MULTIFAMILY CONSTRUCTION ADVISORY COMMITTEE OF ILLINOIS

MULTIFAMILY CONSTRUCTION ADVISORY COMMITTEE OF ILLINOIS

1480 Renaissance Drive, Suite 401, Park Ridge, Illinois 60068, 708-297-6704

The Multifamily Construction Advisory Committee of Illinois encourages the construction of quality housing that is firesafe, sound-resistant, and durable. Committee members Include:

Brick Distributors of Illinois

Illinois Cement Shippers Association

Illinois Concrete Products Association

Masonry Advisory Council

Midwest/Calumet Flexicore Corp.

J.W. Peters & Sons, Inc.

Precast Prestressed Producers of Illinois

Spancrete Of Illinois, Inc.

For additional information or resources contact:

Brick Institute of America

National Concrete Masonry Association

Portland Cement Association

Precast/Prestressed Concrete Institute

Upgrading Firesafety for Multi-Family Buildings

"A Tale of Two Cities"

The Home Rule Way

Hodgkins, Illinois recently became a "Select Community" of the MCAC of Illinois. By the action of it's elected officials unanimously passing a new village ordinance, Hodgkins requires two-hour fireresistance rated masonry and precast concrete construction for separation walls and floors for all new multi-family buildings.

Against All Odds Way

Middleburg Heights, Ohio passes an ordinance requiring two-hour non-combustible walls to separate all multi-unit dwellings - and has it's building department decertified by the Ohio Basic Building Code Board. The reason stated, is it's firesafety construction standards were higher than the OBBC requirements. Also joining forces with OBBC were the Ohio Builders Association (homebuilders), Architects Society of Ohio, Ohio AGC and the manufactured homes association.

After a two year legal confrontation, the Ohio Supreme Court ruled in December 1992 in favor of the City of Middleburg Heights. Thus giving the City the right to establish higher building standards than the minimum established by the OBBC. What an ordeal to have to go through just to get improved firesafety construction for multi-family buildings.

MCAC of Illinois congratulates these two communities for their foresight and for their perseverance in providing firesafe construction for their future multi-family buildings, by ordinance. (This ordinance does not effect existing buildings, only new construction). Please review the enclosed Middleburg Heights-Point of View and the sample ordinance on the opposite page.

If you feel your community should be on this list - fax a copy of your existing multi-family code section to 708/297-8373, call 708/297-6704 for additional information or to adopt the sample ordinance.

This letter is reproduced in this issue of Code News to help enlighten our readers on the points of view surrounding the Middleburg Heights case, which is currently on appeal to the Ohio Supreme Court. Middleburg Heights was decertified by the Ohio Board of Building Standards for enforcing regulations which are in conflict with the Ohio Basic Building Code (OBBC). See 1991 Code News 72 (July/Aug.1991). The issues involved are at the forefront of discussion across the state.

Editor's Note: Certain exhibits have been referenced in this letter. Copies of any of these exhibits can be obtained from Bonnie White, President of Middleburg Heights City Council.

We are writing this letter to bring to your attention a problem in Ohio and the rest of the nation. Lax state building codes in many states permit combustible construction in motels and multifamily dwellings. A South Carolina case illustrates our concern: the South Carolina Supreme Court ruled a builder could be held liable even though the building was constructed in compliance with the South Carolina building code. Collingwood v. General Elec. Real Estate Equities, 324 N.C. 63, 376 S.E.2d 425, (1989). Segments of the building industry in Ohio have been able to persuade state governments to force local governments to permit combustible buildings. Because the state code is so lax, we believe a local control of building standards is essential to maintain the safety of occupants. For example, section 1002.9 of the 1990 National Building Officials and Code Administrators (BOCA) Code requires sprinklers in motels and three-story, wood-frame multifamily dwellings. Surprisingly, Ohio allows such buildings without sprinklers. Middleburg Heights has attempted to improve safety by requiring more fire-resistant construction in multifamily dwellings and motels. The building industry through the state of Ohio is now trying to force Middleburg Heights to lower its building standards below those of the national code down to the level of the state code. In the absence of effective safety regulation of building construction by any other government agency, the responsibility falls on local governments.

The Ohio Basic Building Code (OBBC) sets out the minimum building construction standards required by the state of Ohio. The OBBC was modeled after the National BOCA Code. From time to time, the national code changes and the Ohio Board of Building Standards decides whether it will adopt the changes for the Ohio code. In Ohio, underrepresentation of fire safety interests acts as a built-in bias in favor of less expensive construction and against fire-safe construction.

In Ohio, local fire officials have the responsibility for fire prevention. However, they are not given a meaningful role in writing the building code. The BOCA Code is written and voted upon by Building Officials and Code Administrators, and is then adopted by the Ohio BBS. Other states, such as California and Massachusetts, have allowed local communities and/or fire prevention officers more input in building codes and more control over construction of local buildings.

The minimum standards in the Ohio building code require only a fire separation between units of a multifamily dwelling. The separation need only consist of 5/8-inch drywall on either side of wooden studs. There was a time when the building standards required fire walls between units of multifamily dwellings. Fire walls are designed to: (1) stop fire and smoke from spreading from unit to unit within a building; (2) physically hold the structure together if a fire does occur; (3) afford safety for fire fighters as well as all occupants of a multifamily building; (4) allow more time for firefighters to respond; and (5) prevent or reduce the chances of fire spreading from one building to another. However, Ohio minimum standards allow fire "separations" between units. Ohio "fire separations" require merely a one-hour fire rating which can be achieved by use of wood studs covered with 5/8-inch of drywall on either side. The city of Middleburg Heights requires a two-hour rating or at least two 5/8-inch sheets of drywall on each side of noncombustible studs in some buildings and masonry fire walls in others. These are the provisions which are being challenged by the wood products industry and others in the building industry.

In Ohio, an interest group made up of those who profit financially from less expensive building materials is pushing for mandatory minimum standards statewide. These minimum standards would force local government to allow a type of construction which we believe to be unsafe. Because the state of Ohio approves of low standards, the only effective opposition to these unsafe structures has come from a few municipalities such as Middleburg Heights. An effort was mounted to establish a minimum standard statewide by turning the state bureaucracy (Ohio Board of Building Standards (BBS) against this municipality. After considering a complaint filed by a local architect, the BBS decertified the building department of the city of Middleburg Heights. Middleburg Heights appealed the Board's decision to the Ohio courts and the appeal is now pending. After the appeal, a bill was introduced in the Ohio legislature which would make the minimum standard mandatory statewide and thereby take building standards out of municipal hands. The proposed legislation, H.B. 186, is now pending.

This issue was activated when those who are interested in removing local control decided they would use the BBS power of decertification to force Middleburg Heights to reduce its fire safety standards. Proof of the above is contained in a series of documents attached. First, a "Review Committee" was established by the BBS. Ostensibly its purpose was to review the operation of the BBS. We believe the purpose of the review committee was to decrease local control of building standards. The review committee's final result was a report dated June 16, 1988. (Exhibit 1) The report identifies its first priority on page 8: to "remove" the power of local authorities to require greater safety than the minimum state standards require and to repeal R.C. 3781.01, which grants that power to local authority.

In September 1988, an effort was initiated to use the power of state government to force Middleburg Heights to allow unsafe buildings. The Architect for a developer who would benefit financially from wooden apartment buildings wrote a letter dated September 13, 1988 (Exhibit 2) to the BBS complaining of the fact that the Middleburg Heights code requires greater fire safety than the state minimum code. Next, one of the members of the review committee wrote a letter, dated September 20, 1988, to the BBS complaining of the Middleburg Heights construction regulations (Exhibit 3). The author was David Collins, District Manager of the National Forest Products Association (NFoPA). The BBS then wrote a letter to the city of Middleburg Heights dated November 7, 1988, which notified the city that there had been complaints about the Middleburg Heights code, and that R.C. 4781.01 was now being interpreted as if it does not allow local governments to exceed the state minimum. (Exhibit 4)

The contents of the November 7, 1988 letter cannot be reconciled with page 3 and page 8 of the review committee's earlier report, which admitted cities were free to exceed the minimum state code.

These letters make clear that the initial strategy to repeal R.C. 3781.01 was replaced by a strategy of "reinterpretation" of R.C. 3781.01 in such a way that would not allow local governments to deviate from the state's minimum code.

On October 4, 1990, the Franklin County Court of Appeals adopted the city's position in Clipson v. Board of Building Standards, NO. 90 AP-11 (10th Dist.Ct.App., Franklin, 10-12-90), by holding that a city ordinance requiring a higher standard of construction was not in conflict with state law. (Exhib #5)

Given the conditions as they exist in Middleburg Heights, we believe the state-required one-hour "fire separations" do not provide a reasonable level of safety to persons or property. The Middleburg Heights fire department has, at times, only four firefighter/paramedics on duty. If the fire department responds to one fire emergency or two medical emergencies, the entire on-duty force is committed. If there is an additional emergency somewhere else in the city, fire departments from other cities must be asked to respond. However, firefighters in adjacent cities already have fire hazard concerns about wooden multi-family structures in their cities. The adjacent city to the south has a standing request for the Middleburg Heights fire department to respond automatically if a fire occurs at the wooden apartment complex in their city.

Because the state of Ohio approves
of low standards, the only effective
opposition to these unsafe structures
has come from a few municipalities
such as Middleburg Heights.

We question the use of laboratory ratings which are derived from tests conducted under ideal conditions which seldom, if ever, exist in the real world. For instance, a 1/2-hour fire rating in a laboratory amounts to a 10-minute rating in a building, according to Francis Brannigan, Building Construction for the Fire Service 179-181 (2d ed. 1982).

We believe the laboratory heat test measures the fire resistance of a perfect continuous sheet of material. However, installed drywall does not exist in a perfect continuous sheet. Holes are cut in drywall for electrical outlets, switches, thermostats, wall fixtures, mirrors, and light fixtures. In addition, there are gaps beneath tape at joints, holes are caused accidentally, and maintenance holes are created periodically over the lifetime of the building to access utilities behind the drywall. Maintenance holes are not always repaired but, even if they are, it is unlikely the repaired wall is the same as a test wall.

Statistics from the National Fire Incident Reporting System (NFIRS) of the U.S. Fire Administration support our belief that persons, firefighters, and property in one-hour rated buildings are at much higher risk of death, injury, or loss than those in higher rated buildings. NFIRS statistics concerning fires in multifamily units show that, in Ohio in 1985, there were 3,261 fires leading to 25 deaths, 325 civilian injuries, and 162 firefighter injuries. All of these deaths, 90.7% of the injuries to firefighters, 88.3% of civilian injuries, and 82% of the fires occurred in buildings with a one-hour fire rating.

Fire risks within a community depend on a number of factors. The best indication of risk may be Insurance Services Office (ISO) ratings to determine fire risks. The ISO evaluates each city's ability to respond to fires and issues a rating between 1 and 10. The fire risk for commercial buildings is also rated. Insurance companies use the ISO ratings to establish insurance premiums.

Five separate studies have compared the cost of property insurance for woodframe apartment buildings with the cost of property insurance for more fire-resistive buildings. The studies found it was 6 to 10 times more expensive to insure the one-hour fire-rated apartment building. Moreover, the estimates of insurance savings on a 30-unit apartment building over 30 years are as high as $273,000. (Exhibit 6)

To compare the costs of property insurance for multifamily buildings with one-hour fire walls against multifamily buildings with greater fire resistance, the city obtained two premium quotes for a local building. One quote was for a building with one-hour fire separation and the other was for the same building with fire-resistive construction. Travelers Insurance provided quotes for a $2 million policy with a $1 million of general liability. The annual premium was $2,625 for a building with fire walls, but was $16,069 for the same building if it had only a one-hour separation. (Exhibit 7)

We believe that the greater initial construction cost of a masonry multifamily building with two-hour fire walls is more than offset by the long-term savings from lower property insurance, lower maintenance, and other costs associated with combustible wooden buildings. A University of Michigan study produced a formula for comparing all costs of buildings with two-hour fire walls versus buildings of masonry construction. Unfortunately, one-hour fire separations were not included. Perhaps it was not anticipated at the time the study was undertaken that such buildings would be permitted.

Although fire safety is a national problem, the federal government does not regulate building standards directly. There is some federal involvement through the U.S. Fire Administration and agencies such as the Department of Housing and Urban Development. For the most part, however, regulation is left to the states. If the states allow unsafe buildings, only local government is left to protect the interests of consumers. Moreover, even if apartment renters know that they live in unsafe structures, they still have enough voice to influence state legislators. On the other hand, the building industry has established its access to state legislatures. Middleburg Heights has filled this gap in protection by providing more stringent fire safety regulations.

Reprinted from Code News/, with the permission of the publisher and copyright owner, Banks-Baldwin Law Publishing Company Cleveland, Ohio

The Ohio Supreme Court yesterday ruled that Middleburg Heights and other communities can enact tougher local building codes than those established under the Ohio Basic Building Code.

"This is a victory for the Ohio consumer," said Middleburg Heights Mayor Gary Starr.

In 1989, the Ohio Board of Building Standards revoked the Middleburg Heights Building Department's certification because the city adopted structural and firesafety construction standards that exceeded state requirements.

The city lost in Franklin County Common Pleas Court when it challenged the Board's contention that municipalities could not set tougher standards. But the city won an appeal in the Ohio Court of Appeals (10th District). The state appealed that decision to the Ohio Supreme Court.

The Supreme Court voted 4-3 in favor of Middleburg Heights. The majority decision, written by Chief Justice Thomas Moyer, said cities cannot adopt less-stringent standards than required by the state, but can go beyond state minimums.

The Board of Building Standards, represented by the Ohio attorney general's office, argued that uniformity in building would be lost if local governments could adopt different standards.

Moyer's opinion said: "This interpretation would make the state rules not only minimum standards, but also maximum standards.... The term "minimum' would therefore be rendered meaningless."

The dispute between Middleburg Heights and the state was over materials that can be used in fire walls separating apartment and condominium units. The Board of Building Standards requires fire walls to withstand a fire for a specific amount of time. The code does not specify what materials should be used in fire walls.

Middleburg Heights requires that masonry or metal-stud walls separate condominium or apartment units. The Board of Building Standards contends that drywall and wood, assembled in certain ways and thicknesses, can withstand fire just as effectively.

Gordon Gatien, a board spokesman, said builders, architects and engineers now will have to inspect the building codes and ordinances of municipalities and not assume the codes are uniform across the state.

Starr said the minimum state standards were set by non-elected officials who had vested interests in the building industry.

"This was an issue of legal principle and protection of a person in a life-threatening fire," he said.

Starr said the state standards do not take into account variable conditions in Ohio communities regarding fire-fighting capability, population and building density, and property costs.

City building departments with state certification represent the state in conducting building inspections and approving proposed building plans. Although the Middleburg Heights department was decertified, the city received a stay of the order until legal appeals were completed.

Gatien and city Law Director Pete Hull said there would be no appeal of the Supreme Court ruling.

AN ORDINANCE AMENDING CHAPTER____, BUILDING CODE OF THE ______ MUNICIPAL CODE BY ADDING SECTION _______THERETO______BE IT ORDAINED by the ____of______________, _______County, Illinois, as follows:

That chapter______, Building Code, of the ________Municipal Code be amended by adding Section ________________, to read as follows:

That chapter _______, Penalties, is hereby adopted as the penalty clause for this ordinance, said section reading as follows:

If any section, paragraph, clause or provision of this ordinance shall be held invalid, the invalidity thereof shall not affect any of the other provisions of this ordinance.

All ordinances or parts of ordinances in conflict with the provisions of this ordinance are hereby repealed insofar as they conflict herewith.

This ordinance shall be immediately in full force and effect after passage, approval, and publication. This ordinance is authorized to be published in pamphlet form. This ordinance was passed and deposited in the office of the _________Clerk of the __________this_________day of__________,19___.

I DO HEREBY CERTIFY that this ordiance was, after its passage and approval published in pamphlet form by authority of the ________,in accordance with law, this _____day of_______,19__.