Code Administration Question of the Day 2 Aug 2018

[north star]

@ ~ @

Regarding **jar's** question in Post # 25, " ....Q1) If it were
a change of use and occupancy, would it be required to
comply with State/Federal ADA codes/laws? ", I thought that
since the Federal ADA laws are enforced by the Feds, that
a business owner was subject to enforcement of the Federal
ADA Standards [ or lack thereof ], ...at any time, regardless
of a C. of O., or any locally adopted Accessibility Codes.

So Federal "Yes !", ...State maybe.

@ ~ @

 

[Francis Vineyard]

If they could not document last known accepted use....gloves off, change of use, new codes apply.

Again it depends: "Some jurisdictions will uphold retroactive code provisions only in those circumstances where the building official can prove that a hazard* exists. Those courts have that the mere fact that a particular building is not up to the standards of the latest edition of the building code is an insufficient basis for the retroactive application of its provisions to the building. Usually, the courts will uphold retroactive applications if the building official can offer some reasonable explanation as to why the structure is hazardous. If a court can find any evidence to support the findings of the building official, it will most likely uphold the decision. [ ] The courts have no expertise in the area of building construction and so are hesitant to overrule the findings of an expert in the field. If no proof of the hazard can be offered, however, the courts will not hesitate to reverse.

Many jurisdictions have adopted provisions that apply specifically to existing structures. Thus, there is no doubt that the intent of the municipality is for owners to bring their structures into compliance with the updated codes.

In short, the building official should recognize that each provision of any building code is subject to constitutional attack for being unrelated to any legitimate governmental purpose. [ ] The building official will be called upon to explain, in common sense, the reasons behind any particular code provision. A clear understanding of the particular provisions of the code is definitely required."

* For example a higher hazard category referenced in the IEBC for change of use.

Source: Legal Aspects of Code Administration, Retroactive Code Provisions.

 

[RJJ]

do you have any evidence / case law that supports your position? I find that the courts have a pretty good understanding of the codes and the sections relevant to a case.

 

[Francis Vineyard]

do you have any evidence / case law that supports your position? I find that the courts have a pretty good understanding of the codes and the sections relevant to a case.

That position is an excerpt from required reading for the ICC CBO exam. As you may well be aware each case is based on the facts at hand.

Our office has taken the advice of an attorney in over 35 yrs. of practice in code enforcement. Only twice in his experience that a judge evicted not having a C.O. owing to the building or structure determined to be dangerous or there was an imminent risk to human life.

We did however go to court on behalf of a zoning violation, though the structure pass the building code and was inhabited, the lack of C.O. was dismissed. Again it depends.

 

[Mr. Inspector]

Jar, I had the same problem with uncertified buildings. L&I told me to C. O. the building before issuing a permit for a change of occupancy or any work. Had an architect do the calculations that are in the IEBC Chapter 13 Performance Compliance Methods. There are no requirements in this chapter for accessibility. For what you described it could pass it without any work. If they need to do work to pass chapter 13 then they will need a permit just for that work. Then issue a C. O. for what the last use it was (hair dresser would be B). Then after that you are back to the normal way you do things. You can issue a permit for the work they plan to do. But it sounds like they may not need a permit after you issue the C. O. if they are not doing anything and it's not a change of occupancy.

 

[steveray]

How can they be legal occupancies when there is no history of a permit or CO for any part of the building? This is what I don't understand. So if there is a building you are not aware of that gets remodeled without a permit and a business moves in for 3 years then it is empty for another year then another business moves in, it is legal?

I am trying to establish the fact that NO CO ever existed for the building so when a new occupant (business) moves in with a new business, you have no requirements if they just want to put in some counters and display cases with no other renovations?

Depends on your State or local laws....Here is what CT put in our code:

(Amd) 111.1 Use and occupancy. Pursuant to subsection (a) of section 29-265 of the
Connecticut General Statutes, no building or structure erected or altered in any municipality after
October 1, 1970, shall be occupied or used, in whole or in part, until a certificate of occupancy
has been issued by the building official, certifying that such building or structure or work
performed pursuant to the building permit substantially complies with the provisions of the State
Building Code. Nothing in the code shall require the removal, alteration or abandonment of, or
prevent the continuance of the use and occupancy of, any single-family dwelling but within six
years of the date of occupancy of such dwelling after substantial completion of construction of,
alteration to or addition to such dwelling, or of a building lawfully existing on October 1, 1945,
except as may be necessary for the safety of life or property. The use of a building or premises
shall not be deemed to have changed because of a temporary vacancy or change of ownership
or tenancy.
Exceptions:
1. Work for which a certificate of approval is issued in accordance with Section
111.6.
2. Certificates of occupancy are not required for work exempt from permit
requirements under Section 105.2.

 

[jar546]

Depends on your State or local laws....Here is what CT put in our code:

(Amd) 111.1 Use and occupancy. Pursuant to subsection (a) of section 29-265 of the
Connecticut General Statutes, no building or structure erected or altered in any municipality after
October 1, 1970, shall be occupied or used, in whole or in part, until a certificate of occupancy
has been issued by the building official, certifying that such building or structure or work
performed pursuant to the building permit substantially complies with the provisions of the State
Building Code. Nothing in the code shall require the removal, alteration or abandonment of, or
prevent the continuance of the use and occupancy of, any single-family dwelling but within six
years of the date of occupancy of such dwelling after substantial completion of construction of,
alteration to or addition to such dwelling, or of a building lawfully existing on October 1, 1945,
except as may be necessary for the safety of life or property. The use of a building or premises
shall not be deemed to have changed because of a temporary vacancy or change of ownership
or tenancy.
Exceptions:
1. Work for which a certificate of approval is issued in accordance with Section
111.6.
2. Certificates of occupancy are not required for work exempt from permit
requirements under Section 105.2.

That is for single family dwellings. Not what the discussion is about.

 

[steveray]

or of a building lawfully existing on October 1, 1945,
except as may be necessary for the safety of life or property. The use of a building or premises
shall not be deemed to have changed because of a temporary vacancy or change of ownership
or tenancy.

That part is not...The State protects houses a little more than commercial stuff so they are a little more specific there...

 

[RJJ]

Frances: sorry it took so long to respond. If your City / County attorney does not want to fight this issue in court I can understand that. I can also agree that some Judges will support the code official and stipulate that the owner / tenant make what ever corrections needed to gain a CO. I can also agree that most judges will not remove someone for a minor issue. The original OP was for a building that does not have an existing CO for any use and a new occupancy now wants to open a business. In PA they need a CO. If they put in a counter area it must comply to ANSI 117. If the space was not a lawful occupancy under L&I that bath room would need an upgrade.
Also, accessible route comes into play. If that cost exceeded 20% they could get by with out a bath room up grade.
Now for me over the last 35 years I have had a number of judges rule in my favor on CO issues. Some similar to this question. but if the AHJ is not going support you, you are just hung out to dry

 

[Francis Vineyard]

RJJ,
Thank you for your consideration but no apologies necessary, there's no protocol I'm aware of for a timely response. I consider myself fortunate to participate at my pleasure or perhaps sickness given the fact I've accumulated 3 weeks of comp time (we don't get overtime).
We for the most part are in agreement, but I presumed Jeff was asking how each of us as the AHJ, how are we allowed in our jurisdiction (not limited to his) can permit occupancy in a building that has no record of a C.O. on file.
In Virginia after the statewide code was adopted in 1973, a C.O. shall be obtained before occupancy. However the states minimum retention for C.O. is zero days after issuance. The city had a written building code since 1953 (ironically similar to the first BOCA) and the state regulations for structures before 1973 is similar to severay's post for Connecticut that they shall not be prevented from continued use, provided there's no change of occupancy.
For these where no C.O. exist, but there are records that one did, paying taxes would be an example, then the B.O. shall write a letter that a C.O. did exist upon request for which the city charges a fee.
An alternative to the above is if a permit is obtained for work that is required then approval of all finals may serve as the C.O.
Keep in mind this is an oversimplification of several administrative sections unlike the simple one severay provided.

 

[Francis Vineyard]

Last but not the least all structures that were constructed without a permit to my knowledge were sent a N.O.V. and settled out of court which is what we prefer, without involving our city attorney who provides us full support.

 

[Francis Vineyard]

Upon further reflection in reference to the ADA water closet my understanding structures that have a statement of completion but never occupied, and no C.O. would be issued until evaluated to meet the current code for the applicable occupancy. This wouldn't be typical to permit construction without knowing the intended use.
Typically the permit application would declare and be approved for the occupancy classification and the future tenant upfits would be under the edition of the certificate of completion depending on any amendment to the code. Otherwise it may be technically unfeasible to meet the current code for new construction in an existing building for the classification under which it was originally constructed.
Otherwise there can be no change of occupancy until a C.O. has been issued (under the code edition that the building was constructed) in accordance with the Existing Building Code.

This tread reminds me of a scene in a movie Phenomenon,
Dr. Bob: "if a man was born October 3rd 1928 at 10 p.m. and is still alive how old is he?"
George Malley: "where?"
Dr. Bob:"anywhere"
George: "Well let's get specific Bob! I mean if the guy is still alive born in California he's 67 years. 9 months, 22 days, 14 hours and 12 minutes. If he's born in New York. . . .

 

[Francis Vineyard]

By the way is "uncertified building" a quote unquote legal term or just a descriptive condition for no record.
Last week after 15 years I finally gave up with the DMV to correct the license tag on the vehicle registration. When I went there to exchange them for a new set they said there were no records for the tags I had on the truck! Did this mean I was driving around in an "uncertified" truck?

 

[jar546]

By the way is "uncertified building" a quote unquote legal term or just a descriptive condition for no record.
Last week after 15 years I finally gave up with the DMV to correct the license tag on the vehicle registration. When I went there to exchange them for a new set they said there were no records for the tags I had on the truck! Did this mean I was driving around in an "uncertified" truck?

In PA that term is written into the UCC laws.

 

[ADAguy]

Ok, this has been going on long enough. If it is now a preexisting building (precode) you could check Sanborn maps, if not shown you still must comply with ADA law which addresses preADA buildings exclusive of AHJ's refusal to retroactively require them to comply. As a business serving the public they must comply. Yes, counters/tables? serving the public must comply.

You have beat this issue to death. The key here is that if ADA upgrades require RR enlargement then a permit would/should be required, here it is then up to the AHJ to deal with it. Sounds as if the community has some catching up to do as they are losing business license fees and code abatement too.