"Change Of Use": original permit vs. latest code - change of "USE"

[Yikes]

IBC/CBC 102.6 says "The legal occupancy of any structure existing on the date of adoption of this code shall be allowed to continue without change..."

A "Project Homekey" former hotel is being proposed for conversion into permanent apartments by adding kitchenettes. I say this represents an alteration, but is NOT a change in occupancy or use. The hotel was permitted under the 1988 code, when UBC 1201 group R, division 1 was "Hotels, motels and apartment houses".
1988 CBC 502 allowed changes in use as long as the use remained within the same division of the same occupancy.


The building official says no, we must evaluate changes in use/occupancy under the classifications of the current code, not under the code in which it was first built. Hotels in the 2022 CBC are R-1 and apartments are R-2. His example to me is this:

"If you look at “B” occupancy, Division 2 in 1988 UBC, you can see that it covers restaurants, wholesale, retail, office building, printing plants, municipal police and fire stations, factories, workshops, storage and salesrooms for combustible goods, paint stores, etc. Let’s assume a building was designed under 1988 and permitted for a factory. If someone wants to convert it to a retail, we will be asking for change of occupancy and change of use under 2022 CBC."​

Who is correct?

When this building was constructed in 1988, you could have unlimited window openings in a Type V building that was 5' away from property line.
I'm concerned that a change in occupancy would require reducing the size of window openings in order to meet today's requirements.

 

[RLGA]

It is a change of occupancy by CEBC definition per any one of the three situations listed:

Any of the following shall be considered as a change of occupancy where the current International Building Code requires a greater degree of safety, accessibility, structural strength, fire protection, means of egress, ventilation or sanitation than is existing in the current building or structure:​

1. Any change in the occupancy classification of a building or structure.​

2. Any change in the purpose of, or a change in the level of activity within, a building or structure.​

3. A change of use.​

The IEBC has an exception in Chapter 3 that allows the use of the code at the time when the building was built, but that was limited to alterations only. However, the CEBC completely rewrote Chapter 3, so that option does not even exist in California for alterations.

The CBC allows up to 25% of the exterior wall openings with a fire separation distance of 5 to less than 10 feet to be unprotected when sprinklered per NFPA 13.

Exterior opening protection is not tied to construction type or occupancy--just fire separation distance. CEBC Section 506.1 does allow some leeway in complying with the new code requirements. Since the change of occupancy does not affect exterior opening protection, then the change of occupancy technically does not make "the existing building less complying with the provisions of this code than the existing building or structure was prior to the change."

 

[steveray]

#2 in Ron's post 2, gets everyone.....R1 to R2 is a change in level of activity....

And watch for energy usage...."X" number of units now all cooking sounds like an increase in energy to me, and you need to meet todays IECC.....Some relief if you can stay in the residential energy code....

SECTION C505 CHANGE OF OCCUPANCY OR USE C505.1 General. Spaces undergoing a change in occupancy that would result in an increase in demand for either fossil fuel or electrical energy shall comply with this code. Where the use in a space changes from one use in Table C405.3.2(1) or C405.3.2(2) to another use in Table C405.3.2(1) or C405.3.2(2), the installed lighting wattage shall comply with Section C405.3.

 

[mtlogcabin]

2018 IEBC

[A] CHANGE OF OCCUPANCY. A change in the use of a building or a portion of a building that results in any of the following:

1. A change of occupancy classification.

2. A change from one group to another group within an occupancy classification.

3. Any change in use within a group for which there is a change in application of the requirements of this code.

 

[Yikes]

Yeah, I recognize that under today's code, it's a change in use.
I also recognize that under the original code, it was the same occupancy.

To put my question another way: If I had first built it under the 1988 UBC as a hotel, and one year later under the same 1988 UBC I altered the hotel rooms into apartments, would the 1988 UBC call that a change in use?
If the answer is "no", then does today's IBC/CBC allow you to continue use as defined under the original classification at time of original permit?

SteveRay: what code is "C505"?
I do recognize this project is an alteration, and we will need to upgrade the entire electrical system. But is it an IBC "change in use"?

 

[RLGA]

Yeah, I recognize that under today's code, it's a change in use.
I also recognize that under the original code, it was the same occupancy.

To put my question another way: If I had first built it under the 1988 UBC as a hotel, and one year later under the same 1988 UBC I altered the hotel rooms into apartments, would the 1988 UBC call that a change in use?
If the answer is "no", then does today's IBC/CBC allow you to continue use as defined under the original classification at time of original permit?

SteveRay: what code is "C505"?
I do recognize this project is an alteration, and we will need to upgrade the entire electrical system. But is it an IBC "change in use"?

The old code is irrelevant and does not factor in at all. The currently adopted codes are the current building regulations. If the currently adopted codes allow you to go back to the original code (as the IEBC does under some circumstances), you may go back to the original code. Otherwise, comply with the current codes.

What you describe is a change of occupancy per the CEBC definition. Even under the 2021 IEBC's definition, this would be considered a change of occupancy.

 

[Yikes]

The old code is irrelevant and does not factor in at all. The currently adopted codes are the current building regulations. If the currently adopted codes allow you to go back to the original code (as the IEBC does under some circumstances), you may go back to the original code. Otherwise, comply with the current codes.

What you describe is a change of occupancy per the CEBC definition. Even under the 2021 IEBC's definition, this would be considered a change of occupancy.

But the current IBC/CBC 102.6 says "The legal occupancy of any structure existing on the date of adoption of this code shall be allowed to continue without change...".
I assume "change" = change of occupancy.
So, is the established legal occupancy based on the current IBC's definition of that occupancy, or on the (broader, in this case) definition under the code on which the building received its original C of O?

 

[steveray]

SteveRay: what code is "C505"?
I do recognize this project is an alteration, and we will need to upgrade the entire electrical system. But is it an IBC "change in use"?

IECC....If Cali uses it....

 

[Paul Sweet]

R-2 is less hazardous than R-1 because long-term residents are more familiar with the building than transient residents. Does that reduce upgrade requirements?

 

[RLGA]

But the current IBC/CBC 102.6 says "The legal occupancy of any structure existing on the date of adoption of this code shall be allowed to continue without change...".
I assume "change" = change of occupancy.
So, is the established legal occupancy based on the current IBC's definition of that occupancy, or on the (broader, in this case) definition under the code on which the building received its original C of O?

Please don't assume anything. "Change" does not mean "change of occupancy"--it means "change." Here is the definition of "change" from an online dictionary:

1. make (someone or something) different; alter or modify.
2. replace (something) with something else, especially something of the same kind that is newer or better; substitute one thing for (another).

An alteration is a "change." A repair is a "change." Any building modification regulated by the building code is a "change." However, the application of the code is limited to the extent of the change. For example, I had to get a permit to change my water heater. If my house was not plumbed per the current code, the fact that I changed the water heater does not require a complete replumbing of my house to comply with the current code.

If someone does nothing to their building except routine maintenance (e.g., change air filters, repaint, repair a leaking faucet, etc.), there is no "change," and the building code allows the building to continue to operate as-is. Some things can "change" without requiring a permit but are required to comply with the provisions of the current code (See the complete list in IBC Section 105.2).

 

[RLGA]

R-2 is less hazardous than R-1 because long-term residents are more familiar with the building than transient residents. Does that reduce upgrade requirements?

The IEBC does have tables in Chapter 10 (Change of Occupancy) that applies requirements based on the relative change in occupancy classification hazard. However, in its infinite wisdom, California deleted that chapter from the CEBC.

 

[Yikes]

Thanks for all the detailed responses on this. I'm not trying to be stubborn, I'm just trying to understand. Let me see if I get this straight:

I'm reading this as "if it's already legally occupied, you can't force the owner to change anything about the structure unless the code specifically requires it". That compulsion would be special circumstances, of which I've only seen a few in my lifetime, such as sleeping room smoke/CO detectors, URM building retrofits, Dorothy Mae sprinkler retrofits in old L.A. apartments, etc. The code would also throw in imminent danger circumstances (red-tagged structures).

RGLA, if I hear you correctly, where the CEBC triggers "Change of Occupancy" is this:
"2. Any change in the purpose of, or a change in the level of activity within, a building or structure."
The new "level of activity" is adding a kitchen inside the units. This "new level or activity" can't be considered a "Change of Occupancy" unless it also "requires a greater degree of safety, accessibility, structural strength, fire protection, means of egress, ventilation or sanitation".

I'm arguing that adding a kitchenette within the hotel rooms does not require a greater degree of safety (or ventilation or structural strength or sanitation, etc.).

Where they may have me is this: It's an alteration, it's publicly funded, therefore there IS a greater degree of accessibility required in CBC 11B for public apartments vs. public hotels, therefore by this definition it is a "change in occupancy". What's off about this is that the change in occupancy has nothing to do with the life-safety hazard aspects of the CEBC.

The IEBC does have tables in Chapter 10 (Change of Occupancy) that applies requirements based on the relative change in occupancy classification hazard. However, in its infinite wisdom, California deleted that chapter from the CEBC.

 

[steveray]

And different ventillation:




And there has to some increased hazard with all the dummies cooking in their rooms now.....

 

[RLGA]

RGLA, if I hear you correctly, where the CEBC triggers "Change of Occupancy" is this:
"2. Any change in the purpose of, or a change in the level of activity within, a building or structure."
The new "level of activity" is adding a kitchen inside the units. This "new level or activity" can't be considered a "Change of Occupancy" unless it also "requires a greater degree of safety, accessibility, structural strength, fire protection, means of egress, ventilation or sanitation".

Actually, any one of the three conditions would trigger the "Change of Occupancy" per the CEBC:

​

Condition #1 - It is a change in occupancy classification--it is changing from Group R-1 to Group R-2. It is irrelevant that it was in the same occupancy group under the old code--current occupancy group classifications apply.​

Condition #2 - Both the purpose and level of activity have changed.​

Condition #3 - It is a change in how the building is used, so it is a "change in use."​

 

[Genduct]

It is a change of occupancy by CEBC definition per any one of the three situations listed:

The IEBC has an exception in Chapter 3 that allows the use of the code at the time when the building was built, but that was limited to alterations only. However, the CEBC completely rewrote Chapter 3, so that option does not even exist in California for alterations.

The CBC allows up to 25% of the exterior wall openings with a fire separation distance of 5 to less than 10 feet to be unprotected when sprinklered per NFPA 13.

Exterior opening protection is not tied to construction type or occupancy--just fire separation distance. CEBC Section 506.1 does allow some leeway in complying with the new code requirements. Since the change of occupancy does not affect exterior opening protection, then the change of occupancy technically does not make "the existing building less complying with the provisions of this code than the existing building or structure was prior to the change."

You correctly posted:
requires a greater degree of safety, accessibility, structural strength, fire protection, means of egress, ventilation or sanitation than is existing in the current building or structure:

So, it seems the transient nature of a Hotel vs the permanent nature of a multi unit tenancy would make the original Hotel's design more robust and therefore safer than the R-2. Had it been the reverse then perhaps a closer look would be expected. This approach may raise some questions about the informal use of R-3 as R-1

 

[steveray]

. This approach may raise some questions about the informal use of R-3 as R-1

Yep....and this is twisting off the Air BnB folks....

 

[mtlogcabin]

We have an existing 1970's hotel that is being converted into studio apartments (R-1 to R-2). The addition of the kitchenette requires an upgrade to the electrical service for the building, arc fault and GFI upgrades along with a fire suppression and smoke detection throughout the building. That is just the major requirements. There will be a number of other code requirements as we work through the review process.

 

[sergoodo]

Similar situation; client buys hotel that has 30% converted to apartments. Converts up to 80% apartments and gets building CO -1992 and fire department inspections every 1-2 years after. Code inspector comes by and looks into window while appliances being replaced with new in 2019.

Issues a violation for occupancy change requiring a 3 story building that is 40 years old needs plan review of ASPME meeting new code.

Which choice to resolve should Owner take: 500k legal fee or design fee?

 

[Genduct]

Similar situation; client buys hotel that has 30% converted to apartments. Converts up to 80% apartments and gets building CO -1992 and fire department inspections every 1-2 years after. Code inspector comes by and looks into window while appliances being replaced with new in 2019.

Issues a violation for occupancy change requiring a 3 story building that is 40 years old needs plan review of ASPME meeting new code.

Which choice to resolve should Owner take: 500k legal fee or design fee?

REPLACING APPLIANCES WITH LIKE AND SAME NEEDS A PERMIT?

Are you kidding me?

 

[steveray]

REPLACING APPLIANCES WITH LIKE AND SAME NEEDS A PERMIT?

Are you kidding me?

ASSUMING the appliances were not there in the hotel.....Seeing the appliances is what clued the inspector in to the illegal change of occupancy....

 

[Mr. Inspector]

We had an inspector look in a window at an apartment house once. Got in a lot of trouble even though they were doing work with no permit. Inspection company was sued. This was the same inspector I knew that was shot and died in a township office in PA a few years ago.

 

[classicT]

We had an inspector look in a window at an apartment house once. Got in a lot of trouble even though they were doing work with no permit. Inspection company was sued. This was the same inspector I knew that was shot and died in a township office in PA a few years ago.

Peeking though windows is an illegal search. Has to be in plain view from a public way.

 

[Genduct]

ASSUMING the appliances were not there in the hotel.....Seeing the appliances is what clued the inspector in to the illegal change of occupancy....

I am confused. The narrative says 80% of units changed from sleeping to living units (R-3) in 92' I would guess the remainder stayed Sleeping (R-1)

Suggesting that the Legacy and the 20% ( if that is what is happening) would now need to update to the latest requirements seems to Ignore the IEBC

What am I not understanding here?

 

[Yikes]

We had an inspector look in a window at an apartment house once. Got in a lot of trouble even though they were doing work with no permit. Inspection company was sued. This was the same inspector I knew that was shot and died in a township office in PA a few years ago.

There was a plot point in the book+TV series “Bosch” where a serial rapist turns out to be a building inspector/code enforcement guy who uses his job surveillance to select his victims.