# How do I "prove" a code requirement doesn't exist?



## Yikes (Oct 1, 2013)

I have a window replacement project on a California apartment building orignally permitted under the 1961 UBC.  In 1961 there was no emergency escape opening requirement for bedrooms (see http://www.washoecounty.us/repository/files/5/washoe_co_window_egress.pdf

 ), and the existing windows are too small/ too high to meet today's requirements.

The building official told me that per CBC 3405.1 it's OK to replace these windows in-kind without enlarging them, IF I can provide him a code reference showing that escape windows were not required in the 1961 UBC/CBC.

How do I prove a code requirement did NOT exist?

Do I get him a copy of the 1961 UBC, and ask him to read it cover-to-cover?  My only access to a copy of the 1961 UBC is in our local library's reference section (I can't borrow it), 40 miles away from the jurisdiction.  The building official said he doesn't have a copy of the 1961 UBC, and he didn't think the city clerk had one either.


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## Coug Dad (Oct 1, 2013)

See if you can find a series of codes and show the building official which edition brought in the requirement.  In the old UBC's you should only have to copy Chapter 12 of each version.


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## Mark K (Oct 1, 2013)

ICC has copies of the old codes they can sell you.

Suggest that the building official has it wrong.  You are innocent unless you can be proven guilty.  Have him show you where it was required.


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## mtlogcabin (Oct 1, 2013)

egress window code [Archive] - The Building Code Forum

This might help


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## mark handler (Oct 2, 2013)

I am not at my office, I will check if they still have a '61 tomorrow


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## ICE (Oct 2, 2013)

I'm pretty sure that we have a copy at the office.  I will check tomorrow.  If we do I can post a picture of the code....if there is a code.


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## mark handler (Oct 2, 2013)

Someone snagged our Copy

But

You can buy it

ICC has 1927 to 1997 Uniform Building Codes

ICBO_UBC


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## cda (Oct 2, 2013)

Coug Dad said:
			
		

> See if you can find a series of codes and show the building official which edition brought in the requirement.  In the old UBC's you should only have to copy Chapter 12 of each version.


very good idea


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## mark handler (Oct 2, 2013)

you might take a gander at this:

replacement windows conforming to egress codes


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## ICE (Oct 2, 2013)

I have found our 1956 and 1962 UBC books and there is no mention of EERO in either book.  And oh what little books they are.


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## cda (Oct 2, 2013)

ICE said:
			
		

> I have found our 1956 and 1962 UBC books and there is no mention of EERO in either book.  And oh what little books they are.


Maybe suggest next code cycle adopt them in their entirety


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## steveray (Oct 2, 2013)

You should see my 1931 NEC!....It's the size of my passport!.....



			
				ICE said:
			
		

> I have found our 1956 and 1962 UBC books and there is no mention of EERO in either book.  And oh what little books they are.


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## Yikes (Oct 2, 2013)

mtlogcabin said:
			
		

> egress window code [Archive] - The Building Code ForumThis might help


Thanks - - that was an interesting read.  To be specific the 1963 aluminum windows were previously retrofitted under permit.  Therefore our newer, more energy efficient windows are replacing the retrofits, and we will not be further decreasing the size of the previous openings.  This is truly a unique situation.


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## Rider Rick (Oct 3, 2013)

I would think the owner would want to update the house, it is real easy to make the bedroom replacement window meet code.


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## ICE (Oct 3, 2013)

Yikes said:
			
		

> Thanks - - that was an interesting read.  To be specific the 1963 aluminum windows were previously retrofitted under permit.  Therefore our newer, more energy efficient windows are replacing the retrofits, and *we will not be further decreasing the size of the previous openings*.  This is truly a unique situation.


We used to do the same but not anymore.  If a window in a bedroom that lacks an EERO is being replaced, there will be a window that meets the requirements of an EERO.

I might add that the "no more restrictive" exemption was a pita.  The old windows are gone so you have no idea what was there.  Retrofits almost always make the opening smaller by several inches.  The argument commences and then you hear, "You will just have to trust me" and, "Are you calling me a liar"?  So often the windows that are being replaced are replacement windows that had no permit and for that matter are in a house that was built before EERO came into the code.

All of the possible arguments and uncertainty go away with the rule that there shall be an EERO if the window is replaced.  It makes so much sense that I am surprised that we did it.


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## MASSDRIVER (Oct 3, 2013)

steveray said:
			
		

> You should see my 1931 NEC!....It's the size of my passport!.....


Section 1, paragraph 1: Just do it right. Now go away.

Brent.


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## steveray (Oct 3, 2013)

Literally...it is 6.25" X 4" X 1/2"...it is awesome...



			
				MASSDRIVER said:
			
		

> Section 1, paragraph 1: Just do it right. Now go away.Brent.


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## Yikes (Oct 16, 2013)

ICE said:
			
		

> All of the possible arguments and uncertainty go away with the rule that there shall be an EERO if the window is replaced.  It makes so much sense that I am surprised that we did it.


Part of the issue is that there are funding programs for not-for-profit affordable housing providers that pay for replacement windows for purposes of energy efficiency.  The amount of money is just enough to cover the cost of the window replacement itself.  It is not enough money to also re-frame / enlarge the opening, re-do the building paper and siding, etc.  So if the original permitted building did not have ANY EERO requirement per code (in my case, that's objectively verifiable), then my client is faced with a choice:

Replace the windows but not enlarge them, because that's all the program will fund, and hey, we saved some energy costs, and we've not increased the danger form a code standpoint;

OR

Don't replace the window.  In that case, nobody gains anything, energy wise or safety wise.

The only other option is to do like we've done in California with URM buildings, smoke and CO detectors: force everybody to do it no matter what.


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## ICE (Oct 16, 2013)

There was a rule from years ago that allowed a window to be replaced with the exact same window that had the same net free opening. That worked for many years but along came retrofit windows.  Retrofit windows, by design, make the net free opening smaller.  Many times the retrofit adds 2.5" bottom, top and sides.  9.999 out of 10 window jobs are retrofit.

I suggest that the free window companies stay out of the bedroom if they can't get it done right.  They could spend more on free refrigerators.  Another thing these outfits get wrong too often is safety glazing.

The same free stuff programs pay for wall furnaces.  I would be more than happy to roll-back the rule on windows if they would quit installing wall furnaces.


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## Mark K (Oct 16, 2013)

Check out California Health and Safety Code Section 17958.5 which seems to say that you can replace the window in a residence with essentially the same window even if it does not comply with the current code.  Since it is in state law the building code is irrelevant.


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## ICE (Oct 16, 2013)

> Well I don't know about that. I figured that what with the building code being state law....that's all I needed to hear.
> 
> How about a copy of that other law. Who is tasked with enforcing that law?


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## conarb (Oct 16, 2013)

Tiger, here it is, more latitude for the Green scammers:



> 17958.5.  Except as provided in Section 17922.6, in adopting theordinances or regulations pursuant to Section 17958, a city or county
> 
> may make those changes or modifications in the requirements
> 
> ...


I don't see that as allowing any size reduction, which almost every retrofit window requires, also how can be replacing a wood window with a vinyl window ever be green given the sea of plastic the size of Texas?  Furthermore, for window replacements to ever make any appreciable difference the coatings have to be engineered for each elevation and U-factors must be below 0.20, most dual pane windows are up at 0.33 to 0.35.

Here are the window specs that I engineered for a home I just built: Triple-Pane w/LoĒ³-366, LoĒ-179, LoĒ-i81, Argon   0.15.  Require something like that for every window replacement permit you get, it is done using LBL's Window 5 program, elevations are done with their Resfen 5.0 program. ¹  Here is Window 6.1²

¹ LBNL Window & Daylighting Software -- RESFEN

² http://windows.lbl.gov/software/window/6/WINDOW6.1-THERM6.1ResearchDoc.pdf


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## Mark K (Oct 17, 2013)

The reference should have been to Section 17958.8.

"17958.8. Local ordinances or regulations governing alterations and repair of existing buildings shall permit the replacement, retention, and extension of original materials and the use of original methods of construction for any building or accessory structure subject to this part, including a hotel, lodginghouse, motel, apartment house, or dwelling, or portions thereof, as long as the portion of the building and structure subject to the replacement, retention, or extension of original materials and the use of original methods of construction complies with the building code provisions governing that portion of the building or accessory structure at the time of construction, and the other rules and regulations of the department or alternative local standards governing that portion at the time of its construction and adopted pursuant to Section 13143.2 and the building or accessory structure does not become or continue to be a substandard building."

There is a difference between regulations and statutes adopted by the legislature.  Building codes are adopted as regulations.  Regulations are subservient to statutes which are adopted by the legislature.  Thus whenever there is a conflict between a building regulation and a statute adopted directly by the legislature the building regulation looses.

While California law gives HCD the authority to adopt building regulations for residential occupancies the when a competing regulation provides specific limits on that authority the specific limits apply.  The fact that a specific statute is not reflected in the adopted regulation does not allow the building official to ignore the statute.  It should be noted that Health and Safety Code Section 17958.8 is referenced in CBC Section 1.8.10.1

California statutes can be found at Code Search


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## conarb (Oct 17, 2013)

17958.8 said:
			
		

> ......regulations governing alterations and repair of existing buildings shall  permit the replacement, retention, and extension of original materials  and the use of original methods of construction....


I'd interpret that as meaning that alterations and repairs can be made as long as the original materials and methods are used, that does not allow retrofit windows to be installed inside of existing frames decreasing egress requirements, even dual pane glass is usually not an original material.


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## Mark K (Oct 17, 2013)

Conarb such literal interpretations would defeat the intention of the statute.  We are supposed to interpret laws to support the intention of the legislature.

I believe that the intention was to protect the owner from being forced to make major upgrades as a result of a repair.  Sometimes this is a good thing and some times it allows existing problems to be continue.  For good or bad the legislature made this decision.


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