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City dept. trying to enforce federal access codes

Y

Yikes

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Joined
Nov 2, 2009
Messages
3,074
Location
Southern California
I have a project in a major California city where their former housing department (as a recipient and distributor of federal funds) was sued for certifying projects as UFAS compliant when they weren't. In response, the successor city agency to that department has now required the building department to route all plans to them for plan check of UFAS, ADA, FHA, etc., and they are developing their own CASp-like interpretations of these regs that in many cases exceed what is written in the codes. They are doing this even on projects where they are not a funder.

In my opinion, when a city is acting as the Authority Having Jurisdiction on a project whether they have no other stake (finance or ownership, etc.), they can only enforce the codes within their authority. If the plans demonstrate compliance with the locally adopted Building Code, they cannot withhold permit while they check for non-adopted UFAS, ADA and FHA according to their own interpretations.

I'm looking for the most appropriate code sections that would state this firmly, and I'm coming up with CBC 104.1 and 104.2 which state the building official is authorized to enforce "this code". I can't find anything that limits their enforcement of codes that are NOT under their jurisdiction. How do I best state this?
 
If the other codes are not adopted, by some manner,,

They cannot be enforced.

Sounds like either go the appeal route and have it settled once and for all,
or
Do an open records request, asking for ordinance / amendments that say the city can enforce this..


Or in the great state of calif, isn"t there a state agency over building codes??? Ask them for an opinion
 
# * # * #

Yikes,

I agree with **cda**…….Sounds like an appeal needs to
be filed and pursued [ RE: Section 113 - Limitations On
Authority, Sub-section 113.2, CBC, `19 Edition ].

# * # * #
 
You will not find such a statement in the building code but if you do a search of appelet court opinions you should find justification for such an opinion. The building code is not the only source of law that is applicable.

Talk to the City Attorney;

While California has a state building code the state does not provide a lot of oversight for local jurisdictions. This lack of oversight allows such problems to exist.

I fear that the only effective way to push back is for your client to sue the city asking for writ of mandamus where they are instructed to only enforce those regulations that are properly adopted. Notify your client of the implications of such requirements and suggest that they consult with an attorney.

My sense is that while the practices of this jurisdiction is extreme, many of the same problems regularly occur and everybody decides that it is cheaper and faster to accommodate these illegal demands than to fight it.

Name the jurisdiction.
 
Definitely an ultra vires, unless they have adopted the exact same standards themselves.

This is not just a good example of a building inspection department exceeding their authority as Mark K has pointed out, but one may wonder why they are extending their standard of care to laws that they are (presumably) not able to enforce.

The remedy in my jurisdiction would be relatively simple. You would apply for a permit and receive a formal rejection. You would take this rejection to our provincial planning and assessment appeals board for misapplication of the building by-law. The board would rule in your favour and the building inspection department would be instructed to issue the permit. The interesting thing is that the board rulings are not considered legally binding. So you may still have to go to court to get an order from a judge, but most cases do not end going this route once the AHJ's lawyer gets involved.
 
Laws typically have who the enforcement body is named in it. You could also ask them to point out where they are empowered to enforce these particular laws.
 
tmurray said:
Laws typically have who the enforcement body is named in it. You could also ask them to point out where they are empowered to enforce these particular laws.
Click to expand...

Yes, that. In the charging language of the UFAS, ADA, FHA, etc. those docs say who is to enforce them. If your City didn't pass an ordinance somehow adopting the language from those standards and giving themselves the ability to enforce, then it's an easy win to say they can't enforce them.
 
State and local officials do not have the authority to enforce the UFAS, ADA and FHA on behalf of the Federal government.

The enforcement of state codes is the responsibility of state or local officials – usually through plan reviews and building inspections.
The UFAS, ADA and FHA relies on the traditional method of civil rights enforcement through litigation in federal courts.
 
Im on the other side of the permit counter from you, so I don’t understand a lot of the details. But if the city needs proof that the project is ufas compliant before disbursing funds ... how would you suggest they do that?
 
e hilton said:
Im on the other side of the permit counter from you, so I don’t understand a lot of the details. But if the city needs proof that the project is ufas compliant before disbursing funds ... how would you suggest they do that?
Click to expand...
In CA we have licensed "experts"
CASp State certified "experts".
The CASp program is designed to meet the public's need for experienced, trained, and tested individuals who can inspect buildings and sites for compliance with applicable state and federal construction-related accessibility standards. This program is governed by the Title 21 Voluntary Certified Access Specialist Program Regulations and applies to any individuals who seek certification or do business as a CASp.
https://www.dgs.ca.gov/DSA/Services/Page-Content/Division-of-the-State-Architect-Services-List/CASp
 
Before you go to court, and while I agree you will prevail, you should make sure there is not an local appeals process in place first. I have seen many courts bounce a case out of court for ignoring local appeals process prior to filing with the court system.
 
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e hilton said:
Im on the other side of the permit counter from you, so I don’t understand a lot of the details. But if the city needs proof that the project is ufas compliant before disbursing funds ... how would you suggest they do that?
Click to expand...


Let the city figure it out
 
e hilton said:
Im on the other side of the permit counter from you, so I don’t understand a lot of the details. But if the city needs proof that the project is ufas compliant before disbursing funds ... how would you suggest they do that?
Click to expand...

On this project, they are not funders. If they were funders, they would have the right to ask for whatever they want as a condition of accepting their funds. But they are not funders this time, and yet they are still requiring their housing department accessibility review.
 
Yikes said:
On this project, they are not funders. If they were funders, they would have the right to ask for whatever they want as a condition of accepting their funds. But they are not funders this time, and yet they are still requiring their housing department accessibility review.
Click to expand...
That's fine, every jurisdiction, per CA state law, shall have a CASp on staff or available, as a consultant.
 
The CASp program is a state program to implement a state law that may parallel Federal Law. That the Feds may accept the CASp reports is addressed by Federal law. Still the local jurisdiction can only enforce state laws that they have been authorized to enforce.
 
cda said:
If the other codes are not adopted, by some manner,,

They cannot be enforced.

Sounds like either go the appeal route and have it settled once and for all,
or
Do an open records request, asking for ordinance / amendments that say the city can enforce this..


Or in the great state of calif, isn"t there a state agency over building codes??? Ask them for an opinion
Click to expand...

They can choose to meet, or exceed the CBC by amending their code , their choice and many do. If using Fed funding those requirements often exceed local codes. California Building Standards Commission together with the State Architect develops our codes.
 
In California state law severely limits the local modifications to the California Building Code. This is often ignored by local jurisdictions because there is no enforcement of the law.
 
e hilton said:
Im on the other side of the permit counter from you, so I don’t understand a lot of the details. But if the city needs proof that the project is ufas compliant before disbursing funds ... how would you suggest they do that?
Click to expand...
Typically, this is done
ADAguy said:
"ultra ..."? what are you trying to say?
Click to expand...
Ultra vires is a legal term for when you are trying to enforce something (usually a law) that you are not entitled to enforce.
 
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