# City dept. trying to enforce federal access codes



## Yikes (Jul 1, 2020)

I have a project in a major California city where their former housing department (as a recipient and distributor of federal funds) was sued for certifying projects as UFAS compliant when they weren't. In response, the successor city agency to that department has now required the building department to route all plans to them for plan check of UFAS, ADA, FHA, etc., and they are developing their own CASp-like interpretations of these regs that in many cases exceed what is written in the codes.  They are doing this even on projects where they are not a funder.

In my opinion, when a city is acting as the Authority Having Jurisdiction on a project whether they have no other stake (finance or ownership, etc.), they can only enforce the codes within their authority.  If the plans demonstrate compliance with the locally adopted Building Code, they cannot withhold permit while they check for non-adopted UFAS, ADA and FHA according to their own interpretations.

I'm looking for the most appropriate code sections that would state this firmly, and I'm coming up with CBC 104.1 and 104.2 which state the building official is authorized to enforce "this code".  I can't find anything that limits their enforcement of codes that are NOT under their jurisdiction.  How do I best state this?


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## cda (Jul 1, 2020)

If the other codes are not adopted, by some manner,,

They cannot be enforced.

Sounds like either go the appeal route and have it settled once and for all,
or
Do an open records request, asking for ordinance / amendments that say the city can enforce this..


Or in the great state of calif, isn"t there a state agency over building codes??? Ask them for an opinion


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## north star (Jul 1, 2020)

*# * # * #*

Yikes,

I agree with ***cda***…….Sounds like an appeal needs to
be filed and pursued  [ *RE:* Section 113 - Limitations On
Authority, Sub-section 113.2, CBC, `19 Edition   ].

*# * # * #*


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## Mark K (Jul 1, 2020)

You will not find such a statement in the building code but if you do a search of appelet court opinions you should find justification for such an opinion.  The building code is not the only source of law that is applicable.

Talk to the City Attorney;

While California has a state building code the state does not provide a lot of oversight for local jurisdictions.  This lack of oversight allows such problems to exist.

I  fear that the only effective way to push back is for your client to sue the city asking for writ of mandamus where they are instructed to only enforce those regulations that are properly adopted.  Notify your client of the implications of such requirements and suggest that they consult with an attorney.

My sense is that while the practices of this jurisdiction is extreme, many of the same problems regularly occur and everybody decides that it is cheaper and faster to accommodate these illegal demands than to  fight it. 

Name the jurisdiction.


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## Yikes (Jul 1, 2020)

I'm not naming the city because sometimes I'm their nemesis, and sometimes I'm their client!


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## cda (Jul 1, 2020)

Yikes said:


> I'm not naming the city because sometimes I'm their nemesis, and sometimes I'm their client!




Dang which side of the fence is funner ?


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## Mark K (Jul 1, 2020)

If people do not confront the abusers it just embolds them to do more.


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## tmurray (Jul 2, 2020)

Definitely an ultra vires, unless they have adopted the exact same standards themselves. 

This is not just a good example of a building inspection department exceeding their authority as Mark K has pointed out, but one may wonder why they are extending their standard of care to laws that they are (presumably) not able to enforce. 

The remedy in my jurisdiction would be relatively simple. You would apply for a permit and receive a formal rejection. You would take this rejection to our provincial planning and assessment appeals board for misapplication of the building by-law. The board would rule in your favour and the building inspection department would be instructed to issue the permit. The interesting thing is that the board rulings are not considered legally binding. So you may still have to go to court to get an order from a judge, but most cases do not end going this route once the AHJ's lawyer gets involved.


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## tmurray (Jul 2, 2020)

Laws typically have who the enforcement body is named in it. You could also ask them to point out where they are empowered to enforce these particular laws.


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## JCraver (Jul 2, 2020)

tmurray said:


> Laws typically have who the enforcement body is named in it. You could also ask them to point out where they are empowered to enforce these particular laws.



Yes, that.  In the charging language of the UFAS, ADA, FHA, etc. those docs say who is to enforce them.  If your City didn't pass an ordinance somehow adopting the language from those standards and giving themselves the ability to enforce, then it's an easy win to say they can't enforce them.


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## mark handler (Jul 2, 2020)

State and local officials do not have the authority to enforce the UFAS, ADA and FHA on behalf of the Federal government. 

The enforcement of state codes is the responsibility of state or local officials – usually through plan reviews and building inspections. 
The UFAS, ADA and FHA relies on the traditional method of civil rights enforcement through litigation in federal courts.


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## e hilton (Jul 2, 2020)

Im on the other side of the permit counter from you, so I don’t understand a lot of the details.  But if the city needs proof that the project is ufas compliant before disbursing funds ... how would you suggest they do that?


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## mark handler (Jul 2, 2020)

e hilton said:


> Im on the other side of the permit counter from you, so I don’t understand a lot of the details.  But if the city needs proof that the project is ufas compliant before disbursing funds ... how would you suggest they do that?


In CA we have licensed "experts"
CASp State certified  "experts".
The CASp program is designed to meet the public's need for experienced, trained, and tested individuals who can inspect buildings and sites for compliance with applicable state and federal construction-related accessibility standards. This program is governed by the Title 21 Voluntary Certified Access Specialist Program Regulations and applies to any individuals who seek certification or do business as a CASp.
https://www.dgs.ca.gov/DSA/Services/Page-Content/Division-of-the-State-Architect-Services-List/CASp


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## VillageInspector (Jul 2, 2020)

Before you go to court, and while I agree you will prevail, you should make sure there is not an local appeals process in place first. I have seen many courts bounce a case out of court for ignoring local appeals process prior to filing with the court system.


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## cda (Jul 2, 2020)

e hilton said:


> Im on the other side of the permit counter from you, so I don’t understand a lot of the details.  But if the city needs proof that the project is ufas compliant before disbursing funds ... how would you suggest they do that?




Let the city figure it out


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## Yikes (Jul 2, 2020)

e hilton said:


> Im on the other side of the permit counter from you, so I don’t understand a lot of the details.  But if the city needs proof that the project is ufas compliant before disbursing funds ... how would you suggest they do that?



On this project, they are not funders.  If they were funders, they would have the right to ask for whatever they want as a condition of accepting their funds.  But they are not funders this time, and yet they are still requiring their housing department accessibility review.


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## mark handler (Jul 2, 2020)

Yikes said:


> On this project, they are not funders.  If they were funders, they would have the right to ask for whatever they want as a condition of accepting their funds.  But they are not funders this time, and yet they are still requiring their housing department accessibility review.


That's fine, every jurisdiction, per CA state law, shall have a CASp on staff or available, as a consultant.


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## Mark K (Jul 2, 2020)

The CASp program is a state program to implement a state law that may parallel Federal Law.  That the Feds may accept the CASp reports is addressed by Federal law.  Still the local jurisdiction can only enforce state laws that they have been authorized to enforce.


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## ADAguy (Jul 2, 2020)

cda said:


> If the other codes are not adopted, by some manner,,
> 
> They cannot be enforced.
> 
> ...



They can choose to meet, or exceed the CBC by amending their code , their choice and many do. If using Fed funding those requirements often exceed local codes. California Building Standards Commission together with the State Architect develops our codes.


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## Yikes (Jul 2, 2020)

I am learning new terms: "ultra vires" pretty much sums it up.


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## ADAguy (Jul 2, 2020)

"ultra ..."? what are you trying to say?


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## cda (Jul 2, 2020)

ADAguy said:


> "ultra ..."? what are you trying to say?




It’s Latin

Or you can go Spanish


otra vez


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## Mark K (Jul 3, 2020)

In California state law severely limits the local modifications to the California Building Code.  This is often ignored by local jurisdictions because there is no enforcement of the law.


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## tmurray (Jul 3, 2020)

e hilton said:


> Im on the other side of the permit counter from you, so I don’t understand a lot of the details.  But if the city needs proof that the project is ufas compliant before disbursing funds ... how would you suggest they do that?


Typically, this is done


ADAguy said:


> "ultra ..."? what are you trying to say?


Ultra vires is a legal term for when you are trying to enforce something (usually a law) that you are not entitled to enforce.


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## e hilton (Jul 3, 2020)

tmurray said:


> Typically, this is done
> 
> .


Don’t leave me hanging ... finish the sentence.  How is it done.


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## mark handler (Jul 3, 2020)

If the city Housing Authority is funding the project, as implied by the first post, they do have the right to impose a requirement that the project meet  Federal guidelines. Just as I, a building official, have been asked by the city to oversee a city project, the building department may have been empowered to oversee this project, by the city. agency.
Can they require it as a building department, no, can they as a lenders rep, yes.

*Don't get me wrong the forum is great But this thread is Just like most post/threads on the forum, we do not have the whole or back stories. Not enough information.

We all make assumptions based on our preconceived ideas, thoughts experiences and fractured memories.*


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## ADAguy (Jul 3, 2020)

tmurray said:


> Typically, this is done
> 
> Ultra vires is a legal term for when you are trying to enforce something (usually a law) that you are not entitled to enforce.



Thank you, first time I have heard it. Similar to "pulling the wool?"


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## Mark K (Jul 4, 2020)

When the requirement is a contractual obligation the City could be compelled to issue a building permit but the City could in  civil court claim a breach of contract.

If the requirement was a condition of planning approval the City could take action based on a violation of the conditions of the approval.  Here again the Building Department would be a passive participant to the dispute.

This is another situation where the building department needs to clearly identify the legal basis for an imposed requirement

When inspectors and jurisdictions do not feel the need to justify the legal authority for their actions you empower rogue individuals and create the conditions  for abuses.  I suggest that such situations also make it easier for corruption to occur.


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## jar546 (Jul 4, 2020)

Mark K said:


> When the requirement is a contractual obligation the City could be compelled to issue a building permit but the City could in  civil court claim a breach of contract.
> 
> If the requirement was a condition of planning approval the City could take action based on a violation of the conditions of the approval.  Here again the Building Department would be a passive participant to the dispute.
> 
> ...



I agree.  One word:  Justification


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## ICE (Jul 5, 2020)

Mark K said:


> When inspectors and jurisdictions do not feel the need to justify the legal authority for their actions you empower rogue individuals and create the conditions for abuses.  I suggest that such situations also make it easier for corruption to occur.



While your lament and woe associated with rogue inspectors must have happened to you, seriously rogue is rare.  Almost every inspector has a supervisor.  Almost every supervisor has a supervisor.

My AHJ might have performed a half million inspections in any given year.  That's just a rough guess.  I suppose that 30% had a bogus correction mixed in with valid stuff.  That's 150,000 bullshite corrections.  Some inspections missed a dozen corrections and some none.  So let's give each one of them one missed correction.  500,000 missed corrections.

In one year:
Well then if we did a half million inspections, another half million were jobs that were never permitted or inspected.  That cuts down on the number of bullshite corrections and the missed corrections has eclipsed one million....probably close to five million.  Remember, there's only about 150 inspectors working here and there's thousands working out there.

In the last twenty years a billion corrections were not written.  So Mark I ask you, Who is getting over on whom?


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## Mark K (Jul 5, 2020)

If we accept the percentages presented above that is too many.  The fact that other violations may not have been identified is irrelevant.

All jurisdictions should recognize this as a problem and should work to minimize the number of improper corrections.  My sense is that this is not the case.  If the problem is due to ignorance then the inspector should be educated.


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## ICE (Jul 5, 2020)

Mark K said:


> If we accept the percentages presented above that is too many.  The fact that other violations may not have been identified is irrelevant.
> 
> All jurisdictions should recognize this as a problem and should work to minimize the number of improper corrections.  My sense is that this is not the case.  If the problem is due to ignorance then the inspector should be educated.


_*
"My sense is that this is not the case."
*_
Nobody is wrong all of the time.


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## e hilton (Jul 5, 2020)

ICE said:


> Nobody is wrong all of the time.


My wife says i am.


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## tmurray (Jul 6, 2020)

I often find when I am discussing what I think might be wrong with a contractor, they jump to get it fixed. I offer to look it up and tell them for sure if something is wrong, but they say don't bother, we will do it either way. Some do this because it improves the construction and they take pride in their work, others because waiting on the answer is going to cost them money and it is cheaper to just do it, rather than wait for me to double check. Either way, it is their decision.


e hilton said:


> Don’t leave me hanging ... finish the sentence.  How is it done.


Sorry, A lot of the time, we rely on RDPs or other certified professionals to attest to something meeting a certain standard or requirement. Quite a while ago, our courts recognized that it would be prohibitive to require skilled professionals in each discipline related to construction, so most smaller municipalities rely on the owner's professionals where they do not employ their own.


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## Yikes (Jul 6, 2020)

ICE said:


> While your lament and woe associated with rogue inspectors must have happened to you, seriously rogue is rare.  Almost every inspector has a supervisor.  Almost every supervisor has a supervisor.



In my particular case, it is not an inspector going "rogue".  It is a city that, when acting as a distributor of federal funds for housing projects, had previously certified to the Feds that those projects met UFAS, when in fact they did not.  The fault lies with the architects, but it's the city that has the deep pockets and got sued.  As a result, they gone overboard in the other direction.  In addition to having the usual CBC 11A/11B plan checks, they now route the plans to their housing department for a CASp to check it for 11A/11B/FHS/UFAS compliance, EVEN ON PROJECTS THAT ARE NOT FEDERALLY FUNDED.
So, first of all, they are not using the right codes/regs.  Secondly, because they have an independent CASp looking at it, the CASp issues their own opinions/interpretations, and the housing department accepts those subjective interpretations as if written in stone.

For example, their CASp is of the opinion that in an accessible dwelling unit, the code ought to require the kitchen range burners to be max 34" high.  This is not true; this is a misapplication of the term "work surface".  Their building department interprets the code correctly.  If the city were a funder on this project, they could request whatever kind of range they wanted as a condition of accepting funds.  But as plan checkers only, they should not be given to subjective interpretations of regulations that are outside their authority to enforce.

So, it is not one individual that has gone rouge.  It is a "once bitten, twice shy" city that has made a series of decisions to protect themselves, and those decisions have taken the process down the wrong path.


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## tmurray (Jul 6, 2020)

Yikes said:


> In my particular case, it is not an inspector going "rogue".  It is a city that, when acting as a distributor of federal funds for housing projects, had previously certified to the Feds that those projects met UFAS, when in fact they did not.  The fault lies with the architects, but it's the city that has the deep pockets and got sued.  As a result, they gone overboard in the other direction.  In addition to having the usual CBC 11A/11B plan checks, they now route the plans to their housing department for a CASp to check it for 11A/11B/FHS/UFAS compliance, EVEN ON PROJECTS THAT ARE NOT FEDERALLY FUNDED.
> So, first of all, they are not using the right codes/regs.  Secondly, because they have an independent CASp looking at it, the CASp issues their own opinions/interpretations, and the housing department accepts those subjective interpretations as if written in stone.
> 
> For example, their CASp is of the opinion that in an accessible dwelling unit, the code ought to require the kitchen range burners to be max 34" high.  This is not true; this is a misapplication of the term "work surface".  Their building department interprets the code correctly.  If the city were a funder on this project, they could request whatever kind of range they wanted as a condition of accepting funds.  But as plan checkers only, they should not be given to subjective interpretations of regulations that are outside their authority to enforce.
> ...


They were sued by not properly exercising their legal responsibilities, so their response is to not properly exercise their legal responsibilities, albeit in the other direction. Got it.


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## ADAguy (Jul 6, 2020)

tmurray said:


> They were sued by not properly exercising their legal responsibilities, so their response is to not properly exercise their legal responsibilities, albeit in the other direction. Got it.



History: the CASp law is for "Voluntary" certification (of ADA experts). It was initially discussed as to this possibly happening. CASps were to observe and report, determinations were for the AHJ's or courts to decide.


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