Affordable Housing Conference

[conarb]

Oakland had a conference the other day addressing the lack of affordable housing:

"Those two things are our wall in California," Galante said. "Part of that is the Environmental Quality Act, which was very well intended -- don't get me wrong -- but looking at that has created this restrictive zoning situation in this state that exacerbates inequality, disturbs the economic vitality of the state and creates real income inequality. This is a problem that we can solve in California, but it will require tackling some things that people think of as third rails, and we need to do that."Building Industry Association of the Bay Area CEO Bob Glover said escalating construction fees and costs over the years have made it difficult to make affordable housing projects financially viable.

"We are at or near the tipping point of whether or not projects make economic sense just about everywhere in the Bay Area," Glover said. "As you've seen, housing prices correct from time to time, they go up and down, but fees have just continued to escalate, and so have construction costs."

He said more affordable housing initiatives may get a ***** by bolstering federal and state funding; providing incentives to businesses; and reassessing transfer taxes and fees imposed on developers and employers.¹

Costs were driven up with the adoption of the 1994 CBC, but because of that many AHJs didn't adopt it the state codified the 1998 CBC and seismic requirements started drastically increasing costs, add to that handicap requirements and a host of other regulations and we have a system driving costs so high that only the wealthy can afford to build. We have tent cities showing up all over the place again², what good does regulation do if few can afford the costs and people end up sleeping on the streets? On the mention of the environmental quality act the last one I had to get cost a minimum of $100,000 and I'm sure they are more now, I've been able to obtain a negative declaration in many cases, but environmental activists fight you every time. A new development is that the carpenters' union is now filing environmental quality lawsuits on all larger projects, the settlement agreement requires union labor, but frankly I'd rather be sued by the carpenters than the Sierra Club, they demand large cash settlements. . Transfer taxes and fees imposed on developers and employers always end up as increased job costs.

At some point you have to ask if it's all worth it? When you balance a little earthquake safety, the ability of a small minority to access the facility, and it's effect on the red legged frog is it worth it if no-one can afford to rent the facilities?

NOTE: After creating this post I suddenly lost the whole thing, I was going to give up but decided to try again, fortunately when I started I got a yellow band at the bottom asking me if I wanted to restore or discard previous information, I successfully restored it, I don't know whether to complain about the system losing my information or compliment the system for giving me the ability to restore it.

¹ http://www.contracostatimes.com/breaking-news/ci_29541631/oakland-forum-spotlights-bay-area-affordable-housing-crisis

² Dave Henderson from the City of Albany participates here, I went into Albany on the Gilman Street offramp the other day, it was lined with tents and the poor sleeping and "living" all over the place.

 

[Mark K]

This is a messy problem and I live in the middle of it. In the last 40 years house values of existing residences have risen by a factor of probably more than 15 but my income did not. My sense is that the earthquake design provisions and other code changes do not account for the vast majority of the increase.

I believe that we will find that a major contributor to the increases is the fact that the demand has increased and there are few opportunities to build new housing. My guess is that a major part of the fees mentioned above relate to additional costs the new building will impose on the city. I believe that there are court decisions that establish that the fees must be tied to actual costs to the city.

The statement that local jurisdictions did not adopt the state code in 1994 reflects a common misconception. Since the mid 70's the local jurisdictions no longer have the authority to adopt a local building code. All jurisdictions must enforce the CBC and can adopt local modification under limited circumstances. In reality there is only the CBC with local modifications. Whether all jurisdictions complied with the law may be another story.

 

[conarb]

The statement that local jurisdictions did not adopt the state code in 1994 reflects a common misconception. Since the mid 70's the local jurisdictions no longer have the authority to adopt a local building code. All jurisdictions must enforce the CBC and can adopt local modification under limited circumstances. In reality there is only the CBC with local modifications. Whether all jurisdictions complied with the law may be another story.

Mark:

I remember it well here in the Bay Area, it seems each city was on a different code, when the 94 hit I asked one CBO who did not go to the city council to pass a regulation adopting the code, he said he didn't because he felt ti was so restrictive that it would drive construction from the city. I remember an article about a location in Silicon Valley where you could stand in an intersection and see houses on three different codes.

The main driver of costs has been environmental and zoning regulations, in the past we builders just kept going further and further out as land became scarce, then the environmentalists started calling it "sprawl" and fighting it. Then we started infill building, tearing down existing homes and building new homes, but single family zoning stopped us from building apartments on the sites. At this point in time One Bay Area is trying to stop building on the outskirts and force building into the Urban Core to "save the planet" by stopping commuters, even force builders to build near mass transit. It is now when building sites are severely limited that the costs of regulation have turned to the driving force of cost increases. Overpopulation is the main problem, cutting the population would reduce demand and that may just happen, as lots of Californians are leaving the state, the problem now is the wealthy are leaving for low tax states, but the poor are streaming in for the entitlements. I was shocked to see signs placed in the landscaping at my local service station that say "SNAP Cards accepted here", I don't think they can be used for gasoline but there is a mini-mart inside that sells potato chips and soda, but I thought that the old food stamps required that they only be used for healthy food, the shock to me is I guess I now have neighbors on food stamps.

I think it time that all new regulations, especially codes, have a cost benefit analysis done or we are going to price ourselves out of existence, everybody but the wealthy that is, if we can require environmental impact reports why not cost benefit impact?

 

[Mark K]

The CBO you were talking to did not know what he was talking about. He was still responsible for enforcing the CBC. One of the reasons the law changed in the 70's was so that everybody was subject to the same code. We still have problems with local jurisdictions ignoring the CBC because no state agency pays any attention to these issues.

I am going to suggest that the cost of the land has increased roughly proportional to the difference between the cost of construction and the expected selling price of the property. Thus the land value is pure speculation and I suspect a significant part of the problem. The problem is that there may not be a lot of elasticity in the cost of construction thus creating problems when there are any increases in the cost of construction. Thus the impact of changes to the code get blown out of proportion.

Blame capitalism, greed, and too many people. So do not expect a lot of change.

The state requires Cities and Counties to develop plans for providing affordable housing. The process is imperfect and slow but it is not as if we are not aware of the problem.

My sense is that people coming to California just for the benefits is not a significant part of the problem.

 

[conarb]

I just typed a long response and after a dozen Invalid Server Responses the entire thing was lost, this time no option to restore, I've gone into PayPal and disabled the automatic renewal, it just isn't worth it.

 

[conarb]

I am just trying again to see if I get the restore function, guess not.

 

[Mark K]

I believe that I have been experiencing similar problems.

 

[conarb]

Mark:

Its' really annoying, I must have spend half an hour looking up and documenting when the code changes were made in California. I looked it up and it appears to be a common problem with HP servers, this is the best I could find:

We were getting the same Invalid Server Response error. It was due to McAfee being installed on the QC server. To resolve, we modified the properties of the "Buffer Overflow Protection" task in McAfee VirusScan Console. We added the "QCJavaService.exe" process to the list of exclusions. A reboot of the QC server was also needed so that the changes would take effect.¹

And people wonder why sawhorses aren't renewing.

¹ http://www.sqaforums.com/showflat.php?Number=526241

 

[Mark K]

Regarding when the state of California preempted the regulation of buildings you may have more luck by looking in the opinions of the higher courts. It is stated in several opinions that about 1970 the state decided to preempt the regulation of building construction. Prior to that time the local jurisdictions could pretty much do what they wanted. My sense is that many jurisdictions My understanding is that in the mid 80's there were some additional changes.

In terms of actual changes to the CBC It has been a more gradual process making it difficult to say when everything got more complex.

 

[conarb]

Mark:

Now you are making me think that Alzheimers is setting in, a good buddy was a top construction defects attorney here, he retired at 72 so he's 8 years younger than I, his reason for retiring was "statin brain", memory loss associated with taking statin drugs to reduce cholesterol, both AMA and ACA state that all patients with any history or family history of stroke or heart problems have to be on statins after 65. He was on them for 25 years, I was on them for 9 years, I've suffered muscle and kidney damage from them, so maybe I've had brain damage too. BTW, he called to say he cancelled all three of his law licenses, California, Texas, and Nevada, he said cancelling them was a huge relief, he felt like a free man now, he got the biggest condo defect damage in history at $19 million for caulking failure at windows. I believe him now, I got a call from another attorney wanting a copy of a report I wrote for one of his cases, when I called to ask if I could release it he didn't even recall me working on the case.

Regulations like Title 24 are not in code books in the law libraries, they do have them on microfish, to research when the state adopted them I'll have to go by a law library and look up the regulations to get the dates of adoption, now that I'm retired I do have time and you've got my curiosity up so I'll go look.

Note: Three Invalid Server Responses typing this, it just isn't worth it (now 4)

 

[Mark K]

In 1970 they amended Health and Safety Code Section 17951 which removed the authority of local agencies to adopt local codes. What was then Section19825 was also repealed. It is now recognized that the state has preempted the adoption of building regulations. You will find this using the conventional tools used to research statutes. You will also find reference to these facts in several court rulings.

The adoption of regulations will be recorded in a publication issued by the Office of Administrative Law but I do not believe that they publish the full text of the code is this publication. The California codes are issued every three years in sync with the IBC. The 1994 IBC became the 1995 CBC. I would be surprised if you would find old versions of building regulations in a law library, although I would expect that California Building Standards Commission could tell you how to obtain official copies of old codes.

Most aspects of the CBC are the same as the IBC thus a good first step would be to get a copy of the related version of the UBC or IBC which you can get from ICC.

 

[conarb]

Mark:

California has its CCR, California Code of Regulations, the Building Codes are Title 24 of the CCRs, here is what's in Title 24, the full CCRs in California are very extensive as one might imagine, I've had occasion in the past to go to the law library and look them up in microfish, it now occurs to me that they may now have the complete CCRs computerized. The advantage of getting them, or any statute, from law books, is that the current editions are footnoted referencing when each regulation was adopted. There I can trace the full history of any statute or regulation, for instance we all have code books that are published from the codes in Title 24, those same codes are in Title 24 of the CCRs, there they are footnoted with historical comments, there are even notations when regulations are eliminated, this is quite extensive.

 

[Mark K]

Conarb

I doubt that you will be able to find footnoted versions of the California codes based on ICC. Similarly I do not believe such annotation exists for reference standards such as ASCE 7 which contains provisions related to structural design loads. If you can find them let me know where. If they exist it could save some engineers and architects considerable time.

Complicating this is the fact that ICC claims they have a copyright on the adopted CBC since it is based on their IBC. Think of this ICC claims to own the rights to part of our laws.

 

[conarb]

Mark:

I guess you are correct, I went by a law school library today and they no-longer buy them because of the cost. I went to the County Law Library and they have them going way back, but they are not footnoted like all other statutes, at some point in time we went from ordinances to statutes, but I guess forever the state has been publishing them as Title 24, the question is when did the various AHJs stop adopting the version they want and start having to enforce the statute? I'd say that must be in the Administrative or Government Code, if you have any idea which one I'll go back tomorrow and look through the code and see if I can figure out when this occurred. Interesting that the state went from ordinances based upon the UBC to statutes based upon the UBC and didn't do a footnote history like all other statutes, maybe it has something to do with the copyright issue. I remember when you can stand on a street corner and on three of the four corners different codes were in effect, I believe it was San Jose, Campbell, and Santa Clara, it doesn't seem that long ago. They do have Title 24 running back into the 50s and anyone can go in and look through all of them. The proposed ordinance is in the front of every UBC code book, just fill in the blanks and get it approved by the city council.

 

[Mark K]

As I stated above in 1970 the state preempted the field of building regulation. At that time or slightly later they created the Building Standards Commission to compile and adopt the state building standards. The ability to author the various standards or portions of the standards is apportioned to a number of state agencies but all of the building standards codes, including the CBC, are submitted to the Building Standards Commission for final adoption.

It is important to understand what state agency has the authority to adopt what portion of the code as it applies to your building.

The statutory authority for this primarily resides in the Health and Safety Code. http://leginfo.legislature.ca.gov/faces/codes.xhtml Look in the front of the CBC and other state codes and you will find references to various statutes providing legislative authority to the various agencies. You can download electric versions of the several state standards at https://law.resource.org/pub/us/code/bsc.ca.gov/.

Many of the specific provisions exist in standards references from the various building standards codes.

On a separate but related topic many believe that there is no copyright on building regulations.

Some of the statutes will refer to the UBC although it no longer exists and there appears to be legislative authority to use the IBC instead.

 

[conarb]

Mark:

Why did Building Standards still publish a sample ordinance in the front of Title 24 as late as the 1998 Code if it's not for adoption by AHJs? I remember seeing it in all previous codes and as I said above my recollection was that for the 1998 it had become statute, I wondered at the time why they were still publishing it as part of Code, it was the page before Chapter 1 Administration in Volume 1 of the 1998 CBC. This is a scan from my 1998 CBC

 

[Mark K]

My belief is that this was a carry over from the UBC. For many years I did not know that there was a separate CBC. Everybody used the UBC which had such forms in the front. You are also probably assuming that the Building Standards Commission had their act together.

 

[conarb]

Mark:

You are probably right on that, back when codes were local the UBC provided the forms in the front of the book, CBOs routinely filled them out and took them to city councils for adoption as ordinances, when the state incorporated them into Title 24 Building Standards didn't bother to remove them and they became part of the CBC, even after the state had codified them as regulations local CBOs (or their city attorneys) continued to take them to city councils for adoption as city ordinances even though it was unnecessary. As I said above I thought that the 1998 was the first statutory code, that scanned page is from the 1998 and we know it wasn't necessary then. That also explains why different cities were on different codes, CBOs still thought they still had the right to adopt or not adopt the newest codes, so if they didn't want to adopt the latest they just stayed with the one their city council had adopted. As I remember the 1995 was the first code that incorporated what had been learned from the Northridge earthquake and lots of people thought the new requirements were draconian so some dragged their feet forcing the entire state to go to the 1998. It could be that the state didn't get the word out until the 1998 that all AHJs had to go to the newest and greatest code. I'll look into this some more. .

 

[trimmer stud]

Here are some Health and Safety Code provisions related to the local adoption of the CBSC. Basically if they take no action, the code is in effect 180 days after publication by the BSC. I have successfully challenged building inspectors who try to enforce "local code ordinances" only to find out that they were never submitted to the BSC.

17958. Except as provided in Sections 17958.8 and 17958.9, any city

or county may make changes in the provisions adopted pursuant to

Section 17922 and published in the California Building Standards Code

or the other regulations thereafter adopted pursuant to Section

17922 to amend, add, or repeal ordinances or regulations which impose

the same requirements as are contained in the provisions adopted

pursuant to Section 17922 and published in the California Building

Standards Code or the other regulations adopted pursuant to Section

17922 or make changes or modifications in those requirements upon

express findings pursuant to Sections 17958.5 and 17958.7. If any

city or county does not amend, add, or repeal ordinances or

regulations to impose those requirements or make changes or

modifications in those requirements upon express findings, the

provisions published in the California Building Standards Code or the

other regulations promulgated pursuant to Section 17922 shall be

applicable to it and shall become effective 180 days after

publication by the California Building Standards Commission.

Amendments, additions, and deletions to the California Building

Standards Code adopted by a city or county pursuant to Section

17958.7, together with all applicable portions of the California

Building Standards Code, shall become effective 180 days after

publication of the California Building Standards Code by the

California Building Standards Commission.

17958.5. Except as provided in Section 17922.6, in adopting the

ordinances or regulations pursuant to Section 17958, a city or county

may make those changes or modifications in the requirements

contained in the provisions published in the California Building

Standards Code and the other regulations adopted pursuant to Section

17922, including, but not limited to, green building standards, as it

determines, pursuant to the provisions of Section 17958.7, are

reasonably necessary because of local climatic, geological, or

topographical conditions.

For purposes of this section, a city and county may make

reasonably necessary modifications to the requirements, adopted

pursuant to Section 17922, including, but not limited to, green

building standards, contained in the provisions of the code and

regulations on the basis of local conditions.

17958.7. (a) Except as provided in Section 17922.6, the governing

body of a city or county, before making any modifications or changes

pursuant to Section 17958.5, shall make an express finding that such

modifications or changes are reasonably necessary because of local

climatic, geological or topographical conditions. Such a finding

shall be available as a public record. A copy of those findings,

together with the modification or change expressly marked and

identified to which each finding refers, shall be filed with the

California Building Standards Commission. No modification or change

shall become effective or operative for any purpose until the finding

and the modification or change have been filed with the California

Building Standards Commission.

(b) The California Building Standards Commission may reject a

modification or change filed by the governing body of a city or

county if no finding was submitted.

18941.5. (a) (1) Amendments, additions, and deletions to the

California Building Standards Code, including, but not limited to,

green building standards, adopted by a city, county, or city and

county pursuant to Section 18941.5 or pursuant to Section 17958.7,

together with all applicable portions of the California Building

Standards Code, shall become effective 180 days after publication of

the California Building Standards Code by the commission, or at a

later date after publication established by the commission.

(2) The publication date established by the commission shall be no

earlier than the date the California Building Standards Code is

available for purchase by the public.

(b) Neither the State Building Standards Law contained in this

part, nor the application of building standards contained in this

section, shall limit the authority of a city, county, or city and

county to establish more restrictive building standards, including,

but not limited to, green building standards, reasonably necessary

because of local climatic, geological, or topographical conditions.

The governing body shall make the finding required by Section 17958.7

and the other requirements imposed by Section 17958.7 shall apply to

that finding. Nothing in this section shall limit the authority of

fire protection districts pursuant to subdivision (a) of Section

13869.7. Further, nothing in this section shall require findings

required by Section 17958.7 beyond those currently required for more

restrictive building standards related to housing.

 

[Mark K]

The California BSC does not consider the modifications as having been submitted until the BSC has sent a confirming letter to the local jurisdiction. BSC does not look at the validity of the findings but only looks to see if there is some finding submitted.

Historically a good percentage of jurisdictions have not properly followed the procedure and thus have improperly enforced the local modifications. This is based on the findings of the BSC.

Most of the findings submitted are a joke in that they state because they have earthquakes or whether they can do what they want. The seismic provisions are adjusted so that the chance of collapse in a major earthquake is the same for a building a half mile from the earthquake or 5 miles from the earthquake. The closer you are to the fault the larger the seismic forces.

Local amendments when valid cannot be less than listed in the CBC thus local jurisdictions cannot obtain relief from what they consider as draconian regulations.

The reason trimmer stud listed two sections with what appears to be duplicate requirements is because one applies to buildings with residential occupancies and the other applies to other occupancies. This discussion does not address projects under the jurisdiction of DSA and OSHPD because they are not regulated by local building departments.

 

[Mark K]

The new provisions in the 1997 UBC or 1998 CBC may have been seen by some as draconian but they were necessary because the previous provisions were inadequate. The seismic provisions are such that in the event of the maximum earthquake predicted we can expect that 10% of the properly designed and constructed new buildings will collapse. One and two story buildings will probably perform some what better but there is still significant residual risk.

For a long time our seismic design requirements were limited based on our ignorance and the concern about political push back. We now have the tools and are in the process of reviewing the seismic requirements to make sure that they are based on logic. Do not expect to see any significant reductions and for some structural systems the requirements will be more restrictive.

 

[conarb]

My son works in a building in Berkeley that is three stories residential over 5 soft story commercial, Berkeley made him retrofit, they did two moment frames in one of the middle units, $150,000. I was surprised to see no ADA or accessibility requirements met, Berkeley is where it all started and they even have an Ed Roberts Center honoring the guy in the iron lung who started the whole ADA thing. I have to wonder if they exempt accessibility when doing nothing but earthquake stabilization?

 

[Mark K]

The soft-weak story retrofits are authorized by special legislation from the California Legislature. I am not an expert in ADA but would be cautious about generalizing this experience to other retrofits.