Key considerations for appealing the decision of a code official

You have a new hotel building that is in for plan review. The hotel is being constructed with concrete and steel and will be six stories in height. A separate building is planned for the outdoor pool area that will be constructed of wood. A plan review comment is returned that reads the exterior wood building is not permitted and the code official will not issue your permit until the building is constructed with concrete and steel to mimic the hotel building. This is the last comment that needs to be addressed to obtain your building permit. Now what? Do you change the materials on the out building? Do you relocate the out building? Is it possible to leave it as is?

Did you know that you can appeal the decision of the code official in a situation like this?

According to the International Building Code, permit applicants have the right to appeal decisions to the building code board of appeals. Typically, permit applicants should be informed of that right by the code official.

Applicants can appeal the code official’s decision based on one of three grounds:

  • The applicant believes the code has been incorrectly interpreted,
  • The applicant believes the provisions of the code do not apply, or
  • The applicant believes the proposed construction is equally good or better than what is required by code

The International codes include provisions for a board of appeals to be established by the jurisdiction. Generally, the members are appointed by a governing authority. The board does not have the authority to waive requirements of the code, but rather their purpose is to hear and decide appeals of decisions made by the code official. The board is comprised of members who are qualified by their experience and training to decide matters relative to building construction. The board members are not employees of the jurisdiction.

About the hearing

Once an application has been made by the petitioner to appeal the code official, notice of the meeting is usually only given to the petitioner and members of the board. Notification does not have to be given to surrounding property owners. Meetings are open to the public, but this does not mean that everyone in attendance can participate in the hearing. Cases brought before the Building Code Board of Appeals are usually technical in nature and do not have an impact on adjacent property owners, so only those specifically involved in the appeal are the parties allowed to participate in the hearing.

Preparing the case

The burden of proof rests with the petitioner. Before the petitioner can present their case, the code official should explain to the board why the building permit was not approved and the exact scope of relief being asked for by the petitioner. Often, the code official has prepared a written report to the board prior to the meeting. This report should include an explanation for the denial of the permit application and a recommendation for the board. Ideally, the recommendation is supported with facts regarding why the appeals board should not grant the relief that is being sought. This report should be written in plain, clearly-written language so that it can be understood by all parties, especially if the case ends up going to court. Why? Because most court judges are not familiar with building code terminology and using straightforward language avoids any potential confusion should there be additional hearings.

When the appeals meeting takes place,  the code official typically begins the meeting by explaining to the board why the appeal was brought, why the code official rejected the initial application and the scope of relief being requested. The appellant can then present their evidence. They key factor in presenting evidence is to focus on how the intended solution meets the intent of the code. If possible, the appellant should have a copy of the code commentary to support his/her position.

Additional resources

Another way to provide evidence is to request an interpretation from ICC staff on the solution. ICC staff can provide written interpretations to ICC members. The written interpretation may then be entered as evidence for the board’s consideration. The board should hear or allow any piece of evidence provided by the appellant, and there is no time limit on the appellant’s presentation. However, the Chair can request the appellant limit their evidence if they believe an excessive amount has been provided.

When the board reaches a decision, it must be based such that a reasonable person believes there is enough evidence to support their decision. The decision must be handed down in writing with copies going to the code official and the appellant, and it must specify the exact reasons upon which the board based their decision. Once a decision has been made by the building code board of appeals, the only recourse is taking the case to court.