Lot line window opening over property line

[steam]

Hi Folks,

We are mid-renovation on our home in California and have run into a weird situation. Our home is built right to the neighboring lot lines on two sides, as is nearly every other home in our urban neighborhood. We have preexisting lot line windows on both sides that have been there since the forties. The preexisting windows were double casements, which swung out a foot or two over the neighbors' roofs when they opened.

We received a renovation permit requiring us to replace those windows "in kind," which we did, meaning we replaced them with double casements opening out over the neighbors' roofs, just like the old ones. Only now that we have actually installed the new windows (which were >$2000 each, plus labor), the inspector insists that a window casement cannot open across a lot line under the building code, and that I will have to tear out and throw away the new windows that I bought pursuant to my building permit and replace them with something else. Note that he is not disputing that the windows were replaced "in kind," as required by the permit, only that upon further consideration we cannot use the windows approved on our permits.

I know the inspector is just trying to do his job, but this is a really expensive and totally wasteful problem. I am not happy to plan to dispute this.

Although I have asked twice, the building department still has not told me what part of the building code they think is violated by a window casement swinging over the property line, and my architect has also expressed skepticism that this is a building code issue, as opposed to some potential property line dispute issue. Based on your experience, any insights into whether this is actually covered by the building code, as opposed to being something between me and my neighbors?

Thoughts, reactions, etc hugely appreciated. Thanks.

 

[cda]

Welcome....,.

Maybe a couple of days for replies/ holiday weekend

 

[mtlogcabin]

What state are you located in and what code is being used?

The residential code is silent the building code only addresses encroachments over a public way.

Always ask the inspector to quote the code section. If he can't then chances are he is wrong

 

[cda]

So they approved the type of replacement windows

The location of where they were going were approved

Was the property lines shown on the plans you submitted???

No you cannot build on your neighbors property, which indirectly is happening,

I would hold out for all code or zoning sections they say you are violating.

Once they tell you the sections, let your architect evaluate them to see if they apply.

Than go through the appeals process if needed.

I would take it you are not the original owner?

 

[steam]

What state are you located in and what code is being used?The residential code is silent the building code only addresses encroachments over a public way.

Always ask the inspector to quote the code section. If he can't then chances are he is wrong

I'm in San Francisco, CA. I don't know the issue well enough to say what code applies. This is a single family home.

Thanks for the reply!

 

[steam]

Thanks so much for your reply. My answers in below.

So they approved the type of replacement windows--ANSWER: YESThe location of where they were going were approved--ANSWER: YES

Was the property lines shown on the plans you submitted???--ANSWER: YES

No you cannot build on your neighbors property, which indirectly is happening,--ANSWER: Is this in the code? As a matter of property rights, I do not believe my neighbors can possibly complain after 50+ years of this going on. In any case, that does not seem like a building department issue unless it violates the code.

I would hold out for all code or zoning sections they say you are violating.

Once they tell you the sections, let your architect evaluate them to see if they apply.

Than go through the appeals process if needed.

I would take it you are not the original owner?--ANSWER: Correct, we've owned for just a couple of years, originally built in the 40s.

 

[mark handler]

2013 CRC TABLE R302.1(1)

Openings in walls Not allowed < 3 feet of property line and protected <5 feet

 

[cda]

I'm in San Francisco, CA. I don't know the issue well enough to say what code applies. This is a single family home.

Thanks for the reply!

Do you live in SF city limits or another city, city limits ??

 

[conarb]

I have not built in San Francisco for years but I'll take a stab at it. In the past San Francisco had it's own code that was different from the UBC codes so it could be that when the house was built that they allowed the windows to open over the property line; however, I've seen many zero setback homes in San Francisco and don't recall ever seeing any windows on the zero lot line sides. Looking at San Francisco's current code and Amendments I find this:

17. Repair and replacement of glazing in conformity with this code, and provided wire glass shall be replaced in kind.¹

Taking a wild guess I'm going to assume that back in the 40s San Francisco allowed windows on the property line and they are continuing to allow them to exist if they have wire glass, but I would venture a guess that the city plan checkers failed to see that your windows actually opened. Maybe based upon the fact that they missed it on plan check they would be amenable to allowing you to install non-openable windows with wire glass. All you have to do then is screw your casements shut and have a glazier reglaze them with wire glass. Just don't go removing the screws after final inspection.

¹ http://library.amlegal.com/nxt/gateway.dll/California/sfbuilding/buildingcode2013edition?f=templates$fn=default.htm$3.0$vid=amlegal:sanfrancisco_ca$anc=JD_Building

 

[ICE]

The windows were approved when first built. Had nothing changed, the windows would still be legal.....wait a minute.....nothing has changed.

I would guess that this is not the first time that this has come up in SF or any other big, densely packed city.

My take on SF is that if you are willing to live there they should be happy to have you.

 

[conarb]

The windows were approved when first built. Had nothing changed, the windows would still be legal.....wait a minute.....nothing has changed.

But something has now changed, she has changed them, she's just lucky she doesn't live in Palo Alto, under $250,000 a year there you are considered poor, the way things are going there the only ones who will be able to live there are software billionaires, Stanford professors, and retired firemen.

 

[steam]

Do you live in SF city limits or another city, city limits ??

In SF city limits.

 

[steam]

I have not built in San Francisco for years but I'll take a stab at it. In the past San Francisco had it's own code that was different from the UBC codes so it could be that when the house was built that they allowed the windows to open over the property line; however, I've seen many zero setback homes in San Francisco and don't recall ever seeing any windows on the zero lot line sides. Looking at San Francisco's current code and Amendments I find this:Taking a wild guess I'm going to assume that back in the 40s San Francisco allowed windows on the property line and they are continuing to allow them to exist if they have wire glass, but I would venture a guess that the city plan checkers failed to see that your windows actually opened. Maybe based upon the fact that they missed it on plan check they would be amenable to allowing you to install non-openable windows with wire glass. All you have to do then is screw your casements shut and have a glazier reglaze them with wire glass. Just don't go removing the screws after final inspection.

¹ http://library.amlegal.com/nxt/gateway.dll/California/sfbuilding/buildingcode2013edition?f=templates$fn=default.htm$3.0$vid=amlegal:sanfrancisco_ca$anc=JD_Building

Lot line windows are still permitted in San Francisco, but if the window opening is new there are incredibly burdensome and expensive fees associated with installing them. We are not subject to those because the openings are not new.

Notably, the inspector is not calling for a fire rated window, only for a window that doesn't open out.

 

[mark handler]

Great

You plan to dispute something that is not permited by state code. Good luck with that.

 

[conarb]

Lot line windows are still permitted in San Francisco, but if the window opening is new there are incredibly burdensome and expensive fees associated with installing them. We are not subject to those because the openings are not new.

Notably, the inspector is not calling for a fire rated window, only for a window that doesn't open out.

Interesting, I'd say fire rating would be the most important aspect of this whole thing. Another avenue is to have your attorney write a letter to them demanding that they let you do it, saying that you relied upon their approval to your detriment and went to all this expense, aggravation, etc., he'll know how to put in sleepless nights, sickness, and all kinds of emotional distress claims. In most jurisdictions the City Attorney wants nothing to do with time consuming lawsuits and will tell the building department to settle it with you. They will give the letter to the City Attorney and he/she will make the decision. Remember several years ago in San Francisco a woman claimed somebody bumped into her on a cable car and she turned into a nymphomaniac and couldn't control herself? She got millions from a San Francisco jury.

 

[steam]

GreatYou plan to dispute something that is not permited by state code. Good luck with that.

Mark, I genuinely appreciate the input, but I understand that the state code can be amended by local ordinance or regulation. CRC 1.8.6. I have no idea what those local rules say about my situation, but do know there are local rules inconsistent with those you've cited.

 

[steam]

Interesting, I'd say fire rating would be the most important aspect of this whole thing. Another avenue is to have your attorney write a letter to them demanding that they let you do it, saying that you relied upon their approval to your detriment and went to all this expense, aggravation, etc., he'll know how to put in sleepless nights, sickness, and all kinds of emotional distress claims. In most jurisdictions the City Attorney wants nothing to do with time consuming lawsuits and will tell the building department to settle it with you. They will give the letter to the City Attorney and he/she will make the decision. Remember several years ago in San Francisco a woman claimed somebody bumped into her on a cable car and she turned into a nymphomaniac and couldn't control herself? She got millions from a San Francisco jury.

If it was a new window opening, it would have to be fire rated. I know this only because I wanted to put a new lot-line window in a new opening, but did not do so because the fire rated window was so expensive.

Believe it or not, the overall permit cost more than $10,000, not including the cost of my architect. You would think permits that expensive would get you more assurance. Apparently not.

 

[conarb]

Believe it or not, the overall permit cost more than $10,000, not including the cost of my architect. You would think permits that expensive would get you more assurance. Apparently not.

Steam:

Have your attorney write the letter, in California they cannot charge more than the cost of delivery of services, the City Attorney won't want to be forced to document the $10,000 fee.

BTW, the city amendments are all in the link I provided above, I briefly looked through them and the #17 I posted above was the only relevant one I saw, you might want to peruse them further.

 

[ICE]

Believe it or not, the overall permit cost more than $10,000, not including the cost of my architect.

That can't be true.

 

[mark handler]

So, after talking with my contacts in SF. They did not alter the State Code.

It is an Alternate means and methods as outlined in a Administrative Bulletin, see below.

AB-009 Local Equivalency for Approval of New Openings in New and Existing Building Property Line Walls

NO. AB-009 :

DATE : September 18, 2002 (Updated 01/01/2014 for code references)

SUBJECT : Fire and Life Safety

TITLE : Local Equivalency for Approval of New Openings in New and Existing Building Property Line Walls

PURPOSE : The purpose of this Administrative Bulletin is to provide standards and procedures for the application and case-by-case review of requests for a modification based on local equivalency to allow openings in exterior walls closer to property lines than are permitted by the 2013 San Francisco Building Code (SFBC).

This bulletin permits the continuing application of code provisions of former editions of the SFBC regarding property line openings. In conformance with current State law, requests for approval of openings closer to the property line than permitted under the SFBC will be considered on a case-by-case basis when reasonable equivalency is proposed.

REFERENCES : 2013 San Francisco Building Code

- Section 104A.2.7, Modification

- Section 104A.2.8, Alternate materials, alternate design and methods of construction

- Section 705.8, Openings

DBI Administrative Bulletin AB-005, Procedures for Approval of Local Equivalencies.

San Francisco Administrative Code Article 5, Section 23.47, Lot Line Window

DISCUSSION : Project sponsors may request the application of this local equivalency allowing openings in building walls closer to property lines than allowed by SFBC Section 705.8 when it can be demonstrated on a case-by-case basis that there are practical difficulties in meeting the provisions of the code, that the modification is in conformance with the intent and purpose of the code, and that reasonable equivalency is provided in fire protection and structural integrity.

Such proposed modification may conform with the below listed standard provisions. The Department of Building Inspection (DBI) and other City departments may impose additional requirements in the approval of any request for a code modification or alternate based upon individual building and property conditions. Other City agencies that may review such requests include the San Francisco Fire Department, the Planning Department and, for buildings adjoining City-owned property, the Department of Real Estate.

If a project sponsor wishes to propose methods of opening protection different than those listed below, proposals for the use of alternate materials, designs, or methods of construction may be submitted for review in the same manner as for this local equivalency. The Department of Building Inspection may require that additional substantiation be provided supporting any claims made for such proposals.

Procedure for Application of Local Equivalencies

Project sponsors wishing to apply local equivalencies must fill out and submit the Request for Approval of Local Equivalency form (Attachment A). Fees to be paid and scheduling of review of requests are as noted on that form. Following DBI review, each request will either be approved, approved with conditions, disapproved, or placed on Hold pending submittal of additional information.

Further details of procedures for the review of local equivalencies may be found in AB-005, Procedures for Approval of Local Equivalencies.

Conditions of Local Equivalencies

Openings in new building walls and new openings in existing building walls in Groups B, M, and R occupancies that are closer to property lines than permitted under SFBC Section 705.8 and Table 705.8 may be permitted on a case-by-case basis when the following provisions or approved equivalent provisions are met and the project sponsor provides documentation of the practical difficulties involved in carrying out the provisions of the regular code.

The standard provisions for this Local Equivalency include all of the following:

1. The openings may not be used to provide required light and ventilation, required egress, or for required emergency rescue.

2. The openings shall be fixed (non-operable) unless more than 50 feet above the roof of any adjoining building or more than the distance prescribed for protected openings in Table 705.8 in any direction from an adjoining building.

3. The openings shall be located entirely above any adjoining roof or at least six feet laterally beyond any wall of an adjoining building.

4. The openings shall be protected with fire assemblies, such as fire shutters or rated window assemblies, having a rating of at least 3/4 hour. Openings in walls which have a fire- protection rating of greater than 1-hour shall be protected by a fire assembly having a three-hour fire-protection rating in four-hour fire-resistive walls, a two-house fire-protection rating in three- hour fire-resistive walls, and one-and one-half hour fire-protection rating in two-hour fire- resistive walls. Fire shutters, if provided, shall be actuated by smoke detectors located inside and by fusible links or other approved devices on the outside of the protected openings.

5. The opening shall be protected by a fire sprinkler system having ordinary temperature, quick-response type heads installed within 18" of the openings and spaced at 6 feet on center or at the manufacturers recommended minimum spacing, whichever provides the closer spacing.

Exception: Openings in Group R Division 3 occupancies.

6. If the adjoining building contains R occupancy uses, proposed openings shall not be located closer than six feet measured in any direction to any existing opening on the adjoining building unless the adjoining owner gives written consent. A copy of the statement giving such consent shall be attached to the permit application.

7. The owner of a building with such openings shall provide a recorded statement that these openings will be closed or protected with approved fire resistive wall construction in the event that the adjoining property is improved in such a manner that the openings no longer comply with the provisions of this Administrative Bulletin. A copy of a Declaration of Use Limitation (Attachment B) shall be submitted to the plan reviewer prior to completion of Department of Building inspection plan review.

8. Property line openings which open onto property owned by the City and County of San Francisco shall meet the requirements of San Francisco Administrative Code, Article VI, Sections 23.27 through 23.30 (Attachment C). An approved and executed a Lot Line Window Agreement shall be submitted as part of the documents required under Item 9 (below).

9. A permit application and related submittal documents shall detail all construction which is approved as a result of this request for local equivalency.

Originally signed by:

Frank Y. Chiu, Director

October 3, 2002

Gary Massetani, Fire Marshal

October 9, 2002

Approved by the Building Inspection Commission on September 18, 2002

Attachment A: Request for Approval of Local Equivalency

Attachment B: Assessor/Recorders Office Document - Declaration of Use Limitation

Attachment C: SF Administrative Code

 

[conarb]

Steam:

It looks like Mark's information above is your answer:

This bulletin permits the continuing application of code provisions of former editions of the SFBC regarding property line openings. In conformance with current State law, requests for approval of openings closer to the property line than permitted under the SFBC will be considered on a case-by-case basis when reasonable equivalency is proposed.

We received a renovation permit requiring us to replace those windows "in kind," which we did, meaning we replaced them with double casements opening out over the neighbors' roofs, just like the old ones.

It appears that they originally approved it according to code then the inspector withdrew their approval, again have your attorney write a letter, their City Attorney will not want to go into litigation on this.

Believe it or not, the overall permit cost more than $10,000, not including the cost of my architect.That can't be true.

What do you mean, $10,000 doesn't buy much of a permit anywhere around here, in fact permits are so difficult in San Francisco that most builders have to hire permit expediters, the minimum fee for a permit expediter in San Francisco, the last I heard, was $10,000, permit expediters are usually ex-building inspectors who know the right palms to grease, a few went to prison maybe 10 or 15 years ago.

 

[steam]

Thanks everyone for the very helpful responses, especially Mark and conarb!

The thing that stands out about that bulletin is that is applies to new openings. Ours are not new openings.

 

[steam]

What do you mean, $10,000 doesn't buy much of a permit anywhere around here, in fact permits are so difficult in San Francisco that most builders have to hire permit expediters, the minimum fee for a permit expediter in San Francisco, the last I heard, was $10,000, permit expediters are usually ex-building inspectors who know the right palms to grease, a few went to prison maybe 10 or 15 years ago.

We did not hire an expediter. I'm saying that the permit fee itself was over $10,000. That doesn't include time for the architect to actually get them.

 

[cda]

So, after talking with my contacts in SF. They did not alter the State Code.It is an Alternate means and methods as outlined in a Administrative Bulletin, see below.

AB-009 Local Equivalency for Approval of New Openings in New and Existing Building Property Line Walls

NO. AB-009 :

DATE : September 18, 2002 (Updated 01/01/2014 for code references)

SUBJECT : Fire and Life Safety

TITLE : Local Equivalency for Approval of New Openings in New and Existing Building Property Line Walls

PURPOSE : The purpose of this Administrative Bulletin is to provide standards and procedures for the application and case-by-case review of requests for a modification based on local equivalency to allow openings in exterior walls closer to property lines than are permitted by the 2013 San Francisco Building Code (SFBC).

This bulletin permits the continuing application of code provisions of former editions of the SFBC regarding property line openings. In conformance with current State law, requests for approval of openings closer to the property line than permitted under the SFBC will be considered on a case-by-case basis when reasonable equivalency is proposed.

REFERENCES : 2013 San Francisco Building Code

- Section 104A.2.7, Modification

- Section 104A.2.8, Alternate materials, alternate design and methods of construction

- Section 705.8, Openings

DBI Administrative Bulletin AB-005, Procedures for Approval of Local Equivalencies.

San Francisco Administrative Code Article 5, Section 23.47, Lot Line Window

DISCUSSION : Project sponsors may request the application of this local equivalency allowing openings in building walls closer to property lines than allowed by SFBC Section 705.8 when it can be demonstrated on a case-by-case basis that there are practical difficulties in meeting the provisions of the code, that the modification is in conformance with the intent and purpose of the code, and that reasonable equivalency is provided in fire protection and structural integrity.

Such proposed modification may conform with the below listed standard provisions. The Department of Building Inspection (DBI) and other City departments may impose additional requirements in the approval of any request for a code modification or alternate based upon individual building and property conditions. Other City agencies that may review such requests include the San Francisco Fire Department, the Planning Department and, for buildings adjoining City-owned property, the Department of Real Estate.

If a project sponsor wishes to propose methods of opening protection different than those listed below, proposals for the use of alternate materials, designs, or methods of construction may be submitted for review in the same manner as for this local equivalency. The Department of Building Inspection may require that additional substantiation be provided supporting any claims made for such proposals.

Procedure for Application of Local Equivalencies

Project sponsors wishing to apply local equivalencies must fill out and submit the Request for Approval of Local Equivalency form (Attachment A). Fees to be paid and scheduling of review of requests are as noted on that form. Following DBI review, each request will either be approved, approved with conditions, disapproved, or placed on Hold pending submittal of additional information.

Further details of procedures for the review of local equivalencies may be found in AB-005, Procedures for Approval of Local Equivalencies.

Conditions of Local Equivalencies

Openings in new building walls and new openings in existing building walls in Groups B, M, and R occupancies that are closer to property lines than permitted under SFBC Section 705.8 and Table 705.8 may be permitted on a case-by-case basis when the following provisions or approved equivalent provisions are met and the project sponsor provides documentation of the practical difficulties involved in carrying out the provisions of the regular code.

The standard provisions for this Local Equivalency include all of the following:

1. The openings may not be used to provide required light and ventilation, required egress, or for required emergency rescue.

2. The openings shall be fixed (non-operable) unless more than 50 feet above the roof of any adjoining building or more than the distance prescribed for protected openings in Table 705.8 in any direction from an adjoining building.

3. The openings shall be located entirely above any adjoining roof or at least six feet laterally beyond any wall of an adjoining building.

4. The openings shall be protected with fire assemblies, such as fire shutters or rated window assemblies, having a rating of at least 3/4 hour. Openings in walls which have a fire- protection rating of greater than 1-hour shall be protected by a fire assembly having a three-hour fire-protection rating in four-hour fire-resistive walls, a two-house fire-protection rating in three- hour fire-resistive walls, and one-and one-half hour fire-protection rating in two-hour fire- resistive walls. Fire shutters, if provided, shall be actuated by smoke detectors located inside and by fusible links or other approved devices on the outside of the protected openings.

5. The opening shall be protected by a fire sprinkler system having ordinary temperature, quick-response type heads installed within 18" of the openings and spaced at 6 feet on center or at the manufacturers recommended minimum spacing, whichever provides the closer spacing.

Exception: Openings in Group R Division 3 occupancies.

6. If the adjoining building contains R occupancy uses, proposed openings shall not be located closer than six feet measured in any direction to any existing opening on the adjoining building unless the adjoining owner gives written consent. A copy of the statement giving such consent shall be attached to the permit application.

7. The owner of a building with such openings shall provide a recorded statement that these openings will be closed or protected with approved fire resistive wall construction in the event that the adjoining property is improved in such a manner that the openings no longer comply with the provisions of this Administrative Bulletin. A copy of a Declaration of Use Limitation (Attachment B) shall be submitted to the plan reviewer prior to completion of Department of Building inspection plan review.

8. Property line openings which open onto property owned by the City and County of San Francisco shall meet the requirements of San Francisco Administrative Code, Article VI, Sections 23.27 through 23.30 (Attachment C). An approved and executed a Lot Line Window Agreement shall be submitted as part of the documents required under Item 9 (below).

9. A permit application and related submittal documents shall detail all construction which is approved as a result of this request for local equivalency.

Originally signed by:

Frank Y. Chiu, Director

October 3, 2002

Gary Massetani, Fire Marshal

October 9, 2002

Approved by the Building Inspection Commission on September 18, 2002

Attachment A: Request for Approval of Local Equivalency

Attachment B: Assessor/Recorders Office Document - Declaration of Use Limitation

Attachment C: SF Administrative Code

So what does your inside contact say about replacement windows???