# C of O held over non-building issues



## Code Neophyte (Nov 16, 2009)

Is it common in your jurisdiction to withhold a Certificate of Occupancy due to landscaping not being completed, or some other such local ordinance issue?  I know that the code language (forgive me, I don't have my book with me at present) says something to the effect that "the Building Official shall, after finding that the requirements of this code _and any other ordinances _ enforced by the department....have been met, issue a Certificate of Occupancy".  I am wondering if the "other ordinances" (or whatever the exact language is) clause has been tested legally.  It seems to me that the provision for - and intent of - the C of O is to establish that the _building_ is complete and safe for occupancy.  I can even see a strong argument for requiring the exit discharge to be fully compliant, but when the only issues left undone are landscaping and civil in nature, is it lawful for the AHJ to not issue the C of O?  Is it not a ministerial act?


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## jim baird (Nov 16, 2009)

Re: C of O held over non-building issues

The CO is the only leverage you have with builders/developers who have not completed landscap and other site items, which are technically not "building" issues.


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## jim baird (Nov 16, 2009)

Re: C of O held over non-building issues

I forgot to add, in our local ordinance language zoning rules precede and supercede building issues.


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## jpranch (Nov 16, 2009)

Re: C of O held over non-building issues

Code, We have to deal with the same stuff. There is the political reality and the depatrmential realities to consider.


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## Code Neophyte (Nov 17, 2009)

Re: C of O held over non-building issues

I get it that the C of O is the only convenient "stick" the department has to "encourage" diligent completion of these items, but is it _legal_ to do so, using the model code language alone?

Jim, you indicated that your ordinances contain language that specifically states that zoning supercedes building - that's kind of where I'm going with this.  I believe that if we incorporated similar language, we would be on firmer footing when we encounter these issues.  My concern is this:  Let's assume a mercantile occupancy builds a new structure and has a targeted "open date".  As the date approaches, all building issues are complete, parking is done, accessibility site issues complete, but a few nagging landscaping matters remain incomplete.  The AHJ refuses a C of O - even temporary - on the basis that the sod and a few trees need to be installed.  The code says the Building Official "_shall_" issue a C of O.....not "_may_".  I don't believe it is a discretionary act; if the building is complete, the Building Official _must_ issue.  Might the AHJ have some liability if the mercantile decides to sue over lost revenue, etc., on the basis that all the requirements for the C of O have been met, but the B.O., using a form of coercion to assist other departments, prevents them from enjoying their property?


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## jim baird (Nov 17, 2009)

Re: C of O held over non-building issues

Neo,

Sounds like you are being left alone to bear slings and arrows attacks.  Are there no local officials helping with the circling of the wagons?  You might stand your ground and let the permit holder appeal.


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## cboboggs (Nov 17, 2009)

Re: C of O held over non-building issues

LIke Jim, our zoning ordinances supercede the building code and I don't have to issue a CofO until everything on site is complete or the builder has posted surety that it will be complete.


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## JBI (Nov 17, 2009)

Re: C of O held over non-building issues

Code Neo - I wouldn't say 'common' but... it does happen.

Can't speak for the rest of the country/world but, in NYS the codes and their administration are designed to work hand in hand with local law.

The local law establishing your authority and jurisdiction will determine. The Codes themselves (generally) do not provide the authority to enforce. If you have seperate offices enforcing Zoning (for example), they should either have their own permit and CofO process, or your CofO should be tied to their approval. Either way any requirements - be they Planning/Zoning issues or Building Code issues - must be met prior to CofO. If it is down to some sod and a few trees, a Conditional (or Temporary) CofO might be in order.

Our local Zoning Law contains a provision that where weather prohibits completion of site requirements (can't plant trees in the winter around here), then the CofO can be issued, subject to completion of landscaping (by June).

From the NYSBC, the administrative provisions...

SECTION 107 ADMINISTRATION AND ENFORCEMENT

107.1 Administration and enforcement. Administration and enforcement of the New York State Uniform Fire Prevention and Building Code *shall be in accordance with local law*, subject to the minimum requirements set forth in the "Official Compilation of Codes Rules and Regulations of the State of New York," 19 NYCRR Part 1203, "Minimum Standards for Administration and Enforcement." State agencies shall comply with the minimum requirements set forth in 19 NYCRR Part 1204, "Administration and Enforcement by State Agencies."


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## Builder Bob (Nov 17, 2009)

Re: C of O held over non-building issues

This is not an unusal practice. The Certificate of Occupancy is usually tied into the Zoning COC (certificate of completeness). It is really an zoning issue.....as such, we would print teh Co for the building, but refuse to get it to the contractor.


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## Mac (Nov 17, 2009)

Re: C of O held over non-building issues

It's tough to complete a landscaping plan in the winter.

I'll approve a temporary CO in some instances, pending completion of some non life-safety details.


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## mtlogcabin (Nov 17, 2009)

Re: C of O held over non-building issues

We require a bond or cashiers check for 150% of the cost of the remaining items not finished. As mentioned above some items can not be completed in the winter or during the spring thaw. Will issue a CO with the conditions attached.


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## Gene Boecker (Nov 17, 2009)

Re: C of O held over non-building issues

Technically, its illegal to withhold the C of O for non-code related issues.  It is called malfeasance and the jurisdiction and/or individual can be held liable for doing so.  The building official cannot legally enforce rules that are not in his/her authority unless a law or ordinance is passed to enable that connection.

The issue of landscaping and such is a zoning issues and the zoning officer can and should without the certificate of completion or occupancy/business license if the work is not done.


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## High Desert (Nov 17, 2009)

Re: C of O held over non-building issues

We would give a temporary C.O. if it was only for landscaping. I had a planner tell me one time I couldn't issue a temporary because they put in the wrong shrubs. I told them to wait a second and had my permit tech type it up, and I signed it in front of them and said, "I just did."


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## FM William Burns (Nov 17, 2009)

Re: C of O held over non-building issues

We tend to stay away from "temporary" C of O's since policing becomes tedious and I don’t like getting burned (pardon the pun).  Our BO is on board with that practice also.  Not a building official so when I sign off on C of O and there are other issues not code related, I typically give approval “pending other AHJ approvals” and move on to the next one.


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## texas transplant (Nov 23, 2009)

Re: C of O held over non-building issues

Last juridiction and this one, C of O tied to zoning, landscaping all that stuff.   In order to make     C of O possible for say landscaping in winter or something like that.  Owner or developer put up a bond and signed a development agreement (what we called it) agreeing to comply by a certain date.

If they didn't do it we had the power to enter onto the property and do it for them useing their money.   Only had to draw on one.  After that everybody complied.


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## Code Neophyte (Nov 26, 2009)

Re: C of O held over non-building issues

How is the amount of the bond determined?  If the AHJ performs the work, must it be done at prevailing wage?


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## mtlogcabin (Nov 30, 2009)

Re: C of O held over non-building issues

In our jurisdiction the amount of the bond is 150% of the engineers estimate or contract amount.

Example winter will not allow paving of the parking lot. Paving contractors contract is $100,000.00 to do the work. The owner or General post a  bond or cashiers check for $150,000.00 if not completed by the agreed upon date we call in the bond or cash the check and call the paving contractor to complete the contract.

The building department has never had to call in a bond for a building project. The city has called in bonds for subdivisions not commpleted, landscaping, lighting, sidewalks etc.


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## cboboggs (Nov 30, 2009)

Re: C of O held over non-building issues

Here we require the developer to put up escrow's or letters of credit for the subdivision, based on the engineer's estimated completion cost plus five permit (which is retained for two years following completion). However, the developer is required to post $1000 per lot to insure the completion of final grade and the installation of ground cover. The amount is a low, but so far I have not had to do any of the work.


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## jim baird (Nov 30, 2009)

Re: C of O held over non-building issues

One GA city (Rome) requires a $500 cash bond on residential and $1K on commercial just to ensure permit completion.  Get it back with CO.


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## texas transplant (Nov 30, 2009)

Re: C of O held over non-building issues

For us yes work done by or contracted by the City is prevailing wage.

Amount is like someone above stated.  Take their engineers estimate, review in house to make sure it is at least close.  Then 150% of that amount.


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## pyrguy (Nov 30, 2009)

Re: C of O held over non-building issues

A former jurisdiction I worked at required 150% of the documented remaining work with a minimum of $50,000, residential or commercial. Helped keep down TCO requests.


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