An Educational Insight into a Notable Building Code Enforcement Lawsuit

[jar546]

The names have been changed to protect the parties involved. This is from an actual lawsuit in Federal Court.

A Case Study on Building Code Compliance and Litigation

In the intricate landscape of construction, adhering to approved building plans and codes is paramount, not only for the structural integrity of the project but also for navigating the legalities surrounding construction practices. A compelling case that unfolded in Pennsylvania provides a deep dive into the consequences of deviating from approved plans, the challenges of building code compliance, and the legal repercussions that ensue. This article delves into the case, emphasizing the critical elements that led to a significant legal battle and the court's decision to grant summary judgment with prejudice, offering insights into best practices and legal considerations for the construction industry.

The Prelude to Legal Action​

The case centers around "Builder A," who undertook the construction of a residential home, initially following a set of approved plans. However, as the project progressed, Builder A made substantial structural changes without seeking approval for revisions, leading to a departure from the originally sanctioned blueprints. This deviation not only introduced significant structural deficiencies but also set the stage for a contentious dispute with the local code enforcement team, dubbed "Enforcement Group."

The Legal Controversy Unfolds​

Builder A's unilateral alterations brought about a complex legal challenge centered on allegations of unfair and unequal enforcement of building codes by the Enforcement Group. The heart of Builder A's claim was predicated on the assertion that the Enforcement Group's actions violated the Equal Protection Clause of the Fourteenth Amendment, accusing them of selective and discriminatory enforcement practices.

Detailed Examination of the Dispute​

As the lawsuit progressed to a motion for summary judgment, the court meticulously analyzed the circumstances under the "class of one" theory. Two pivotal aspects emerged as central to the court's deliberation:

• Significant Structural Changes and Deficiencies: Builder A's decision to diverge from the approved plans without proper authorization introduced over 30 structural deficiencies. Notably, these deficiencies were not arbitrary claims by the Enforcement Group but were confirmed by Builder A's own engineer. This fact underscored the gravity of the deviations and their impact on the project's compliance with building codes.
• Granting of Summary Judgment with Prejudice: The court's decision to grant summary judgment with prejudice was a decisive move that underscored the lack of merit in Builder A's claims under the scrutinized legal framework. This resolution not only dismissed Builder A's allegations but also barred the re-filing of a similar lawsuit on the same grounds, emphasizing the court's firm stance on the issues at hand.

Reflections and Recommendations​

The resolution of this legal battle brings to light several key lessons and recommendations for construction professionals and legal practitioners:

• Adherence to Approved Plans: The paramount importance of sticking to approved plans cannot be overstated. Deviations, especially those that affect structural integrity, can lead to severe legal and financial repercussions.
• Proper Communication and Approval for Changes: Any necessary changes to the project should undergo proper channels for approval, ensuring compliance with local codes and regulations.
• Understanding Legal Implications: This case exemplifies the legal complexities that can arise from construction practices. Professionals in the field must be cognizant of the potential legal consequences of their actions and decisions.
• Consultation with Legal and Engineering Experts: Engaging with legal and engineering experts can provide valuable insights and guidance, helping to navigate the regulatory landscape and avoid pitfalls.

Conclusion​

The case of Builder A and the Enforcement Group offers a compelling narrative on the interplay between construction practices, regulatory compliance, and legal challenges. It serves as a cautionary tale, reinforcing the critical need for adherence to approved plans, proper approval for changes, and an understanding of the legal framework governing construction projects. By drawing lessons from this case, construction professionals can better position themselves to mitigate risks and navigate the complexities of building code compliance and litigation.

 

[Yankee Chronicler]

It's sad that we have to remind contractors and owners that a building permit is authorization to build what's on the approved plans, it is NOT blanket authorization to do whatever they want.

This case also underscores the important of documentation. Courts rely on written records to a great degree. Being consistent in documenting issues is invaluable if you end up in court, defending your actions. Been there, done that -- the case was thrown out.

 

[jar546]

This case also underscores the important of documentation. Courts rely on written records to a great degree. Being consistent in documenting issues is invaluable if you end up in court, defending your actions. Been there, done that -- the case was thrown out.

Documentation is more important than people realize.

 

[Keystone]

Similar but not nearly as substantial as this case. My pet peeve, took many conversations back and forth, receiving plans with options A, B, C, D for a particular area of a dwelling or even an overhead floor plan layout, and these options are not limited to one area or one floor level. My stance, when plans are submitted only place applicable items within the proposed dwelling for review. If the future owner wants a change during the build process then resubmission is required.

 

[bill1952]

Around where I live as long as any deviations from submitted plans still meet building and zoning code, it's fine. It seems that in the example there were changes that "introduced over 30 structural deficiencies" and that is reason the authorities to take action.

 

[Yankee Chronicler]

Around where I live as long as any deviations from submitted plans still meet building and zoning code, it's fine. It seems that in the example there were changes that "introduced over 30 structural deficiencies" and that is reason the authorities to take action.

But how does anyone know changes meet the building code if amended plans haven't been submitted, reviewed, and approved?

NY [state] Building Code:

[NY] 105.2.3 Approval of Construction Documents
When the authority having jurisdiction issues a building permit, the authority having jurisdiction shall approve the construction documents in writing. Work shall be installed in accordance with the approved construction documents and the terms and conditions, if any, of the building permit.

[NY] 105.2.6 Placement of Building Permit and Approved Construction Documents
The building permit, or a copy thereof, and at least one set of approved construction documents shall be kept on the site of the work until the completion of the project. The approved construction documents shall be open to inspection by any authorized representative of the authority having jurisdiction.

Interesting -- According to UpCodes, NY [state] did NOT adopt the section pertaining to amended construction documents. ICC IBC 2018:

[A] 107.4 Amended construction documents. Work shall
be installed in accordance with the approved construction
documents, and any changes made during construction that
are not in compliance with the approved construction documents
shall be resubmitted for approval as an amended set of
construction documents.

Even without the specific section on amended construction documents, section 105.2.3 clearly states that the permit is a permit only to construct what's on the approved construction documents. And what's the purpose of requiring the approved construction documents to be on the site if they don't have to be followed?

 

[bill1952]

But how does anyone know changes meet the building code if amended plans haven't been submitted, reviewed, and approved?

As an owner builder I'd know or else, if I was wrong, at time of inspection I'd be asked to fix it. Is it all that different than work on the drawings being done incorrectly? Obviously anyone who varies is at risk of not meeting the code, but since review doesn't guarantee it will meet code what's the difference.

And how far do you take it? Reverse a door swing and relocate light switch? Move a non-load bearing wall a few inches? Move a window?

I'm just pointing out that there are a lot of differences between building departments, and especially rural ones.

 

[jar546]

I'm just pointing out that there are a lot of differences between building departments, and especially rural ones.

And this case was in a rural community up in the mountains.

 

[bill1952]

And this case was in a rural community up in the mountains.

of what state?

 

[jar546]

of what state?

I suppose you did not read the post because then you would have known.

 

[bill1952]

I suppose you did not read the post because then you would have known.

I actually reread it before I asked but missed PA. It was a long post with a lot of things disguised and I missed the state. Thank you for forcing me to find it.

PA is more diligent in it's regulations than many states.

 

[jar546]

PA is more diligent in it's regulations than many states.

As someone who has worked in a few states, I completely disagree with that.

 

[tmurray]

As an owner builder I'd know or else, if I was wrong, at time of inspection I'd be asked to fix it. Is it all that different than work on the drawings being done incorrectly? Obviously anyone who varies is at risk of not meeting the code, but since review doesn't guarantee it will meet code what's the difference.

And how far do you take it? Reverse a door swing and relocate light switch? Move a non-load bearing wall a few inches? Move a window?

I'm just pointing out that there are a lot of differences between building departments, and especially rural ones.

At first glance, this would appear to be the hasty generalization logical fallacy. It exists when something happens a minimal number of times and we assume it will happen every time base on those outcomes, regardless of it not being a suitable sample size.

I say appears because I don't know you and you might have a suitable sample size.

To be able to come to your conclusion you would need evidence that this is the way it is approached by a statistically significant number of building departments in your state.

 

[bill1952]

At first glance, this would appear to be the hasty generalization logical fallacy. It exists when something happens a minimal number of times and we assume it will happen every time base on those outcomes, regardless of it not being a suitable sample size.

I say appears because I don't know you and you might have a suitable sample size.

To be able to come to your conclusion you would need evidence that this is the way it is approached by a statistically significant number of building departments in your state.

It would also be an error in judgement to believe the posters to TBCF are at all typical and represent building enforcement at large.

My conclusion is based on what the building department told me.

Some years ago I built a one room addition to my mother in laws house in a neighboring community. Permit was like $20 for a "one room addition" - no drawings - and that was the extent of the building department's involvement. No inspections. At least here there are inspections.

 

[Yankee Chronicler]

As an owner builder I'd know or else, if I was wrong, at time of inspection I'd be asked to fix it. Is it all that different than work on the drawings being done incorrectly? Obviously anyone who varies is at risk of not meeting the code, but since review doesn't guarantee it will meet code what's the difference.

And how far do you take it? Reverse a door swing and relocate light switch? Move a non-load bearing wall a few inches? Move a window?

I'm just pointing out that there are a lot of differences between building departments, and especially rural ones.

While the above is true, speaking as someone who is licensed as both an architect and a building official, I would point out that the entire plan review and building inspection process is part of a system of checks and balances. Where there is a building code in effect, legally it is the owner's responsibility to construct a building (or alteration) that complies with the applicable codes and regulations. When the owner hires a design professional to prepare the construction documents, the owner delegates that responsibility to the design professional, but it's still the owner's responsibility. When an owner hires a contractor to perform the construction, it is still the owner's responsibility to provide a conforming product; the owner is delegating the responsibility to the contractor, but in the end it's still the owner's responsibility.

It remains the owner's responsibility even when a building department reviews and approves the construction documents, and inspects the construction at various stages during the construction. The owner is not delegating his responsibility to the building department. Despite some political P.R. types trying to portray the building department as "part of the team," we are NOT part of the owner's team. We are part of the political entities team. We are the umpires or referees -- we don't design it and we don't build it. Our job is to verify, to the greatest extent possible, that the owner, the design professional, and the contractor (and subcontractors) have all done their jobs and provided construction that complies with the codes.

Ever since I can remember, the position of our state building inspector's office has been that "A violation is always a violation." WE don't try to miss violations, we don't like to miss violations -- but it happens. If we miss a violation -- well, that's not good, but the owner isn't relieved of his responsibility to provide conforming construction just because a plan reviewer and/or an inspector missed something. We're dealing with that right now in the town where I work. In reviewing plans to renovate two tenant spaces into one office in a building constructed in the 1980s under a version of the BOCA Basic Building Code, I discovered that the egress as originally designed and constructed didn't meet our current code (2021 IBC). Further research led to the realization that the original design also didn't meet the BOCA code under which it was constructed. I'm pretty certain that back in the 1980s the town has a one-person building department, and that the one person was (like most building officials around the state back then) a retired carpenter. Our typical building inspector back then couldn't read the code to save their lives. Put them on a residential or stick frames site and they could pretty much see lousy workmanship, but they didn't know how to read the code and apply it.

So now, almost 40 years after the fact, an owner has bought a problem that was created long before he bought the property. That's unfortunate, but the State has looked at the condition and concurred that, now that we know about it, it has to be corrected.

On all my commercial plan reviews, I include a paragraph that says we do not guarantee to have found all instances of non-compliance with the code. If we deny the permit, the weasel word paragraph reminds the owner that it is their responsibility to comply with the code and that they are not absolved of that responsibility if we overlook something, so we recommend that the design professional perform a thorough review of the design for code compliance. They never do, of course -- the use the plan review comments as a check list, and often they can't even get that much correct the next time around. But at least we warned them.

 

[bill1952]

My comments were with more modest single family dwellings and accessory buildings in mind. I should have clarified that. In addition, NYS requires an RDP for over 1500 SF houses. (I guess the RDPs have a good lobbying program in the state legislature.) And I'd say here the enforcement is not unlike YCs jurisdiction in the 1980s. (Well, they do have computers and use email.)

 

[Yankee Chronicler]

If anyone is interested, here's our standard "weasel word" paragraph. We add it at the end of every commercial plan review:

While this department makes every effort to review construction documents diligently for conformity to code requirements, we do not represent that the foregoing comments constitute a complete or exhaustive tabulation of all deviations or non-conforming conditions. It is the responsibility of the owner and applicant to provide finished construction that is fully in conformance with code requirements; failure on our part to note any deficiencies does not absolve you of that responsibility. Due to the number of revisions which will need to be made to these construction documents to demonstrate conformity to code requirements, we respectfully suggest that your design professional undertake a thorough review of the design for code compliance before resubmitting.

Unfortunately, we have found that it's not uncommon for design professionals to introduce new issues in the process of trying to fix other issues. It's also a reality that the more times you look at something, the more chance you have of spotting something. I may miss a problem on my first review, but by the third or fourth time around I'll probably catch most issues. We added that language to offset complaints that when a second or third review cites an issue that was in the first submission, we're just playing games with the application. We're not -- we're human, and we're busy. I doubt there's another building department in my state that does more thorough plan reviews than I do, but I know I'm not perfect. The design professionals have months and months to get it right -- by law, I have 30 days to review their creations. It's an uphill battle. This paragraph is, candidly, a chunk of CYA verbiage.

 

[Sifu]

we have found that it's not uncommon for design professionals to introduce new issues in the process of trying to fix other issues. It's also a reality that the more times you look at something, the more chance you have of spotting something. I may miss a problem on my first review, but by the third or fourth time around I'll probably catch most issues.

On one right now. 5 comments on 1st review generated 6 comments because they couldn't read the code, even though I note the exact code used as the basis for the comment. The last one I missed altogether on the 1st review and caught it because of my closer examination of the shower controls they only provided (incorrectly) after my first comment.

All are provided on a marked up set of plans, with leaders to each specific location, and a written comment letter.

First review comment: Where more than one means of egress is required, two accessible means of egress are required. Provide the accessible route from the required means of egress to the public way in accordance with IBC 1009.
Second review comment: Emergency illumination and exit signage for the building are included on the electrical pages for the revised location of the exit door, the electrical backgrounds do not indicate the relocated door and do not provide exit signage and emergency lighting as required by IBC 1008.3.2 and 1013.
New comment based on the revised location: Required accessible means of egress revised to the north side of the structure. An accessible means of egress must be extended to the public way in accordance with IBC 1009.2 by a stable and firm walking surface in accordance with ANSI 117.1 302. Gravel is not considered an acceptable surface. Landings are required in accordance with IBC 1010.1.5. Please clarify.

First review comment: Provide door arrangement in accordance with IBC 1010.1.8. The space between two doors in series must be 4' min. from the door when opened to a 90° position.
Second review comment: Revised door location must provide maneuvering space for pull side approach in accordance with ANSI 117.1 t404.2.3.2.

First review comment: Provide roof ventilation calculation with location and methods in accordance with IBC 1202.2.
Second review comment: 1 Initial submittal indicated no ventilation for attic or rafter spaces. Response to comment indicates an attic space located entirely within the building thermal envelope without any ventilation as a "warm attic". In accordance with IBC 1202.3-5.1.2 for an unvented attic or enclosed rafter assembly, additional rigid or sheet insulation shall be required in accordance with IBC t1202.3 in order to control condensation on the underside of the roof sheathing. Note that the installation instructions for the specified asphalt shingle requires attachment to structural sheathing.

First review comment: Provide perimeter insulation to the top of the slab in accordance with IECC 402.2.4.
Second review comment: Perimeter insulation required by IECC 402.2.4 was previously noted as missing from the top of the slab down. Response indicates this has been revised. Revised detail 8/5.2 does not indicate the required insulation. Please clarify.

First review comment: Provide shower controls in accordance with ANSI 117.1 608.4.1. (typ)
Second review comment: Provide the shower control 15" maximum from the centerline of the control wall towards the shower opening in accordance with ANSI 117,1 608.4.1. (typ)

Missed on 1st review: The shower seat must extend to within 3" of the shower compartment entry in accordance with ANSI 117.1 610.3 and be 1 1/2" maximum from the back wall in accordance with ANSI 117.1 610.3.1. The specified shower seat will not meet these requirements. (typ)

I always provide a code section. It seldom matters.

 

[Inspector Gadget]

I'm just pointing out that there are a lot of differences between building departments, and especially rural ones.

Would you like to reconsider that declaration? (Says the rural inspector who is busting his butt to raise standards in a very rural environment.)

 

[bill1952]

Would you like to reconsider that declaration? (Says the rural inspector who is busting his butt to raise standards in a very rural environment.)

No. And I also said:

It would also be an error in judgement to believe the posters to TBCF are at all typical and represent building enforcement at large.

Consider yourself complimented.

 

[Wstubbs]

Ya'll make my friday afternoon enjoyable
cheers

 

[Yikes]

The Legal Controversy Unfolds​

Builder A's unilateral alterations brought about a complex legal challenge centered on allegations of unfair and unequal enforcement of building codes by the Enforcement Group. The heart of Builder A's claim was predicated on the assertion that the Enforcement Group's actions violated the Equal Protection Clause of the Fourteenth Amendment, accusing them of selective and discriminatory enforcement practices.

Sorry, can you please explain further about the 14th Amendment. Are you saying the plaintiff sued the building department and asserted that he was the only one whose noncompliance with approved plans had been cited by that building department?
Was the plaintiff also considered part of a "protected class"?

 

[Yankee Chronicler]

The 14th Amendment is a kind of catch-all for lawyers who want to sue governmental bodies, agencies, or agents. The 14th has several paragraphs to it; the one they use in such lawsuits is the first paragraph:

1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Their argument is that the governmental actor unfairly deprived their unfortunate client of their constitutional rights and privileges, and deprived them of due process [by unreasonably asking the clown to follow the law]. Beyond that you have to read the actual complaints, because they fuill it up with all the enforcement actions the government entity(ies) took that they allege were arbitrary, capricious, unreasonable, and undertaken for the sole purpose of harassing their client. In the detailed, itemized complaints, they basically list every single thing the government entity(ies) did, and they try to portray each action in the most negative light possible.

The 14th Amendment was the basis of the lawsuit at my former position in which I, my boss, the Zoning Enforcement Officer, the Mayor, and I think a couple of other people were sued -- in federal court -- because we declined to issue a building permit for work that didn't come close to meeting the code, and for which the application for permit was not submitted until after the work had been completed so NO inspections had been performed. As the case progressed, it was shown that we had documented every rejection with detailed comments, including appropriate code citations, and that we had met multiple times with the applicant's architect (who wasn't hired until after the construction had been completed) to help him understand the code issues, to help him understand the IEBC (which applied, but which he had never worked with previously), and even to offer suggestions for compliance (which, of course, the owner rejected because as far as he was concerned the construction was completed and he just needed a permit). In the architect's deposition, the Town's attorney asked the architect if he felt the Building Department had acted unreasonably. His answer:

"No, not at all. There were a lot of problems because it's a very old building, and they were very helpful in trying to find solutions to the problems." Right after that, we took a break and our attorney told the Town Counsel, "This case just ended." Indeed, he thereafter filed a motion for summary judgment in favor of the defendants, and the court granted the motion.

 

[jar546]

Sorry, can you please explain further about the 14th Amendment. Are you saying the plaintiff sued the building department and asserted that he was the only one whose noncompliance with approved plans had been cited by that building department?
Was the plaintiff also considered part of a "protected class"?

Essentially yes. Once it was proved that he was not treated any different than any other contractor, the game was over, although it took over 3 years to get through all of the depositions and court system.

Protected class? No he was not.