Rehabilitating rehab through state building codes.

• Author: Galvan, Sara C.

NOTE CONTENTS INTRODUCTION I. TRADITIONAL BUILDING CODES FAIL TO ADDRESS REHABILITATION A. A Historical Record B. Central Cities C. The Economy D. Affordable Housing II. THE EMERGENCE OF REHABILITATION CODES A. Attempts To Address Rehabilitation Before Rehabilitation Codes B. New Jersey's Mandatory Statewide Approach C. Maryland's Adoption of the Federal Model Code D. Pennsylvania's Adoption of the International Existing Building Code III. THE FUTURE OF REHABILITATION CODES A. Emphasizing the Mandatory Statewide Approach 1. State-Level Adoption 2. Mandatory Adoption B. Creating New Strategic Alliances C. Building on Growing Public Support for Old Buildings and Inner Cities CONCLUSION INTRODUCTION

Building codes are not neutral documents. On their face, codes--which govern nearly all of the $650 billion of private construction occurring annually in the United States (1)--dictate how strong our structures must be, what materials we can use, and how we should prepare for fires, earthquakes, and other hazards. But codes affect much more: They create incentives to build certain types of structures, they establish economic biases toward particular materials and construction methods, and they impact urban layouts. Perhaps most significantly, traditional building codes have the negative effect of deterring rehabilitation: the improvement of older buildings through repair, reuse, preservation, or restoration. Few jurisdictions specifically address older buildings in their codes, instead subjecting most rehabilitation projects to the same standards as new construction. Applying such standards can make building a new structure less expensive than rehabilitating an old one, thereby discouraging beneficial rehabilitation projects.

To the delight of many unlikely allies--builders, affordable housing experts, environmentalists, and preservationists--a few jurisdictions have begun designing codes that depart from traditional building codes and specifically encourage the renovation of older structures. These "rehabilitation codes" (or "smart codes") (2) differ dramatically from traditional codes in that rehabilitation code standards are applied proportionately to the scope of construction efforts. If the work is minor--say, a repair--then only minimal requirements apply; if the work is major--a reconstruction or an addition--then stricter requirements apply. Moreover, rehabilitation codes contain clear guidelines that enable builders to accurately predict their expenses; by contrast, builders often cannot be sure how code officials will apply the traditional codes to older structures.

The power to draft building codes has long resided with the states, the vast majority of which have assigned that power to local governments. The many jurisdictions that have adopted traditional codes have recognized that basic building regulations are essential because they reduce negative externalities that may be produced by substandard, nonregulated structures, and because they provide consumer protection. (3) Without codes, builders have incentives to underinvest in safety features (4) such as fire-resistant materials or plumbing, electrical, and heating equipment designed to prevent the spread of disease. With codes, builders are required to consider the external effects of their structures. (5) Building codes also have the potential to combat crime and terrorism (6) and to prevent widespread structural collapse and loss of life during earthquakes. (7) This is because the technical requirements embodied in the codes, drafted by industry experts, ensure a minimum standard of quality. The guidance provided by codes is especially critical when individuals related to the construction project--such as buyers, owners, or occupants--lack independent technical expertise.

While the rationale behind traditional codes is clear, few have recognized that we also need rehabilitation codes: Only a tiny fraction of the 10,000 jurisdictions with traditional building codes (8) have adopted rehabilitation codes. In this Note, I contend that rehabilitation codes are both feasible and necessary. Part I argues that rehabilitation should be encouraged--and explains how traditional coding has failed to do so. Part II describes how various institutions have responded to traditional codes' failure to address rehabilitation. A discussion of early approaches to rehabilitation precedes a discussion of three recent rehabilitation codes: the mandatory statewide code of New Jersey, the federal model code adopted in Maryland, and the International Existing Building Code adopted in Pennsylvania. Part III urges the adoption of mandatory rehabilitation codes at the state level and lays out a strategy for overcoming the main barrier to the adoption of mandatory coding: institutional inertia, including active opposition from code officials who feel that they lack the resources to implement and enforce rehabilitation codes. (9)

The potential spread of rehabilitation codes raises several important legal and policy issues. The first is the effect of regulation on our economy and physical landscape. (10) I argue that rehabilitation codes have an overwhelmingly positive economic and architectural impact. A second broad theme is the tension between rules and standards in our building regulations. Traditional codes usually impose rules, specifying what must be done, while rehabilitation codes impose standards, requiring that outcome meet certain performance criteria. By using standards instead of rules, rehabilitation codes provide builders and owners with flexibility in addressing the many varied construction issues presented by our diverse older building stock. Finally, this Note explores the relationship between the federal government and the states in drafting and enacting building regulations. I argue that rehabilitation codes are best adopted at the state level, because--practically speaking--state governments are best situated to accommodate geographic variety, administer the codes, and adapt to changing needs.

1. TRADITIONAL BUILDING CODES FAIL TO ADDRESS REHABILITATION

   Critics have lobbed various charges at traditional codes, calling them slow to adapt, costly, insensitive to urban needs, and discouraging of innovation. But the biggest failure of traditional codes is that they do not satisfactorily address existing buildings, which far outnumber new structures. This Part analyzes how traditional codes stifle four positive effects of rehabilitation: preserving a historical record, revitalizing central cities, stimulating economic activity, and encouraging affordable housing.

   1. A Historical Record

      Why encourage rehabilitation? A starting point may be the sentimental argument that old buildings, as physical manifestations of a shared history, are public goods worth saving. This argument posits that, despite its potentially higher short-run costs, rehabilitation can have lasting community benefits. Older buildings frequently demonstrate public good characteristics. Their exteriors often define shared spaces, meaning that their owners cannot usually exclude others from experiencing them; they are nonrivalrous in consumption, that is, they can be experienced by multiple people at the same time; and they can have positive external effects, such as improving a neighborhood's aesthetic character. (11)

      Motivations for protecting older buildings also go further than the public good theory: Some people are simply nostalgic, others have a feeling of duty to future generations, and still others dislike new construction, for either its homogeneity or its ugliness. (12) Jane Jacobs famously expressed all of these motivations when she wrote about her beloved Greenwich Village and its diverse older buildings, which she saw threatened by urban renewal and modern development. (13) More recently, a number of scholars have lamented the poor quality (or lack) of contemporary planning.

      Whatever their motivations, growing numbers of Americans are aware of the importance of our architectural history and are looking carefully at rehabilitation strategies. One of the most popular contemporary architectural movements, New Urbanism, preaches both the rehabilitation and imitation of the dense urban cores of the past. (14) The movement's leaders have argued that "[t]ax and mortgage policies must be revamped to encourage renovation as much as new construction." (15) In addition, there are a record 79,000 properties on the National Register of Historic Places (a voluntary register of historically significant structures), (16) and the National Trust for Historic Preservation, the nation's largest advocacy group focusing solely on the reuse and preservation of older structures, boasts several hundred thousand members. (17)

      Traditional building codes do not generally reflect this growing awareness of the benefits of rehabilitation, and only rarely do they recognize any legal difference between new and existing construction. (18) But this is not merely benign neglect: Traditional codes can actively hurt existing buildings by taking a prescriptive approach to rulemaking, specifying procedures and materials that must be used rather than taking a flexible or historically sensitive approach. (19) As many renovators have learned, trying to fit older buildings into a modern set of prescriptive rules can make rehabilitation difficult and costly. Modern rules may prohibit the use of certain historically popular materials or may require substantial alterations that detract from a building's aesthetic identity. Moreover, the rigidity of prescriptive rules can lead to uniform, "cookie-cutter," or even outright unattractive results. Finding a way to protect our diverse supply of older buildings from the harms of traditional coding should be an important goal.

   2. Central Cities

      Rehabilitation can have more than just sentimental benefits. It can also help improve central cities, which have the highest...