State Law vs Local Ordinance

[wanted]

My question involves real estate located in the State of: Pa.

Hi everyone. My question involves building code. Pa. has an act, (Uniform Construction Code Statue) which local authorities can adopt (which mine has) which spells out the regulations. So my twp. is enforcing this code. It also has it's regular twp zoning code.

There is a section of the UCC code that states accessory buildings that are exempt from a permit. However the twps. old code required a permit. So they are trying to enforce both codes by telling me I still have to get a permit because local law supersedes state law. Whats your thoughts?

There is a section in the UCC that kinda says once they adopt it, that's what they have to use. So I think they are trying to side step it by saying it's a zoning thing, even though the UCC states it's exempt from permit.

[Mr. Knowitall]

Without being able to look at either the statute or the ordinance, I cannot tell you if the statute preempts the local regulation. Consult a local real estate lawyer with the details.

[jk]

the locality can amend the UCC. If they have, they can require a permit for any given building. If the current twp code includes requiring a permit for the building in question, they you need a permit.

[wanted]

the locality can amend the UCC. If they have, they can require a permit for any given building. If the current twp code includes requiring a permit for the building in question, they you need a permit.

According to the UCC code they can only amend administration and/or enforcement, not the substance of the code. There is also a case law on the matter but it's not in front of me. I'll post the link shortly.

[jk]

Yes, please post that but while you are looking, read this from the Pa UCC:

§ 403.2. Other statutes or ordinances.

(a) Under section 104(d)(1) of the act (35 P. S. § 7210.104(d)(1)), the provisions of the Uniform Construction Code listed in § 403.21 (relating to Uniform Construction Code) preempt and rescind construction standards provided by a statute, local ordinance or regulation. The recission or preemption does not apply to ordinances in effect on July 1, 1999, or reenactments of simultaneously repealed ordinances which were originally adopted before July 1, 1999, which contain provisions which meet or exceed the Uniform Construction Code under section 303(b)(1) of the act (35 P. S. § 7210.303(b)(1)).



(b) Under section 303(a)(2) of the act, a municipal building code ordinance provision in effect in or adopted by a city of the first class on or before January 1, 1998, shall remain in effect until December 31, 2003. The provisions of the ordinance which do not comply with the Uniform Construction Code on December 31, 2003, will be amended to provide for the minimum requirements of the Uniform Construction Code.

(b) Exclusions and exemptions. The Uniform Construction Code does not apply to:
(1) New buildings or renovations to existing buildings for which an application for a permit was made to the Department or a municipality before April 9, 2004.
(2) New buildings or renovations to existing buildings on which a contract for design or construction was signed before April 9, 2004.
(3) The following structures if the structure has a building area less than 1,000 square feet and is accessory to a detached one-family dwelling except as might be required by an ordinance adopted under section 503 of the act (35 P. S. § 7210.503):

I'll let you check to see if the ordinance was adopted under section 503 of the act.

[wanted]

"provisions which meet or exceed the Uniform Construction Code under section 303(b)(1) of the act (35 P. S. § 7210.303(b)(1))."

Right, in order to "MEET" the UCC code the ordinance would have to also exempt the permit.

I'll also add more info here. The building in question is a chicken coop, which is an agricultural building. Agriculture building is exempt from a building permit under the UCC, regardless of size.

I have the case law on this and am working on posting it now.

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Here's the appeals court ruling. The subject is not exact but the ruling on no permit for agricultural building is clear.

http://www.pennag.com/Portals/5/Sams...%2010%2010.pdf

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Without being able to look at either the statute or the ordinance, I cannot tell you if the statute preempts the local regulation. Consult a local real estate lawyer with the details.

I really can't think of any situation where, if a state law and local law are in contradiction, that a local law would supersede.

I'm looking for as many opinions as possible so please keep commenting. Thanks.

[jk]

Here's the appeals court ruling. The subject is not exact but the ruling on no permit for agricultural building is clear.

http://www.pennag.com/Portals/5/Sams...%2010%2010.pdf

hHow is that anything like yours? They are not arguing the application of a local ordinance but merely whether his building met the definition of an "agricultural building" and as such, exempt from the UCC. When you find one that address a local ordinance that falls under the sections I posted, then you have a similar situation to yours.

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I really can't think of any situation where, if a state law and local law are in contradiction, that a local law would supersede.

I'm looking for as many opinions as possible so please keep commenting. Thanks.

it is rare that one supersedes. It is that when both are applicable,the most restrictive will appear to supersede but in reality, they are both being applied. It's just that one imposes rules the other doesn't.

requiring a permit would meet or exceed the UCC (it exceeds it). The concern when having competing codes is that one allowing less restrictive requirements would allow a building not meeting the UCC to be built. In the section I cited above, it does allow the the enforcement of codes meeting the statements within. You would have to verify the local code being applicable for the date issues but beyond that, requiring a permit where the UCC doesn't is a requirement exceeding the UCC.

[wanted]

hHow is that anything like yours? They are not arguing the application of a local ordinance but merely whether his building met the definition of an "agricultural building" and as such, exempt from the UCC. When you find one that address a local ordinance that falls under the sections I posted, then you have a similar situation to yours.

It is the part where the trial court defines that an agricultural building does not need a building permit. It does not say is doesn't need a UCC permit. It would be "any" building permit.

Samsel v. Uniform Construction Code Board of Appeals of Jefferson Township, ___ A.2d ___ (Pa. Cmwlth. 2010).

Samsel commenced building a stable for race horses without receiving a building permit. The Township issued a Stop Work Order, and Samsel appealed to the Township’s UCC Board of Appeals arguing that the stable constituted an agricultural building, which is exempt from the need for a building permit under the Act and the Department’s regulations. The Board of Appeals upheld the Stop Work Order, but on further appeal, the Court of Common Pleas agreed with Samsel’s contention that the stable was an agricultural building, and thus statutorily exempt from the permitting requirement under the Act. The Township appealed the Court of Common Pleas’s order to the Commonwealth Court.

The Commonwealth Court reviewed the definition of "agricultural building" provided in the Act and noted that a structure used to house livestock or other farm animals is embraced by the definition. However, neither "livestock" nor "farm animals" are further defined in the Act or its regulations. The Commonwealth Court looked to an unemployment compensation case wherein it found that the term "livestock" included horses for the purpose of determining whether persons engaged in raising, breeding and caring for horses were agricultural laborers. Accordingly, the Commonwealth Court agreed with Samsel and ruled that a building permit was not necessary to construct the race horse stable under the Act.


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it is rare that one supersedes. It is that when both are applicable,the most restrictive will appear to supersede but in reality, they are both being applied. It's just that one imposes rules the other doesn't.

requiring a permit would meet or exceed the UCC (it exceeds it). The concern when having competing codes is that one allowing less restrictive requirements would allow a building not meeting the UCC to be built. In the section I cited above, it does allow the the enforcement of codes meeting the statements within. You would have to verify the local code being applicable for the date issues but beyond that, requiring a permit where the UCC doesn't is a requirement exceeding the UCC.

I would argue that if one exempts a permit, and the other requires a permit then it is in contradiction, not exceeding.

Having trouble with the quote, sorry.

[jk]

It is the part where the trial court defines that an agricultural building does not need a building permit. It does not say is doesn't need a UCC permit. It would be "any" building permit.

but that is under the UCC. They did not address whether some other ordinance required a permit and eventually, how to address the rules under the ordinance. They only addressed whether that type of building fell under the UCC's definition of an agricultural building.

I would argue that if one exempts a permit, and the other requires a permit then it is in contradiction, not exceeding.

welll, so far that argument is not winning with the building department and it doesn't win with me.


Now if you really want to parse the terminology, if your building fits within any of those described below, the UCC simply does not apply. That means it is as if it doesn't exist. It doesn't allow for exemptions of the permit because it simply does not apply at all. In that case, there would be no question of contradiction or exceeding because the UCC specifically removed itself from having any power in those cases.

(b) Exclusions and exemptions. The Uniform Construction Code does not apply to:
(1) New buildings or renovations to existing buildings for which an application for a permit was made to the Department or a municipality before April 9, 2004.
(2) New buildings or renovations to existing buildings on which a contract for design or construction was signed before April 9, 2004.
(3) The following structures if the structure has a building area less than 1,000 square feet and is accessory to a detached one-family dwellingexcept as might be required by an ordinance adopted under section 503 of the act (35 P. S. § 7210.503):