New Residential Code
Takes Effect May 27 -
Is Your Municipality Prepared?
By: E. Rod Davisson
Reprinted from April 2006 ohioconstructionlaw.com
What Happens Next Month
BBS, RCAC, CBO, RCO. A riddle wrapped in a mystery inside an enigma? Not quite. These are a sampling of the smorgasbord of acronyms one can find related to Ohio building codes.
Beginning on May 27, 2006, local building departments will face Hobson’s latest choice—enforce the statewide residential building code or
none at all. Home Rule arguments aside, how may a municipality that wants to enforce the new residential code accomplish that goal?
The new residential building code takes effect May 27, 2006, and the Board of Building Standards must certify the municipality
before May 27, 2007 to enforce the new residential code (including those currently certified for commercial construction and with some exceptions).
The municipality must use the state-adopted residential code.
The municipality must employ personnel certified by the state.
The municipality must collect and pay 1% of its plan review and inspection fees to the state. (Estimated to earn the state $397,029 in addition to the $1,192,281 it typically collects from the 3% surcharge on non-residential buildings.)
A little background and some important details follow.
BBS Makes—and May Change—the Rules
The Board of Building Standards establishes the rules for building construction in Ohio. (See RC §§ 781 and 3791.) The Board separates those rules into residential and nonresidential codes. For the most part, where conflicts exist with the rules of other agencies, BBS rules supersede those of the Division of Industrial Compliance, the Division of the Fire Marshal, the Department of Health, and of counties and townships.
Many municipalities are familiar with the BBS and its Ohio Building Code (OBC). The OBC is the governing nonresidential code in Ohio. Through it, the BBS establishes minimum standards and requirements aimed at making non-residential structures safe and sanitary. Until this recent law, BBS guidance on single-, two-, and three-family dwellings (which I will refer to as “residential housing”) was not controlling. Municipalities were free to establish and enforce their own residential codes. Those days will end May 27, 2006.
RCAC Advises the BBS
The new legislation revived the formerly disbanded (2003) Residential Construction Advisory Commission, the “RCAC.” The RCAC operates under the umbrella of the Ohio Department of Commerce, and the law tasks it with recommending a residential building code and providing continuing advice to the BBS. The RCAC is formed and consists of three general contractors, two building officials, one appointee from the Ohio Fire Chief’s Association, one residential contractor, and one registered architect. Each must have certain residential construction experience. The RCAC will recommend the new residential code for the BBS to adopt. If the BBS disagrees with any section, it will return that section to the RCAC for further consideration. Eventually, the two must reach a consensus, and the BBS will then adopt the new code.
The Board’s Agent for Local Enforcement
The BBS may certify a local building department to act as its agent in enforcing both the residential and nonresidential building codes. This “Certified Building Department” is contained within a county, township, or municipal corporation. But that Department may only enforce the codes that it is certified by the BBS to enforce—residential, nonresidential, or both.
Thus, any local building department that wants to continue enforcing residential housing codes must be certified by the BBS and use the
state-adopted “Residential Code of Ohio for One-, Two-, and Three-Family Dwellings” (called the “RCO”). This certification is in addition to already existing certifications to enforce the nonresidential code.
The Certified Building Official
In addition to certifying the building department, the BBS also certifies its key personnel. The municipality must employ or contract with someone certified as a building official and designated as responsible for the overall administration of a building department and enforcement of the rules of the BBS. The building official has the authority to render interpretations of the Code and to adopt policies and procedures to clarify the application of its provisions. Such interpretations, policies, and procedures must comply with the intent and purpose of the Code.
Getting Certified—Where to Go
If your municipality has determined that it wants to enforce the new RCO, it must be certified by the BBS. The BBS has the
application forms available on its website.
The following forms are either required or helpful in gaining the certification and managing the certified department requirements:
How Residential Compares to Non-Residential
Under the OBC, an owner desiring to build a nonresidential building must first submit the plans to the Department Having Jurisdiction (another acronym, “DHJ”)—a certified municipal, county, or township department, if it exists, or to the Superintendent of the Division of Industrial Compliance, if not. Construction may not begin until the building department approves the plans. The OBC prescribes minimum standards for nonresidential buildings and allows for alternative construction methods that meet the performance standards.
That rule is not the same under the RCO. Local residential standards must mirror the state standard, but statewide
enforcement is not mandatory. If there is no local building authority, or the local authority has chosen not to become a certified residential
department, then a potential homebuilder is not required to have the plans approved by anyone at all.
Further, the new law does not compel municipalities to enforce the RCO. While a municipality still has the option to contract with another governing body to enforce the RCO in its jurisdiction, it could also elect not to enforce a residential code at all. This oddity may prove troublesome for a law touted as an “issue of statewide concern” if the law is challenged on the basis that it violates a municipality’s Home Rule power.
Finally, under the OBC, a municipality was allowed to adopt laws that did not conflict with those espoused in the code. That freedom has been culled down by the new Code. A municipality may not adopt laws that differ from the new RCO unless their subject matter is not addressed by the state code or a specified “conflict” procedure is followed.
The conflict procedure lays out the process to follow when a municipality wants a local residential building regulation that varies from the RCO. The municipality must notify the BBS of the potentially conflicting regulation, and the BBS will confer with the RCAC to determine whether there is a conflict with the RCO within 60 days of the request. What can the BBS do then?
Do nothing if it does not find a conflict.
If the BBS finds a conflict but the regulation is necessary to protect health or safety, then the BBS must adopt a rule to incorporate the regulation into the state code. The BBS must grant the municipality a variance until the regulation can be adopted by the BBS into the state code.
A regulation that conflicts and does not protect safety or health is not valid or enforceable.
Making the Transition
For those municipalities that desire to become certified to enforce the new RCO, there is some good news. Certain building departments that are already enforcing a residential code may begin enforcing the state code on May 27, 2006. However, they have one year to gain BBS certification. Not currently enforcing a residential code but think you might want to do so now? Check out those application forms on the BBS website and get started now!
