AHJ stating existing conditions are unpermitted

[Penguin87]

Hi, I have an issue with the city and its review of existing conditions.
The jurisdiction is in Oregon, I won't get more specific than that. This project is under the 2022 OSSC.


Background-
I am picking up a project that was filed a few years ago by our firm and that was put on hold while the owner pursued some other projects.
I have a set of plan check comments that includes the city challenging what existing conditions are permitted and unpermitted.

The existing building is several hundred thousand sq. ft of Type VB unlimited area building that is used as an F-1 production facility. There is a small 2-story area in one section of the building, no more than ~20k SF that is office. The general occupancy of the space has changed very little over the years. The building was built and permitted in the late 1990s. There are over 200 permits that have been pulled since then, including over a hundred over the past 10 years. The biggest changes were tenant demising walls were removed as the main tenant eventually expanded to occupancy the entire building, with a lot of MEP and equipment permits related to the production space.

Issue-
In the city's plan check comments that revolve around life safety, they compared the original building occupancy permit against the current office configuration and stated that we have to re-permit every office space, shop, kitchen and other spaces that differ from the 1990s permit.

The problem I have with this is several:

• They have not referenced any more recent permits, some of which did in fact permit alterations to the space.
• Their reading of the original office configuration is also full of errors (claiming some offices were unpermitted when they were clearly shown on the original building plans).
• Many of the spaces the city listed as being "unpermitted" are, for instance, where a previous "storage" space was repurposed as a locker room or "shop" space, where there were no actual alteration of the building structure.
• Furniture and finishes such as lockers and floor coverings appear to be exempt from the OSSC permit requirements per chapter 1. However they now want me to include these as part of the area of work which will increase the permit fees to include work valued in these areas - despite the finishes having been installed well over a decade ago!
• None of the so-called "alterations" affect the life safety of the building or egress paths.

I have ran into this in the past, but have on occasion been able to challenge them by conducting a thorough records request to find permits that covered the so-called "unpermitted" work. This seems patently absurd and a violation of the building code and ORS statutes.
Is it really the architect's job to prove that the existing conditions of the building were in permitted or not? I do not believe the city is acting in good faith and requiring the architect to pull ~30 years of permit history to review - which costs $$$ and may not even be available - is insane. We have gotten quite a lot of heat from building owners when this type of rug pull is done by the city and I would rather not waste time and money on frivolous plan check comments.

Thoughts??? How would you approach this?

 

[Yankee Chronicler]

What do the certificate(s) of occupancy say?

Oregon has adopted the 2021 International Existing Building Code, and under the IEBC when performing alterations any existing conditions only need to be addressed when and where specifically required by the IEBC. Which IEBC compliance method are you using? Do the plan review comments cite specific sections from the IEBC?

None of the so-called "alterations" affect the life safety of the building or egress paths.

There is no such thing as a "so-called" alteration. The term "alteration" is defined in both the IBC and the IEBC, as adopted by Oregon:

[A] Alteration​

Any construction or renovation to an existing structure other than repair or addition.

This definition does not depend on whether or not the work affects life safety or egress paths.

 

[ICE]

Does the city retain approved plans from any past projects? MEP permits can tell a story.

 

[Penguin87]

Does the city retain approved plans from any past projects? MEP permits can tell a story.

Yes, they do - generally. Although it can be hit or miss.

There are at least 30 building permits, the rest tend to be equipment and MEP. Most of the building permits are archived on microfiche and would require me paying them hourly staff fees to retrieve them.

 

[Penguin87]

What do the certificate(s) of occupancy say?

Oregon has adopted the 2021 International Existing Building Code, and under the IEBC when performing alterations any existing conditions only need to be addressed when and where specifically required by the IEBC. Which IEBC compliance method are you using? Do the plan review comments cite specific sections from the IEBC?



There is no such thing as a "so-called" alteration. The term "alteration" is defined in both the IBC and the IEBC, as adopted by Oregon:



This definition does not depend on whether or not the work affects life safety or egress paths.

Actually, Oregon has adopted the IEBC partially and integrated into a chapter 34 in their OSSC. So the IEBC itself can be ignored as they massaged it into the main state building code.

What I meant by the "so-called" were that yes, these were alterations but they were made decades ago. The jurisdiction is claiming that since they happened since the building was built in the 1990s that they are "new." Which isn't true at all. We have been pulling permits for this client for about 5 years and there were a multitude of other architects and engineers who did the previous renovations. The owner unfortunately did not retain all of their old permits, so its the city's claim that we need to permit anything that looks different from the 1990s permit.

Is this normal for a jurisdiction to go through historical permit records on TIs to do a 30 year long comparison over dozens of permits to find out that a storage room was turned into a locker room? Why even...? This is crazy. I have never had any other jurisdictions do this.

Anyways, I plan on calling the junior plans examiner this coming week to figure out whats going on.

 

[Penguin87]

To add, our alteration is level 2, we are adding 1 wall and a door. The rest of the scope are limited to refreshing of finishes as well as plumbing fixture replacement (no change in fixture count). The finishes are 20 years old and are end of life.

There are no changes to occupancy although the jurisdiction is claiming that is happening in the office area.

 

[Yankee Chronicler]

Actually, Oregon has adopted the IEBC partially and integrated into a chapter 34 in their OSSC. So the IEBC itself can be ignored as they massaged it into the main state building code.

Chapter 1 Scope and Administration: Oregon Existing Building Code 2021 | UpCodes

UpCodes offers a consolidated resource of construction and building code grouped by jurisdiction

up.codes

Is this normal for a jurisdiction to go through historical permit records on TIs to do a 30 year long comparison over dozens of permits to find out that a storage room was turned into a locker room? Why even...? This is crazy. I have never had any other jurisdictions do this.

It is normal for jurisdictions to maintain and retain records over a 30-year period. In my home sate, the law requires that we retain approved plans and certificates of occupancy for the life of the building (except for single-family dwellings). However, most department won't research 30 years worth of records because they don't have the time or the staff to do so. The exception (for us) is if/when someone submits an FOI (Freedom Of Information) request for an address. Then we have to research it -- but we can charge for the cost of printing copies of what we find.

 

[steveray]

It is on the jurisdiction to prove a violation and list them if they expect you to correct them.....Generally with the building code...If you use a baseline like NFPA 101, then it is what it is...

 

[Sifu]

Based on what you recite, it seems out of line. Is the building department having a slow month or year, because they seem to want a lot of work to do. Unless there is some specific concern they are identifying that they need to see rectified, or understand the how and why, I can't see why they would require a "re-permit" for anything. The very word "re-permit" signifies there was a already a permit, but maybe that is your word, not theirs. In any case, it sounds like the "junior" plans reviewer may be in over their head. Ask what their specific concern is, maybe they have one, but throwing that blanket over the entire life span is absurd.

I would review the alteration, and that would be it unless I had specific and serious concerns. If that were the case I would handle them individually. Otherwise I would expect that they would expect a review of the scope of work intended, not a retrospective on the life span of the building.

 

[Yankee Chronicler]

I would review the alteration, and that would be it unless I had specific and serious concerns. If that were the case I would handle them individually. Otherwise I would expect that they would expect a review of the scope of work intended, not a retrospective on the life span of the building.

Yes ... and no.

Over the past four years I have reviewed a LOT of tenant fit-out alterations in existing buildings where the tenant(s) has (have) changed multiple times since the building was originally constructed. Sometimes new plans were submitted, new permits were issued, and new certificates of occupancy were created. Too often, that didn't happen, and people who were long gone before I started with the department apparently weren't interested in keeping proper records.

As a result, very often for those projects the current plans showed an existing use and occupancy classification that didn't sound right. When we researched the records, the last CofO issued usually didn't match what they were claiming. Maybe our department is the outlier, but we felt we owed it to the public to maintain accurate records so we often did perform a fairly deep dive into the previous history of many of these buildings. The reason we went through this was that very often the new tenancy represented a change in use, if not occupancy classification.

And, of course, the architects always played dumb. "It's existing -- what's the problem?"

 

[steveray]

Maybe our department is the outlier, but we felt we owed it to the public to maintain accurate records so we often did perform a fairly deep dive into the previous history of many of these buildings. The reason we went through this was that very often the new tenancy represented a change in use, if not occupancy classification.

And this is exactly it...It is all about classifying the work correctly....The last tenant may have also been a place of assembly, it was just never legal....So now it is a COO or COU...Not just a simple tenant swap...

 

[Sifu]

Wrong occupancy would be a specific concern that would need more info. As would other life safety elements. I have seen plenty, as I am sure we all have. But that doesn't seem to be the case here.

One thing that has always been a question for me. The IEBC refers to buildings previously occupied. It then specifies "legally" occupied. A debate I have had in the past with some very esteemed colleagues, ICC and consultants is this. What is legally occupied? Some believe it is legally occupied if it was "approved", whether it was approved in error or not. Some believe it has been occupied by a legal entity, with proper licensing etc., some believe it is legal if it has been there for X amount of years, some believe it is only legally occupied if it met code at the time it was built, under the code it was permitted under, some with, some without a permit. The last one brings it back to "approved". I have seen plenty approved in error, without any reason, modification or explanation other than it was an error, purposeful or not.

In a case such as the OP's, it seems "legal" occupancy is established, with permits for the "legal" and "approved" work. If that is the case, 2018 IEBC, or some other version of an existing building code with similar language would seem to say that the occupancy can continue without change if no alterations affect any element already "legal". If it can continue without change, why require a "re-permit"?

If serious issues arise outside the scope of work, the IEBC has a section for that.

A few years ago I had a minor alteration to an A2, just a few years old, under the same code for which I was asked to review. In the course of the review I noticed the OL was way, way off. This resulted in the realization that the building should have been suppressed. The OL was "approved", the unsprinklered status was "approved", on a permit, and a C of O was issued. By all accounts it was "legally" occupied, even though it did not, could not have ever met code. Even the architect of the alteration was puzzled, and said he was expecting my call. He wanted nothing to do with it, and even told the owner of the problem long before I did. That one got ugly.

Record keeping is one of my pet peeves. I attach and make permanent any modifications to the code that result in something other than code. I record everything I do, even the the thoughts and reasoning I use. I document almost every call, make notes on permits daily. I use naming conventions and processes that are consistent and understandable. Sadly, I do not find many instance of this, certainly not in my company. I went looking for one last week that I was made aware of. I found 6 permits, none had plans attached. Some had expired, one which was fully occupied without any inspections, one was a C of O on a core shell with no tenants. So there is a history to this relatively new building, but not one anyone can follow.

I understand trying to verify compliance with an issue, but not a blanket "re-permit" of everything for the past 30 years. Unless there is more to the story I think that is a bridge too far.

 

[steveray]

EXISTING BUILDING. A building or structure, or portion thereof, erected in whole or in part, for which a legal building permit and a certificate of occupancy has been issued. Buildings or structures or portions thereof erected prior to October 1, 1970 shall be deemed existing buildings regardless of the existence of a legal permit or a certificate of occupancy.

If we CO'd it...It's existing.....If there has not been an illegal change....Contrary to what many might say...

 

[ICE]

As a building official with 200 permits to sift through, I would look the building over and determine if there are any outstanding examples of what I would consider bootlegged or dangerous construction. That is the reason for being a building department.
This scenario that you describe could befall any building owner. Did your client upset someone?
Longevity plays in the owners favor. Over the years and during the course of 200 permits there had to be many opportunities to address illegal conditions.

 

[Sifu]

"Issue-
In the city's plan check comments that revolve around life safety, they compared the original building occupancy permit against the current office configuration and stated that we have to re-permit every office space, shop, kitchen and other spaces that differ from the 1990s permit."
My opinion is that this is way out of line. If they have specific concerns, or can point to specific areas then they should address them specifically. Many times I have been told an AHJ can't hold a permit hostage for other work on other permits unless in extreme circumstances, and that usually involves unpaid fees. Hard for me to imagine any scenario where a 30-year old building gets this approach. "re-permit every........that differs from the 1990's permit".

Using the 2018 IEBC:

[A] 104.2 Applications and permits. The code official shall receive applications, review
construction documents, and issue permits for the repair, alteration, addition, demolition, change
of occupancy, and relocation of buildings; inspect the premises for which such permits have been
issued; and enforce compliance with the provisions of this code.

[A] 104.7 Department records. The code official shall keep official records of applications
received, permits and certificates issued, fees collected, reports of inspections,

There must be more to this because to me this sounds ridiculous. If they follow the sections (or similar in your codes) above, they must act on the application, they must issue the permits if determined to be in compliance with the code. Furthermore, they must keep the records they are asking you for (maybe this state or AHJ has no records retention policy, but I would be looking for one).

JMHO.