Ordinances versus state code

[Eliza]

I recently posted about the definition of a habitable room, and definition of a bedroom. There is a development proposed for an old building on my street, and most of the units have bedrooms with no no windows and only one form of egress.

We have ordinances that state that for a room to be habitable, it has to have a window “facing directly to the outdoors” which I believe was intended to mean it would open to the outdoors. If it only said “facing the outdoors”, I would think it could be an interior window, but when it says “facing directly to the outdoors”, I take it to mean that the window must open to the outdoors.

Apparently there is R–2 zoning for the proposed development. I was told that our ordinances usually would be enforceable if state code conflicted, bit that in this case,the rights to our town ordinances were waived by the town planning and zoning commission.

Does anyone have any knowledge it thoughts about this and whether it is allowed to waive rights to ordinances, how common it is, and whether it could be challenged?

The building is in rRsidence Zone A, which is only for single-family zoning, but the developer has applied for an adaptive redevelopment zone which allows for more density. The development is supposed to take into account the underlying zone, however.

We are wondering what is the point of having town ordinances if your town adopts state code and then doesn’t enforce ordinances.

Thank you!

 

[TheCommish]

What is you dog in this fight, are you possilby buying a unit, or are you trying to stop a development project?

 

[Mark K]

In some states local ordinances may control over state statutes in certain circumstances while in other states the state has decided to preempt the field of building code regulations and local jurisdictions would have only limited authority. The answer is dependent on state laws and on the rulings of the state appellate courts.

This issue is compounded by the fact that some city attorneys may not have a good understanding of the laws related to state preemption and the legal status of building codes.

In California the appellate courts have been consistently clear that the state has preempted building code regulations with the legislature giving local jurisdictions limited authority to adopt local modifications. The reality is that some jurisdictions have exceeded their authority and adopted local modifications that are illegal. Many of these illegal local modifications have been enforced because the building owner is unaware that such modifications are illegal, the delays that would result from fighting the illegal requirements are unacceptable to the building owner, or it is cheaper to accommodate the illegal local ordinance than to fight it. So just because you have gotten away with enforcing local ordinances is not proof that you are acting legally.

 

[Eliza]

What is you dog in this fight, are you possilby buying a unit, or are you trying to stop a development project?

Trying to stop an adaptive development. The building in question is zoned for single-family dwellings and is slated to have 30 condos, one and two bedroom units. The one-bedrooms are 670 sq ft and two bedrooms are 850 ft.² each. The one bedroom units have an interior bedroom with no window to the outdoors. It is a sprinklered building with two forms of egress at each end of the building on the floors where the units are, but our ordinances define a habitable room as having a window directly facing to the outdoors.

Initially our building official said that those rooms would not qualify as bedrooms and would have to be called something else. He later retracted that statement and said that R-2 zoning allows for bedrooms with no windows, no natural light and no outside ventilation. He added that a decision was made, possible by TPZ, to waive the rights to our ordinances.

In order to provide enough parking for these units, there’s almost no green space, and the driveway will be right next to two of my neighbors properties, with as many as 55 cars just for residents, not counting delivery trucks maintenance trucks etc.

Neighbors are in favor of fewer, larger units.

 

[TheCommish]

Eliza,
I applaud your right to participate in public discussion, public hearings and the permit process. However and action for or against a project is a location and case specific process, intertwined with any legally adopted state or local laws or ordinances, with or without supporting case law.

Building a structure has 2 parts; first, zoning the land use governance, always very local. Second, the building code, most often based on a model code such as the ICC family, with amendments either on the state or local level.

Extreme care should be used in relying on a forum such as this one to mount a case for or against a local project.

 

[Mr. Inspector]

You said it was an existing building. The building codes can be more complicated for an existing building sometimes and does not have as strict rules as for a new building.. Maybe the bedrooms without windows were already there and they are only doing repairs in them. New plumbing, mechanical and electrical work would not trigger any changes normally. But once they start moving the walls around and move bedrooms the building code will be more restrictive.

 

[steveray]

If it is an existing building being reused, I don't see the issue but.....

If your Town ordinance is presuming to weigh in where the State code governs, your local ordinance is likely invalid. (ruling from Blumenthal 1992ish for "zoning in" residential sprinklers)....

Do you know what the purpose of the Town required windows is? What Town? Part of the zoning regulations or actual Town ordinance?

 

[Joe.B]

No one likes new construction, especially high density. I think it's important to remind people that somebody had to build the house you're in, and your house made the area more dense too.

 

[Eliza]

Eliza,
I applaud your right to participate in public discussion, public hearings and the permit process. However and action for or against a project is a location and case specific process, intertwined with any legally adopted state or local laws or ordinances, with or without supporting case law.

Building a structure has 2 parts; first, zoning the land use governance, always very local. Second, the building code, most often based on a model code such as the ICC family, with amendments either on the state or local level.

Extreme care should be used in relying on a forum such as this one to mount a case for or against a local project.

Thank you for your comment. Totally agree that is not wise to rely on this forum.

The building is an existing warehouse in Connecticut being rehabbed. It’s 3 stories, although the first story is partially below grade.

Neighbors are wondering what code should apply for conversion to residential.

Another question is why R-2 is being applied when it’s 3 stories.

 

[Eliza]

No one likes new construction, especially high density. I think it's important to remind people that somebody had to build the house you're in, and your house made the area more dense too.

Hi Joe, thanks for the reply. Your point is well-taken. I actually like change although, like many people, probably prefer to be the one making the change.

The building in question is an old warehouse built in early 20th C. It’s in a residence A zone in which single family dwellings can be built.

There is almost no buffer between it and the houses on either side of it. 30 units are being proposed in a building that sits on 1.2 acres. Except for minimal front lawn and side lawn, most of the space not occupied by the building is driveway and parking lot.

It’s hard for local residents, including me, to understand how windowless bedrooms can be built, and how 55 cars can be added to our neighborhood. Trying to be open minded.

 

[Eliza]

You said it was an existing building. The building codes can be more complicated for an existing building sometimes and does not have as strict rules as for a new building.. Maybe the bedrooms without windows were already there and they are only doing repairs in them. New plumbing, mechanical and electrical work would not trigger any changes normally. But once they start moving the walls around and move bedrooms the building code will be more restrictive.

Thank you for your reply. It’s a warehouse. No dwellings are in it currently. It’s adaptive reuse of the building.

 

[Mr. Inspector]

In the building code R-2 is apartments no matter how large a building. However zoning may use R-2 which would have a different meaning. Zoning is different in every town and we would have a hard time helping with this.

 

[steveray]

If it is a 3 story warehouse, couldn't they have 55 employees working 3 shifts? With all kinds of truck traffic? But SFDU are worse?

It’s hard for local residents, including me, to understand how windowless bedrooms can be built, and how 55 cars can be added to our neighborhood. Trying to be open minded.

 

[redeyedfly]

Another question is why R-2 is being applied when it’s 3 stories.

R-2 can be 1 story or 100 stories.

 

[ADAguy]

Not liveable units, don't you have a habitability code?