CBC: define "constructed for first occupancy"?

[Yikes]

A key concept for for whether an existing building with housing needs to be adaptable is when it was "constructed for first occupancy" (CBC 1102A.2, 11B-233.3.4.3).

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I have a building that got its permit in 1990 and got C of O in May of 1991. I'm talking with a building official who says his department's policy is to only use the date of the Certificate of Occupancy to establish the applicable code requirements. I disagree, and I want your opinion on my argument. First let's look at the verbs:​

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1. The CBC does not say: "occupied on or before 3/13/1991", and it does not say "issued a Certificate of Occupancy on or before 3/13/1991".​

2. It says "CONSTRUCTED for first occupancy on or before 3/13/1991". The active verb (that vests the applicable requirement) is CONSTRUCTION.​

3. When applying a building code (not FHA), the applicable code is usually established as the date of plan check submittal. I can't imagine a building department issuing a permit in 1990, the building is ready for final inspection by 3/12/1991, but the inspector can't be there until 3/14/1991, and now suddenly the whole building needs to be altered to meet California adaptability requirements.​

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For what it's worth, the Fair Housing Act Design Manual defines this phrase on page 12 (excerpt below), but the California Building Code does not, even though they both reference the same date of March 13,1991:​

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Notice that FHA gives grace in item 2 for buildings that were already permitted prior to 6/15/1990. - - that's my building!​

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[arwat23]

My understanding is that permit application date governs applicable codes. I had a similar question for DSA a while ago for a building built in 1990 but got the C of O in 1992 (non-residential though).

In your example, the 1991 ADAAG REBR may apply depending on the building, but if no other work has been done to the building under permit that would trigger accessibility upgrades since it was built, the building should be following 1988 UBC with CA amendments. I see no reason to apply codes that the original building was not designed to (unless a new permit is being issued)

Depending on what you're trying to do with the building, your argument makes sense to me.

 

[ICE]

The past tense of the word construct is "constructed". The addition of the verbiage "for first occupancy" is clarification that nothing is left undone. You can stick a fork in it.

 

[Yikes]

Existing building is a motel. We are converting the motel rooms into into apartments by adding kitchenettes, using public funding. We will make 15% of the units fully mobility accessible (and 10% communication accessible).

The mobility accessible units are undergoing substantial changes to make the bathrooms accessible. These are the largest units onsite.
But I am trying to avoid the significant renovation needed to make the remaining 85% of existing smaller hotel rooms adaptable as studio units, due to cost and due to the larger bathrooms and door clearances making the rest of the unit smaller than what most of the residents prefer for their personal belongings.

Per my analysis, FHA doesn't apply, and I'm hoping California interprets "constructed" the same way as FHA does.

 

[arwat23]

Existing building is a motel. We are converting the motel rooms into into apartments by adding kitchenettes, using public funding. We will make 15% of the units fully mobility accessible (and 10% communication accessible).

The mobility accessible units are undergoing substantial changes to make the bathrooms accessible. These are the largest units onsite.
But I am trying to avoid the significant renovation needed to make the remaining 85% of existing smaller hotel rooms adaptable as studio units, due to cost and due to the larger bathrooms and door clearances making the rest of the unit smaller than what most of the residents prefer for their personal belongings.

Per my analysis, FHA doesn't apply, and I'm hoping California interprets "constructed" the same way as FHA does.

Here's a nice flow chart from DSA that may help you out. See "Guide to Public Housing" at the bottom of this page: https://www.dgs.ca.gov/DSA/Resource...-Folder/Access-Compliance-Reference-Materials

It's my understanding that a change of use (which this is) triggers all CBC 11B requirements that are applicable for new construction (for areas being altered). Anything being altered would need to be brought up to current code requirements. You aren't altering existing "residential dwelling units" (as defined and adopted by DSA-AC), so, the way I understand it, the section you reference doesn't apply. The definition of "new construction" in the CBC also does not apply to Ch 11B since it's not adopted by DSA. If I'm reading code wrong (which is always a possibility... I'm not perfect) and it does apply, see page 19 of the guide I link above.

DSA does interpret code the similarly to the FHA. I've asked them multiple times and, given that they are responsible for writing that chapter and enforcing it on some projects, I usually just follow what they tell me. That said, if they are not the enforcing agency on your project and nothing CBC specifically defines that language, then whatever the local BO say is "correct". (Although I very much disagree that the C of O determines applicable code requirements)

FHA does not apply. ADAS as amended (CBC 11B) does.

 

[e hilton]

The past tense of the word construct is "constructed". The addition of the verbiage "for first occupancy" is clarification that nothing is left undone. You can stick a fork in it.

What happens if the county adopts a newer version of code half way through construction? Permit was issued and work started under previus code. Do the new codes need to be incorporated befor3 the CofO?

 

[Joe.B]

My understanding is that permit application date governs applicable codes.

Just ran across this while looking for something else. One of those things where you knew it was there and it's generally accepted (at least in my experience) but finding it in the code is sometimes a challenge.

HSC 18938.5. (a) Only those building standards approved by the commission, and that are effective at the local level at the time an application for a building permit is submitted, shall apply to the plans and specifications for, and to the construction performed under, that building permit.
(b) (1) A local ordinance adding or modifying building standards for residential occupancies, which are published in the California Building Standards Code, shall apply only to an application for a building permit submitted after the effective date of the ordinance and to the plans and specifications for, and the construction performed under, that permit.
(2) Paragraph (1) shall not apply to any of the following:

(A) A city or county that has been subject to an emergency proclaimed pursuant to the California Emergency Services Act (Chapter 7 (commencing with Section 8550) of Division 1 of Title 2 of the Government Code).

(B) A permit that is subsequently deemed expired because the building or work authorized by the permit is not commenced within 12 months from the date of the permit or the permittee has abandoned the work authorized by the permit.

(C) A permit that is subsequently deemed suspended or revoked because the building official has, in writing, suspended or revoked the permit due to its issuance in error or on the basis of incorrect information supplied.

(c) No model code made applicable to any additional occupancy shall apply to any project that has been submitted for a building permit prior to the effective date of that model code.

 

[Yikes]

UPDATE: I checked with DSA and they had 2 comments:

1. Yes, their intent is to follow FHA in terms of interpreting the significance of 3/13/1991.

2. In may particular case, we are vacating the existing building that was not previously dwelling units, altering it to make it into dwelling units. Therefore 11B-233.3.4.3 is not even applicable, because there are currently not dwelling units to alter. Therefore CBC 11B does not require any adaptable units.