MRSC Inquiries

Building Codes

• Board of Appeals
• Building Code Official
• Building Permits
• Dangerous Buildings
• Enforcement/Inspections
• Historic Buildings
• International Fire Code
• State Building Codes

Building Codes - Board of Appeals



1. What is the board of appeals?
   The International Building Code calls for establishing a board of appeals to hear appeals of building permit denials. The board of appeals is to consist of members who are qualified by experience and training to pass on matters pertaining to building construction and who are not employees of the jurisdiction.
   
   
2. May city council or county commission act as board of appeals?
   While there is no direct prohibition against appointing a city council or county commission to act as the board of appeals, it would appear that they may not have the requisite expertise. We, therefore, recommend against using them as the building code board of appeals. However, if a city/county wishes to establish by ordinance that the council/commission may hear appeals from the board of appeals, it would appear that it could do so and not be in conflict with either the letter or intent of the applicable state law.
   
   
3. May a hearing examiner be appointed to serve as the building code board of appeals?
   Yes. There is a requirement in the International Building Code, and in other codes that are part of the state building code, that a board of appeals be appointed to hear and decide appeals that arise under the code. A hearing examiner system may be used in place of this board.
   
   RCW 19.27.060 provides that cities and counties can amend the codes that make up the state building code, including the International Building Code, if the amendments do not reduce the minimum performance standards. An amendment providing for a hearing examiner would not reduce the performance standards. Therefore, such an amendment should be legal.
   
   

Building Codes - Building Code Official



1. Are there any required qualifications for a building inspector?
   The State of Washington has no certification requirements for building inspectors. There are voluntary examination programs for certification, such as that provided by the International Conference of Building Officials (ICBO). Most agencies in the state include an ICBO certification requirement in their job description for building inspector classification.
   
   
2. Is an agency potentially liable because the building inspector or plan reviewer is not a licensed engineer?
   The building inspector or plan reviewer is not attempting to review or certify the accuracy of the engineering portion of the plans prepared by engineers. The building inspector is merely reviewing the plans for compliance with the building codes, zoning codes, and other local municipal regulations which apply to buildings. The state laws do not require that these plans be reviewed by an engineer and do not contain certification standards for the building inspector which require him or her to have engineering credentials. Therefore, it would not appear to be a likely source of municipal liability.
   
   
3. May the building inspector be paid on the basis of the fees paid for the building permit?
   This office has consistently taken the position that the salary of the building inspector should not be based on a percentage of fees collected. There are several problems with this approach. One problem is that it may not satisfy the requirement in RCW 35A.33.050 that the preliminary budget should set out the salary for each officer and employee. This is not possible if it is based on a percentage of fees collected.
   
   A more serious problem is that the building inspector may be placed in a conflict because the inspector has some control over the fees collected on permits by estimating valuation. Finally, on a very expensive project, the fee may be exorbitant in relation to the work performed.
   
   

Building Codes - Building Permits



1. May a city or county deny a building permit if an applicant has unresolved enforcement issues?
   

   Depending upon what the enforcement issues are, the authority to withhold or deny the permit may exist, but, as a general rule, there is no discretion. In Craven v. City of Tacoma, 63 Wn.2d 23, 28 (1963), the state supreme court stated in part:

   A property owner has a vested right to use his property under the terms of the zoning ordinance applicable thereto. State ex rel. Hardy v. Superior Court, 155 Wash. 244, 284 Pac. 93. A building or use permit must issue as a matter of right upon compliance with the ordinance. 9 Am. Jur. 203, § 7. . . .

   Once the application for a building permit and the plans and specifications filed with it show that the proposed building will conform to the zoning regulations and meet the structural requirements of the building code of the city, the permit shall issue as a matter of right, and the ordinances vest no discretion in the building department of the city to refuse either the application for or to deny the issuance of the building permit. (Our emphasis)

   See also Mission Springs v. City of Spokane, 134 Wn.2d 947, 980-81, 954 P.2d 250 (1998).

   If the enforcement action at issue relates to the building code, a different result is perhaps possible. Otherwise, in our opinion, if the application is complete and the plans conform to the building code requirements and are consistent with the zoning for the area, there is no discretion and the permit must be issued.

   
   
   
2. How long must the city keep building permit records?
   That depends. The records concerning permit application and approval only need to be kept until completion of the project or issuance of a certificate of occupancy, but the actual building permit, project inspection records, certificate of occupancy, and records concerning administrative decisions, legal actions, variances and special conditions must be kept for the life of the building plus six years. This data is found in the General Records Retention Schedules for All Local Government Agencies - see "Records Category: Land Use Planning, Permits, and Appeals."
   
   
3. If a city or county issues a building permit that it determines later to be erroneously issued, may it simply revoke the permit?
   No. According to the state supreme court in Chelan County v. Nykreim, 146 Wn.2d 904 (2002), the Land Use Petition Act (LUPA), chapter 36.70C RCW, changed what had previously been the rule that an improperly approved building permit is void and may be rescinded by the agency that erroneously issued it. Under Nykreim, a city or county that erroneously issues a building permit (or boundary line adjustment such as was issue in the Nykreim case or other ministerial land use decision) must appeal that issuance under LUPA within 21 days - even though the city or county itself issued the permit - or it is foreclosed from challenging it; the city or county has no authority to simply revoke the permit.
   
   
4. What is the life span of a building permit application?
   As with a building permit, a building permit application has a 180-day life, with the possibility of an extension of up to another 180 days if the applicant shows "that circumstances beyond the control of the applicant have prevented action [on the application] from being taken."
   
   
5. Must building permits be obtained for street resurfacing or for water meter installation?
   No. The International Building Code applies only to work on a building or structure and does not apply to work located primarily in a public way.
   
   
6. May building permit be transferred?
   Yes, it would appear so. Although there is no Washington authority on point, a leading land use treatise has concluded that a building permit does not give a personal right to the applicant to whom it is issued but instead creates a right that "attaches" to the land. Building permits pertain to development of the land, irrespective of the identity of the owner, and the permit and the right to act in accordance with it become attributes of the land continuing as such without regard to any change in the land's ownership or the right to its use. It inures to the benefit of any subsequent owner and remains in force subject to its terms.
   
   
7. How should an agency verify the registration of contractors in accordance with Ch. 18.27 RCW?
   Agencies are required to verify the registration of the general contractor or specialty contractor listed on a permit application. In addition to copying the contractor's current registration card, this can be done on the Department of Licensing Web site.
   
   An agency is also required to print the contractor registration number on the building permit and must also provide a written notice to the building permit applicant informing them of the contractor registration laws, and the potential risk and monetary liability to the homeowner for using an unregistered contractor.
   
   
8. What is a city's responsibility if a permit applicant insists that no contractor will be used on the project?
   L & I advises that a city should file a statement, signed by the applicant, which states that no contractor who is required by law to be registered will be performing any work on the project.
   
   
9. May the city require a performance bond from a school district which is constructing a building within the city?
   No, that is specifically prohibited by RCW 35.21.470, which was passed in 1993. It prohibits a city or town from requiring a state agency or unit of local government to secure the performance of a permit requirement with a surety bond or other financial security device as a condition for issuance of a permit for a building construction project. A school district is considered a unit of local government.
   
   

Building Codes - Dangerous Buildings



1. How does the city handle the inspection and repair of dangerous buildings?
   The Uniform Code for the Abatement of Dangerous Buildings, International Conference of Building Officials provides enforcement procedures . The building official has authority to enter and inspect a building when there is a reasonable belief that there exists a violation of the building code which makes the building or premises unsafe, dangerous or hazardous. If violations exist, the building official is to issue a notice and order to the owner of record.
   
   
2. Once a city has adopted the Uniform Code for the Abatement of Dangerous Buildings, must it adopt updates for newer editions or is that automatic?
   The city has adopted the Uniform Code for the Abatement of Dangerous Buildings. However, they adopted the 1985 and have never updated that in their ordinance. The inquirer wondered if this was something that would be automatically updated.
   
   This would not be automatically updated. The Uniform Code for the Abatement of Dangerous Buildings is not a part of the state building code. So there is no mechanism by which this would be automatically updated by the state. It is necessary for each jurisdiction that has adopted this code to update it individually. If the city does not update it, then the edition of the code that is adopted would continue in effect.
   
   

Building Codes - Enforcement/Inspections



1. May a city permit the county to perform its building code inspections?
   Yes. Reference should be made to RCW 19.27.050, relating to the enforcement of the State Building Code. That section indicates that the code "shall be enforced by the counties and cities." It further provides that a city not having a building department shall contract with another county, city or inspection agency for enforcement of the code.
   
   
2. May city building inspector inspect a new city building under construction?
   We know of nothing that would prohibit a city building inspector from inspecting the city's own buildings. This is not a conflict of interest.
   
   
3. Do building inspectors have a right-of-entry upon private property to determine whether a building permit is required?
   No. The courts have ruled that a building inspector may not enter private property to examine the repair work being performed without the consent of the property owner or without a court order granting such permission.
   
   

Building Codes - Historic Buildings



1. Is there any flexibility in the building code for older structures that are not listed in any register of historic buildings?
   The Washington State Historic Building Code, chapter 51-19 WAC, provides an exception for historic buildings from the State Building Code and the International Building Code when authorized by the appropriate building official and under rules adopted by the State Building Code Council. Local governments may use the historic building code to apply to older buildings that a community would like to preserve, even when the structures are not listed in a state or national register of historic places or by local ordinance. Based on consultation with the state Office of Archaeology and Historic Preservation, MRSC recommends the following procedure for historic buildings that are not officially designated: the city or county should adopt a resolution or ordinance recognizing that the building is of historic value to the community and should be subject to the provisions of the state historic building code.
   
   

Building Codes - International Fire Code



1. Which department enforces the Internationl Fire Code?
   Section 103 of the 2003 International Fire Code provides for designation of a fire code official and a fire prevention department, which in all practicality means the fire chief and fire department.
   
   
2. Is the International Fire Code in effect in the city even if it is not adopted in a local ordinance or a copy is not on file with the city/county clerk?
   First of all, and most important to an analysis of this issue, is RCW 19.27.031. This statute contains the basic reference to the state building code and specifically provides that "there shall be in effect in all counties and cities the state building code which shall consist of the following codes which are hereby adopted by reference..." The statute then lists a number of codes, including the International Building Code and the Interational Fire Code.  These codes, then, are in effect in every city/county in the state and there is no local discretion vested in individual agencies as to whether these codes will apply in their jurisdiction. Agencies do have some authority to amend the codes if the minimum performance standards are not diminished.
   
   In addition to mandating that the state building code will be in effect in every city and town, the state legislature has also created an agency called the state building code council which is appointed by the Governor. The building code council is given authority in RCW 19.27.074(1) to adopt and maintain the codes referenced in RCW 19.27.031. As a part of their duties, the building code council is to regularly review updated versions of the codes such as the International Building Code and the International Fire Code and to adopt or amend them for state-wide applicability.
   
   When the state building code council adopts an updated version of one of the codes that is included in the state building code, then that version becomes effective in every city and town regardless of any local action which may or may not be taken.
   
   So what this means is that even if a city or town did not enact a local ordinance adopting the state building code, or alternatively if they failed to properly adopt a local ordinance adopting the state building code for some reason, the citizens of the city still must comply with the provisions of the state building code. This also means that if a city adopts the state building code but fails to adopt the latest version of the codes, once the state building code council adopts the latest version of a code, then that latest version is immediately in effect in the city or town. The primary reason that we recommend that cities enact a local ordinance specifically adopting the state building code is so the local municipal court will have jurisdiction over violations of the building codes. Otherwise, violations of the state building code will have to be prosecuted in county district court.
   
   

Building Codes - State Building Codes



1. Which codes are included in the State Building Code?
   See http://www.sbcc.wa.gov/
   
   
2. Must a city or county adopt the State Building Code?
   No. The provisions of the State Building Code are in effect in all cities, towns and counties of the state regardless of whether they are adopted locally or not. However, MRSC recommends that local governments adopt the state building codes in a local ordinance. By adopting the code in a local ordinance, it is much easier for the city or town to enforce the building code, since cases can be filed by the city or town attorney in the local municipal court and fines and revenues go to the city or town. Also, the state statute does allow a local ordinance to have minor deviations from the state code in order to better reflect unique local conditions.
   
   
3. Must a city adopt the State Building Code each time it is updated?
   If a city or town has adopted its own ordinance, it is necessary that periodic amendments be made to the local ordinance to keep the local ordinance consistent with state law. Therefore, the most recent version of the State Building Code should be adopted by a city or town in their local ordinance after the state adopts the newly revised codes.
   
   
4. To what extent can a city or county amend the state building code?
   Cities and counties can amend the state building code so long as the amendments do not reduce the minimum performance standards of the codes they have adopted. Amendments that affect the construction of single-family or multi-family residential buildings must be reviewed and approved by the State Building Code Council before such amendments can be enforced.
   
   In addition, the following provisions may not be amended:
   • Residential provisions of the State Energy Code (WAC 51-11);
   • Provisions of the Ventilation and Indoor Air Quality Code (WAC 51-13);
   • Provisions of the International Building Code or International Residential Code affecting accessibility; and
   • Standards specifically adopted in Chapters 19.27 and 19.27A RCW.