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2021 IEBC Section 306 and change of occupancy question

G

ggm.arch

REGISTERED
Joined
May 23, 2018
Messages
13
Location
Western PA
Hello all, maybe you guys can shed some light on a situation that I am in.
I'm dealing with a 838 sf B occupancy that my client is trying to rent as a
Thrift Shop so the BO requires a Change Of Occupancy and a New Occupancy Permit.

the space consists of three rooms, an office, a restroom(non ADA compliant) and the main room with a 36" front
door accessible route out said door to an accessible ramp to an accessible van parking space.
All separation requirements are existing. all the client needs to do is move in, no work on their end.
plumbing fixture count complies with IPC. There is no drinking fountain and it is exempt because
the occupancy would be less than 15. currently it is 9 occupants and the new occupancy is 13. Nothing
if forcing any kind of alteration expense, they said they didn't even need a drawing. Even if I were
to provide a drawing, it would show three rooms that state, "No work."

the code reviewer rejected my application for change of occupancy stating that .......

"The Design Professional shall consult with the Owner to upgrade the Toilet Facilities per 2021 IEBC
Section 306.1 and 306.7.11; and / or seek a Variance from the State Dept of Labor and Industries
Accessibility Advisory Board if not installing making the Alterations – or to install a 'Unisex' Toilet
Room; or for seeking a Variance from the Accessibility Advisory Board if determining the changes
to the Toilet Facilities are Technically Infeasible.
Provide a copy of the Variance ‘Fact of Findings’ to the Municipality."

I understand the comment, but my original argument based off the intent of the existing build code
is to bring existing buildings up to code over time and this is achieved by a proportional amount of alteration
based upon the amount spent on said alteration. (20% rule 306.7.1.1) Has this changed? is the "toilet facility,"
as indicated 306.7.1 actually saying "Accessible toilet facility?"

I was not reading anywhere in the IEBC that under any circumstance, the restroom Shall be Accessible
at any level of alteration no matter what is spent or even if nothing is spent. Am I wrong?

Is section 306.7.11 toilet rooms to be read that it is always required to have an accessible toilet facility
on the site. Or is it a function of the 20% rule where the amount of construction cost is high enough, though
impossible to adapt the existing toilet to comply that a new accessible restroom would be required?

how do you guys see alteration where no alteration is being done other than the CoO? If i'm wrong
I am completely willing to admit reading the code incorrectly, but I just am having trouble with this
reading.

any help is appreciated.
g
 
306.5 Change of occupancy. Existing buildings that
undergo a change of group or occupancy shall comply with
Section 306.7.

306.7 Alterations. A facility that is altered shall comply
with the applicable provisions in Chapter 11 of the International
Building Code, ICC A117.1 and the provisions of
Sections 306.7.1 through 306.7.16, unless technically infeasible.

306.7.11 Toilet rooms. Where it is technically infeasible
to alter existing toilet rooms to be accessible, one accessible
single-user toilet room or one accessible family or
assisted-use toilet room constructed in accordance with
Section 1110.2.1 of the International Building Code is
permitted. This toilet room shall be located on the same
floor and in the same area as the existing toilet rooms. At
the inaccessible toilet rooms, directional signs indicating
the location of the nearest such toilet room shall be
provided. These directional signs shall include the International
Symbol of Accessibility, and sign characters
shall meet the visual character requirements in accordance
with ICC A117.1.
 
Interesting. First, I can count on one hand the times a Change of Occupancy occurred without any work, but it is possible, and I go with what I am told,. If no alterations occur, then IEBC 306.7 and 306.7.1 would seem to be not applicable, since both are charged with some sort of alteration to the facility or space. But if you go a little further, even if it was enforced, a zero dollar budget x 20% would equal a zero dollar budget for accessible alterations. However, the comment references what appear to be some state amendments or alternate enforcement entity, so all bets are of on those.

I believe the intent of the IEBC (specifically the accessibility provisions) is to bring buildings in to code compliance in proportion to the work being done, so if no work is done, and the building presents no less accessibility in it's new identity, I would be inclined to agree with your premise. There are provisions of the code that will definitely increase your intended scope of work, but if there is no scope of work at all, then you may have a point. But, if you were aware of how many questions I have asked over the years about this type of thing right here on this forum, you would be skeptical of my response...just sayin', don't take my opinion to the bank. Others may have more accurate (if less pleasant) answers.

P.S., if you find the opinions and discussions on the forum useful, consider upgrading to support it's continued existence.
 
Sifu said:
Interesting. First, I can count on one hand the times a Change of Occupancy occurred without any work, but it is possible, and I go with what I am told,. If no alterations occur, then IEBC 306.7 and 306.7.1 would seem to be not applicable, since both are charged with some sort of alteration to the facility or space. But if you go a little further, even if it was enforced, a zero dollar budget x 20% would equal a zero dollar budget for accessible alterations. However, the comment references what appear to be some state amendments or alternate enforcement entity, so all bets are of on those.

I believe the intent of the IEBC (specifically the accessibility provisions) is to bring buildings in to code compliance in proportion to the work being done, so if no work is done, and the building presents no less accessibility in it's new identity, I would be inclined to agree with your premise. There are provisions of the code that will definitely increase your intended scope of work, but if there is no scope of work at all, then you may have a point. But, if you were aware of how many questions I have asked over the years about this type of thing right here on this forum, you would be skeptical of my response...just sayin', don't take my opinion to the bank. Others may have more accurate (if less pleasant) answers.

P.S., if you find the opinions and discussions on the forum useful, consider upgrading to support it's continued existence.
Click to expand...
Sifu,

306.5 makes 306.7 "in play"....And a strict reading of 306.7 means the whole thing needs to be accessible unless technically infeasible....Commentary supports this, it just comes down to who decides technical infeasibility.....

306.5 Change of occupancy. Existing buildings that
undergo a change of group or occupancy shall comply with
Section 306.7.
 
Not sure I agree, but I think the code could be more clear. I think the 2018 had it stated a little more clearly, but I still believe that, with maybe a few exceptions, it is alterations and additions that must be in compliance, not unaltered elements. I reference the 2018 IEBC commentary because I don't have a '21 (not sure it is even published yet).

306.5 mandates the change of occupancy comply with 306.7.
306.7 mandates that applicable provisions of the IBC apply (what is applicable? to me, it would be the alterations)
306.7.1- 306.7.16 apply
306.7.1 "where an alteration affects"
306.7.2 AMOE not required
306.7.3 "The alterations to Type A"
306.7.4 Type B not required where the "work area" is 50% or less
306.7.5 "Where an alteration includes" alterations to an entrance
306.7.6 Accessible route min. 36". (Application of this one is unclear)
306.7.7 "altered elements of existing elevators shall comply"
306.7.8 "Platform lifts installed" are permitted as an accessible route (this could be taken either as newly installed or existing)
306.7.9 "Where an escalator or stairway is added"
306.7.10 "Where such units are being altered or added"
306.7.11 commentary from the 2018 IEBC "Where new bathrooms are created.....or existing bathrooms are part of an alteration"
306.7.12 This is a new section in the '21, so no commentary in the '18, but it says the same thing as 306.7.11, so I take the commentary as similar as well
306.7.13 "where additional toilet fixtures are added"
306.7.14 commentary from the 2018 IEBC "This section takes a similar approach as provided...for toilet and bathrooms".
306.7.15 "Where.....of an amusement ride are altered"
306.7.16 Historic building provisions reference back to the section already mention for routes, entrance and toilet rooms.

I see most of the specific items are charged with language that I believe says if no alteration to, or addition of, an element, then there is no requirement to do so. Some may be vague or not applicable but I believe the preponderance of evidence points to the conclusion that although scope may be increased in some cases, it is not created where no alterations or work areas exist in the first place. Numerous instances of this idea are found in the 2018 commentary. Some may believe that the change of occupancy IS the alteration. I don't see it that way. But, opinions vary, and I don't think code is clear enough to alter my opinion.

I will stipulate that, like I said, the '18 and the '21 do contain differences, and that while I think that the '18 may say it better, it is possible they revised the '21 because guys like me didn't get it, but I still really don't see anything in the '21 that changes my opinion.

I leave this post with these pastes from the '18 that I think sum up the general goal of the IEBC regarding accessibility. Maybe this idea has been re-written in the '21 commentary, I'll just have to wait for it.

Where a building undergoes a partial change of occupancy,
such as where there is a tenant change or a
change in function of a specific area, then the level of
accessibility provided must achieve the same level as
if that space were undergoing an alteration. Basically,
the intent is that any spaces or elements being
altered will meet new accessibility provisions unless
technically infeasible

For a project that involves a complete change of
occupancy with alterations, full compliance with
accessibility requirements are expected and reasonable
for areas being altered, except where technical
infeasibility can be demonstrated.
 
steveray-it's a partial change of occupancy.
sifu-that's my interpretation 20% x0 = $0.00 and there are no local amendments
I spoke with the state's Accessibility hearing board, they agree with me and is their policy that where no work is done, no upgrades are required. they got this from ICC unquoted. I don't belong to ICC so get no answers from them. The state said that filing a variance would be looked at on their end and sent back stating that this "is not a accessibility issue, it's a building code issue." then it ends up back in the lap of the BO.


As I see it, there are no applicable provisions in Chapter 11 or ICC A117.1 until something is built....and the provisions of Sections 306.7.1 through 306.7.16, apply through the lens of 306.7.1.1 ...unless technically infeasible, which doesn't seem to apply in this case again unless you're building something (IMO).


306.7.11 Toilet Rooms states "where it is technically infeasible to alter existing..." This, in my mind, is nothing more than pointing out an option. It's not stating that the "Existing restrooms are to be Accessible and where it is technically infeasible.....,". It's pointing out that the toilet facility as part of the accessible route stated in 306.7.1 that cost based alterations dictate the level of expense required "not to exceed" in 306.7.1.1 to comply with accessibility.

on the other hand, To assume the restroom must be accessible because of 306.7.11, we must either ignore or remove "toilet facility" from the idea of being part of the Accessible Route as stated in 306.7.1 or state implicitly that it shall be "an Accessible" toilet facility," I don't see how we can do either.
or
redefine 306.7.11 to state implicitly as stated in previous paragraph
too many subjective possibilities when the objective source seems pretty clear to me, but hey, what do I know.

Thanks for your thoughts.
 
This is what I found from ICC. ICC interpretation 126-16, issued 2/21/17. I don't know how to attach the full pdf but I will paste the relevant section. It is based on the 2012 code, maybe it is what your state officials are referring to: (bold emphasis is mine)

Q: Is an accessible toilet room per Section 705.1.10 always required when an existing building is undergoing an Alteration Level 1, 2, 3, or Change of Occupancy?
A: No.
An accessible toilet room is not automatically required. The intent is that over time, the building will become as accessible as technically feasible when applying Section 705. In an existing building, a fully accessible toilet room is required when a new toilet room is constructed.
Whether you are altering a toilet room because you want to or comply with Section 705.2, Section 705.1.10 offers an alternative in existing buildings where it is technically infeasible to make the men’s and women’s bathrooms accessible. An option is to build a unisex single-occupant accessible toilet room – which is also called a family or assisted-use toilet room. This toilet room must be in the same area as the non-accessible men’s and women’s toilet rooms.
Based on Section 705.2 when an altered area contains a primary function space, the accessible route to that area must be evaluated for accessibility requirements. The accessible route includes any bathrooms and drinking fountains serving the area being altered. If they are not accessible, improvement must be made. Section 705.2 Exception 1 provides that the costs of those improvements are not required to exceed 20 per cent of the costs of the alterations. Therefore, improvements must be made until either the accessible route is accessible, or until the 20% cost limit is reached. Section 705.2 Exceptions 2 and 3 states improvements to the accessible routes do not have to be made if the only alteration is something that does not change the physical configuration of the space (e.g. windows, hazardous abatement). Section 705.2 Exception 4 states improvements to the accessible route do not have to be made if the only alteration is to improve accessibility (e.g. lowering a service window to improve access). Section 705.1 Exception 1 also states that if the alteration is not to a primary function space (e.g. boiler rooms, corridors (see the definition of ‘primary function’)), improvements to the accessible route are not required. When a building undergoes a change of occupancy in conjunction with alterations (Section 1012.8.1 and 1012.8.2), by the reference to Section 705, the requirements for improvements to a toilet room would be the same as an alteration without a change of occupancy.
 
Seems like everyone is focused on the NO ALTERATIONS ARE ASKED FOR
And not IF ALTERATIONS ARE NEEDED TO ACCOMMODATE "NEW USE"

The missing info is: What Was the Last APPROVED USE?

Is this Thrift Shop much different from the Last Use? Looking at the relative risk, is this "new use" really putting people at more risk than the last use?

The comparison seems to be missing and therefore should be known in order to make an intelligent assessment

IMHO
 
genduct, sorry, I went back to the OP and I see i didn't make it clear. The original occupancy is a Business and the new occupancy is Mercantile which requires a new Occupancy permit. the original occupancy count was 9 occupants and the new is 13 occupants. M is a higher threat level in comparison to the B occupancy. but, the space is essentially one public room with a max distance to the front door of around 22 feet. a person can see the front door from anywhere in the space with no existing obstructions and no new obstructions. The increase in occupancy count does not trigger the need for separate facilities and we are under the threshold of needing a drinking fountain. it's a completely "separated space" from the rest of the building so no upgrades are required there either. For the client, they love the space and can move right in as is. My review of the space got me to the conclusion that the space, as it exists meets the intent of the code. The BO seems to think differently about what constitutes an alteration. their reading is that, a change of occupancy requires an accessible restroom period (I would think the code would state implicitly a major change such as this to their "legacy" documents and how we use them). The level of physical alteration apparently has no bearing upon this requirement according to the BO (they seem to be removing "toilet facilities" from the accessible route (306.7.1) and seeing it as a demand to be accessible as stated in 306.7.11). I just am not reading it that way but I have failed to prove my point even with the black and white of the code being pretty obvious to me.

thanks again.
g
 
ggm.arch said:
genduct, sorry, I went back to the OP and I see i didn't make it clear. The original occupancy is a Business and the new occupancy is Mercantile which requires a new Occupancy permit. the original occupancy count was 9 occupants and the new is 13 occupants. M is a higher threat level in comparison to the B occupancy. but, the space is essentially one public room with a max distance to the front door of around 22 feet. a person can see the front door from anywhere in the space with no existing obstructions and no new obstructions. The increase in occupancy count does not trigger the need for separate facilities and we are under the threshold of needing a drinking fountain. it's a completely "separated space" from the rest of the building so no upgrades are required there either. For the client, they love the space and can move right in as is. My review of the space got me to the conclusion that the space, as it exists meets the intent of the code. The BO seems to think differently about what constitutes an alteration. their reading is that, a change of occupancy requires an accessible restroom period (I would think the code would state implicitly a major change such as this to their "legacy" documents and how we use them). The level of physical alteration apparently has no bearing upon this requirement according to the BO (they seem to be removing "toilet facilities" from the accessible route (306.7.1) and seeing it as a demand to be accessible as stated in 306.7.11). I just am not reading it that way but I have failed to prove my point even with the black and white of the code being pretty obvious to me.

thanks again.
g
Click to expand...
Perhaps a "Life-Safety drawing that would show how you would organize / occupy the space with Tables, racks or whatever for the display and sale of the Goods might persuade the BCO that your Use is not a real increase in the Risk Factor.
As far as it goes, with such a small space, do your reules really require a "Public Rest Room"?
 
Genduct, The BO is fixated on the reading of the code that they seem to think an "alteration, " at any level requires an accessible restroom no exceptions. They don't seem to be concerned with life safety issues in this case and it probably wouldn't change their determination on the restroom. And yes a toilet facility is required to be part of the Accessible route as stated in 2021 IEBC 306.7.1. in my case a toilet facility does exist. The BO's reading is that (2021 IEBC 306.7.11 Toilet Rooms section) this sections overrules the rest of the section and the restroom shall be accessible and outside of the accessible route and a imperative to make it accessible. not my reading, that section is a potential option to designers to bring accessibility closer to complete where alterations to the space actually happen, not a blanket, shall be accessible.
thanks
G
 
ggm.arch said:
Genduct, The BO is fixated on the reading of the code that they seem to think an "alteration, " at any level requires an accessible restroom no exceptions. They don't seem to be concerned with life safety issues in this case and it probably wouldn't change their determination on the restroom. And yes a toilet facility is required to be part of the Accessible route as stated in 2021 IEBC 306.7.1. in my case a toilet facility does exist. The BO's reading is that (2021 IEBC 306.7.11 Toilet Rooms section) this sections overrules the rest of the section and the restroom shall be accessible and outside of the accessible route and a imperative to make it accessible. not my reading, that section is a potential option to designers to bring accessibility closer to complete where alterations to the space actually happen, not a blanket, shall be accessible.
thanks
G
Click to expand...
the option would be to appeal this reuse of the space, which requires NO ALTERATION to meet the new tenants needs, to the equivalent of the Board of Building Standards or whoever is above the BO who thinks that an ADA-compliant restroom is essential for Public Safety.

Call the local newspaper or TV Station and ask if they applaud the fact you can't afford this with start-up biz in this upcoming recession
 
Sifu said:
Interesting. First, I can count on one hand the times a Change of Occupancy occurred without any work, but it is possible, and I go with what I am told,. If no alterations occur, then IEBC 306.7 and 306.7.1 would seem to be not applicable, since both are charged with some sort of alteration to the facility or space. But if you go a little further, even if it was enforced, a zero dollar budget x 20% would equal a zero dollar budget for accessible alterations.
Click to expand...
I agree it isn't applicable. Here everyone is very tight, cheap whatever you want to call it. We have a lot of turn over in several areas. Most will work with what's there. If I tried to make someone build a new restroom every time I would get axed pretty quit for causing undue bourdon on the owner/tenant. Even if they add wall or door the cost of the work 20% might get you some grab bars or 3-0 door be that's about it. In short no work=no upgrade.
 
Seems like everyone is overlooking section 305

SECTION 305 -ACCESSIBILITY FOR EXISTING BUILDINGS

305.4.1 Partial change of occupancy.
Where a portion of the building is changed to a new occupancy classification, any alterations shall comply with Sections 305.6, 305.7 and 305.8.

Commentary:
Where a building undergoes a partial change of occupancy, such as where there is a tenant change or a change in function of a specific area, then the level of
accessibility provided must achieve the same level as if that space were undergoing an alteration
 
Tim Mailloux said:
Seems like everyone is overlooking section 305

SECTION 305 -ACCESSIBILITY FOR EXISTING BUILDINGS

305.4.1 Partial change of occupancy.
Where a portion of the building is changed to a new occupancy classification, any alterations shall comply with Sections 305.6, 305.7 and 305.8.

Commentary:
Where a building undergoes a partial change of occupancy, such as where there is a tenant change or a change in function of a specific area, then the level of
accessibility provided must achieve the same level as if that space were undergoing an alteration
Click to expand...
From the code text, "Any alterations" is important. If reading the commentary, the next paragraph refines the approach:

"Basically, the intent is that any spaces or elements
being altered will meet new accessibility provisions."
 
I would say the change in use will trigger the accesibility requirements your trying to avoid, at least in CA
 
so, I rolled quarters and joined the ICC for 185 bucks. I phoned them and asked them directly and before I could even finish my description of the project, the accessibility expert I was talking with cut me off. He said, " I know where this is going but please finish." so I did. And his answer was a resounding, "No, according to the code, you do not need to make a restroom accessible in an existing building during a change of occupancy with no work ." He also explained you that Section 306.7.11 is as I believed it to be, a concession/option to being accessible where it's technically infeasible to upgrade the restrooms within the 20% rule, and not a directive making existing restrooms become accessible. All alterations that cost money are viewed through the 306.7.1.

Additionally in regard to 306.7.11, if a future project of large enough scope and therefore a large enough 20% budget, then the restrooms would need to be brought up to code however possible, potentially relocated because of the technically infeasible nature of their current location. Just as I would have guessed when the 20% rule is in play.

Anyhow, I filled out their form online and should have a response in a few days to give to the BO. I feel vindicated, though 185 dollars in the hole!

Thanks All
G
 
Always keep in mind, the BO may not care to entertain anyone's opinion but his own. It was a 185.00 loss for you, but a great gain for me as this was a great discussion, and I believe will be referenced in the future as these questions continue to plague a lot of us. If you do get a written interpretation or code opinion please share it so we all have a little firmer ground to stand on, no matter where we may stand.
 
Sifu, This is the exact reason I decided to get the Code Question I had in writing and not just do a he said she said back to the BO. He was quite adamant about not listening to my reasoning but demanded the higher power evidence to satisfy his reading of the code. I completely understand, it's his job/career he's looking out for.

It was my plan, If i can figure out how to upload the letter when i get it, I will.
G
 
Sifu wrote "This is what I found from ICC. ICC interpretation 126-16, issued 2/21/17. I don't know how to attach the full pdf but I will paste the relevant section. It is based on the 2012 code, maybe it is what your state officials are referring to: (bold emphasis is mine)"

My discussion with the ICC also discussed the items in the pdf (from their site) that you posted. He was explaining to me, what was basically the Letter (pdf) as i re-read it just now, but essentially pulled that document/intent into 2021. I hope that they will post a new version of that letter to clarify the confusion about alterations and accessible restrooms for everyone to see.

G
 
FYI.....

305.6 Alterations. A facility that is altered shall comply with
the applicable provisions in Chapter 11 of the International
Building Code, unless technically infeasible.

The code approaches the application of accessibility
provisions to a facility that is altered by broadly
requiring full conformance to new construction,
meaning full accessibility is expected. Exceptions are
then provided to indicate the conditions under which
less than full accessibility is permitted.
 


SO, here is the response from the ICC concerning my situation of partial Change of Occupancy with no planned alterations to the lease space.
Sure hope this helps.

September 23, 2022
Dear Mr. Mexxxx:
Re: Section 306.5, 306.7, 306.7.1 and 306.7.11 of the 2021 International Existing Building Code (IEBC)

This e-mail is in response to your submitted ICC-online staff opinion request regarding the above referenced code sections. (See the e-mail thread below for the specifically asked question.)

ANSWER: Where an existing building is undergoing a partial or complete change of occupancy, Section 306.5 indicates that the building shall comply with Section 306.7. Therefore, this charging provision relates a change of occupancy to actual alterations which may occur in conjunction to a proposed change of occupancy. With this in mind, since you indicate that the proposed partial change of occupancy will be a “move in condition” which will not involve any intended alterations to the space, the alteration provisions of Sections 306.7 and 306.7.1 do not get triggered. This would include not having to upgrade the existing toilet rooms or providing a new accessible single-user toilet room.

Regarding the application of Section 306.7.11, while not abundantly clear at face value, the section should not be interpreted as constituting a blanket scoping or charging requirement but rather a concession relative to Section 306.7.1. While Section 306.7 states “a facility that is altered shall comply with the applicable provisions in Chapter 11 of the International Building Code, ICC A117.1 and the provisions of Sections 306.7.1 through 306.7.16 …”, the intent of the code is that Section 306.7.11 is a function of the accessible route provisions specifically scoped in Section 306.7.1, which the last sentence of that section states “the accessible route to the primary function area shall include toilet facilities and drinking fountains serving the area of primary function”.

As such, where an existing building undergoes alterations involving or affecting an area of primary function, Section 306.7.1 requires that the route serving said primary function area be made accessible unless exempt or reduced due to an exception. Where existing toilet rooms are subject to being upgraded based on the scoping of Section 306.7.1 yet cannot be upgraded due to being technically infeasible then the alternative afforded by Section 306.7.11 can be used.
...
name removed because I don't think I have the authority to post it.
 
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