This post is a follow up to the June 23, 2008 Lyceum article where the Pennsylvania Association of Building Code Officials (PABCO) commissioned and submitted a "Friend of the Court" brief with the State Supreme Court in its consideration of the appeal by North Union Township and K2 Engineering to overturn the Commonwealth Court ruling which reversed the Fayette County Court of Common Pleas ruling in the matter. The Commonwealth Court ruled in the Fayette County case in December 2006 that North Union Township was in violation of the Uniform Construction Code when they hired K2 Engineering as a third party contractor to perform inspections of their new commercial and residential buildings. Read an article from the Pittsburgh Tribune Review on the case. The Court's ruling has affirmed that PABCO and all other appellants were "correct" in their positions and interpretations of the UCC.
The following summary of this ruling has been submitted by: Robert W. Buddenbohn, Jr.
Executive Officer, Pennsylvania Association of Building Code Officials, Inc.
I can finally answer the one question I am asked most frequently:
YES . . . . THE PENNSYLVANIA SUPREME COURT HAS ISSUED ITS DECISION in the appeal of the Commonwealth Court Decision brought by North Union Township, K2 Engineering, Millcreek Twp, Fairview Twp, Harborcreek Twp and Building Inspection Underwriters.
By a majority of 5 to 1, the Supreme Court has OVERTURNED the Commonwealth Court Decision.
View a copy of the majority ruling
To summarize what this decision means:
1. Permit holders, whether they be homeowners, property owners, design professionals or contractors, do not have the authority to "select the inspector of their choice" for performing UCC-regulated inspections (unless an opt-in municipality allows the permit holder to select from among all UCC-certified inspectors).
2. All opt-in municipalities have the authority and responsibility to determine HOW and BY WHOM the UCC will be administered and enforced within their jurisdictions. The options that are spelled out in the PA Construction Code Act and UCC regulations remain unchanged.
Administration and enforcement includes, but is not limited to: Plan review and approval, permitting, inspections, certificates of occupancy and taking necessary enforcement actions.
In essence, those options are:
A. Hire municipal employees
B. Retain (contract with) ONE or more Third Party Agencies
C. Allow permit holders to select from an approved list of Third Party Agencies
D. Allow permit holders to select from any UCC-certified Third Party Agency
E. Contracting with another municipality
F. Joining in an intergovernmental agreement (may be a COG or may be other form of
agreement)
G. Any combination of the above
3. Opt-in municipalities are not required to accept the inspection reports of any UCC-certified inspector unless they choose to do so.
4. In essence, this ruling restores the "status quo" that existed before the Commonwealth Court Ruling and makes it very clear that the opt-in municipality is intended by the UCC to be solely responsible for determining how and by whom administration and enforcement is to be carried out.
5. The Court has also made it clear that "conducting inspections" is part and parcel of the administration and enforcement of the UCC and was not intended to be considered a separate issue. Whoever administers and enforces must have control over the inspection process in order to properly administer and enforce.
PABCO encourages readers to share this with your elected officials, solicitors and others within your municipality, third party agency or company. This information should be distributed to anyone who has anything to do with the Uniform Construction Code.
Questions or comments can be addressed to:
Robert W. Buddenbohn, Jr.
Executive Officer
Pennsylvania Association of Building Code Officials, Inc.
522 Leese Road
Needmore, PA 17238
717-573-2694
717-573-2700 FAX
814-330-6444 Cell
rbuddenbohn@nfis.com
www.paofficials.com
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