# Board of Appeals with unlimited authority?



## Code Neophyte (Mar 28, 2010)

Just curious as to how many of you have a locally-devised building code 'board of appeals' or similar administrative assemblage which is given authority beyond that which is contained in the model code?  Ours, for instance, allows the commission to issue 'variances' without limitation.  Theoretically, this would allow the commission to open the window of the board room and toss the code library out the window and permit whatever design (including multiple code violations) fits their capricious whim that particular day.

For those of you that have such an arrangement:  Any horror stories?


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## Uncle Bob (Mar 28, 2010)

Re: Board of Appeals with unlimited authority?

Fortunately, in this case; the AHJs usually don't read the administrative part of the code before they adopt it, and for example;

2006 IRC, R112.2.1 Limitations of authority states; "The board shall have no authority to waive requiremnts of this code."

Both, the person who appeals the Building Officials decision, and the Building Official; have the right to proceed to court; if they wish to challenge the dicision of the Board of Appeals.

There is nothing I'm aware of that would protect the board; (having been provided with all the facts) were they to overturn a serious code requirement;  and their decision be detrimental to the health and welfare of the occupants or the building; or neighboring buildings and/or persons; in a court of law.

Being made up of citizens; they need to be made aware of the dangers of attempting to override adopted codes.

There, that aught to get the ball rolling.   

Uncle Bob


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## Heaven (Mar 28, 2010)

Re: Board of Appeals with unlimited authority?



			
				Code Neophyte said:
			
		

> Just curious as to how many of you have a locally-devised building code 'board of appeals' or similar administrative assemblage which is given authority beyond that which is contained in the model code?  Ours, for instance, allows the commission to issue 'variances' without limitation.  Theoretically, this would allow the commission to open the window of the board room and toss the code library out the window and permit whatever design (including multiple code violations) fits their capricious whim that particular day.For those of you that have such an arrangement:  Any horror stories?


From where are they given authority?  The authority of a Building Code of Review Board should be in State RSA, unless on the State level there has been an amendment to the code, I can't see how that would work?


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## FM William Burns (Mar 28, 2010)

Re: Board of Appeals with unlimited authority?

Neo,

Had one like that when I first arrived and was my first of only 3 appearances in 16 years now, it went like this......... Existing Mercantile (Tire Store and Storage Occupancy)

Fire code required sprinkler protection in the basement (3500 s.f.) used for rack tire storage with only one MOE which was blocked/reduced by conveyer.  Went to BOA and they said the code does not require the protection in their opinion since it would cost too much.  I went through the entire administrative and educational stuff with 22,000 btu’s per pound and how the fire code’s interpretation was exactly as cited but I guess since they buy their tires there it was just fine for their opinionated risk.

I requested their final action in writing (filed in safe place) and moved on.  It’s much better now with a group who solely assures that the codes are being interpreted and applied correctly.  To date I’m 2 for 3


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## fatboy (Mar 28, 2010)

Re: Board of Appeals with unlimited authority?

Fortunatelly, I have that section in Chapter 1 adopted unamended, so there is no harm, no foul. Plus I actually have a mostly tradesman on my BOA that can apply common sense, and understand the codes the best any of us can.


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## Heaven (Mar 28, 2010)

Re: Board of Appeals with unlimited authority?

I would agree with Uncle Bob "Both, the person who appeals the Building Officials decision, and the Building Official; have the right to proceed to court; if they wish to challenge the dicision of the Board of Appeals.". I would appeal a decision that was other than "interpretive" to the court system.


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## Code Neophyte (Mar 28, 2010)

Re: Board of Appeals with unlimited authority?

Heaven - where I am, we have no state-wide code; municipalities are given home rule authority over building reg.s.  At some point in our history, our adoption of the model code deleted §112 in its entirety, and replaced it with a 'Building Commission'.  The ordinance establishing this commission did not place limits on its authority, and even has provisions for the issuance of 'variances'.  I'm not at all comfortable with it, so my purpose in starting the thread was to find out:  A.) If this is more common than I think it to be, and B.) If I'm overreacting in my 'discomfort' with the arrangement.


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## Heaven (Mar 28, 2010)

Re: Board of Appeals with unlimited authority?

I see . . . you have my sympathy : ). I don't think you are overreacting.

Is the building code which is adopted locally, adopted as part of the Zoning ordinances of your town? Also, as part of the Building Commission regs, is there an avenue for appeal (for either the applicant or the BO)? If the second answer is "no" and the first answer is "yes" , you may still have an avenue for appeal to the courts through the zoning regs, which might take the issue, whatever it might be, away from local (friends/family/political) influence. If it comes to that.


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## Uncle Bob (Mar 28, 2010)

Re: Board of Appeals with unlimited authority?

Code Neo,

When that happens get a copy of the meeting and put in the Department Files (and your personal files) and like FM stated "just move on".  It's hard, I know; but, we do what we can; and cover our butts.

It's not really different than the Building Official telling the Inspector that "he will" allow obvious code violations; unfortunately it happens.

Sorry about your situation,

Uncle Bob


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## jim baird (Mar 29, 2010)

Re: Board of Appeals with unlimited authority?

Here the governing body hears appeals, but their ruling may be appealed to Superior Court.


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## JBI (Mar 29, 2010)

Re: Board of Appeals with unlimited authority?

NYS does have an administrative appeals process that includes (possible) granting of variances. In order to obtain a variance, the applicant must offer 'tradeoffs' so that the building ends up with a comparable level of safety, one of the mandates of the enabling legislation.

I have worked with applicants who upgraded interior finishes, added more exits, limited occupant loads, installed dry hydrants, etc. in order to avoid adding sprinklers in an assembly space. Before you all start going postal, these were typically 'summer camp' operations that have the same kids year after year, a low camper-to-staff ratio, and usually involved the dining room. The attached kitchen was seperated by rated construction (used to be required in all commercial kitchens around here...), and contained all required supression for the cooking equipment. Few of these facilities have municipal water supply.

More recently a homeowner obtained a 'routine' variance (no actual Board of Review meeting) for the safety glazing provisions. The area is around a sunken hot tub in her living room - large windows around +/- 35% of it. She had to add the 3M (or equivalent) film AND a guard attached to the window frames. Better than making her replace all the windows... possibly even safer in the long run.


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## Mule (Mar 29, 2010)

Re: Board of Appeals with unlimited authority?

I agree document and move on. However on the documentation, at the meeting I would make sure that you state what the code requires and that in your opinion you do not agree with blah blah blah. Quote the section of the code and move on.

Our Board is called Zoning Board of Adjustments. They are also the building board and only give interpretations and allow variances to the zoning. Any interpreation or variance can be appealed to district court only and not the city council. It takes the city council out of the political end of it that way.


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## Heaven (Mar 29, 2010)

Re: Board of Appeals with unlimited authority?

I agree with John Drobysh in that there can be many ways to meet the intent of the code with an equal or safer alternative. there might be some arm wrestling over what "equal or safer" entails but an alternative method is alway welcome. Throwing the code out the window is not an alternative.


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## brudgers (Mar 30, 2010)

Re: Board of Appeals with unlimited authority?

Is there really a meaningful difference between allowing the Appeals Board to issue variances and modifying the code legislatively at the local level?


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## JBI (Mar 30, 2010)

Re: Board of Appeals with unlimited authority?

Yes, there is. One addresses a specific case, with unique hardship(s). The other creates an allowance for any and every project, regardless of (potential) hardship(s).


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## Mac (Mar 30, 2010)

Re: Board of Appeals with unlimited authority?

I can attest to JD's experience - maybe it is unique to New York, but the state handling building code related variances truly works well, in my exeprience.

The local Zoning Board of Appeals hears only local-law use and setback-related matters.


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## Big Mac (Mar 30, 2010)

Re: Board of Appeals with unlimited authority?

In our jurisdiction, the board of appeals has been eliminated.  If the design community or property owner community wishes to dispute a decision, their option is to take it directly into the court system


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## Coug Dad (Mar 30, 2010)

Re: Board of Appeals with unlimited authority?

Visualize the person you disagree with most on this board.  Now visualize that person having major control over your professional career.  Pretty scary eh, regardless of which side of the table you sit on. It is unfortunate when there is not a working Board of Appeals.  Who on this board can assert they have never had an initial opinion that they had to re-think?    A properly constituted BoA offers an independent third party set of professionals to rule if an interpretation is correct or if an alternate method of design or construction truly meets the intent of the prescriptive code.  A BoA ruling should not be construed as a win or loss for the Building Official or Fire Marshal.  It is simply the result of a peer review to mediate a differing of opinions between professionals.

As a design professional, my most frustrating experiences are jurisdictions where I am required to meet with a plans examiner to discuss the proposed code alternate.  The plans examiner presents my proposal to the department management group that makes a decision, and no BoA is empanelled.   At least let me make my own case to the group and not rely on what the plans examiner thought he heard.


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## brudgers (Mar 30, 2010)

Re: Board of Appeals with unlimited authority?



			
				John Drobysh said:
			
		

> Yes, there is. One addresses a specific case, with unique hardship(s). The other creates an allowance for any and every project, regardless of (potential) hardship(s).


Neither requires full compliance with the revealed wisdom of the ick.

One way or the other, the code has been modified...if it's easier for a person to live with one but not the other then it's not really about the code.


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## Heaven (Mar 30, 2010)

Re: Board of Appeals with unlimited authority?



			
				brudgers said:
			
		

> John Drobysh said:
> 
> 
> 
> > Yes, there is. One addresses a specific case, with unique hardship(s). The other creates an allowance for any and every project, regardless of (potential) hardship(s).


Neither requires full compliance with the revealed wisdom of the ick.

One way or the other, the code has been modified...if it's easier for a person to live with one but not the other then it's not really about the code.

There is no variance to the minimum safety standards of the code, only opinions and options on how to reach an equal or better safety with an alternate method of compliance. Five educated opinions are welcome.


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## texas transplant (Mar 30, 2010)

Re: Board of Appeals with unlimited authority?



			
				Heaven said:
			
		

> brudgers said:
> 
> 
> 
> ...


There is no variance to the minimum safety standards of the code, only opinions and options on how to reach an equal or better safety with an alternate method of compliance. Five educated opinions are welcome.

Heaven,Thank you.   I struggled for several long minutes how to reply to brudgers statement and you did it well in one sentence.  Its not a variance its an alternative method of compliance.


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