Who Remembers the Small Builders?: How to Implement Ohio's New Statewide Residential Building Code Without Sinking Ohio's Small Builders

• Author: Richard Clagg
• Position: J.D., Capital University Law School, 2006
• Pages: 741-773

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Introduction

So you've finally decided to add that new master bedroom suite to your home. The first thing you are likely to do is get an estimate of the cost for the addition from a contractor. Assume that the original estimate for materials and labor is $10,000. However, you live in a state with a residential building code in effect throughout the state. Suddenly, several extra expenses appear on your initial estimate, such as plans that must be certified by a licensed architect or portions of work that must be performed by a licensed specialty contractor (for example, plumbing or electrical work). Two major problems immediately emerge. First, considering the possibility that the cost of the addition exceeds the increase in fair market value that the addition should bring, do you, the homeowner, have the ability to cover this extra cost? Second, assuming that compliance with the building code increases prices and results in fewer homeowners seeking his services, does the contractor have the ability to continue in his line of work?

If you happen to live in a state where there is no residential building code, the situation takes a decidedly different, but still negative, turn. The added expenses of the above scenario are eliminated, which brings you back to your original estimate. However, you now run the risk of incompetence by the builder. Without certified plans or the threat of inspections, the contractor may not build an addition that is structurally sound. In addition, the specialty work, such as electrical installation, may not be done properly (especially if the builder has minimal experience or if your original structure has older electrical fixtures and wiring). Not only do you run the risk of damage to personal property (for example, due to electrical fire), but you also stand a chance of suffering physical harm from electrical shock. Although the price of your new addition has been reduced to a more manageable amount, personal safety becomes a major issue.

Each scenario must balance the interests of the contractor against the interests of the homeowner. States and localities generally balance thesePage 742 interests¹ by implementing some type of residential building code. The issue for each state that has done so has been to determine which type of code best fits that state's needs.² Ohio has weighed in on this issue with the passage of 125 H.B. 175.³ The primary goal of this law was to authorize the creation of a uniform set of residential construction standards to be applied statewide.⁴

Unfortunately, the governing provisions of 125 H.B. 175 do not adequately safeguard the interests of either the homebuilders or the homeowners. While Ohio must implement a uniform statewide residential building code, the governing provisions of that code need to consider and protect both groups, particularly the small builder,⁵ who often seems to be ignored in these types of situations.⁶ This article provides somePage 743 recommendations for Ohio's residential building code that are designed to protect the builders' economic interests while adequately safeguarding the homeowner from both personal injury and property damage. Part I discusses different building codes that are currently in use throughout the United States. Part II explains the goals and identifies the key provisions of 125 H.B. 175. Part III analyzes the potential effects of adopting a statewide residential building code on small contractors and those who employ their services. Part IV makes recommendations that will protect builders while maintaining the primary goal of implementing a building code that ensures uniform, safe residential construction. Finally, Part V makes predictions, discusses the implications of the recommendations, and concludes the following: (1) Ohio needs to adopt a uniform statewide residential building code that will both provide its citizens with safe, affordable housing and protect small builders; (2) 125 H.B. 175 did take some steps in that direction by providing for a performance-based building code with appropriate disciplinary measures and protective exceptions; and (3) the law needs to provide for a mandatory, rather than voluntary, building code, as well as for other alterations to better protect both the small builder and the homeowner.

I Background on Building Codes

The history of building codes can be traced as far back as the Code of Hammurabi.⁷ In the United States, building codes were used in the "earliest settlements."⁸ These codes were decidedly less complex than the codes in use today.⁹ For example, New Amsterdam (now New York) hadPage 744 local ordinances that regulated the construction of chimneys and roofs to protect against the threat of fire.¹⁰

Over time, the use of building codes became more widespread throughout the United States.¹¹ By the 1970s, nearly every state and a vast number of large- to mid-size cities had adopted some form of building code.¹² The majority of state building codes focus on commercial construction rather than residential construction, although the implementation of residential construction standards is on the rise.¹³ A total of thirty-five states currently have some form of building code that governs the construction of one- and two-family dwellings.¹⁴

The adopted codes tend to be based on one of the four national model codes that are currently in use throughout the United States.¹⁵ The Uniform Building Code (UBC), developed by the International Congress of Building Officials,¹⁶ is primarily used in the western and north-central states.¹⁷ The Basic Building Code, developed by the Building Officials Conference of America (BOCA),¹⁸ tends to be the most widely used codePage 745 in the north-central and northeast states.¹⁹ The Southern Standard Building Code (SSBC), developed by the Southern Building Code Congress,²⁰ is the code most used in the South.²¹ Finally, the National Building Code (NBC), developed by the American Insurance Association,²² is used in scattered regions throughout the United States except for the West.²³ Supplemental codes, focusing on specialty areas of construction, are utilized in the United States as well.²⁴ Examples include the National Plumbing Code and the National Electric Code.²⁵

A typical model code is divided into three parts: definitions, licensing requirements, and the actual standards.²⁶ The definitions section of the specific building code is usually an introductory section that defines key work areas, such as plumbing or electrical work.²⁷ The licensing requirements describe who is authorized to do what types of work.²⁸ The actual standards section is the "heart of the code."²⁹ The standards will, depending on the type of code used, either specify the types and quantities of material used and describe the point in the building process where this material is used, or specify certain minimum performance standards that must be met in each phase of the building process.³⁰

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II Ohio' s Experience with Building Codes

A History of Ohio Building Codes

Ohio's own building code history can be traced back to the early part of the twentieth century.³¹ The earliest regulations covered buildings such as schools and industrial buildings.³² In the 1950s, those standards were compiled into a building code.³³ At that time, the Ohio legislature did not implement that code as state law.³⁴ A few years later, however, the legislature created the board of building standards, which adopted the revised building code as the state building code.³⁵

This code was compiled into a document called the Ohio Building Code³⁶ In 1978, the board decided to repeal most of that code and adopted, with special Ohio modifications, the BOCA code as the Ohio building code.³⁷ This code was not applied to one- and two-family dwellings; it was applied to industrial/modular housing.³⁸ Currently, OhioPage 747 does not have a statewide residential building code.³⁹ Thus, at this point, local governments have the authority to adopt their own residential building standards if they wish.⁴⁰

B Provisions of KB. 175

125 H.B. 175 was introduced in the Ohio House of Representatives on May 7, 2003 by its primary sponsor, Representative Steven Buehrer⁴¹ An amended version, signed into law, went into effect on May 27, 2005 ⁴²

The law has two primary goals. The first is to authorize the creation of uniform residential construction standards for Ohio by creating an advisory committee, which will recommend the residential building code as well as the mechanisms for its enforcement.⁴³ The second is to create a Notice and Right to Cure provision that sets forth procedures for consumers to bring claims against residential contractors for construction defects⁴⁴

H.B. 175 focused on creating uniform statewide building standards for single-, two-, and three-family dwellings and was designed to cover the new construction of any such dwellings, as well as any remodeling or addition to these dwellings.⁴⁵ The law is not the actual building code that Ohio would use; rather, the law creates or empowers administrative bodiesPage 748 whose functions are to develop and implement the state residential code.⁴⁶ One of...