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State change affects unoccupied buildings, puts regulatory onus on municipalities

City of Wilsonville Building Official Dan Carlson was frustrated when he found out about a change to the state building code that could have broad implications for what buildings are regulated and which public entity is charged with regulation.

When he presented the revelations with the Wilsonville City Council during a work session Monday, Nov. 18, councilors and City staff discussed potentially challenging the change legally or banding with other cities to promote a legislative fix.

The new code comes down to the addition of five words: "occupants and users of buildings." Prior to the change, the State of Oregon Building Codes Division provided a set of standards that applied to all buildings. But with the addition of those words, structures like buildings under construction, deserted or dangerous buildings, fences and demolitions no longer will be regulated by the state. Therefore, municipalities like the City of Wilsonville are scrambling to create their own set of standards for those structures prior to when the change goes into effect Jan. 1.

One potential implication, Carlson said, is a lack of consistency between jurisdictions.

"OBOA (Oregon Building Officials Association) has testified in opposition to these changes because they have a dramatic potential to impact consistency statewide. Every jurisdiction is going to adopt different standards for these items," Carlson said at the meeting. "The whole basis for having statewide code is to encourage consistency from one jurisdiction to the next."

Wilsonville Mayor Tim Knapp brought up working with the League of Oregon Cities to try to push legislation to address this issue at the upcoming short session in February while City Attorney Barbara Jacobson said that one option could be to sue. The council gave City staff direction to explore both legal and legislative remedies.

"We need to understand what that path looks like and some coordination with other municipalities would give us information about weather there is mileage to be pursued there," Knapp said.

Carlson wasn't sure of the exact ramifications of the code change, but said that even seemingly smaller structures that no longer have state standards could create challenges such as the potential for the City to have to create a separate permitting process for fences.

On the other hand, he said the City moving forward without standards for unoccupied buildings also could be detrimental.

"From cities' perspective, we're charged with regulating building safety and providing codes that protect the public so when there are windstorms or seismic events or other natural hazards and there's property damage, then our citizens are more vulnerable by not having good protections in place," Carlson said.

However, in response to a question from Councilor Ben West about implications for buildings under construction, which became a hot-button issue after a fire at a complex under construction in the Villebois neighborhood in March, Carlson said one positive could be that the change gives municipalities more leeway to adopt codes on their own to address issues.

"So that's a good thing, or it could be," Carlson said.

Last week, Carlson and staff were scrambling to prepare potential code changes for the upcoming City Council meeting Dec. 2. An OBOA task force asked the state building codes division to extend the timeline to July 1, but the request was denied.

"It's a tight timeline," Carlson said.

Carlson said the driver behind the change was Building Codes Division administrator Mark Long while Assistant City Attorney Amanda Guile-Hinman was told it was based on advice from legal counsel. City of Wilsonville lobbyist Greg Leo said that reducing barriers to the construction of housing is the primary goal of the change.

"The state is trying to find ways to expedite bringing housing to market, and this is one of the levers they decided to pull," Leo said.

If that's the case, Cosgrove wondered why the state building department didn't just create more lax rules for building permits instead of passing the regulatory burden onto municipalities.

Along with other building officials, Carlson said a representative of the homebuilders association, Roseann Johnson, was surprised by this code change.

"If it's not coming from the construction side of things, from the builders, and it's not coming from the local jurisdictions, what's the point?" Wilsonville City Councilor Charlotte Lehan asked.


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