City of Lawrence

Building Code Board of Appeals

November 30^th  , 2006 minutes

MEMBERS PRESENT:	Lee Queen - Chairperson, Mark Stogsdill, Janet Smalter
MEMBERS ABSENT:
STAFF  PRESENT:	Barry Walthall – Code Enforcement Manager, Victor Torres – Neighborhood Resources Director
Guess Present :	Paul Werner,  Werner Architects, Billy Green K& G Construction
Ex-Officio	Adrian Jones

Meeting called to order 11: 44

Here Appeal 1742 Lake Alvamar Drive. K&G Construction

Barry Walthall delivered a staff presentation. Walthall noted the single family structure in question is currently under construction. The rough-in inspections have been approved. To date there have been no requests for final inspections.  Walthall stated the reason for the appeal is the rear exits of the structure located at 1742 Lake Alvamar do not have landings as required by the Building Code. The Code sections are 1003.3.1.6 and 1003.3.1.7.  Walthall went over in detail the provisions of this section. He indicated that a 3X3 landing is required on exterior doors.  The structure had steps, which is a violation of the Code.

Queen asked how many exits were on the rear of the structure and how many were not in compliance.

Green answered there were two doors that were in question. Two rear doors did comply and two patio doors did not.

Walthall pointed out that on May 26, 2006 the Building Safety Division (BSD) sent a mailing to all licensed contractors that specifically addressed this issue. Both the framing and concrete contractors were on the mailing list.

BSD met with the framing contractor at the site on November 28^th to review the installation and notified contractor the stairs would have to be brought into compliance. At that point to the contractor decided to make an appeal to the Board. Walthall stated that there were two issues that would most likely be points of an appeal.  The BSD did issue a permit which shows the steps as currently configured.  The plans show the steps on the rear exits.  Walthall noted that section 106.4.3 of the 1997 Uniform Building Code states that   “Permits issued based on plans shall not prevent the building official from correcting errors in said plans”.  It gets to the point the plans were approved and the building was constructed according to the plans but the plans were in error and the code allows the building official to correct that error after the fact.

The second item would be the possibility of the steps conforming with codes that may be adopted in the future.  The City of Lawrence has not adopted the 2006 International Residential Code. That Code would allow this installation in certain circumstances. The point is the IRC has not been adopted to this point and staff doesn’t know for certainty that it will be adopted.  BSD has to work within the parameters of the Code that is currently adopted by the City.

Walthall also directed the attention of the Board to City Code section 5-104.3(d) Authority of the Board.  “The Board shall interpret the provision of this Code to cover a special case, if it appears that the provisions of this code do not definitely cover the point raised or that a manifest injustice might be done; that every such decision shall be by the concurring vote by three members of the board”.  Walthall stated that “manifest injustice” is an obvious wrong as defined in the dictionary.  BSD would assert that this is not a manifest injustice.  BSD has made an effort to alert contractors to these types of violations.  BSD notified the contractor as soon as it became aware of a problem with the stairs.  The Code is very specific as to what is allowed. The Code does not allow an exterior door to open onto steps.

Paul Werner thanked the Board for meeting so quickly.  He noted that there were too many codes and too many exceptions.  Werner said that he would certainly agree that the City is under the 1997 UBC.  Werner said there would be exception in the IRC.  He believes that the main issue is safety.  The door does not swing over the steps and this is not an exit.  The owners are ecstatic over the stairs. They love them.  Granted the City is not under the IRC.  The IRC proves the point the safety issue is not really there.  That is the real concern with the landings.  That point is relevant.  Under another code this would be allowed.  If this were an exit we would have looked at it differently when we were designing it.  He thinks the Board has the ability to grant a special exception.  He does not feel that the board should be concerned this will be an issue that will come up with five more builders.  It’s 2 or 3 risers, it’s not on an exit, it’s on a slider and there are plenty other exits out of the house.  If this was the front door this would not be an issue.  He would hate to go back to the owner and tell them they have to change this. With only 2 or 3 risers this is no big deal.

Green stated that with the grade they were trying to maintain the riser at 7” height.

The two main exits are swing doors that enter into this space and enter into the main part of the house.

Stogsdill asked if the swing doors have code compliant landings.

Green replied they did.  Another reason for the configuration was for drainage.

Smalter asked what the transition height was into the house.

Green replied 1 ½ inches.

Queen asked if it was Green’s contention that the door in question was not an exit door.

Green replied yes. The two main swing doors served as exit doors.

Queen asked Walthall about the exception that would allow this in the IRC.

Walthall noted Section R311.4.3 Exception 1. Two or fewer risers.

Queen noted that there were three risers.

Walthall said that staff was examining the 2003 IRC earlier which stated doors that were not exit doors did not have to meet the requirement of the code.  But it seems that in the 2006 version that language has been changed so the current configuration would not meet the 2006 IRC requirements for landings.

Werner reiterated there were too many Codes and too many exceptions.

Smalter asked if the landing requirement was required for interior garage doors under the current UBC.

Walthall replied that currently stairs inside the garage are considered interior stairs under the 1997 UBC and therefore would not require a landing as long as the door did not swing over the stairs.

Queen said that he had that same discussion with Jones once when he asked if a landing is required on a front door why is not required on a garage.

Stogsdill noted the garage door is specifically addressed in the 2006 IRC.  In fact interior garage doors were addressed in the Significant Changes in the IRC booklet provided by staff.  

The Board reviewed the change booklet.

Smalter stated the allowance for interior garage doors conflicted with the requirement for a landing on every exterior door because the interior garage door is used much more frequently than a door of the type in question.

Werner stated that’s why he goes back to the uniqueness of this situation.  He knows because he was once on the Building Board.  The Board is concerned that a decision would set a precedent and a string of builders would follow requesting allowances.

Green stated the owner wanted the house door and the garage door to be on the same level.  Most owners would not request this because of the cost involved.

Werner stated that in examining the codes it appears that 4 risers is when the safety factor kicks in as far as requiring handrails and guardrails depending on which code you’re under. That’s why 2 or 3 risers is no big deal.

Walthall noted that this installation is going to be there longer than the lifetime of the original ownership.  It needs to be understood that the decision of the Board will be in effect for the life of the structure.

Stogsdill stated that one thing he sees that is consistent between the 2003 and 2006 IRC is that the exception only applies to 2 or fewer risers.  The current structure has three risers. This is the second appeal that the Board has heard in recent times concerning stairs and landings.  He would contend that this would be a really big precedent and would probably be heard more and more. This seems to be one of those things where past practices have not been code compliant.

Queen said that he agrees with Stogsdill that there are too many risers. Queen said that the argument that he would be more inclined to listen to would be that this is not an exit.  Prove that to me. Queen said to him that is the only argument left.

Werner said the two walk doors would be the required exits, not the two patio doors in question.  Typically in residential construction egress paths are not determined.  That gets to the point of allowing exceptions.  The interior garage door which is used all of the time is allowed an exception under this rule.  He feels that safety is the concern and in an emergency the occupants would not choose the patio doors.

Jones said that it was his understanding that in the 2003 IRC only the required exits had to comply.

Stogsdill replied that his reading of the 2003 IRC is that it retains the exception for 2 or fewer risers.

Smalter noted that there were three doors providing access to the rear area and two of them were non-compliant.

Werner admitted that they missed it and they were working on it considering all the Codes going through our head at the time.

Stogsdill stated that he was confused why they were still discussing exits because the 2003 and 2006 says that more than 2 risers need a landing.  Whether this is an exit or not it’s an exterior door.  Today is a perfect example when it’s all iced up.  It’s a pretty quick run as opposed to having a landing at the door.  He’s not sure if that is the reason why it’s in the Code or not.   If it was in the 1997 Code and it was reiterated in the 2003 and 2006 Code there must have been a good reason for it.  He doesn’t know why the Board should come in and second guess the Code and say another number is better.

Queen said that he would be more inclined to side with the contractors if the 2006 IRC did allow it because in 5 or 6 months the City will be on the new code.  He noted that if there was a manifest injustice he would stick to his guns, but he is not seeing one here.

He keeps looking for an out for the contractor but he does not see one that the Board can legally do.

Smalter asked why is the reason the Board was called to hear the appeal if that is the answer.  If that was the answer then they should not have had to come to the Board of Appeals to ask the question.

Stogsdill replied that it was the right of the contractor to appeal a decision of the inspector.

Queen said that up to five minutes ago he thought that there may have been an exception in the 2006 Code that would have allowed the stair.  In fact they specifically changed it to eliminate the exception.  He said that he understands because he has been in their shoes. 

Stogsdill stated that there needs to a landing.

Queen said that the Board was locked in if the Code specifically addresses the issue and there is no manifest injustice.

Werner replied that the Board has the authority to grant a variance if there is reason.  He clearly understands what Stogsdill has said.  The Code gets more stringent every time they write it.  If it were an exit he would not have even appealed to the Board.  When it’s unique enough that would be a time when the Board can look at an issue.  On a day like today the owners would not even use the door.

Queen stated that he begs to differ a bit on Walthall’s definition of manifest injustice.

Torres replied that staff looked it up in the dictionary.

Queen stated that Walthall’s definition was that Building Safety made an obvious wrong. He feels that if there is an obvious wrong.  If the Board granted an appeal based on a manifest injustice there would be no blame on Building Safety.  It would be based on the fact that there is an obvious wrong which may not be anyone’s fault, and why should these people suffer.  It’s more about semantics.

Werner stated that anything can be changed.

Stogsdill said that if the Board did grant this appeal it would have to change the Code to do so because it is not currently written in the Code that way.  We have to look at the fact that many people will be looking at the fact that a patio door will be their primary door.  He can see this happening on back doors of all kinds of houses.  If the Board allowed three risers then everybody and their brother would start doing it that way. Where do you draw the line?

Werner said that he would disagree in that this is not your average sunroom off the back of a house because this house has so many other exits to the rear.  The rewrite would be that there has to be one compliant exit to the rear. 

Stogsdill said that the code is pretty clear, two or fewer risers unless the Board has to go back and rewrite the code book.

Smalter said that she doesn’t feel it would be necessary to rewrite the code book. A decision on this issue would not mean a change to the Code.

Stogsdill said he was unclear on the issue. How does the board grant a variance?  He remembers when the Board heard an appeal on natural light.  The code was amended to allow artificial light.

Werner said he is not asking to amend the Code.

Stogsdill said it goes back to the authority of the Board. Does the Board have the authority to go against what the code says?

Queen said that he could argue that in some cases the landing may be more dangerous because you know that there is a change in elevation with the stairs.  If you’re a girl scout selling cookies you’re standing on the landing then take two steps back then you’re in trouble, as opposed to standing on that step and knowing you’re on that step.

He agreed with the contractor about the safety issue, the book says one thing and he’s doesn’t think the Board can change it.

Walthall stated that what it comes down to is that the Board can allow an alternative design which meets the intent of the Code.  What the Board cannot do is grant a variance to the Code that does not meet the intent of the Code.  If the Board wants to change the Code then it would have to initiate a recommendation to the City Commission to change the Code.  The one thing that none of us have the ability to do is to waive a code requirement or to allow something that does not meet the intent of the code.

Werner stated that if the Board made a decision to grant the appeal it should base it on the facts that this is not an exit, there are other exits, the doors does not swing over the steps, this is not a safety issue and this is a unique situation.

Green added that in one code it’s allowed in another it’s not allowed.

Walthall stated that those other codes are not relevant because the City is only under one Code.

Queen replied that those Codes would be very relevant to him if they were allowed this installation.

Smalter asked what the height of the risers were.

Green replied 71/2”

Stogsdill asked what was the grid size of the concrete.

Green replied 4’ by 4’.

Queen asked if the contractor had thought about an alternative.

Green replied that they had not thought of an alternative at this point.

Smalter said that she would make a motion to approve the stairs but she did not see a second.

Queen said that he does not see a manifest injustice and he did not think that the Board could change the Code. Queen added that if he saw an injustice he would not quit fighting for the contractor.  It makes him sick to tear out something that probably is perfectly fine and perfectly safe and well constructed.  Just a waste of time and money especially for someone who has been a good citizen of this community.  Queen asked what was the Boards next action.

Walthall stated that the Board could table it and meet again if the Board thinks there is some research that may have a bearing on the case. The way he sees it the Board can make a motion to approve, disapprove or table it to another meeting.

Werner asked Walthall if the Board had the authority to grant a variance.

Jones stated that he thought the process was the inspector or Building Safety made a decision in the field. The contractor makes an appeal to the board to overturn that decision based on whether it was the correct interpretation of the Code. He does not believe the board can waive the code requirement.  The ordinance allows the Board to grant an appeal based on a manifest injustice. So the choices are was the interpretation correct or is it a manifest injustice.

Walthall agreed. The appeal is of the decision that was made out in the field, either uphold or cast it aside.

Stogsdill said that he would agree with staff’s interpretation of the Code.

Werner said that he would also agree with staffs interpretation if that helps.

Queen said that it make him sad he does not feel that there will be any one hurt from the stairs.

Stogsdill stated that this is not something that this contractor alone has come across and had issue with because this has happened to a bunch of people and will happen in the future.  He commends staff for writing a letter to the contractors to attempt to bring this to their attention.  We all need education from time to time.

Werner said that they could agree that the correct call was made and let his staff look at it and see if there was some solution. He appreciates Building Safety staff and the Board arranging the hearing so quickly.

Queen stated that if he had to vote it would be to deny the appeal. Not because he wanted to but because it was what was required.

Stogsdill asked if the contractor wanted to work out a solution with staff.  If it was two risers he would argue to try to pull it into the 2006, because that would be along the timeframe that it would be adopted.

Queen agreed.

Smalter asked how could the Board make an argument for two or few risers because it still goes against the spirit of the code.

Queen said that he would argue that would be a manifest injustice to make these guys change this when in six months from now it would be legal.  But since it’s not in the 2006 he can’t make that argument and he wishes he could.  He would make a motion that we table this and let the contractor work it out with staff.

Stogsdill asked if it were necessary for the Board to table this. 

Walthall stated that what he is hearing is that the Board is basically denying the appeal and asking the Contractor to come up with an alternate design that would meet the spirit of the Code.  If that design is out there and staff can approve it we’re done.  If it’s not out there and staff cannot approve it the it comes back to the Board.

Werner says that he does not see it coming back before the Board.

Stogsdill said that if the contractor could get it down to two risers he would be interested in looking at it again if staff could not approve it.

Walthall stated that staff could not approve such a design.

Smalter said that the contractor and architect came here to have a decision rendered.

Stogsdill made a motion to uphold the decision made in the field. Seconded by Queen.

Motion passed 2-1.

Stogsdill said that he believes it needs three votes. Stogsdill noted the ordinance  require three concurrent votes.

Queen said that in effect means that the issue is tabled until there are adequate votes to approve or deny the appeal.

Werner asked how long would it take to schedule another meeting.

Smalter said that she would not recommend coming back with the same configuration.

Progress on Adoption of the 2006 International Residential and International Energy Code

Stogsdill asked what the progress was on the Code adoption.

Torres replied that the Fire Code Board has forwarded a memo to the Commission that it intends to adopt the 2006 IFC with all references to International Codes intact. They assume that International Codes will be adopted and they want to move ahead.

Smalter said that she approved of that course of action and suggested that the Building board do exactly the same.

Stogsdill agreed and suggested that someone make a motion to do so.  He asked where the Board was on the Energy Code.

Jones responded there was a question on mechanical system pipe insulation and the definition of a mechanical system.

Queen said that he just wanted to be sure about insulation and whether or not it required all hot water piping to be insulated.

Jones said he researched the issue and so far it seems to indicate that the definition of mechanical system piping referred to process water piping, not potable water lines, other than recirculation lines.  The other issues are anchor bolt spacing for concrete foundation walls with unbalanced fill and increased fire separation distance.  It has come to his attention that the fire separation distance for R-3 has increased from 3 feet to 5 feet.  That change in the code would required any projections into that 5 foot fire separation distance from the property line to be rated for 1 hr construction.  That would include your typical projections such as fireplaces.  Those two issues need to addressed or at least discussed.   

Queen stated that he wanted to finish up the energy code at the next meting and proceed to the IRC and resolve the two issues that Jones just pointed out. 

Jones stated that he will work extra hard to have a draft of the Energy ordinance and the IRC ordinance for review at the next meeting.

Queen said that in the Energy Code the Board has agreed to a trade off for the 90% furnace for the slab edge insulation, and 50% insulation covering R-6 Flexible air duct.

Queen asked what other amendments had the Board discussed.   

Jones replied that in his draft of the 2003 Energy Code there was an amendment to accept Home Energy Rating System (HERS) as a method of compliance.  That method of compliance has been written into the 2006 Energy code. The code will have to be amended to require a minimum score.

Queen said that HERS and Recheck are still ok or use the prescriptive method.

Torres asked if the Board has looked at the flat rate fee proposal. The Boards have proposed a flat rate fee for mechanical installations. The other Boards have looked at the proposal and staff would like the Building Code Board’s input.

Torres stated that the idea behind the proposal is that the current fee is based on valuation of the project. While it may be a more expensive system the inspection process and time is the same for a less expensive system. There is no justification for a higher fee.

Queen said that makes sense.

Walthall said the processing time for the permit is the same.

Torres thanks the Board for it’s time.  He was interested in the Boards vote because he felt it might set a precedent and it was his feeling that his staff made the right call. 

Meeting Adjourned