Home » 2009 Issues » January 28, 2009 » DOS-04-09-00001-E Administration and Enforcement of the Uniform Code by the Department of State
DOS-04-09-00001-E Administration and Enforcement of the Uniform Code by the Department of State
1/28/09 N.Y. St. Reg. DOS-04-09-00001-E
NEW YORK STATE REGISTER
VOLUME XXXI, ISSUE 4
January 28, 2009
RULE MAKING ACTIVITIES
DEPARTMENT OF STATE
EMERGENCY RULE MAKING
I.D No. DOS-04-09-00001-E
Filing No. 47
Filing Date. Jan. 09, 2009
Effective Date. Jan. 09, 2009
Administration and Enforcement of the Uniform Code by the Department of State
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Repeal of sections 1202.1-1202.6; renumbering of section 1202.7 to 1202.12; amendment of section 1202.12; and addition of sections 1202.1-1202.11 to Title 19 NYCRR.
Statutory authority:
Executive Law, section 381(1) and (2)
Finding of necessity for emergency rule:
Preservation of public safety and general welfare.
Specific reasons underlying the finding of necessity:
Part 1202 of Title 19 NYCRR ("Part 1202") establishes the procedures applicable in circumstance in which the Department of State ("DOS") must administer and enforce the Uniform Fire Prevention and Building Code (the "Uniform Code"). For many years prior to 2009, DOS administered and enforced the Uniform Code only with respect to buildings and structures in the custody of 15 counties (the "opted-out counties"). On January 1, 2009, DOS became responsible for administering and enforcing the Uniform Code with respect to all buildings and structures, public and private, in a town located in one of the opted-out counties. However, DOS's code enforcement program (Part 1202) does not now include all of the features which must be included in a code enforcement program adopted by a local government that administers and enforces the Uniform Code (those features being described in 19 NYCRR Part 1203). This rule will amend Part 1202 to make the features of DOS's code enforcement program (Part 1202) substantially similar to the features that local governments must include in the code enforcement programs they are required to adopt under the current version of Part 1203. Adopting this rule on an emergency basis is required to preserve public safety and the general welfare by ensuring that administration and enforcement of the Uniform Code by DOS in the town mentioned above will be conducted in a manner that satisfies the minimum standards established by the rules and regulations promulgated by the Secretary of State pursuant to Executive Law section 381(1).
Subject:
Administration and enforcement of the Uniform Code by the Department of State.
Purpose:
To ensure that administration and enforcement of the Uniform Code will be conducted in a manner that satisfies the minimum standards established by Executive Law section 381(1).
Substance of emergency rule:
Subdivision 1 of Executive Law section 381 authorizes the Secretary of State to promulgate rules and regulations prescribing minimum standards for administration and enforcement of the State Uniform Fire Prevention and Building Code (the Uniform Code). Subdivision 2 of Executive Law section 381 provides that in the event that a local government elects not to administer and enforce the Uniform Code within such local government, and the county in which such local government is located elects not to administer and enforce the Uniform Code in such county, the Secretary of State shall administer and enforce the Uniform Code in the place and stead of such local government. Part 1202 of Title 19 NYCRR establishes the procedures applicable in circumstance in which the Secretary of State must administer and enforce the Uniform Code. This rule amends Part 1202.
This rule renumbers current Section 1202.7 (Fees) of Title 19 NYCRR as section 1202.12.
This rule repeals current Sections 1202.1 to 1202.6 of Title 19 NYCRR and adds new Sections 1202.1 to 1202.11.
New Section 1202.1 specifies the purpose of Part 1202 and defines certain terms used in Part 1202.
New Section 1202.2 provides that building permits and demolition permits are required for any work which must comply with the Uniform Code or Energy Code. Section 1202.2 also specifies certain exceptions, where a permit is not required; specifies requirements applicable to permit applications; specifies requirements applicable when a permit applicant is not the owner of the subject property; specifies requirements applicable to the construction documents that must be submitted with a permit application; specifies requirements applicable to the issuance and display of permits; specifies when permits may be suspended or revoked; and specifies the duration of permits and the procedures applicable to renewal of permits.
New Section 1202.3 provides that construction inspections will be performed at appropriates stages during the performance of work for which a building permit has been issued. Section 1202.2 also includes provisions relating to scheduling inspections, and includes provisions relating to the results of the inspections.
New Section 1202.4 provides that a certificate of occupancy or certificate of completion must be obtained upon completion of any work for which a permit has been issued. Section 1202.4 also prohibits the use or occupancy of buildings or structures without an appropriate certificate of occupancy or certificate of completion; prohibits any change in the nature of the occupancy of an existing building or structure, or any portion thereof, unless a certificate of occupancy authorizing the change has been issued; includes provisions relating to temporary certificates of occupancy; includes provisions relating to the issuance of certificates and the suspension or revocation of certificates.
New Section 1202.5 provides for periodic inspections of buildings for compliance with applicable fire safety and property maintenance provisions of the Uniform Code. In general, buildings which contain an area of public assembly, buildings under the jurisdiction of a college, and dormitories shall be subject to inspection at least once every twelve (12) months; normally unoccupied buildings shall be subject to inspection at least once every sixty (60) months; and all other buildings shall be subject to inspection at least once every thirty-six (36) months. However, Section 1202.5 provides that in most cases, regular, periodic inspections of agricultural buildings used directly and solely for agricultural purposes, one-family dwellings, two-family dwellings, townhouses, or occupied dwelling units in multiple dwellings shall not be required. Section 1202.5 also includes provisions relating to inspections that are in addition to the regular, periodic inspections previously described.
New Section 1202.6 includes provisions relating to operating permits. Section 1202.6 prohibits certain activities and certain uses of buildings without an appropriate operating permit. Section 1202.6 also includes provisions relating to applications for operating permits; tests that may be required prior to the issuance of an operating permit; inspections to be performed prior to the issuance of an operating permit; the duration of an operating permit; keeping operating permits at the subject premises and making operation permits available for inspection; posting operation permits in a conspicuous place at the subject premises; and revocation or suspension of operating permits.
New Section 1202.7 includes provisions relating to violations and remedies. Section 1202.7 authorizes the Department of State and its employees and agents to issue stop work orders, not to be occupied orders, compliance orders, notices of violation, and appearance tickets, and includes provisions relating to the content, service, and effect of stop work orders, not to be occupied orders and compliance orders. Section 1202.7 also includes provisions relating to applications by the Department of State for injunctive relief. The remedies and penalties specified in section 1202.7 are not exclusive, and shall be in addition to, and not in substitution for or limitation of, the other remedies or penalties specified in any other applicable law.
New Section 1202.8 includes provisions relating the review and investigation of complaints which allege or assert the existence of conditions or activities that fail to comply with the Uniform Code, the Energy Code, or Part 1202.
New Section 1202.9 provides that the chief of any fire department providing fire fighting services for any building subject to this Part shall promptly notify the Department of any fire or explosion in any building subject to this Part involving any structural damage, fuel burning appliance, chimney or gas vent.
New Section 1202.10 includes provisions relating to unsafe building and structures.
New Section 1202.11 includes provisions relating to performance of reviews of permit applications by third party reviewers, and performance of construction inspections, periodic inspections and operating permit inspections by third party inspectors. Such reviews would be performed at the cost and expense of the owner or occupant or proposed owner or occupant of the subject premises by a competent reviewer or inspector acceptable to the Department of State.
Former section 1202.7 of Title 19 NYCRR, renumbered as section 1202.12 by this rule, is amended by this rule. In general, existing fees are not changed, although some provisions relating to existing fees are clarified. Section 1202.12 also adds provisions relating to reduced fees payable to the Department of State when a third party reviewer, a third party inspector, or both a third party reviewer and a third party inspector are used. Section 1202.12 also establishes fees for items for which no fee was previously established, such as fees for operating permits.
This notice is intended
to serve only as a notice of emergency adoption. This agency intends to adopt this emergency rule as a permanent rule and will publish a notice of proposed rule making in the State Register at some future date. The emergency rule will expire April 8, 2009.
Text of rule and any required statements and analyses may be obtained from:
Steven Rocklin, Department of State, 99 Washington Ave., Albany, NY 12231-0001, (518) 474-4073, email: Steven.Rocklin@dos.state.ny.us
Regulatory Impact Statement
1. STATUTORY AUTHORITY.
Subdivision 1 of Executive Law section 381 authorizes the Secretary of State to promulgate rules and regulations prescribing minimum standards for administration and enforcement of the State Uniform Fire Prevention and Building Code (the Uniform Code).
Subdivision 2 of Executive Law section 381 provides that in the event that a local government elects not to administer and enforce the Uniform Code within such local government, and the county in which such local government is located elects not to administer and enforce the Uniform Code in such county, the Secretary of State shall administer and enforce the Uniform Code in the place and stead of such local government.
Part 1202 of Title 19 NYCRR establishes the procedures applicable in circumstance in which the Secretary of State must administer and enforce the Uniform Code. This rule amends Part 1202.
2. LEGISLATIVE OBJECTIVES.
This rule will further the legislative objective of ensuring that administration and enforcement of the Uniform Code be conducted in a manner that satisfies the minimum standards established by the rules and regulations promulgated by the Secretary of State pursuant to Executive Law section 381(1).
Part 1203 of Title 19 NYCRR was promulgated pursuant to Executive Law section 381(1). Part 1203 establishes the minimum standards for administration and enforcement of the Uniform Code by local governments.
Part 1203 was amended in 2005, with an effective date of January 1, 2007. At the time of the amendment of Part 1203, the Department of State (DOS) was not responsible for administration and enforcement of the Uniform Code in any local government. However, one local government has recently enacted a local law providing that it (the local government) will not enforce the Uniform Code within such local government on or after January 1, 2009. This particular local government is located in a county that has also elected not to enforce the Uniform Code. As a result, DOS will become responsible for administration and enforcement of the Uniform Code within that local government, starting on January 1, 2009.
Part 1202 of Title 19 NYCRR establishes the procedures applicable in circumstances in which DOS must administer and enforce the Uniform Code. As of January 1, 2009, Part 1202 will be, in effect, the code enforcement program in the local government mentioned above. Thereafter, Part 1202 will become the code enforcement program in any other local government in which DOS may become responsible for enforcing the code. This rule will amend Part 1202 to make the features of DOS's code enforcement program (Part 1202) substantially similar to the features that local governments must include in the code enforcement programs they are required to adopt under the current version of Part 1203.
3. NEEDS AND BENEFITS.
The purpose of this rule is to cause the features included in DOS's program for enforcing the Uniform Code (Part 1202) to be substantially similar to the features which are required (under Part 1203) to be included in a code enforcement program adopted by any local government that enforces the Uniform Code. This is necessary because certain features (e.g., operating permit requirements) now required by Part 1203 are not now included in Part 1202. The benefits to be derived from this rule include insuring that enforcement of the Uniform Code by DOS in those local governments where DOS has that responsibility complies with the minimum standards set forth in the current version of Part 1203.
4. COSTS.
Costs to Regulated Parties.
Regulated parties that build, alter, or demolish buildings or structures located in a local government in which DOS enforces the Uniform Code will be required to obtain building permits, demolition permits, and certificates of occupancy or completion. The initial costs of obtaining a building or demolition permit will include the costs of obtaining the construction documents and other documents needed to include in or with the application for the required permits, and the fees payable to obtain such permits.
The cost of the required construction documents (plans, specifications and drawings) will depend on the nature and scope of the project. DOS estimates that the cost of construction documents for a typical 1,500 square foot one-family dwelling will be approximately $10,000 to $18,000 ($7.00 to $12.00 per square foot). The cost of construction documents for commercial buildings will vary significantly, depending upon the use, size and complexity of the building. However, the requirement that construction documents be provided as part of a permit application is not a new requirement added by this rule. Part 1202 currently requires the submission of "three sets of plans and specifications for the proposed work." This rule would amend this requirement by providing that only two sets of construction documents need be submitted; this may reduce the cost of applying for a building or demolition permit in certain cases.
The fees to be paid to DOS for building permits or demolition permits are set forth in the current version of Part 1202, and will be set forth in section 1202.12 of the new version of Part 1202 to be added by this rule. This rule does not change those fees. Typical fees are as follows: $200 for a building permit for a 1,500 square foot one-family dwelling; $300 for a building permit for a 2,500 square foot one-family dwelling; $200 per 1,000 square feet for a building permit for a multiple dwelling or other general construction; and $50 for a demolition permit. This rule continues provisions which are found in the current version of Part 1202 and which allow DOS to require the use of a third-party inspector to perform required inspections. This rule also adds provisions which allow DOS to require the use of a third-party reviewer to review permit applications. Permit applicants will be required to pay the fees and expenses charged by any third-party inspector or third-party reviewer; however, in either such case, the fee payable to DOS for the permit will be reduced.
The fee for renewing a building permit or demolition permit will be one-half of the original permit fee.
Regulated parties that manufacture, store or handle hazardous materials; conduct hazardous processes and activities; use pyrotechnic devices in any assembly occupancies; own buildings containing one or more areas of assembly with an occupant load of 100 persons or more; or own buildings whose use or occupancy classification may pose a substantial potential hazard to public safety, will be required to obtain an operating permit. The initial costs of obtaining an operating permit will include a permit fee of $100.00 per building affected by the permit, plus an inspection fee of $100.00 per building affected by the permit. DOS may require that a third-party inspector perform the required inspection; in such a case, the applicant will be required to pay the fees and expenses charged by the third-party inspector, but will not be required to pay the $100 per building inspection fee that would otherwise be payable to DOS. The applicant will also be required to pay for any tests or reports that DOS may determine to be necessary to verify that the proposed activity or use complies with the applicable provisions of the Uniform Code.
The fee for renewing an operating permit will be one-half of the initial fee, and will be payable annually in the case of an operating permit issued for an area of public assembly and once every three years in any other case.
Costs to the Department of State, the State, and Local Governments.
DOS will be required to provide the staff necessary to administer and enforce the Uniform Code in the local government(s) where the Department has that responsibility, and DOS will be required to develop permit application forms, permit forms, and other aspects of programs for enforcing the Uniform Code in such local government(s). However, these obligations are imposed upon the Department by statute, as a consequence of local governments and counties opting out of their code enforcement responsibilities, and not by reason of this rule or implementation of this rule. Further, it is anticipated that these costs will be offset, in part, by the fees to be charged.
The State of New York will be required to pay the costs incurred by DOS in providing code enforcement services in the affected local governments and in developing and implementing the code enforcement programs. However, these obligations arise by operation of the statute, as a consequence of local governments and counties opting out of their code enforcement responsibilities, and not by reason of this rule or implementation of this rule.
There will be no cost to local governments for the implementation of this rule, except as follows: DOS currently enforces the Uniform Code with respect to buildings and structures controlled by counties that have elected not to enforce the Uniform Code (the "opted-out counties"). Enforcement of the code against those buildings and structures is performed under the current version of Part 1202. This rule will amend Part 1202 by, inter alia, adding provisions requiring the issuance of operating permits in certain cases and adding provisions permitting DOS to require the use of third-party reviewers to review permit applications. Opted-out counties will incur the cost of applying for, obtaining, and maintaining any required operating permits. Further, if DOS requires the use of a third-party reviewer to review any building permit, demolition permit or operating permit application filed by an opted-out county, such county will be required to pay the fees and expenses charged by such third-party reviewer; however, in a case where a third-party reviewer is used, the permit fee that would otherwise be paid to DOS will be reduced.
5. PAPERWORK.
This rule will not impose any new reporting requirements.
This rule will require regulated parties to file permit application forms and to obtain permits. However, regulated parties (other than opted-out counties) should now be subject to similar requirements under code enforcement programs that local governments are required to adopt under Part 1203. Further, except for the new provisions relating to operating permits to be added to Part 1202 by this rule, opted-out counties are now subject to similar paperwork requirements under the current version of Part 1202.
6. LOCAL GOVERNMENT MANDATES.
This rule will not impose any new program, service, duty or responsibility upon any county, city, town, village, school district, fire district or other special district, except as follows: Opted-out counties, which are not subject to operating permit requirements under the current version of Part 1202, will be subject to the operating permit requirements to be added to Part 1202 by this rule.
7. DUPLICATION.
The rule does not duplicate any existing Federal or State requirement.
8. ALTERNATIVES.
The alternative of making no change to Part 1202 was considered. However, it was determined that the existing provisions of Part 1202 do not include certain features (e.g., operating permit requirements) which are required by Part 1203 to be included in code enforcement programs adopted by local governments that enforce the Uniform Code, and it was determined that the differences between the features included in Part 1202 and the features required by Part 1203 should be minimized before the Department assumes responsibility for enforcing the code in a local government. Therefore, this alternative was rejected.
9. FEDERAL STANDARDS.
There are no standards of the Federal Government which address the subject matter of the rule.
10. COMPLIANCE SCHEDULE.
It is anticipated that regulated persons will be able to achieve compliance with this rule immediately.
Regulatory Flexibility Analysis
1. EFFECT OF RULE.
This rule amends 19 NYCRR Part 1202 ("Part 1202'), which sets forth the procedures applicable in circumstances in which the Department of State ("DOS") must administer and enforce the Uniform Fire Prevention and Building Code ("Uniform Code"). Currently, DOS administers and enforces the Uniform Code with respect to buildings and structures in the custody of the following fifteen counties (the "opted-out counties"): Allegany County, Cattaragus County, Chautauga County, Clinton County, Essex County, Greene County, Hamilton County, Herkimer County, Madison County, Oneida County, Oswego County, Saratoga County, Schoharie County, St. Lawrence County, and Wayne County. Effective January 1, 2009, DOS will also be responsible for administering and enforcing the Uniform Code with respect to all buildings and structures, public and private, in the Town of Conewango in Cattaraugus County.
This rule will apply to (1) the opted-out counties, (2) the Town of Conewango, and (3) all individuals and businesses (including all small businesses) in the Town of Conewango. This rule will also apply to any county that elects to opt out in the future, and to all individuals and businesses (including all small businesses) in any city, town or village in which DOS becomes responsible for administering and enforcing the Uniform Code in the future.
2. COMPLIANCE REQUIREMENTS.
This rule will require regulated parties to file permit application forms and to obtain permits. However, regulated parties (other than opted-out counties) should now be subject to similar requirements under code enforcement programs that local governments are required to adopt under 19 NYCRR Part 1203. Further, except for the new provisions relating to operating permits to be added to Part 1202 by this rule, opted-out counties are now subject to similar paperwork requirements under the current version of Part 1202.
3. PROFESSIONAL SERVICES.
Regulated parties will be required to provide construction documents (plans, drawings and specifications) when they apply for a building or demolition permit. In most cases, construction documents must be stamped and signed by a registered architect or professional engineer. However, the requirement that permit applicants submit construction documents is not a new requirement added by this rule; it is a requirement which is established by statute (Executive Law section 7303(1)), which is reflected in the current version of Part 1202, and which should be reflected in code enforcement programs enacted by local governments that enforce the Uniform Code.
4. COMPLIANCE COSTS.
An opted-out county that builds, alters, or demolishes a building or structure will be required to obtain a building permit, demolition permit, or certificate of occupancy or completion. Regulated parties that build, alter, or demolish buildings or structures located in a local government in which DOS enforces the Uniform Code will be required to obtain building permits, demolition permits, and certificates of occupancy or completion. The initial costs of obtaining a building or demolition permit will include the costs of obtaining the construction documents and other documents needed to include in or with the application for the required permits, and the fees payable to obtain such permits.
The cost of the required construction documents (plans, specifications and drawings) will depend on the nature and scope of the project. DOS estimates that the cost of construction documents for a typical 1,500 square foot one-family dwelling will be approximately $10,000 to $18,000 ($7.00 to $12.00 per square foot). The cost of construction documents for commercial buildings will vary significantly, depending upon the use, size and complexity of the building. However, the requirement that construction documents be provided as part of a permit application is not a new requirement added by this rule. Part 1202 currently requires the submission of "three sets of plans and specifications for the proposed work." This rule would amend this requirement by providing that only two sets of construction documents need be submitted; this may reduce the cost of applying for a building or demolition permit in certain cases.
The fees to be paid to DOS for building permits or demolition permits are set forth in the current version of Part 1202, and will be set forth in section 1202.12 of the new version of Part 1202 to be added by this rule. This rule does not change those fees. Typical fees are as follows: $200 for a building permit for a 1,500 square foot one-family dwelling; $300 for a building permit for a 2,500 square foot one-family dwelling; $200 per 1,000 square feet for a building permit for a multiple dwelling or other general construction; and $50 for a demolition permit. This rule continues provisions which are found in the current version of Part 1202 and which allow DOS to require the use of a third-party inspector to perform required inspections. This rule also adds provisions which allow DOS to require the use of a third-party reviewer to review permit applications. Permit applicants will be required to pay the fees and expenses charged by any third-party inspector or third-party reviewer; however, in either such case, the fee payable to DOS for the permit will be reduced.
The fee for renewing a building permit or demolition permit will be one-half of the original permit fee.
Regulated parties that manufacture, store or handle hazardous materials; conduct hazardous processes and activities; use pyrotechnic devices in any assembly occupancies; own buildings containing one or more areas of assembly areas with an occupant load of 100 persons or more; or own buildings whose use or occupancy classification may pose a substantial potential hazard to public safety, will be required to obtain an operating permit. The initial costs of obtaining an operating permit will include a permit fee of $100.00 per building affected by the permit, plus an inspection fee of $100.00 per building affected by the permit. DOS may require that a third-party inspector perform the required inspection; in such a case, the applicant will be required to pay the fees and expenses charged by the third-party inspector, but will not be required to pay the $100 per building inspection fee that would otherwise be payable to DOS. The applicant will also be required to pay for any tests or reports that DOS may determine to be necessary to verify that the proposed activity or use complies with the applicable provisions of the Uniform Code.
The fee for renewing an operating permit will be one-half of the initial fee, and will be payable annually in the case of an operating permit issued for an area of public assembly and once every three years in any other case.
Any variation in the foregoing compliance costs for small businesses or local governments of different types and of differing sizes would be a factor of the types of buildings and structures typically owned by such small businesses or local governments. For example, a small business or local government that typically owns complex commercial buildings will incur higher costs for the construction documents that must accompany an application for a building permit than would a small business or local government that typically owns less complex commercial buildings or residential buildings. The compliance costs associated with the construction, alteration or demolition of any particular building is not likely to vary significantly by reason of the type or size of the small business or local government that constructs, alters or demolishes the building.
5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY.
It is economically and technologically feasible for small businesses and local governments to comply with the rule. This rule imposes no substantial new compliance costs. No new technology need be developed for compliance with this rule.
6. MINIMIZING ADVERSE IMPACT.
This rule is intended to further the legislative objective of ensuring that administration and enforcement of the Uniform Code be conducted in a manner that satisfies the minimum standards established by the rules and regulations promulgated by the Secretary of State pursuant to Executive Law section 381(1); it does so by amending Part 1202 to make the features of the DOS's code enforcement program (Part 1202) substantially similar to the features that local governments must include in the code enforcement programs they are required to adopt under the current version of 19 NYCRR Part 1203.
In the opinion of DOS, establishing differing compliance or reporting requirements or timetables for small businesses and local governments or providing exemptions from coverage by the rule for small businesses and local governments would be detrimental to the foregoing objective and would endanger public health, safety or general welfare by reducing code enforcement standards with respect to buildings and structures owned by small businesses and local governments.
7. SMALL BUSINESS AND LOCAL GOVERNMENT PARTICIPATION.
In December of 2008, the Department of State sent a copy of the proposed rule to the chief executive officer of each of the fifteen opted-out counties, the Town of Conewango and several small businesses in the Town of Conewango by e-mail and/or by regular mail, and invited the opted-out counties, the Town of Conewango and those small businesses to contact the Department of State if they had any questions or comments. To date, no substantive comments have been received.
Rural Area Flexibility Analysis
1. TYPES AND ESTIMATED NUMBERS OF RURAL AREAS.
This rule amends 19 NYCRR Part 1202 ("Part 1202'), which sets forth the procedures applicable in circumstances in which the Department of State ("DOS") must administer and enforce the Uniform Fire Prevention and Building Code ("Uniform Code"). Currently, DOS administers and enforces the Uniform Code with respect to buildings and structures in the custody of the following fifteen counties (the "opted-out counties"): Allegany County, Cattaragus County, Chautauga County, Clinton County, Essex County, Greene County, Hamilton County, Herkimer County, Madison County, Oneida County, Oswego County, Saratoga County, Schoharie County, St. Lawrence County, and Wayne County. Effective January 1, 2009, DOS will also be responsible for administering and enforcing the Uniform Code with respect to all buildings and structures, public and private, in the Town of Conewango in Cattaraugus County.
This rule will apply in the opted-out counties (as to buildings and structures in the custody of the opted-out counties) and in the Town of Conewango. This rule will also apply in any county that elects to opt out in the future (as to buildings and structures in the custody of such county), and in any city, town or village in which DOS becomes responsible for administering and enforcing the Uniform Code in the future.
2. REPORTING, RECORDKEEPING AND OTHER COMPLIANCE REQUIREMENTS.
This rule will require regulated parties to file permit application forms and to obtain permits. However, regulated parties (other than opted-out counties) should now be subject to similar requirements under code enforcement programs that local governments are required to adopt under 19 NYCRR Part 1203. Further, except for the new provisions relating to operating permits to be added to Part 1202 by this rule, opted-out counties are now subject to similar paperwork requirements under the current version of Part 1202.
3. PROFESSIONAL SERVICES.
Regulated parties will be required to provide construction documents (plans, drawings and specifications) when they apply for a building or demolition permit. In most cases, construction documents must be stamped and signed by a registered architect or professional engineer. However, the requirement that permit applicants submit construction documents is not a new requirement added by this rule; it is a requirement which is established by statute (Executive Law section 7303(1)), which is reflected in the current version of Part 1202, and which should be reflected in code enforcement programs enacted by local governments that enforce the Uniform Code.
4. COMPLIANCE COSTS.
An opted-out county that builds, alters, or demolishes a building or structure will be required to obtain a building permit, demolition permit, or certificate of occupancy or completion. Regulated parties that build, alter, or demolish buildings or structures located in a local government in which DOS enforces the Uniform Code will be required to obtain building permits, demolition permits, and certificates of occupancy or completion. The initial costs of obtaining a building or demolition permit will include the costs of obtaining the construction documents and other documents needed to include in or with the application for the required permits, and the fees payable to obtain such permits.
The cost of the required construction documents (plans, specifications and drawings) will depend on the nature and scope of the project. DOS estimates that the cost of construction documents for a typical 1,500 square foot one-family dwelling will be approximately $10,000 to $18,000 ($7.00 to $12.00 per square foot). The cost of construction documents for commercial buildings will vary significantly, depending upon the use, size and complexity of the building. However, the requirement that construction documents be provided as part of a permit application is not a new requirement added by this rule. Part 1202 currently requires the submission of "three sets of plans and specifications for the proposed work." This rule would amend this requirement by providing that only two sets of construction documents need be submitted; this may reduce the cost of applying for a building or demolition permit in certain cases.
The fees to be paid to DOS for building permits or demolition permits are set forth in the current version of Part 1202, and will be set forth in section 1202.12 of the new version of Part 1202 to be added by this rule. This rule does not change those fees. Typical fees are as follows: $200 for a building permit for a 1,500 square foot one-family dwelling; $300 for a building permit for a 2,500 square foot one-family dwelling; $200 per 1,000 square feet for a building permit for a multiple dwelling or other general construction; and $50 for a demolition permit. This rule continues provisions which are found in the current version of Part 1202 and which allow DOS to require the use of a third-party inspector to perform required inspections. This rule also adds provisions which allow DOS to require the use of a third-party reviewer to review permit applications. Permit applicants will be required to pay the fees and expenses charged by any third-party inspector or third-party reviewer; however, in either such case, the fee payable to DOS for the permit will be reduced.
The fee for renewing a building permit or demolition permit will be one-half of the original permit fee.
Regulated parties that manufacture, store or handle hazardous materials; conduct hazardous processes and activities; use pyrotechnic devices in any assembly occupancies; own buildings containing one or more areas of assembly with an occupant load of 100 persons or more; or own buildings whose use or occupancy classification may pose a substantial potential hazard to public safety, will be required to obtain an operating permit. The initial costs of obtaining an operating permit will include a permit fee of $100.00 per building affected by the permit, plus an inspection fee of $100.00 per building affected by the permit. DOS may require that a third-party inspector perform the required inspection; in such a case, the applicant will be required to pay the fees and expenses charged by the third-party inspector, but will not be required to pay the $100 per building inspection fee that would otherwise be payable to DOS. The applicant will also be required to pay for any tests or reports that DOS may determine to be necessary to verify that the proposed activity or use complies with the applicable provisions of the Uniform Code.
The fee for renewing an operating permit will be one-half of the initial fee, and will be payable annually in the case of an operating permit issued for an area of public assembly and once every three years in any other case.
Any variation in the foregoing compliance costs for different types of public and private entities in rural areas would be a factor of the types of buildings and structures typically owned by such entities. For example, a public or private entity that typically owns complex commercial buildings will incur higher costs for the construction documents that must accompany an application for a building permit than would a public or private entity that typically owns less complex commercial buildings or residential buildings. The compliance costs associated with the construction, alteration or demolition of any particular building is not likely to vary significantly by reason of the type of entity that constructs, alters or demolishes the building.
5. MINIMIZING ADVERSE IMPACT.
This rule is intended to further the legislative objective of ensuring that administration and enforcement of the Uniform Code be conducted in a manner that satisfies the minimum standards established by the rules and regulations promulgated by the Secretary of State pursuant to Executive Law section 381(1); it does so by amending Part 1202 to make the features of the DOS's code enforcement program (Part 1202) substantially similar to the features that local governments must include in the code enforcement programs they are required to adopt under the current version of 19 NYCRR Part 1203.
In the opinion of DOS, establishing differing compliance or reporting requirements or timetables for rural areas or providing exemptions from coverage by the rule in rural areas would be detrimental to the foregoing objective and would endanger public health, safety or general welfare by reducing code enforcement standards in rural areas.
6. RURAL AREA PARTICIPATION.
In December of 2008, the Department of State sent a copy of the proposed rule to the chief executive officer of each of the fifteen opted-out counties, the Town of Conewango and several small businesses in the Town of Conewango by e-mail and/or by regular mail, and invited the opted-out counties, the Town of Conewango and those small businesses to contact the Department of State if they had any questions or comments. To date, no substantive comments have been received.
Job Impact Statement
The Department of State has concluded, after reviewing the nature and purpose of the rule, that it will not have a "substantial adverse impact on jobs and employment opportunities" (as that term is defined in section 201-a of the State Administrative Procedures Act) in New York.
Part 1202 of Title 19 NYCRR establishes the procedures applicable in circumstances in which the Department of State must administer and enforce the State Uniform Fire Prevention and Building Code (the Uniform Code) in the place and stead of a local government or county. This rule amends Part 1202.
Regulated parties that build, alter or demolish buildings in local governments in which the Department of State enforces the Uniform Code will be required to apply for and obtain building or demolition permits and certificates of occupancy or completion. However, regulated parties currently are, or should be, subject to substantially similar obligations under code enforcement programs adopted by local governments pursuant to the mandate of Part 1203 of Title 19 NYCRR or under the current version of Part 1202.
Regulated parties that manufacture, store or handle hazardous materials; conduct hazardous processes and activities; use pyrotechnic devices in any assembly occupancies; own buildings containing one or more areas of assembly areas with an occupant load of 100 persons or more; or own buildings whose use or occupancy classification may pose a substantial potential hazard to public safety, will be required to apply for, obtain and maintain an operating permit. Counties that have elected not to enforce the Uniform Code (the "opted-out counties") and that engage in such activities or uses are not currently subject to operating permit requirements. This rule will extend those requirements to the opted-out counties. However, all other regulated parties currently are, or should be, subject to substantially similar operating permit requirements under code enforcement programs adopted by local governments pursuant to the mandate of Part 1203 of Title 19 NYCRR.
Based on the foregoing, it is anticipated that this rule will have no significant adverse impact on jobs or employment opportunities in the building industry, or in any related businesses or industry.
