PA court strikes down the 2021 ICC accessibility code

[Mr. Inspector]

I am not sure how to inspect and plan review to the accessibility code tomorrow morning​

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PA Commonwealth Court Enjoins Enforcement of 2021 Accessibility Standards​

by PENNBOC Admin | Oct 27, 2022 | Industry News | 0 comments
On October 26, 2022, the PA Commonwealth Court granted an application from the Pennsylvania Builders Association for a declaratory judgement permanently enjoining the enforcement of the 2021 Accessibility provisions. Specifically, the “…Court declares Section 304(a)(3) of the PCCA unconstitutional as violative of article II, section 1 of the Pennsylvania Constitution. Accordingly, the enforcement of Section 304(a)(3) of the PCCA, and the Department’s 2021 Accessibility Regulations promulgated pursuant thereto, is enjoined.”

See the Court’s opinion: 479MD21_10-26-22.pdf (pacourts.us)

As such, effective immediately, you must cease all enforcement of the 2021 accessibility standards. Since the 2018 accessibility standards were in effect before December 25, 2021, and were unchallenged, all structures must still comply with the 2018 accessibility requirements.

Please be advised that the Court’s decision does not affect enforcement of the non-accessibility requirements of the Uniform Construction Code

 

[Mark K]

Ask your city attorney. If he will not respond before your scheduled inspection inspect for both standards so you could render an opinion depending on the response from your attorney. Tell the people at the site that your formal response will be delayed

What would be interesting is to understand what the conflict with your state constitution was. Other state constitutions may have similar language.

Important takeaway is that you cannot adopt a model code that conflicts with state law. What effort is made to assure that the IBC is consistent with your state law?

 

[Msradell]

I have no idea what your state laws are or what portion of the ICC accessibility code what the problem for the court but I'm wondering how this will fit with the federal authorities regarding compliance with the ADA?

 

[tbz]

So a quick skim of the judgement, simply Labor and industry did not provide a clear and object path of adoption that allowed for input and changes to be made, which the states constitution requires, the powers that be just adopted the 2021 code unchanged and without modification, delegating the process to a third party, IE: The ICC. and as thus not a legal path thus kicked.

Or may be something else, but that is the read I see., so 2018 it is till they figure this one out.

 

[Mr. Inspector]

The RAC is a committee that decides what to take out or change when adopting a new code, the 2018 ICC. It has mostly contractors, architects and a couple inspectors in it. Their job is to make the state code as complicated as posable making us use sections for code from different code editions, editing and removing sections and making up some of their own without making a PA code book so no one can be sure what is it the state code really says. The state automatically adopts the latest accessibility sections of the code (ICC 2021, which makes it even more confusing because it is not in the code edition that they are adopting) but the state does not let the RAC make changes to the accessibility sections of the code which pisses the industry off so the sued.

 

[Mark K]

So a quick skim of the judgement, simply Labor and industry did not provide a clear and object path of adoption that allowed for input and changes to be made, which the states constitution requires, the powers that be just adopted the 2021 code unchanged and without modification, delegating the process to a third party, IE: The ICC. and as thus not a legal path thus kicked.

Or may be something else, but that is the read I see., so 2018 it is till they figure this one out.

A basis principle that applies to all states is what is known as the "Non Delegation Doctrine". Only the legislature has the ability to pass laws and they cannot delegate this power to private entities.. Building codes are laws. But if the Legislature has established the basic policy decisions they can delegate the details to another governmental entity. These delegated laws are considered to be regulations. This is the basis of what is administrative law.

In this system the state cannot automatically adopt a set of laws authored by private entity such as ICC that did not exist when the legislature acted. The legislature can adopt a specific version of a model code but it cannot adopt a future version of the same model code. When the adoption of the building code is delegated to a state agency the adoption process must allow for public comment and must allow for modifications. Again the state agency cannot adopt a future version of the model code.

Further constraining the content of the building code is that it cannot conflict with the state constitution and when the regulations are adopted by a state agency or local jurisdiction the regulations must comply with state statutes. For those states with a strong home rule doctrine there are still some limitations on local jurisdictions and in the context of antitrust immunity only the Legislature can provide it.

The key point is that if you adopt a model code without debate and without modifications you are likely at risk.

 

[ADAguy]

A basis principle that applies to all states is what is known as the "Non Delegation Doctrine". Only the legislature has the ability to pass laws and they cannot delegate this power to private entities.. Building codes are laws. But if the Legislature has established the basic policy decisions they can delegate the details to another governmental entity. These delegated laws are considered to be regulations. This is the basis of what is administrative law.

In this system the state cannot automatically adopt a set of laws authored by private entity such as ICC that did not exist when the legislature acted. The legislature can adopt a specific version of a model code but it cannot adopt a future version of the same model code. When the adoption of the building code is delegated to a state agency the adoption process must allow for public comment and must allow for modifications. Again the state agency cannot adopt a future version of the model code.

Further constraining the content of the building code is that it cannot conflict with the state constitution and when the regulations are adopted by a state agency or local jurisdiction the regulations must comply with state statutes. For those states with a strong home rule doctrine there are still some limitations on local jurisdictions and in the context of antitrust immunity only the Legislature can provide it.

The key point is that if you adopt a model code without debate and without modifications you are likely at risk.

Indeed Mark and as noted; ICC is a model, it has not been approved by DOJ as "safe Harbor". The state is obligated to comply with the ADA and at a minimum to modify as necessary their codes to comply with/enforce it ?

 

[Mark K]

My understanding is that the state or local jurisdictions are not required to enforce the ADA but if they decide to adopt regulations addressing ADA requirements then the courts will be likely to assume compliance with the state ADA laws means that they complied with the Federal ADA laws. But this is separate than the concern about improper delegation to a private entity such as ICC

 

[ICE]

My understanding is that the state or local jurisdictions are not required to enforce the ADA

If that is correct, the states should have left ADA enforcement up to the federal government. Let the feds plan check, issue permits and perform inspections. That would have effectively quashed ADA in it’s infancy.

 

[Mr. Inspector]

In this system the state cannot automatically adopt a set of laws authored by private entity such as ICC that did not exist when the legislature acted. The legislature can adopt a specific version of a model code but it cannot adopt a future version of the same model code. When the adoption of the building code is delegated to a state agency the adoption process must allow for public comment and must allow for modifications. Again the state agency cannot adopt a future version of the model code.

interesting. The state has done it the last 3 code editions without this same thing happening. In fact when they adopted the 2015 not only did they adopt the 2018 accessible sections they included some span tables out of the 2018 IRC.

I guess if the adopt sections illegally that the industry likes there is no court case.

 

[Mark K]

interesting. The state has done it the last 3 code editions without this same thing happening. In fact when they adopted the 2015 not only did they adopt the 2018 accessible sections they included some span tables out of the 2018 IRC.

I guess if the adopt sections illegally that the industry likes there is no court case.

If the state adopted the 2018 IBC after it was published that would be legal since it is a specific version, and they were able to know what it said. So the example you said would appear to be legal.

On the other hand they cannot pass a law saying that they adopted a future version of a model code that had not been published. That would not be legal since they would have delegated the writing of the law to a non governmental entity. The legislature cannot adopt a law that they did not know the content of the law.

It is generally preferable for the legislature to delegate the formal adoption of the building code to an administrative agency and to indicate that that agency should base its code on the latest version of the model code. This administrative agency can then make changes to the model code where the model code is in conflict with state law.

 

[tbz]

So Mark, I believe the simple gist is Cart be Horse this time...rather than vise a verse....

 

[ADAguy]

Be thankful you don't have Unrhu in Penn.