Design Professional's Practice Bulletin

Volume 8, Number 1 — April 2004
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This Bulletin addresses recent developments affecting Design Professionals as well as business concerns as important as the specific professional and technical issues they face.

Editors: Richard J. Davies, Esquire and Neil P. Clain, Jr., Esquire

The Pennsylvania Uniform Construction Code… It’s Here

By Richard J. Davies, Esquire

On January 10, 2004, approximately three years after the Commonwealth’s enactment of the Pennsylvania Construction Code Act, 35 P.S. §§7210.101 – 7210.1103 (1999) (the “Act”), the Department of Labor and Industry (the “Department”) issued the UCC Administration and Enforcement Regulation (the “AE regulation”), triggering implementation of the remainder of the Act which mandates the administration and enforcement of a uniform construction code (the “UCC”) for the entire Commonwealth. The AE regulation takes effect April 9, 2004, and details the administration and enforcement of the Act. This regulation follows an earlier regulation establishing the requirements for training and certification of the code officials who are to enforce the UCC. That earlier regulation (the “Training regulation”) was approved April 2002 and became effective July 12, 2002. Both regulations can be found at the Department’s website, www.dli.state.pa.us, by clicking the quick link titled “Building Code,” and are combined in the Pennsylvania Code, 34 Pa. Code §§401.1 – 403.142. The Act can be found by clicking the quick link on the left entitled “Laws & Regulations”; it is listed alphabetically as the “Uniform Construction Code.” It can also be found under the “Building Code”quick link on the right.

The UCC applies to the construction, alteration, and repair of every building within the Commonwealth which occurs on or after April 9, 2004, and all existing structures not legally occupied, subject to certain exclusions. 34 Pa. Code §403.1(a); 35 P.S. §7210.104.

For your assistance, we provide a general outline of the Act and regulations, with a focus on some of the more notable provisions.

INTENT AND PURPOSE

There are a number of municipalities in the Commonwealth which have no building codes, and in some regions a multiplicity of codes exist which differ from one another. These findings by the Legislature, as well as a perceived need to provide for uniformity, standardization, economy in construction, and modern construction standards led to the adoption of the Act. 35 P.S. §7210.102.

APPLICATION

The Act applies to the construction, alteration and repair and occupancy of all buildings in Pennsylvania, subject to certain exclusions. Specifically, the UCC does not apply to: (1) new buildings, or renovations to existing buildings, for which an application for permit was made to the Department or a municipality before April 9, 2004; or (2) to new buildings, or renovations to existing buildings, on which a contract for design or construction was signed before that date. 34 Pa. Code §403.1(b); 35 P.S. §7210.104. Such projects must conform to the construction requirements of the Commonwealth’s Fire and Panic Act and regulations thereunder, and municipal code requirements where applicable. 34 Pa. Code §403.101; www.dli.state.pa.us. However, permits issued prior to April 9, 2004, become invalid if construction is not commenced within two years of permit issuance, or a time specified by municipal ordinance, whichever is less. In that case, the permit holder must obtain a new permit and the UCC will apply. 34 Pa. Code §403.1(c). Further, the UCC does not apply to certain accessory structures for one-family dwellings that are less than 500 square feet (e.g., carports, detached private garages, sheds, and greenhouses). Finally, the UCC does not apply to manufactured or industrialized housing shipped from the factory under Section 901(a) of the Act. 34 Pa. Code §403.1(b).

The Act accommodates the religious beliefs of applicants for a construction permit who seek to be exempted from the electrical provisions of the code if those individuals file an affidavit setting forth the basis for their claim. 35 P.S. §7210.901; 34 Pa. Code §403.1(e).

As to historic structures and sites, the provisions of the UCC do not apply to an existing building, or a new building not intended for residential use on an historic site, if it is identified by federal, state or local governmental authorities as an historic building or site, and it is judged by the relevant code official to be safe and in the interest of public health, safety and welfare. 35 P.S. §7210.902.

There are other exceptions and exclusions within the Act and regulations; to fully appreciate them, you must review them.

THE NEW CODE

The AE regulations adopt chapters 2 through 29, and 31 through 35, of the International Building Code, the International Residence Code, and approximately eight other ICC codes, including the ICC Electrical Code, the International Fire Code and the International Existing Building Code. 34 Pa. Code §403.21. (Due to the length of time between passage of the Act, and the Department’s issuance of regulations to enforce it, the titles of the various codes adopted as the UCC under the AE regulations are somewhat different from those referenced in the Act.) According to the Department’s Website it has made only minor changes in these codes.

The regulation implementing these codes shall supercede and preempt all local building codes regulating any aspect of the construction, alteration and repair of buildings adopted or enforced by any municipality. 35 P.S. §7210.301(d). Further, the provisions of the UCC shall preempt and rescind the construction standards provided by any statute, local ordinance or regulation, except for ordinances in effect on July 1, 1999, or reenactments of simultaneously repealed ordinances which were originally adopted before July 1, 1999, which contain provisions which meet or exceed the UCC. 34 Pa. Code §403.2; 35 P.S. §§7210.104(d)(1) and 7210.303(b).

ACCESSIBLE DESIGN

Included within the International Building Code are requirements for accessible design. Though the Act repeals the Universal Accessibility Act (the “UAA”), 71 Pa. C.S.A. §§1455.1 – 1455.36 (1965) (amended 1988), it carries on many of its requirements. First, it creates an Accessibility Advisory Board which is to review all proposed regulations under the Act and provide advice to the Secretary of the Department regarding accessible design. Additionally, the board is empowered to review all applications from individual projects seeking modifications of the accessibility provisions of the UCC. 35 P.S. §7210.106.

The Act requires that the regulation promulgated to enforce the accessibility requirements of the code provide for a system of periodic compliance reviews conducted by the Department to ensure that code administrators are adequately administering and enforcing the accessibility requirements. 35 P.S. §7210.301. Like the UAA, the Act provides a private right of action arising out of complaints regarding enforcement of the accessibility requirements. 35 P.S. §7210.501(f). Written complaints must be reviewed by the code enforcement body within 60 days of their receipt. The enforcement body must investigate the complaint and issue its findings within 120 days of the complaint. If it fails to do so, or if the complainant receives a response from the enforcement body indicating a violation exists but enforcement measures are not contemplated, the complainant can bring a civil action against the enforcement body for its failure to enforce the accessibility provisions, or against the building owner or its agent for violation of those accessibility requirements. The Act, like the UAA, provide a safe harbor provision for design professionals:

An architect or licensed design professional who has complied with the provisions of this act and its regulations and prepared construction documents in accordance with accepted professional standards shall have no further liability pursuant to litigation commenced under this section.
35 P.S. §7210.501(f)(3)(iii).

This safe harbor provision is particularly important since a violation of the Act carries penalties including a fine of up to $1,000.00, and each day that a violation continues is considered a separate violation of the Act. 35 P.S. §7210.1101.

ADMINISTRATION AND ENFORCEMENT

The new code goes into effect for the construction of state-owned buildings on April 9, 2004. On that same date begins the election period for muncipalities to “opt in” or “opt out” of enforcement of the code.

Except for municipalities that opt out, a municipality must enact an ordinance adopting the UCC as its municipal building code. Municipalities must then notify the Department of its adoption of such an ordinance. 35 P.S. §7210.501. Municipalities have from April 9, 2004, until July 8, 2004, to opt in or opt out; they must notify the Department by August 7, 2004. 34 Pa. Code §403.102. If they do not provide the required notification by that time they will have opted out by default.

The Fire and Panic Act, the Universal Accessibility Act and a locally-enacted code shall remain in effect until one of the following has transpired:

(1) A municipality enacts an ordinance adopting the UCC and the municipality provides written notice to the Department before August 7th;

(2) The initial election and notification period ends on August 7th, and the municipality has not provided such written notice;

(3) The municipality elects not to adopt such an ordinance and provides written notice to the Department.

34 Pa. Code §403.101

Municipalities that opt out must notify applicants seeking a construction permit for one- and two-family dwelling units and miscellaneous use structures that the applicant must obtain the services of a construction code official, or a third party agency (as defined by the Act and its regulations) with appropriate categories of certification, to conduct the plan review and required inspections of the construction. 35 P.S. §7210.501(e)(1). For one- and two-family dwelling units and miscellaneous use structures, five inspections are required:

(1) Foundation inspection;

(2) Plumbing, mechanical and electrical inspection;

(3) Frame and masonry inspection;

(4) Wallboard inspection; and

(5) The final inspection

The final inspection shall not be deemed approved until all previous inspections have been successfully completed and passed. As for applicants who seek permits for structures other than one-or two-family dwelling units, a municipality that has opted out must notify both the Department and the applicant that the owner of the structure must obtain the services of the Department, or a third party agency with appropriate categories of certification which is under contract to the Department, to conduct the planned review and inspections required by the Act. 35 P.S. §7210.501(e)(2). However, the AE regulation mentions only the Department’s services for plan review and inspection. 34 Pa. Code §403.103(g).

Municipalities that opt in must administer and enforce the Act, and its regulations, and can do so in one of five different ways:

(1) By the designation of an employee to serve as the municipal code official;

(2) By the retention of one or more construction code officials or third party agencies to act on behalf of the municipality;

(3) By providing for the joint administration and enforcement of the Act through an inter-municipality agreement;

(4) By entering into a contract with the proper authority of another municipality; or

(5) By entering into an agreement with the Department for plan reviews, inspections and enforcement of structures other than one- or two-family dwelling units and utility and miscellaneous use structures.

35 P.S. §7210.501(b)(1)-(5); 34 Pa. Code §403.102(g)(1)-(5).

Additionally, municipalities which have opted in must establish a board of appeals to hear appeals from decisions of code administrators. 35 P.S. §7210.501(c).

TRAINING OF INSPECTORS

The Act requires the training and certification of individuals to serve as inspectors to administer and enforce the requirements of the UCC. 35 P.S. §7210.503. In fact, the Department must adopt a program of required training and certification for all categories of code administrators and that program must include education on accessibility requirements. The Department has also established the appropriate categories of code administrators. 34 Pa. Code §§401.6 and 401.7.

Current officials are not exempt from this requirement and are to receive training and certification, although current code administrators engaged in plan review or inspection of one- family or two-family residential properties may continue in those activities without meeting the training and certification requirements until three years from the effective date (April 9, 2004) of the final form regulations. Current code administrators engaged in plan review or inspection of other buildings have five years before they must meet the training and certification requirements. 34 Pa. Code §401.15(a),(b); 35 P.S. §7210.701(e).

However, the Department is to provide administration and enforcement of the accessibility provisions of the UCC until code administrators have been provided who are certified regarding accessibility provisions. 35 P.S. §7210.701; 34 Pa. Code §401.15(h).

A certification lasts for three years and then must be renewed. 34 Pa. Code §401.8. Prior to renewal an applicant for renewal must have completed 15 credit hours of continuing education in courses relating to the professional competency of code administrators. Applicants with multiple certification areas must complete 15 credit hours of continuing education for each category, but that applicant is not required to complete more than a total of 45 credit hours. 34 Pa. Code §401.9.

The Act permits, and the Training regulation has provided, a basis for waiver of the initial training requirements for individuals who present documentation they have previously satisfied substantially similar training, testing and certification requirements. The waiver does not apply to continuing education requirements. 35 P.S. §7210.701(d); 34 Pa. Code §401.5.

CONCLUSION

This article is only a very brief outline of the important changes at hand; it does not address with specificity the approximately 80 pages comprising the AE and Training regulations and their particular requirements. You must review them closely -- they are no longer distant visions, they are governing law with which you must be familiar.