purposes that are usually complimentary and jointly...

Building codes and zoning ordinances often overlap purposes that are usually complimentary and jointly administered. This session explores how to avoid or resolve conflicting requirements while satisfying two somewhat different masters. Helping the applicant through the process can only be achieved when the relationships are understood and coordinated.

PENNBOC ANNUAL Conference September 12, 2013

State College, PA

Understanding Zoning Understanding Building Codes Understanding Other Codes Conflicting/Overlapping Areas War Stories Q&A

General Municipal Law Third Class City Code The Borough Code First Class Township Code Second Class Township Code

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International Property Maintenance Code (“IPMC”)

Uniform Construction Code (“UCC”) National Electric Code BOCA National Fire Prevention Code Etc.

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Home Rule: • Cities, municipalities,

and/or counties have the ability to pass laws to govern themselves as they see fit, within the boundaries of the state and federal constitutions.

Dillon’s Rule: • Municipal governments

may only exercise powers that are expressly granted by the state legislature, those that are necessarily or fairly implied from that grant of power, and those that are essential and indispensable to the declared objects and purposes of the municipality’s existence.

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Who is the “codes guy” in your municipality ? Who does the “codes guy” answer to ? Who can the “codes guy” turn to for help ? What can the “codes guy” do and what can’t

he do?

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Although building codes and zoning regulations are traceable to the police power, building codes are designed to protect the public welfare from a wholly different standpoint than that of zoning laws. Building codes deal with the safety and structure of buildings; they regulate details of construction, use of materials, and electrical, plumbing and heating specifications.

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Zoning ordinances, on the other hand, regulate use of buildings, structures, and lands as between various purposes; the location, height, number of stories of buildings and structures, the size of lots and open space requirements, etc.

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The History of Zoning • 1916 – New York City adopted

the first comprehensive zoning regulations • Reaction to construction of

skyscraper, (the Equitable Building, which still stands on Broadway) which cast shadows and “adversely” affected resident’s quality of life

• Other states followed suit with zoning regulations based on the New York example

• By the 1920’s, most states adopted zoning

• Houston, Texas is the largest US city with no zoning

Why Zone? Zoning is the term for land use regulation Zoning designates permitted uses of land based on mapped areas of a community called zones Zoning is a police power of local government Zoning is used to carry out a municipal plan

In Pennsylvania, zoning is authorized by Article VI of the Municipalities Planning Code (“MPC”), 53 P.S. §10601, et. seq.

Not all municipalities have zoning. They must enact a zoning ordinance.

Counties may enact zoning but if any municipality within the county enacts zoning, it acts as a repeal of the county zoning within that municipality. MPC §602.

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Ordinance may contain provisions set forth in

MPC §603. Examples: ◦ Uses of land and water ◦ Size, height, bulk, location and use of structures ◦ Population density and intensity of use ◦ Protection of natural and historic features and prime

agricultural land.

Zoning Ordinances represent the municipality’s implementation of its comprehensive plan. See, MPC Article III and §606.

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The purpose of a zoning ordinance is to promote, protect and facilitate any or all of the following: the public health, safety, morals, and the general welfare…. MPC §604(1).

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The zoning ordinance is administered by a zoning officer appointed by the governing body. MPC §614

Qualifications: ◦ Cannot hold any elective office in the municipality ◦ Must meet qualifications established by the

municipality. ◦ Shall demonstrate to the satisfaction of the

municipality a working knowledge of municipal zoning.

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Zoning Officer’s Responsibilities: ◦ Administer the zoning ordinance in accordance with its

literal terms ◦ Does not have the power to permit construction or any

use or change of use which does not conform to the zoning ordinance.

◦ In interpreting the language of zoning ordinances to determine the extent of the restriction upon the use of the property, the language shall be interpreted, where doubt exists as to the intended meaning of the language written and enacted by the governing body, in favor of the property owner and against any implied extension of the restriction. MPC §603.1.

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Preliminary Opinions: ◦ Zoning officer may be requested and must then

issue a Preliminary Opinion regarding the zoning ordinance under MPC §916.2. ◦ Preliminary Opinion appealable to ZHB ◦ Unique provision in the MPC related to zoning.

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Zoning Officer Compensation: ◦ Not addressed directly in the MPC ◦ MPC §617.3(e) however, permits the governing

body to charge reasonable fees to defray the cost of administering the zoning ordinance, presumably including the zoning officers salary, benefits, office staff, etc.

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Disagreements with Elected Officials: ◦ The zoning officer, not the solicitor nor an elected

official, is charged with administering the zoning ordinance according to its literal terms. ◦ If the zoning officer is DIRECTED to do an improper

act, it should be documented. ◦ In the event the zoning officer is terminated for

issuing an improper permit or for denying a deficient application, the zoning officer is entitled to a hearing under Local Agency Law for redress of the dismissal.

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Inspections Under the Zoning Ordinance: ◦ Discovery of violations usually occurs by a neighbor

complaint or by simply driving through the municipality. ◦ Violations also uncovered in the course of routine

inspections undertaken throughout development. ◦ Practice Tip: Have an inspection timetable and

checklist for all projects that have zoning approval. This assures a uniform and comprehensive process.

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Inspections: ◦ According to DCED, search warrants are not

available in connection with violations of “land use ordinances” authorized by the MPC.

◦ Zoning related inspections may always occur from

“open fields”. Forsythe v. Commonwealth, 601 A.2d 864 (Pa.Cmwlth. 1992). ◦ Photographs are very important evidence of

violations.

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Inspections (continued) Difference between violations of land use ordinances

promulgated under the MPC and violations of ordinances promulgated under the police powers of the municipality. See e.g., Second Class Township Code §1601(c.1)(2) (building, housing, property maintenance, health, fire, public safety, parking, solicitation, curfew, water, air or noise pollution), which are summary criminal offenses.

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Enforcement: ◦ Zoning enforcement is civil in nature. However,

defendants in municipal enforcement actions are afforded the same protections as defendants in criminal proceedings. In re Investigating Grand Jury, 496 Pa. 452, 437 A.2d 1128 (1981).

◦ Emphasis is on compliance, not punishment. ◦ Issuance of an enforcement notice is the first step. MPC

§616.1 ◦ The enforcement notice must contain, at a minimum, 6

enumerated pieces of information. See MPC §616.1(c). ◦ Alleged violator has right to appeal the enforcement

notice to the ZHB within 30 days. 21

Enforcement Paths: ◦ Zoning officer issues enforcement notice and

alleged violator appeals to the ZHB within 30 days. If alleged violator does not appeal the enforcement

notice to the ZHB, the enforcement notice becomes unassailable (conclusive determination of “guilt”). Municipality may then seek enforcement with the MDJ.

If upon appeal to the ZHB, it determines there was a violation, the municipality may seek enforcement with the local MDJ.

If upon appeal the ZHB determines there was a violation, the violator may appeal to the Court of Common Pleas as a typical land use appeal under MPC Article X.

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Enforcement Paths: Zoning violations brought before the MDJ are subject to

civil penalties of up to $500 per violation plus court costs and reasonable attorney fees. MPC §617.2(a).

If the MDJ imposes the civil penalty and the violator does not appeal or pay, each day the violation continues constitutes a separate violation, adding per diem to the civil penalty.

See Woll v Monaghan Twp.. 948 A.2d 933 (Pa.Cmwlth 2008) and Johnston v. Upper Macungie Township, 162 Pa.Cmwlth. 170, 638 A.2d 408 (1994) for a discussion regarding zoning enforcement before an MDJ.

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Enforcement Paths (continued): ◦ Where it appears there will be a substantial affect

due to an alleged violation, the municipality may institute an action in equity (in the Court of Common Pleas) to prevent, restrain, correct or abate the violation. MPC §617. This type of relief is also available to other persons

affected by the violation (e.g., neighbors) upon 30 days notice to the municipality.

This would be the course of action for serious hazards, safety of life issues and other time sensitive zoning violations.

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The Pennsylvania Construction Code Act applies to the construction, alteration, repair and occupancy of all buildings in this Commonwealth. 35 P.S. §7210.104(a).

Several exceptions are listed in §7210.104(b), including: ◦ Utility and miscellaneous use structures that are

accessory to detached one-family dwellings ◦ Agricultural buildings ◦ Repairs to residential buildings ◦ Recreational cabins ◦ Temporary structures

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Building Codes (the UCC) are statewide Zoning ordinances are exceedingly local (few

joint or multi-municipal zoning ordinances).

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The Department of Labor and Industry (“L&I”) shall with reasonable cause review municipalities, municipal code officials, third-party agencies, construction code officials and code administrators concerning the enforcement and administration of the Act, including specifically complaints concerning accessibility requirements. 35 P.S. § 7210.105(a)(1).

No similar state oversight in zoning except by the courts.

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Municipalities may license any persons engaged in construction activities and establish work rules or qualifications for such persons. 35 P.S. § 7210.104(e).

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Other Codes Enforcement – summary (criminal) offenses

◦ Enacted under local gov’t codes such as Borough

Code or 2nd Class Twp. Code ◦ Property Maintenance Code ◦ Rental Property Code ? ◦ Fire Protection Code ◦ Plumbing and Electric Codes

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FW Triangle, L.P. v. Zoning Hearing Board of Upper Dublin Township, 820 A.2d 823 (Pa.Cmwlth. 2003) ◦ Landowner applied for UCC demolition permit for a

house and barn (each over 100 yrs old). Zoning ordinance required all structures built prior to 1900 be retained and incorporated into proposed development. ◦ UCC demo permit was denied based on zoning

noncompliance. ◦ Denial upheld by ZHB, CCP and CmwlthCt.

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International Property Maintenance Code (“IPMC”)

Uniform Construction Code (“UCC”) National Electric Code BOCA National Fire Prevention Code Etc.

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§221-2 Adoption of Standards. The current edition of the International Property Maintenance Code, as the same is revised from time to time by the International Code Council, Inc., copies of which are on file in the office of the Borough Secretary, amended as provided in § 221-4 of this chapter, is hereby adopted as the Property Maintenance Code of the Borough of Chambersburg, County of Franklin, Commonwealth of Pennsylvania, for the regulation of all matters concerning buildings and structures as therein provided. It is intended that the adoption of this Code will be a continuation of the basic provisions of the BOCA National Property Maintenance Code originally adopted by the Mayor and Town Council of the Borough of Chambersburg on February 25, 1998.

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The only purpose for these current revisions is to conform the Borough Code to the International Property Maintenance Code which is the successor Code to the BOCA National Property Maintenance Code. It is further intended that the applicable Property Maintenance Code for the Borough of Chambersburg shall be at all times the most recent revision of the International Property Maintenance Code without the necessity of a special ordinance adopting each new revision as published. Additions, deletions and changes to the International Property Maintenance Code shall be as provided in § 221-4 below.

http://ecode360.com/10693898?highlight=adoption of standards�

§221-3 Conflicting Regulations. In the event that any provision of the International Property Maintenance Code is inconsistent with the provisions of any other code in effect in the Borough of Chambersburg, the ordinance provision applying the more strict standard shall apply. §221-4 Modification of Standards. The International Property Maintenance Code, 2000 Edition and all subsequent revisions correspondingly, is hereby amended and revised in the following respects: . . .

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Actually a collection of other codes that PA has adopted, in whole or in part, to serve as the “Uniform Construction Code.” ◦ International Building Code ◦ International Energy Conservation Code ◦ International Fire Code ◦ International Mechanical Code ◦ International Plumbing Code ◦ And more

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Like the IPMC, the Uniform Construction Code may also be adopted by municipalities as that municipality’s official construction code.

If a municipality elects to adopt the UCC, then the municipality administers and enforces it locally.

If a municipality “opts out,” then the PA Department of Labor and Industry is responsible for all UCC enforcement in the municipality.

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Over 90% of Pennsylvania's 2,562 municipalities have elected to administer and enforce the UCC locally, using their own employees or via certified third party agencies (private code enforcement agencies) that they have retained.

In these municipalities, the Department has no code enforcement authority, except where the municipality lacks the services of a person certified as an "Accessibility Inspector/Plans Examiner."

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The PA Borough Code applies the UCC “to the construction, alteration, repair and occupancy of all buildings and structures within a borough.” ◦ 53 P.S. § 48201-A. Primacy of Uniform

Construction Code The Borough Code also authorizes a borough

to “enact an ordinance to equal or exceed the minimum requirements of the [UCC].” ◦ 53 P.S. § 48202-A. Changes in Uniform

Construction Code

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The Borough Code also authorizes a borough to “enact a property maintenance ordinance, and . . . incorporate any standard or nationally recognized property maintenance code, or any variations or changes or parts of the code, published and printed in book form, without incorporating the text of the code in the ordinance” or to enact the same as its ordinance. ◦ 53 P.S. § 48204-A. Property maintenance code

I.e., the International Property Maintenance Code

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35 P.S. § 7210.501. Administration and enforcement.

(a)Adoption of Ordinance. (1) In order to administer and enforce the provisions

of this act, municipalities shall enact an ordinance concurrently adopting the Uniform Construction Code as their municipal building code and the International Fuel Gas Code for the purposes described in section 102. Municipalities may adopt the Uniform Construction Code and incorporated codes and the International Fuel Gas Code by Reference.

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§ 113-1. Election to administer and enforce. The Borough hereby elects to administer and

enforce the provisions of the Pennsylvania Construction Code, Act 45 of 1999, and applicable regulations as promulgated by the Pennsylvania Department of Labor and Industry, as amended from time to time.

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§ 113-2. Adoption and incorporation. The Uniform Construction Code, contained in 34 Pa.

Code, Chapters 401 through 405, as well as those ancillary codes referenced in Department of Labor and Industry regulations Section 403.21, as amended from time to time, is hereby adopted and incorporated herein by reference as the Municipal Building Code of the Borough of Chambersburg. The foregoing notwithstanding, in the event of a repeal by the Commonwealth of Pennsylvania of the mandatory provisions of the PA UCC, that Code, as enacted by this article, shall continue in effect until such time as amended by the Borough of Chambersburg.

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Municipalities are required to adopt the UCC. ◦ Adoption of the IPMC is strictly voluntary.

Municipalities may “opt out” of enforcing the UCC themselves, and if they do the PA Dept. of Labor and Industry retains enforcement responsibility. ◦ If the municipality adopts the IPMC, they must also

enforce it—no other enforcement agency exists.

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Unsafe factory Multiple explosions and/or fires Dangerous to surrounding community

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Two explosions/fires at a factory led Commonwealth Code Inspection Service (CCIS) to investigate building for compliance with building codes.

After investigation, CCIS issued a Notice of Unsafe Structure or Conditions and ordered owner to cease manufacturing and operations.

Two years later, there was a third explosion at the factory.

CCIS issued another Notice of Unsafe Structure or Conditions/Order to Vacate ordering the owner to cease manufacturing and operations.

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OSHA began investigating the explosion. CCIS issued an Order to Show Cause/Order to

Vacate/Notice of Unsafe Structure/Notice of Violation/Revocation of Occupancy Approval.

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An explosion and fire again damaged AJ Stoves & Pellets in Marion on Monday. "We believe it was a dust explosion in one of the hoppers from the manufacturing process," Marion Fire Chief Jerry Houpt said. No workers or firefighters were injured, he said. The plant that makes wood pellets to burn in wood-burning stoves has been the scene of at least three dust explosions in two years. Neighbors are worried again. "After they put in new equipment I was willing to give them a chance," neighbor Dale Kennedy said. "After the latest explosion, it's obvious it's not a safe environment.“ Kennedy owns Village Green Nursery, just across the tracks from the pellet plant at 5773 Colorado St. Extended. He said he was fortunate to be out of town Monday. His wood-splitting pile is within 75 feet of the plant. He said the plant was a subject of Marion's annual town meeting last fall. The unincorporated village is part of Guilford Township. The committee operates the Marion Festivals as a fundraiser for street lighting and the local athletic association. Committeeman Owen Myers said he spoke to township supervisors who told him the pellet operation was in compliance with laws.

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"It's a legal business," Supervisor Greg Cook said on Monday. "We will contact Commonwealth Code Inspection Service and our solicitor Bryan Salzmann to see what alternatives we may have.“ After two explosions shook the plant in the summer of 2008, Commonwealth Code inspected, Cook said. The plant was brought up to code. "Nothing is as simple as residents would want," Cook said. "Dust is controlled by DEP. They were on the site numerous times." The plant, located in a neighborhood zoned residential, was converted from a feed mill a few years ago. Kennedy said he does not understand how the pellet-making operation could be grandfathered into the new zoning. "If you're saying sawdust is agriculture, is the lumber used to build houses, is that agriculture?" he said. "It's very obvious it's not a safe operation to be located in that residential area. The safety issue is not being addressed."

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The federal Occupational Safety and Health Administration did not investigate the explosions in 2008 because there were no injuries or fatalities, according to John Astad, director of the Combustible Dust Policy Institute of Santa Fe, Texas. Astad also reported in a blog that in the summer of 2008 that half the combustible dust explosions were repeats of prior explosions in the prior six months. Most had no record of OSHA inspections. OSHA was not aware of the latest incident on Monday until a reporter called, according to a regional spokeswoman. "We are looking into it," she said. OSHA fined a Maine pellet mill $27,000 in 2009 after an explosion there. The workers had been exposed to potential dust explosions due to the design, construction or location of the plant, according to OSHA. OSHA has proposed regulating combustible dust in industry, but rules have yet to be adopted. Combustible dust is generated at feed mills, rubber grinding plants and other operations. The pellet-making industry is in its infancy, according to the U.S. Department of Agriculture. Just 5 percent of hearth heating appliances sold are pellet stoves, according to the Pellet Fuels Institute.

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About 10 percent of fires in manufacturing plants started with dust, according to the National Fire Protection Association. In the past 30 years, more than 130 workers have been killed and 780 injured in combustible dust explosions in industrial operations, according to OSHA. A spark, probably from a nail striking a metal grinder at the Marion plant, likely ignited dust and caused the explosion Monday, Houpt said. Wooden pallets are ground into the dust that is formed into pellets. The initial explosion blew the top off a hopper on the outside of the building. About 30 firefighters from several fire companies responded to the 11:42 a.m. alarm and chased fires through the plant. Chutes connected different hoppers where the pellets were stored. "We had some fire burning in the pipes," Houpt said. "We were trying to locate where all the pockets were." Firefighters were at the scene nearly four hours. Damage to the metal and cinder-block building was limited primarily to water damage, according to Houpt.

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UCC Administrative Regulation 403.84 states that: (a) A building code official may determine that a building, structure or equipment is unsafe because of inadequate means of egress, inadequate light and ventilation, fire hazard, other dangers to human life or the public welfare, illegal or improper occupancy or inadequate maintenance. A vacant building or structure that is not secured against entry is unsafe under this section. (b) When a building code official determines the existence of an unsafe condition, the building code official shall order the vacating of the building or structure.

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(c) A building code official shall serve a written notice on the owner or owner's agent of the building, structure or equipment that is unsafe under this section. The notice shall contain the order to vacate the building, structure or seal the equipment out of service and state the unsafe conditions, required repairs or improvements. The order shall be served by certified mail or personal service to the owner or to the owner's agent's last known address or on the owner, agent or person in control of the building, structure or equipment. A building code official shall post the written notice at the entrance of the structure or on the equipment if service cannot be accomplished by certified mail or personal service. When a building code official determines the existence of an unsafe condition, the building code official shall order the vacating of the building or structure.

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(d) When a building or structure is ordered vacated under this section, the building code official shall post a notice at each entrance stating that the structure is unsafe and its occupancy is prohibited.

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The notice to the property owner should include: ◦ A description of the reason(s) why the Borough Code

Official believes the property to be unsafe; ◦ A specific statement that the property is unsafe and unfit

for human habitation or use; ◦ A list of the unsafe conditions and the required repairs

and improvements; ◦ Instructions to immediately vacate the property and

secure the property against unauthorized entry; ◦ Notice that the municipality will seek court approval to

remove the hazards, which may include demolition of the building; and

◦ Notice of the owner(s) right to appeal to the municipality.

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“It is my determination as Building Code Official that the structure known as . . . . . is unsafe and unfit for human habitation or use (Title 34 Part XIV Section 403.84). Additionally it appears to be an illegal occupancy being operated without the necessary permits or approvals. It is my further determination that portions of the premises constitute a hazard, a threat to human occupation, and show copious evidence of neglect and inadequate maintenance; specifically the fire suppression system, the process operation, and the storage facility/silo. The overall structure and operation/use presents a clear and present danger to life and property.”

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The municipality may also pass an Ordinance declaring the property to be a dangerous structure and public nuisance.

Example: WHEREAS, two prior explosions and fires occurred

on the property . . . And the Township’s [UCC] Code Official previously declared the structure on the Property to be an unsafe structure and notified the owner that unsafe conditions existed that presented a fire hazard and other dangers to human life and public welfare; and . . .

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WHEREAS, the hazardous use of the Property endangers the owner of the business located at the property, the employees of the business, neighboring residents, neighboring businesses, persons using adjacent public rights of ways, and emergency responders who respond to the fires and explosions; and WHEREAS, the Township declares the structure on the Property and the use thereof to be dangerous to the public and constitute a dangerous structure in accordance with 53 P.S. 66544 and authorizes Township personnel and consultants to provide the Property owner with notice to abate the dangerous structure, and in the absence of the owner’s failure to do so, to take actions reasonably necessary to abate the dangerous condition; and . . .

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WHEREAS, the Township declares the structure on the Property to be unreasonable, unwarrantable, and likely to cause damage, hurt, inconvenience, annoyance to the general public and interfere with reasonable rights of persons and property, and therefore declares the use of the Property to be a public nuisance in accordance with 53 P.S. 66529 and authorizes Township personnel and consultants to provide the Property owner with notice to abate the public nuisance, and in the absence of the owner’s failure to do so, to take actions reasonably necessary to abate the public nuisance.

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• Nature of Offense: “Defendant did allow a building and/or equipment to remain in an unsafe condition creating dangers to human life and public welfare as provided at Title 34 XIV Section 403.84.”

• Remarks: “Charges are a result of investigation after severe explosion at site. Defendant admits fire suppression system was turned off at time of explosion. Explosion destroyed collection bin and sent debris off the property.”

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Enforcement and Appeals Board of appeals.--

A municipality which has adopted an ordinance for the administration and enforcement of this act or municipalities which are parties to an agreement for the joint administration and enforcement of this act shall establish or designate a board of appeals as provided by Chapter 1 of the 1999 BOCA National Building Code, Fourteenth Edition, to hear appeals from decisions of the code administrator. Members of the municipality's governing body may not serve as members of the board of appeals. A municipality may establish a board of appeals or may establish or designate a joint board of appeals in accordance with 53 Pa.C.S. Ch. 23 Subch. A (relating to intergovernmental cooperation). 35 P.S. § 7210.501(c)(1) (emphasis added).

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1999 BOCA Code §121.2 requires a Board of Appeals to consist of five (5) members to include: ◦ A registered design professional (e.g., an architect) or

construction superintendent with at least 10 years of experience

◦ A registered design professional with structural engineering or architecture experience

◦ A registered design professional with mechanical or plumbing experience

◦ A registered design professional with electrical engineering experience

◦ A registered design professional with fire protection engineering experience.

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But see the REGULATION governing the composition of a UCC Board of Appeals. The composition of a board of appeals is governed by all of the following:

(1) A member of the board of appeals shall be qualified by training and experience

to pass on matters pertaining to building construction. Training and experience may consist of licensure as an architect or engineer, experience in the construction industry, and training or experience as an inspector or plan reviewer.

(2) A member of the board of appeals holds office at the pleasure of the municipality's governing body.

(3) Members of a municipality's governing body and its code administrators may not serve on a board of appeals.

(4) A municipality may fill a position on the board of appeals with a qualified person who resides outside of the municipality when it cannot find a person within the municipality who satisfies the requirements of this section.

34 Pa.Code §403.121(c).

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When a municipality cannot find persons to serve on a board of appeals who meet the minimum qualifications of Chapter 1 of the BOCA National Building Code, the municipality may fill a position on the board with a qualified person who resides outside of the municipality. 35 P.S. § 7210.501(c)(3).

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First Printing: April 2011 ISBN: 978-1-60983-056-4 (soft-cover edition) COPYRIGHT © 2011 by INTERNATIONAL CODE COUNCIL, INC.

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Preface - Adoption “The International Property Maintenance Code is

available for adoption and use by jurisdictions internationally. Its use within a governmental jurisdiction is intended to be accomplished through adoption by reference in accordance with proceedings established in the jurisdiction’s laws. At the time of adoption, jurisdictions should insert the appropriate information in provisions requiring specific local information, such as the name of the adopting jurisdiction. . . .”

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EFFECTIVE USE OF THE INTERNATIONAL PROPERTY MAINTENANCE CODE:

“The International Property Maintenance Code (IPMC) is a model code that regulates the minimum maintenance requirements for existing buildings.

The IPMC is a maintenance document intended to establish minimum maintenance standards for basic equipment, light, ventilation, heating, sanitation and fire safety. Responsibility is fixed among owners, operators and occupants for code compliance. The IPMC provides for the regulation and safe use of existing structures in the interest of the social and economic welfare of the community.”

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“The IPMC . . . Is arranged and organized to follow sequential steps that generally occur during an inspection.” It contains eight different chapters:

1. Administration 2. Definitions 3. General Requirements 4. Light, Ventilation, and

Occupancy Limitations

5. Plumbing Facilities and Fixture requirements

6. Mechanical and Electrical Requirements

7. Fire Safety Requirements 8. Referenced Standards

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Chapter 3 – General Requirements. ◦ Includes requirements for the exterior property

areas; ◦ and interior and exterior elements of the

structure.

• Grading and drainage; • Sidewalks and driveways; • Weeds; • Vehicles on the property;

• Swimming pools; • Etc.

• Structural members; • Pest elimination; • Stairways, decks,

porches, and balconies; • Handrails and guards;

• Interior doors; • Roofs and drainage;; • Etc.

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Chapter 4 – Light, Ventilation, and Occupancy Limitations. ◦ Light Such as the minimum number of windows allowed;

and The number of light bulbs required in common

areas. ◦ Ventilation Such as the requirement that windows be openable;

and Requirements for clothes dryer exhaust.

◦ Occupancy limitations Such as minimum room widths and heights; and The number of occupants allowed.

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Chapter 5 – Plumbing Facilities and Fixture Requirements. ◦ Establishes minimum criteria for the water supply

system, water heating appliances, sewage disposal, and other related plumbing fixtures. Sinks, Showers/bathtubs, Toilets, Bathrooms, Drinking fountains, Water heaters, Drainage

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Chapter 6 – Mechanical and Electrical Requirements. ◦ Establishes minimum performance standards

for heating, electrical, and mechanical facilities. Heating and air-conditioning equipment; Water-heating equipment; Cooking equipment; Ventilation and exhaust equipment; Gas and fuel pipes and components; Fireplaces chimneys, and vents; Light fixtures; Electrical outlets, devices, and wiring.

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Chapter 7 – Fire Safety Requirements ◦ Addresses fire hazards that result from the

building’s occupancy and provides minimum requirements for fire safety issues. Means of egress; Fire protection systems; Smoke alarm; Sprinklers;

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A[N] [ORDINANCE/STATUTE/REGULATION] of the [JURISDICTION] adopting the 2012 edition of the International Property Maintenance Code, regulating and governing the conditions and maintenance of all property, buildings and structures; by providing the standards for supplied utilities and facilities and other physical things and conditions essential to ensure that structures are safe, sanitary and fit for occupation and use; and the condemnation of buildings and structures unfit for human occupancy and use, and the demolition of such existing structures in the [JURISDICTION]; providing for the issuance of permits and collection of fees therefor; repealing [ORDINANCE/STATUTE/REGULATION] No._______of the [JURISDICTION] and all other ordinances or parts of laws in conflict therewith.

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The [GOVERNING BODY] of the [JURISDICTION] does ordain as follows: Section 1. That a certain document, three (3) copies of which are on file in the office of the [TITLE OF JURISDICTION’S KEEPER OF RECORDS] of [NAME OF JURISDICTION], being marked and designated as the International Property Maintenance Code, 2012 edition, as published by the International Code Council, be and is hereby adopted as the Property Maintenance Code of the [JURISDICTION], in the State of [STATE NAME] for regulating and governing the conditions and maintenance of all property, buildings and structures; by providing the standards for supplied utilities and facilities and other physical things and conditions essential to ensure that structures are safe, sanitary and fit for occupation and use; and the condemnation of buildings and structures unfit for human occupancy and use, and the demolition of such existing structures as herein provided; providing for the issuance of permits and collection of fees therefor; and each and all of the regulations, provisions, penalties, conditions and terms of said Property Maintenance Code on file in the office of the [JURISDICTION] are hereby referred to, adopted, and made a part hereof, as if fully set out in this legislation, with the additions, insertions, deletions and changes, if any, prescribed in Section 2 of this ordinance.

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§221-2 Adoption of Standards. The current edition of the International Property Maintenance Code, as the same is revised from time to time by the International Code Council, Inc., copies of which are on file in the office of the Borough Secretary, amended as provided in § 221-4 of this chapter, is hereby adopted as the Property Maintenance Code of the Borough of Chambersburg, County of Franklin, Commonwealth of Pennsylvania, for the regulation of all matters concerning buildings and structures as therein provided. It is intended that the adoption of this Code will be a continuation of the basic provisions of the BOCA National Property Maintenance Code originally adopted by the Mayor and Town Council of the Borough of Chambersburg on February 25, 1998. The only purpose for these current revisions is to conform the Borough Code to the International Property Maintenance Code which is the successor Code to the BOCA National Property Maintenance Code. It is further intended that the applicable Property Maintenance Code for the Borough of Chambersburg shall be at all times the most recent revision of the International Property Maintenance Code without the necessity of a special ordinance adopting each new revision as published. Additions, deletions and changes to the International Property Maintenance Code shall be as provided in § 221-4 below.

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http://ecode360.com/10693898?highlight=adoption of standards�

Started as safety issue ◦ Generator not installed correctly, IPMC violations

Court injunction to stop use of generator ◦ Landowner complied, but then turned the generator

back on next day Safety issues have been fixed Police continue to arrest owner, citing “disorderly

conduct” ◦ Ordinance may or may not apply

Noise ordinance definitely does not apply

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Section 604.1, Facilities required, provides that “every occupied building shall be provided with an electrical system in compliance with the requirements of this section and Section 605.”

Section 604.3, Electrical system hazards, provides that “Where it is found that the electrical system in a structure constitutes a hazard to the occupants or the structure by reason of inadequate service, improper fusing, insufficient receptacle and lighting outlets, improper wiring or installation, deterioration or damage, or for similar reasons, the code official shall require the defects to be corrected to eliminate the hazard.”

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No longer a safety concern. ◦ But the constant noise from the

generator’s daily operation disturbed the neighbors.

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Chapter 164: Noise. Section 164-1 Amplified music restricted;

exemptions. Without limitation as to the type of noise-

producing acts which are in violation of this chapter, noise produced by the following acts is to be declared to be loud, disturbing, and unnecessary noise in violation of this chapter. . . .

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A. Radios and other amplified music. Use or operation of, or permitting the use or operation of any radio, CD player, television set, musical instrument, stereo (phonograph), or other machine or device designated or intended to produce or reproduce sound in such manner as to disturb the peace, quiet and comfort of residential inhabitants or at any time with louder volume than is necessary for convenient hearing by the person or persons who are in the room, vehicle or chamber in which such machine or device is operating and who are voluntary listeners thereto. The operating of any such machine or device in such manner as to be plainly audible at a distance of 50 feet from the source shall be prima facie evidence of a violation of this chapter.

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B. Exemptions. (1) Amplified announcements electronically amplified at athletic events. (2) Concerts, band concerts, block parties, licensed carnivals, or other performances or similar activities publicly or privately sponsored and presented in any public or private space outdoors, provided that such activities do not occur between the hours of 10:00 p.m. and 7:00 a.m. (3) School and public activities. (4) Sound from bells or whistles, which are used for public or private entertainment or notice, such as but not limited to shop whistles or carillons. (5) Other temporary exemptions that may be approved by Borough Council from time to time.

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Section 164-2 Violations and penalties. Any person, firm or corporation violating any

provision of this chapter shall, upon conviction, be sentenced to pay a fine of not less than $100 and not more than the maximum fine permitted for a summary offense, plus costs of prosecution and, in default of payment of such fine and costs, to imprisonment for not more than 10 days. A separate offense shall be deemed committed on each day during which a violation occurs or continues.

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The Noise Ordinance is limited to “radios and other amplified music.”

No mention of any machinery or other equipment producing noise that is not music.

Certainly no mention of a generator.

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Chapter 167: Nuisances. Section 167-1 Definitions. Nuisance: Anything dangerous to human life or health, whatever

renders air, food, water or other drink unwholesome, and whatever building, erection, or part or cellar thereof is overcrowded or not provided with adequate means of ingress or egress, or is not sufficiently supported, ventilated, sewered or drained, cleaned or lighted.

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Is the generator “dangerous to human life or health?”

Does it render “air, food, water or other drink unwholesome?”

Again, no relief for a bothersome generator.

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Section 190-1, Disorderly conduct. Disorderly conduct is hereby prohibited within

the Borough of Waynesboro. Any person who shall willfully make or cause to make any loud, boisterous and unseemly noise or disturbance to the annoyance of the peaceable residents nearby or near any public street or alley or public ground within the Borough whereby the public peace is broken or disturbed or the traveling public annoyed shall be guilty of disorderly conduct.

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Section 190-2, Disturbance of the peace. A. Disturbance of the peace is hereby prohibited within the Borough

of Waynesboro. Any person who shall be guilty of any willful act causing or tending to cause a disturbance of the peace and good order of the Borough or causing or tending to cause any danger, discomfort or annoyance to inhabitants of the Borough or to users of any of the public streets or alleys or public places within the Borough or of the quiet and peaceable enjoyment by the public of places dedicated to the use of the public or who shall fight or quarrel or incite others to fight or quarrel or who shall publicly make use of any obscene or indecent or profane language or who shall loaf or loiter or congregate upon any of the public streets or alleys or public grounds in the Borough to the annoyance of peaceable residents nearby or traveling upon any street or alley or being lawfully upon any of the public grounds in the Borough whereby the public peace is broken or disturbed or the traveling public annoyed shall be guilty of disturbance of the peace.

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B. Disturbance of the peace shall also include: (1) Obstructing any public street, public highway, public sidewalk or any other place or building, by hindering or impeding or tending to hinder or impede the free and uninterrupted passage of vehicles, traffic or pedestrians. (2) Committing in or upon any public street, public highway, public sidewalk or any other public place or building any act or thing which is an obstruction or interference to the free and uninterrupted use of property or with any business, or anyone lawfully conducting business in or upon or facing or fronting on any public street, public highway, public sidewalk or any other public place or building, which prevents the free and uninterrupted ingress, egress and regress therein or thereto.

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Much closer fit with the generator issue. But these are criminal matters, which the

Borough code officers may not enforce.

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Example: ◦ Multiple rental properties with several

continuing code violations ◦ Multiple “owners,” as defined by BOC Code ◦ Certificates of compliance revoked ◦ Continued rental = more violations ◦ Sought court injunction and eviction

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Sample Ordinance – The Borough of Chambersburg Residential Rental Unit Inspection Ordinance: ◦ § 236-1 Legislative findings. Whereas the Borough has determined that dwelling units not

occupied by the property owner are frequently maintained at a standard significantly less than owner-occupied dwelling units and that such failure to maintain those units can and frequently does result in dwelling units which are unsafe, unsanitary and, in many instances, not maintained to the minimum standards required by the various fire prevention, building, housing, property maintenance, electrical and plumbing codes in effect in the Borough of Chambersburg from time to time, the Borough of Chambersburg finds it to be desirable and in the public interest to enact the following ordinance providing for the regular and systematic inspection of these properties to insure their continued compliance with applicable Borough codes.

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Owner: ◦ Any person, agent, operator, firm, corporation,

partnership, association, property management group, or fiduciary having legal, equitable or other interest in any real property; or recorded in the official records of the state, county or municipality as holding title to the property; or otherwise having control of the property, including the guardian of the estate of any such person and the executor or administrator of such person's estate. When used in this article in a clause proscribing any activity or imposing a penalty, the term, as applied to partnerships and associations, shall mean each partner, and as applied to corporations, the officers thereof.

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Residential Rental Unit: ◦ A dwelling unit not occupied by the owner

thereof. There shall be excluded from this definition those dwelling units subject to a periodic inspection by a state or federal agency at least once every three years applying a standard substantially the same as or more thorough than the Borough codes referenced in the definition of "codes" above.

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Except as provided following in this section, it shall be unlawful to occupy or let to others for occupancy any residential rental unit which has not been currently inspected as provided by this article. . . . [P]ayment of the annual inspection fee shall be required if the property is to be rented for residential purposes.

[T]he requirements for periodic inspections shall be as follows: ◦ A. Each residential rental unit shall be inspected by the

Property Maintenance Code Officer or other designee of the Borough at least one time in every thirty-six-month period; and for such purpose and for any reinspection required hereunder, the owner shall provide access to Borough representatives. A unit where inspection access is denied may not be a qualified residential unit until inspection access is provided.

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[T]he requirements for periodic inspections shall be as follows: ◦ B. This inspection shall include the exterior and interior of the

premises being inspected. ◦ C. For the purpose of enforcing this article, the Property

Maintenance Code Officer or designee of the Borough may seek to obtain a search warrant issued by a competent authority in accordance with applicable legal standards for the purpose of compelling an inspection of a residential rental unit. The refusal to provide inspection access does not limit the Borough to the remedy that the unit is determined not to be a qualified residential unit, but the Borough may also seek a search warrant.

◦ D. The foregoing notwithstanding, if the building containing the residential rental unit in question has received a certificate of occupancy for new construction under any other Borough code, the owner of said building shall not be required to schedule an inspection of such new construction pursuant to this article until the expiration of 36 months from the date of the issuance of said certificate of occupancy.

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The Borough will issue a certificate of compliance with this article upon the occurrence of the following Subsections A through D. Issuance of a certificate of compliance shall represent compliance with the inspection requirements of this article but shall not denote compliance with any other applicable code nor any standard of safety. A certificate of compliance will issue: ◦ A. If, upon inspection of the residential rental unit, the inspecting

officer does not note any violations of the codes referenced in the definition of "codes" above;

◦ B. If, upon inspection of the residential rental unit, violations were noted upon subsequent inspection if the violations noted have been satisfactorily resolved;

◦ C. Upon receipt of an inspection report performed by an independent inspector provided to the Borough as provided in § 236-5F above, if the report indicates there are no violations; or

◦ D. If the inspection report provided by an independent inspector notes the presence of violations, upon presentation to the Borough of a report of the follow-up inspection in which the previously noted violations are resolved, provided the report of the follow-up inspection is presented to the Borough within two working days of the follow-up inspection.

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If the inspection of a residential rental unit discloses code deficiencies, the Property Maintenance Code Officer or other Borough designee, or the independent inspector, shall issue a notice of violation. The notice of code violation shall set forth the following: ◦ A. The street address or appropriate description of the subject

property; ◦ B. The date of the inspection; ◦ C. The identity of the inspector; ◦ D. A list of the code deficiencies; ◦ E. The number of days in which the owner and/or occupant is to

accomplish repairs and/or otherwise eliminate the code deficiencies; and

◦ F. Notice that, if the conditions are not repaired or the premises are not otherwise brought into compliance with the applicable code within the time specified, the tenant and/or the owner may be prosecuted and/or the residential rental unit may be placarded as unfit for human occupancy in accordance with the Borough Property Maintenance Code. Only the Borough shall have authority to institute prosecution proceedings under the terms of this article.

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A. The failure of any owner to effect corrections as provided in this article shall be considered a violation of the Borough Property Maintenance Code Ordinance and the procedures and penalties prescribed therein shall be applicable.

B. The failure of any owner to schedule an inspection or reinspection as provided in this article shall result in the issuance of a notice to the owner that the property is not a qualified residential rental unit, in which event it shall be unlawful for any person to occupy or to let to others for occupancy the premises in question until the unit becomes a qualified residential rental unit after inspection and compliance with violation notices.

C. Rental of a unit that is not a qualified residential rental unit shall result in a penalty as provided in the Borough Property Maintenance Code for violations of that code.

D. Property condition violations are subject to the imposition of penalties as provided for such violations in the Borough of Chambersburg Property Maintenance Code.

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§ 101.2 Scope. ◦ The provisions of this code shall apply to all existing

residential and nonresidential structures and all existing premises and constitute minimum requirements and standards for premises, structures, equipment and facilities for light, ventilation, space, heating, sanitation, protection from the elements, life safety, safety from fire and other hazards, and for safe and sanitary maintenance; the responsibility of owners, operators and occupants; the occupancy of existing structures and premises, and for administration, enforcement and penalties.

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§ 106.1 Unlawful acts. ◦ It shall be unlawful for a person, firm or

corporation to be in conflict with or in violation of any of the provisions of this code.

§ 106.2 Notice of violation. ◦ The code official shall serve a notice of violation

or order in accordance with Section 107.

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§ 106.3 Prosecution of violation. ◦ Any person failing to comply with a notice of violation or

order served in accordance with Section 107 shall be deemed guilty of a misdemeanor or civil infraction as determined by the local municipality, and the violation shall be deemed a strict liability offense. If the notice of violation is not complied with, the code official shall institute the appropriate proceeding at law or in equity to restrain, correct or abate such violation, or to require the removal or termination of the unlawful occupancy of the structure in violation of the provisions of this code or of the order or direction made pursuant thereto. Any action taken by the authority having jurisdiction on such premises shall be charged against the real estate upon which the structure is located and shall be a lien upon such real estate.

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§ 106.4 Violation penalties. ◦ Any person who shall violate a provision of this code, or

fail to comply therewith, or with any of the requirements thereof, shall be prosecuted within the limits provided by state or local laws. Each day that a violation continues after due notice has been served shall be deemed a separate offense.

§ 106.5 Abatement of violation. ◦ The imposition of the penalties herein prescribed shall

not preclude the legal officer of the jurisdiction from instituting appropriate action to restrain, correct or abate a violation, or to prevent illegal occupancy of a building, structure or premises, or to stop an illegal act, conduct, business or utilization of the building, structure or premises.

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1. Inspection reveals violations of property maintenance code.

Example: “602.3 – Heat Supply - Every owner and operator of any building who rents, leases, or lets one or more dwelling units . . . shall supply heat to maintain a temperature of 68 degrees in all habitable rooms, bathrooms, and toilet rooms.”

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2. Notice of Violation is issued to property owner(s).

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3. Violations are not remedied, order to vacate property is sent to owner(s).

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4. Owner(s) may appeal by filing a “Notice of Appeal” with the Building Code Board of Appeals.

5. Board of Appeals will either affirm or reverse the Code Department’s decision.

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Stacey v. City of Hermitage Bd. of Appeals, 789 A.2d

772 (Pa. Commw. 2001) Held that property owner lacked standing to assert a

cause of action against the City to prevent demolition of owner’s property because the owner failed to appeal the notice of violations issued by the City.

See also Gans v. City of Philadelphia, 403 A.2d 168 (Pa. Commw. 1979)

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6. Borough affirms previous action, mails affirmation to owner(s), and posts affirmation on the property.

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7. Inspections should continue to document any uncorrected or new violations.

8. Borough issues “Field Correction Notice” noting completed repairs.

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9. If property owner still does not remedy outstanding code violations, a court may need to get involved.

10. Borough may file a Petition for Preliminary Injunction asking the court to grant the Borough the authority to forcibly remove any residents remaining illegally in the property, to secure the property, and to prevent people from entering in the future until the violations are fixed and a certificate of compliance is obtained. 126

11. If the violations are serious enough to pose a danger to the health and welfare of the inhabitants and/or the public, the court may grant the injunction and make it permanent until the violations are fixed.

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12. Alternatively, if the property is so dilapidated and in such a state of disrepair that repairing or remedying the violations would be impracticable or overly burdensome, or if the property owner has failed to take any corrective measures, the Court may instead order that the property be demolished.

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1. Notice of Violation sent to property owner(s) documenting code violations. 2. Property owner is given specific period of time to remedy code violations. 3. Violations remain after expiration of time for remediation. 4. Municipality seeks court order ordering owner to demolish the property. . . .

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5. Property owner and municipality agree on extension of time to fix violations; Court stays order to demolish.

6. Violations remain after expiration of additional time.

7. Court lifts stay, orders owner to demolish. 8. If owner fails to comply, municipality

demolishes the property and bills the owner for the work.

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What to do if property owner will not allow inspection? Example:

◦ Several rental properties are owned by different trusts, all controlled by the same person.

◦ The rental properties are not inspected for at least 10 years.

◦ The person behind the trusts denies any ownership interest in the properties or any personal wrongdoing.

◦ Citations sent to the trusts are returned as undeliverable.

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Allows a municipal official to inspect premises to ensure compliance with various municipal codes (i.e., construction codes, fire codes, the IPMC, etc.).

May be issued by a neutral magistrate judge. ◦ Com. v. Tobin, 828 A.2d 415, 419 (Pa. Commw.

2003)

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Administrative Search Warrant – Requires: ◦ An “affiant.” ◦ A description of the items to

be searched for and seized. ◦ A specific description of the

premises and/or person to be searched.

◦ The name of the property owner, occupant, or possessor of the premises.

◦ A statement of the violation.

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In the building code context, the “items to be searched for” would generally be violations of the building and/or municipal code.

Example: ◦ “Search interior and exterior of the residence

located at 1234 Main St., Shippensburg, Cumberland County, Pennsylvania to ensure compliance with the provisions of the codes and ordinances of the Borough of Shippensburg pursuant to Chapter 87, Article 10, ES-1000.1 of the Shippensburg Borough Code.”

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The “violation” could be whichever section of the code the municipality believes the owner/occupant/possessor of the premises has violated.

Example: ◦ “Violation of . . . Failure to obtain rental license and

submit to rental unit inspection pursuant to Chapter 87, Article 10, ES-1000.1 of the Shippensburg Borough Code.”

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◦ Probable cause to issue an administrative search warrant exists “if reasonable legislature or administrative standards for conducting an area inspection are satisfied with respect to a particular dwelling.”

◦ Relevant factors for evaluating probable cause are the passage of time since a prior inspection, the condition of the premises, and the condition of the general area.

◦ Another basis for finding probable cause to support issuance of an administrative search warrant is the presence of a general administrative plan for enforcement of the ordinance, which is “derived from neutral sources.”

◦ Reasonableness is still the ultimate standard and it is assessed by balancing the need to search against the level of invasion the search entails. Commonwealth of Pennsylvania v. Michael T. Tobin, Jr., 828 A.2d

415 (Pa. Commw. 2003) (citing Camera v. Municipal Court of the City and County of San Francisco, 387 U.S. 523 (1967).

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Municipality adopts UCC, then the UCC or one of its components is amended. ◦ Is the Municipal Code also amended? Does the

Municipality need to separately adopt the UCC’s amendments?

Municipality adopts the IPMC, but modifies certain sections. ◦ If there is a conflict between the IPMC and the

Municipal Code, which code controls? What if the Municipality wants to take enforcement

action that is not authorized in the adopted code? ◦ Or what if the enforcement action is not authorized

by the Municipal Code?

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For instance, under the 2nd Class Township Code, municipalities may regulate by ordinance several enumerated types of businesses: ◦ Transient merchants ◦ Cable TV companies ◦ Restaurants ◦ Junk dealers, scrap yards and automobile junkyards 53 P.S. §66532

Borough Code provides for many areas of enforcement. See 53 P.S. §46202 for some examples: ◦ Garbage ◦ Health & cleanliness ◦ Nuisances and dangerous structures ◦ Cats and dogs ◦ Livestock ◦ Smoke ◦ Disorderly conduct ◦ Property maintenance ◦ Licensing of businesses ◦ Fireworks

Enforcement of township ordinances passed under the authority of the municipality’s police powers is criminal in nature.

See for example, 2nd Class Township Code §1601(c.1)(2).

With the adoption of Act 45 in 1990 and the implementation of the statewide Uniform Construction Code (UCC), the only “building permit” that a municipality is permitted to issue would be in conjunction with the administration of the UCC.

Local officials must be careful to make a distinction between the permit issued acknowledging compliance with zoning requirements and the similar UCC permit.

Municipalities administering the UCC should evaluate the names given to the various zoning and UCC permits to avoid confusion for permit applicants.

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