PCCA Bulletin Board

[jar546]

Has anyone had to present a challenged code ruling to an appeals board?

I was asked to sit on an appeals board in my area but we have no cases as of yet.

I was wondering what types of code requirements people were challenging and why since the UCC has taken effect.

I have personally called ICC a few times for an interpretation of a situation and was pretty happy with their explanation.

Does the UCC or PA have an "interpretation" list of some common questions? One of the better, more professional home inspection organizations I belong to has a rotating committee that is in place for interpretation of some of our "standards of practice" and publishes official answers to situational questions to further explain these standards.

Just curious and just a thought.

[homebild]

Jeff,
I, too, have offered to serve on my local Board of Appeals, but I don't even know if they have one yet.

But at a recent Building Code Official's class I posed the question to the about 30 active Code Officials who were in attendance?

1) "How many Code Officials have actually had a decision appealed.?"

Only 2 raised their hands. Both were long standing officials with over 25 years each in their respective jobs

2) "How many appeals have you had?"

The first code official had only 1 in 25 years.
The other had 2 in 25 years.

Both officials noted that the appeals Board upheld their appeals in both cases.

I also posed the question in another code officials class and the results were similar.

Maybe 2-3 for one 25+ years in service master code professional. He lost one on a technicality.

The point it seems, is that while the law requires the Board of Appeals to exist, it will be rare, if ever, a legitimate challenge is offered, and even rareer that a decision by the Board will change a Code Official's ruling.

[jar546]

I think the other problem is who serves on the board. I was the only one with any type of code experience. Everyone else was a layperson in the industry and therefore the decisions are going to be made from a non-technical standpoint, probably with emotion and opinion.

[homebild]

Hi Jeff:

Knowledge of the Code is not a 'requirement' for being on an appeals Board but knowledge or experience in construction is.

Section 403.121 (C)(1) of the UCC sets the requirements for membership:

" A member of the board of appeals shall be qualified by training and experience to pass on matters pertaining to building construction. Training and experience may consist of licensure as an architect or engineer, experience in the construction industry, and training or experience as an inspector or plan reviewer."

http://www.dli.state.pa.us/landi/cwp/view.asp?a=310&q=211697#403.121

Appeals hearing can be granted to hear a variance request, a request for an extension of time, or a technical interpretation by the Code Official of the Code. So not all matters before the Board would require technical expertise in the UCC.

The only things the Appeals Board can deliberate upon in regards to a Code Official's interpretation of the Code are:

-Whether the official interpreted the Cod to its true intent
-Whether the provisions of the Act do or do not apply in that case
-Or whether an equivalent form of construction is being used which satisfies the intent of the Code.

On matter of Variances or Extensions of time, the Board consider's:
-the reasonableness of the application of the UCC
-Whether granting the extension or variance would violate the UCC or create an unsafe condition
-whether specialists are required for compliance
-whether the materials and equipment are available for compliance
-that compliance is being attempted as fast as possible
-whether there be at least an equal protection of life an structure as the UCC

See sections below.


http://www.dli.state.pa.us/landi/cwp/view.asp?a=310&q=211697#403.122

Again, from the 60 or so active officials I posed the question to regarding frequency of appeals, only 3 stated they ever had any and they were extremely few and far between....often decades apart.

Being on an Appeals Board will be about as dull as being a Maytag Repairman it seems....

[bob]

A few things to think about:

1. These Boards of Appeal are a new phenomenon in most of the state....and it would be safe to say that most permit applicants/permit holders don't even know that the option exists.

No code official is under any obligation to tell someone that they have the right to appeal their decision, though it is good professional practice....and a number of solicitors think that the municipalities should be proactive in telling permit holders that the appeal option exists.

2. The appeals process is too long to be "expedient" in most cases. A contractor cannot afford to "not move forward" while awaiting the appeals process to work its way through.

Appeals will probably be seen most of the time when: a permit is denied for a project; someone claims their project to be exempt or excluded from the UCC and the code official does not agree; a contractor regularly does business in a particular jurisdiction, and the same issue will "bite them" every time if they don't attempt to resolve it; some will appeal on the basis of principle.

Then again....some of the appeal application fees are "quite salty" and appear to be intended to strongly discourage appeals. The cost of running the appeals process needs to be covered by the fee....but the fee should not be prohibitive to the ordinary citizen in pursuing their constitutional rights of appeal.

3. The Accessibility Advisory Board meets monthly to consider accessibility-related appeals, requests for additional time to comply with enforcement orders or requests for variances.

The board regularly hears 10+ cases per month, drawing from the entire state, of course.

4. There is no "central reporting station" for appeals filed at the local level. If anyone reading this post has gone through an appeal, please share your experience. It will be beneficial to everyone serving as a BCO.

Some of the appeals I am aware of include the following issues: requiring permits and inspections for renovation of an existing basement; denying a permit exclusion for agricultural buildings; denying an exclusion for a recreational cabin; enforcing the IRC stair geometry requirements instead of the UCC stair geometry requirements; enforcing Chapter 34 of the IBC for change of use and occupancy.

If any of you are aware of other "appeals issues"....please post them!

thanks

[jar546]

Thanks for your reply bob, your input is much appreciated. Very informative.

[Jmcarney]

I sit as the Vice Chair of the appeals Board in York County and we have heard two appeals so far, one in favor of the code official, one against. I also sat on a UBC appeals board in Iowa previously and we heard 5 appeals in 4 years there. Our first appeal was re: an addition and whether it was exempted when the code was instituted in the first place. It was denied on a technicality. The second case regarded whether new home construction met the criteria for unusually tight construction. It was decided in favor of the applicant since inadequate data existed to prove unusually tight construction. We have two or three cases which may be coming to us in the next couple of months. In general, the Board is very knowledgeable and consists of certified BCO's, licensed professionals, and contractors. I have never in my many years on Boards seen a case decided on emotion or sympathy. They were always well discussed and in general, rulings against code officals are only made when absolutely indisputable.

[slinskyj]

[lh_bco]

I was through an appeal in one of the municipalities that I work in and it was really a frustrating process. During a final inspection, it was discovered that the 2nd floor bedroom windows did not meet egress requirements. The approved plan spec'd "egress windows", and the contractor convinced the owner to replace the casement windows with double hung windows which did not meet egress.

I understand that an appeal can be filed only under these grounds:
1. whether the official interpreted the Code to its true intent
2. the provisions of the Act do or do not apply in that case
3. an equivalent form of construction is being used which satisfies the intent of the Code

That being said, I supplied and explained this information to the members of the appeals board. In my opinion, this issue didn't even fall under any of the criteria for appeal and therefore should not even be considered. I made several attempts to explain to the appeals board that this IS a black and white issue. The windows meet or they don't. This board was made up of several contractors, all with at least 15 years experience. The appeal was granted unanimously. My frustration lies in the inexperience of the board with the process and their unwillingness to "rock the boat". How much am I allowed to educate the board before it is considered "coaching". It is NEVER my intention to make things difficult for a home owner, but this is a real safety issue. I'm happy for the homeowner that they didn't have any extra expense due to an incompetent contractor, but I'm disappointed that the appeals allowed a blatant violation of the code.

I have since, spoken with members of the board, as we run into them on job sites and they have asked questions regarding the process. I made an effort to further educate them and make them understand the process.

[Not Bob]

The State says that an appeals board shall consider the written opinion of ICC when deciding a case. This should help but if the board is unqualified they may not understand that ICC is the ultimate expert on the code they wrote.
§403.121 requires members of appeal boards to be qualified. Is the municipality required to produce evidence of their qualifications? What is my recourse if the board members are not qualified?