Opposition Testimony on HB 372 — Ohio Building Officials' Association, House Commerce & Labor (2022)

Summary

This is opposition testimony on HB 372, Expedited Board of Building Appeals Procedures, dated March 22, 2022, addressed to The Honorable Dick Stein, Chair of the House Commerce & Labor Committee. The writer is Charles Huber, who says he serves on the Ohio Building Officials' Association (OBOA) Legislative & By-Laws Committee. The testimony proposes that the committee and sponsor consider amending HB 372 to apply only to the Ohio BBA, not local nonresidential BBA. It states that three BBA serving 11 jurisdictions have said they would request decertification if HB 372 becomes statute in its present form. Attachments include excerpts of Ohio Administrative Code 4101:1-1 and 4101:1-2 and Ohio Revised Code 3781.11(B) and 3781.19.

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“Opposition Testimony on HB 372 — Ohio Building Officials' Association, House Commerce & Labor (2022).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/2022-03-29-commerce-labor-testimony-hb372opoboawritten-8103db5178/, SHA-256 fc9fad5de91551007f72ab05ba9679e46805028600f2a4e18a217ffec07b8264.

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PO BOX 1506, COLUMBUS OH 43216-1506
www.oboa.org Founded 1961

March 22, 2022

CHAPTER The Honorable Dick Stein
MEMBERS Chair, House Commerce & Labor Committee
77 High St Fl 12
BOCONEO
Columbus OH 43215-6108
COCOA Via e-mail Bob.Reed@ohiohouse.gov & Rep57@ohiohouse.gov
FBOA
SUBJECT: HB 372, Expedited Board of Building Appeals Procedures,
MVBOC Opposition Testimony
NCOBOA
1. Introduction. Chair Stein, Vice Chair Johnson, Ranking Member Lepore-
NWOBOA Hagan, and members of the House Commerce and Labor Committee. My
name is Charles Huber and I serve on the Ohio Building Officials’ Association
OCPT
(OBOA) Legislative & By-Laws Committee. Thank you for allowing me to
ODPCA submit this Opposition Testimony on House Bill 372 (HB 372). OBOA is a
professional organization consisting of over 1,000 members most of whom
SWOBOA
administer construction and fire rules. Our membership includes private
SWOFSC sector architects, professional engineers, other construction designers, and
construction contractors. Our members include employees and officials in
State government. However, my testimony has been neither specifically
coordinated nor endorsed by any State government employee or official.

2. Summary. HB 372 sponsor and proponent testimony have cited real world instances for which
timely remedies in law already exist. HB 372 would have the unintended consequence of
removing the convenience of local nonresidential boards of building appeals (BBA) in some
jurisdictions. OBOA proposes the Committee and sponsor consider amending HB 372 to
apply only to the Ohio BBA, not local nonresidential BBA.

3. Existing Remedies in Law. Rep Ray’s and Roemer’s sponsor testimony cites, “… sometimes
changes requested by inspectors are incompatible with plans already pre-approved by the
local government …” and shows the building owner and his representatives
(design/construction team) may appeal the situation to the local nonresidential BBA (if one
exists) or the Ohio BBA (if local nonresidential BBA doesn’t exist or if local nonresidential BBA
decision wasn’t favorable). Associated Builders & Contractors’ proponent testimony cites, “…
appeal a decision of the inspector …” Pride One’s proponent testimony cites, “… appeal a
decision of the inspector …” and “… discrepancies between Ohio Building Code and a fully
Permitted set of drawings …” This is contrary to existing law on the following points:

AN ASSOCIATION FOR ADVANCEMENT OF THE CODE COMPLIANCE INDUSTRY
a. Ohio Administrative Code (OAC) 4101:1-1 [Ohio Building Code (OBC) 107.2.1] reads in
part, “The approval of plans … is a “license” …” OBC 105.2 reads in part, “The
construction, erection, and alteration of a building, … shall conform to required plans which
have been approved by the building official, except for minor deviations which do not
involve a violation of the rules of the board.” [Meaning the Ohio Board of Building
Standards (BBS), the construction codes.] “In the absence of fraud or a serious safety or
sanitation hazard, any structure built in accordance with approved plans shall be
conclusively presumed to comply with Chapters 3781 and 3791 of the Revised Code and
the rules of the board. …” The OAC 4101:1-2 OBC 202 definition of “serious hazard” is
attached. OBC 108.6 et seq. (attached) shows that an inspector doesn’t approve or
disapprove anything. He/she is limited to being the eyes of the building official. When the
inspector finds the construction doesn’t comply with the approved construction documents
(drawings, specifications, etc.) he/she provides a written report to the building owner’s on-
site representative with the following options:

(1) Bring the construction into compliance with the approved drawings.
(2) Have the drawings revised. (Drawings are prepared by an architect or professional
engineer unless exempt under OBC 106.2.1’s exceptions).
(3) Bring the issue to the building official.
(4) An option not in law, the building owner’s representative might choose to do none of the
above. The building official if appropriate would then issue an Adjudication Order
addressing the issue which is appealable to the BBA. If the building owner’s
representative fails to comply, then the building official has other remedies at law
available (temporary restraining order, injunction, judgement entry, etc.).

b. If an inspector violates this law (for instance by stating construction conforming to the
approved construction documents isn’t acceptable) the building owner’s representative
(construction contractor) could:
(1) Advise the building official who would take supervisory corrective action. This is a
timely solution.
(2) File a complaint to the BBS. If upon investigation the BBS finds the inspector or
building official violated this law, then BBS can impose sanctions. The possible sanctions
range from mandating education on the law to permanent revocation of the person’s Ohio
certification(s) to perform these code administration functions [OAC 4101:7-3-1(F)(7)]. This
solution isn’t timely, but it has the potential of preventing repeat violations in the future.

4. Conflicting Enforcement: Pride One’s testimony cites, “… Discrepancies in how the Local Building
Department inspector, the Local fire Department, the State Fire Marshal, … interpret the Code …”
Existing statute at Ohio Revised Code 3781.11(B) (attached and at OAC 4101:1-1, OBC 102.3)
shows the construction codes, which are administered by the building official, supersede orders of the
local fire official and State Fire Marshal except for buildings with fireworks.

5. Three Types of BBA Appeal. ORC 3781.19 (extract attached) reflected at OAC 4101:1-1 OBC
104.3.1 (attached) provide three situations when a BBA can modify a building officials’ adjudication
order. They are when the BBA finds either:

a. The adjudication order’s contrary to such laws (ORC 3781 & 3791) or rules (the construction
codes); or

b. The adjudication order’s contrary to a fair interpretation of application thereof; or
c. That a variance from the provisions of such laws or rules, in a specific case, will not be
contrary to the public interest where literal enforcement of such provisions will result in
unnecessary hardship.

During my career of over 30 years as a building official at three jurisdictions over 90% of the appeals
to my adjudication orders were to obtain variances to obtain plan approvals before construction had
commenced. The building owner’s design/construction team argued (and the local BBA often
agreed) that the design met the legal criteria for a variance. I ask the House Commerce and Labor
Committee to consider that when some of the local nonresidential BBA are dissolved, all of this
workload will fall to the Ohio BBA.

6. Removing Local Nonresidential BBA. A list of the existing local nonresidential BBA is attached
showing 12 BBA serving 20 jurisdictions. Three BBA’s serving 11 jurisdictions have stated they’d
request BBA decertification if HB 372 becomes statute in its present form. Therefore, all appeals in
those 11 jurisdictions would have to be heard by the Ohio BBA.

7. Conclusion: OBOA proposes this Committee and the sponsor consider amending SB 196 to apply
only to the Ohio BBA, not local nonresidential BBA. My contact information’s e-mail chuber@fboa.org
(M) 330-389-2954. I’m happy to address any questions.

Atch
1. OAC 4101:1-1, OBC 108.6 et seq. & OAC 4101:1-2, OBC 202
2. Ohio Revised Code 3781.11(B)
3. ORC 3781.19 Extract & OAC 4101:1-1, OBC 104.3.1
4. Local Nonresidential BBA
OHIO ADMINISTRATIVE CODE 4101:1-1, OHIO BUILDING CODE CHAPTER 1

108.6 Inspections, observations of violations, unsafe conditions, or serious hazards. When
an inspector from the department having jurisdiction finds that any work in connection with the
location, erections, construction, repair, alteration, moving, or equipment of a building is contrary
to the approved construction documents for the same, the building inspector shall proceed as
required in either Section 108.6.1 or 108.7.
108.6.1 Communication process for work contrary to approved construction
documents.
1. Communicate the nature of the differences to the owner or the owner’s on-site
representative and offer the following options:
1.1 The owner will bring the item of noncompliance into compliance,
1.2 The owner will revise the drawings and resubmit to the department,
1.3 The items of noncompliance will not be brought into compliance and will be
referred to the building official as indicated in item 4 below.
2. The owner or the owner’s on-site representative shall indicate which option (item 1
above) will be exercised.
3. Notations on the on-site inspection record and in the inspector’s log shall be made.
The notations shall include the inspector’s name, the date of the inspection, the type of
inspection, the observed items of noncompliance, the option chosen by the owner or the
owner’s on-site representative, the name of the person communicated with, and the
estimated dates of compliance and follow-up inspections, if applicable.
4. If the owner or the owner’s on-site representative indicates that the work will not be
brought into compliance with the approved construction documents, the inspector shall
submit a report to the building official for the final determination of noncompliance in
accordance with Section 108.7.
108.6.2 Observation of violations not shown on plans. If an inspector, in the course of
performing the assigned or requested inspections, observes a code violation that was either
shown incorrectly or not adequately addressed or detailed in the approved construction
documents, the inspector shall communicate the finding to the building official so that the
building official can make a determination of whether the code violation is of such significance
to warrant communicating the finding to the owner or the owner’s representative as a notice of
recommended change.
108.6.3 Observation of unsafe conditions or serious hazards. In an inspector, in the
course of performing the assigned or requested inspections, observes an unsafe condition or a
serious hazard, the inspector shall communicate that condition to the owner or the owner’s on-
site representative and shall report the findings immediately to the building official so that the
building official can make a final determination of whether the violation constitutes a serious
hazard which requires the issuance of an adjudication order as required in Section 109.

OHIO ADMINISTRATIVE CODE 4101:1-2 OHIO BUILDING CODE CHAPTER 2

202 Definitions. …
SERIOUS HAZARD. A hazard of considerable consequence to safety or health through the
design, location, construction, or equipment of a building, or the condition thereof, which
hazard has been established through experience to be of certain or probable consequence, or
which can be determined to be, or which is obviously such a hazard.
OHIO REVISED CODE 3781.11(B)
(REFLECTED AT OHIO ADMINISTRATIVE CODE 4101:1-1, OHIO BUILDONG CODE
CHAPTER 1 SECTION 102.3)

The rules of the board…” meaning the Ohio Board of Building Standards “… shall supersede
and govern any order, standard, or rule of the division of industrial compliance in the
department of commerce, division of the state fire marshal, the department of health, and of
counties and townships, in all cases where such orders, standards, or rules are in conflict of
the board, except that rules adopted and orders issued by the state fire marshal pursuant to
Chapter 3743 of the Revised Code prevail in event of a conflict.
OHIO REVISED CODE 3781.19 EXTRACT

“… the municipal, county, or state board of building appeals, as the agency conducting the
adjudication hearing, may reverse or modify the order of the enforcing agency if it finds that the
order is contrary to this chapter and Chapters 3791 and 4101, and … any rule made
thereunder or to a fair interpretation or application of such laws or any rule made thereunder,
or that a variance from the provisions of such laws or any rule made thereunder, in the specific
case, will not be contrary to the public interest where a literal enforcement of such provisions
will result in unnecessary hardship. …”

OHIO ADMINISTRATIVE CODE 4101:1-1, OHIO BUILDING CODE 104.3.1

Powers, local boards of building appeals. Certified municipal and county boards of building
appeals shall hear and decide the adjudication hearings referred to in section 109.1 within the
jurisdiction of and arising from orders of the local building official in the enforcement of
Chapters 3781 and 3791 of the Revised Code and rules adopted thereunder. The orders may
be reversed or modified by the board if it finds:
1. The order contrary to such laws or rules;
2. The order contrary to a fair interpretation of application thereof; or
3. That a variance from the provisions of such laws or rules, in a specific case, will not
be contrary to the public interest where literal enforcement of such provisions will
result in unnecessary hardship.
LOCAL NONRESIDENTIAL BOARDS OF BUILDING APPEALS

Cities

Cincinnati

Cleveland Tom Vanover tvanover@city.cleveland.oh.us e-mail 10/19/21 shows, “I am working with our
Mayors office for a response.”

Dayton (Also serving Centerville, Kettering, Miamisburg, Moraine, New Lebanon, Vandalia, West
Carrollton, & Montgomery County) Scott Adams scott.adams@daytonohio.gov e-mail 10/12/21 shows, “… I
would ask the BBS to decertify the local … Board of Building Appeals …”

Mariemont

Springfield Brandon Gill bgill@springfieldohio.gov e-mail 10/20/21 shows, “I am working with my Law
Department and City Manager’s Office on a reply to this.”

Toledo (Also serving Lucas County)

Counties

Greene

Hamilton Michael Stehlin AIA Michael.Stehlin@hamilton-co.org e-mail 10/4/21 shows they, “… will have
no choice but to dismantle our local Board of Building Appeals.”

Medina Richard Nelson rnelson@medinaco.org e-mail 10/21/21 shows, “… doubt I’ll ask our board to be
decertified, …”

Stark Angela Cavanaugh leah309ang@yahoo.com e-mail 10/4/21 shows they, “... would … request Ohio
Board of Building Standards decertify their local BBA.”

Summit

Summary
Three (Dayton, Hamilton Co, & Stark Co) would decertify. Two (Cleveland & Springfield) are working
with their jurisdictions to develop position. One (Medina Co) wouldn’t decertify. Four (Cincinnati,
Mariemont, Toledo, Green Co, & Summit Co) no response.

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