investigated but nothing so far.

All of that to say that every time I’ve tried to figure out if something was permitted or not, I couldn’t confidently come to a conclusion. So what then?

For example, change of occupancy/ alteration level 3 (Florida). Multi tenant building, used to be Sears. 2 of the bottom floor tenant spaces were demolished to create a larger tenant space (no permit). A stop work order was posted but they kept working anyway - a lot has been done and a lot is new, contrary to what is clearly written on the plans as existing to remain, that the occupancy is the same, alteration level 2, etc. Not a good start.

A site visit soon followed at which point the following was observed: The service is supplied from a utility vault on the first floor that supplies switchgear on the second floor. 2000A, 480/277V. Multiple tenants and house loads are supplied from that switchgear, from separate breakers. They avoided showing me the room at first - probably because the lights didn’t work and the door was unlocked and open to only one of the tenants. In order to gain access to the service equipment, the building manager had to call the tenant to let us in. During the follow up visit (still no issued permit), the building manager figured out how to access the space from a stairway. A padlock was placed on the door - not a code compliant door for the space given the equipment (like listed panic hardware). They got the lights on in the room and actually labeled the breakers by tenant. They do not have GFPE documentation, nor any Arc energy reduction stuff, nor fault study. None of the tenants have access to their own service disconnecting means and building management is not continuous, fire department does not have a key to room either. Most of the ~ 12 panels in the proposed remodel space look pretty new but square d stuff always looks pretty new to me. Not finding permits that would’ve covered that electrical scope since it changed from a sears to commercial multitenant; they could’ve installed some of this right after the stop work order - how could I know?

I’d love to know how you guys would approach this from an existing building code perspective and any other comments you might have. This is the first beast of its kind for me.

 

[ICE]

What is approved? If it was approved, did it "meet code". Some very astute code gurus have argued that if it was "approved" it met code. So in a situation where something did not meet code, but was "approved" it is deemed to have met met code. It is argued that it was acceptable to the authority having jurisdiction at the time since they approved it.

I have seen this taken too far. I understand the premise and it is wrong. The obvious flaw is that the inspector that approved it might have been stupid or a crook. And since you don't know, you can't accept it on face value.

 

[steveray]

The service is supplied from a utility vault on the first floor that supplies switchgear on the second floor. 2000A, 480/277V.

Sooooo....you have 2000A of unfused power running through the building?

 

[Sifu]

I have seen this taken too far. I understand the premise and it is wrong. The obvious flaw is that the inspector that approved it might have been stupid or a crook. And since you don't know, you can't accept it on face value.

I largely agree. The opinion that if it passed inspection means it meets code is wrong IMO. Unfortunately I deal with this type of thing quite often, and sometimes in ways that are very difficult to navigate.

 

[warmer]

Sooooo....you have 2000A of unfused power running through the building?

Yes. The switchgear is right above where the busway goes through the ceiling.

 

[ICE]

I largely agree. The opinion that if it passed inspection means it meets code is wrong IMO. Unfortunately I deal with this type of thing quite often, and sometimes in ways that are very difficult to navigate.

The one sure way to deal with it is to ignore it out of hand. No matter the situation as presented, a fair assessment is required. Deficiencies, great or small shall be evaluated without the benefit of a prior approval.
This applies with records from the past to projects currently under construction.

 

[Sifu]

The one sure way to deal with it is to ignore it out of hand. No matter the situation as presented, a fair assessment is required. Deficiencies, great or small shall be evaluated without the benefit of a prior approval.
This applies with records from the past to projects currently under construction.

In many cases, no documents exist or can be found that show in any way how or why something was approved. A lot has been lost over the years, or never provided. Many times the only document that is kept is a C of O, or an original application. The C of O is held out as the proof that the previous occupancy was "legal". When I ask them to demonstrate how the previous, and then the proposed occupancy meets code the phones really get a workout.

FWIW, I am seeing a tremendous loss of documents due to the almost overnight transition to the electronic platform so many AHJ's moved to during/after COVID. It seems a lot of documents were supposed to be migrated into the new systems but weren't, and every day that goes by the people that are supposed to know what happened to them are lost. I have one like this right now. They are stupefied that we can't provide the historic documents, and while I don't think that is my responsibility, I too am surprised so many are gone. Then again, so many AHJ's operate with no established document retention policy I guess I shouldn't be.