Legal Memorandum LG03: NYS Uniform Fire Prevention and Building Code: What Elected Officials Need to Know

 

NYS UNIFORM FIRE PREVENTION AND BUILDING CODE:
WHAT ELECTED AND OTHER GOVERNMENT OFFICIALS NEED TO KNOW

 

TOPICS COVERED

A. The Uniform Code

B. Administration and Enforcement of the Uniform Code

C. Variances

D. More Restrictive Local Standards

E. Functions of the Department of State


A. The Uniform Code

In 1981, New York State adopted a new Article 18 of the Executive Law providing for the development and implementation of a comprehensive building and fire code. Article 18, consisting of sections 370 through 383 of the Executive Law, sets forth the process by which the code is to be developed, maintained, administered, and enforced for the protection of all New Yorkers. The code, called the New York State Uniform Fire Prevention and Building Code (the “Uniform Code”), took effect January 1, 1984 and prescribes minimum standards for both fire prevention and building construction. The Uniform Code is applicable in every part of the State (except the City of New York, which was permitted to retain its own code).

An individual city, town, or village is not required to “adopt” the Uniform Code or to take any other affirmative step to make the Uniform Code effective within the municipality. The Uniform Code is automatically in effect in each city, town, and village in the State (except New York City) by directive of the State Legislature. An individual city, town, or village cannot choose to exclude itself from all or any part of the Uniform Code.

Responsibility for developing and maintaining the Uniform Code is vested in the State Fire Prevention and Building Code Council (the “Code Council”), a seventeen-member body composed of State officials, local officials, and private individuals well versed in building construction and maintenance standards. The Code Council is part of the Department of State and the Secretary of State serves as its Chair. The Code Council is required to meet at least quarterly but additional meetings may be called by the Chair or by petition of five members of the Code Council.

Any individual or group may propose an amendment of the Uniform Code. Proposed amendments are typically submitted to the Department of State, and reviewed by technical staff within the Department of State’s Division of Building Standards and Codes.

If the Code Council finds the proposed change to be necessary or advisable, it commences the rule making process set forth in the State Administrative Procedure Act. The rule making process formally begins with publication of a notice of proposed rule making in the State Register. Publication of a notice in the State Register commences a period for public comment upon any proposal. Article 18 of the Executive Law requires that the public comment period include at least one public hearing. Prior to adopting the amendment, the Code Council must assess any public comment it has received during the comment period or at the public hearing(s).

B. Administration and Enforcement of the Uniform Code

While the Uniform Code is adopted at the State level, by the Code Council, the Uniform Code is typically enforced at the local level, by each “local government.”

NOTE: The term “local government” is defined in Article 18 as “a village, town (outside the area of any incorporated village) or city.”

Executive Law § 381 requires local government to administer and enforce the Uniform Code within its boundaries. However, Executive Law § 381 permits a local government to “opt out” of its administration and enforcement responsibilities by adopting a local law which provides that the local government will not administer and enforce the Uniform Code. Any such local law must be enacted prior to July 1 in any year, and becomes effective on January 1 of the following year.

Note, however, that even if a local government “opts out” of its administration and enforcement responsibilities, the Uniform Code will remain in effect in the local government. If a local government “opts out” of its administration and enforcement responsibilities by adopting such a local law, the responsibility for administering and enforcing the Uniform Code within the local government passes to the county in which the local government is located.

* Executive Law § 381 also provides that a county may adopt a local law “opting out” of code administration and enforcement responsibilities. If a local government “opts out,” and if the county in which that local government is located also “opts out,” the responsibility for administering and enforcing the Uniform Code in that local government passes to the Department of State.

Each local government that has not “opted out” of its code administration and enforcement responsibilities must develop and implement a program for enforcement of the Uniform Code within its boundaries. Although fire prevention and building construction standards (i.e., the provisions of the Uniform Code) are uniform throughout the State, local governments’ programs for enforcing the code are not required to be uniform. Indeed, a code enforcement program appropriate for a large city containing many apartment buildings and a downtown commercial core would almost certainly be unsuitable for a small rural town containing mostly single-family homes. Each local government is strongly encouraged to consider local needs and conditions when designing its local code enforcement program.

However, in designing its code enforcement program, local government officials must be aware that the Article 18 of the Executive Law directs the Secretary of State to promulgate regulations prescribing minimum standards for administration and enforcement of the Uniform Code. The Secretary has adopted such regulations in 19 NYCRR Part 1203 (Uniform Code: Minimum Standards for Administration and Enforcement). Each local government’s program for administration and enforcement of the Uniform Code must conform with the requirements of Part 1203, and must include the following features:

1.      Designating Responsibility for Code Enforcement. The persons, offices, departments, agencies, or combinations thereof responsible for administration and enforcement of the Uniform Code must be clearly identified.

2.      Building Permits. Building permits must be required for any work which is required to conform to the Uniform Code. Certain exceptions are permitted.

3.      Construction Inspections. Inspections of certain specified elements of the construction process must be required. Building permits holders must keep work accessible and exposed until inspected and accepted by the municipality.

4.      Stop Work Orders. Stop work orders must be issued to halt work that is determined to be contrary to provisions of the Uniform Code, or is being conducted in a dangerous or unsafe manner, or is being performed without obtaining a required permit.

5.      Certificates of Occupancy or Compliance. A certificate of occupancy or a certificate of compliance must be required (1) for all work for which a building permit was required and (2) whenever the general occupancy classification of a building is changed.

6.      Notifications. The code enforcement program must include procedures for the chief of any fire department providing firefighting services for a property to notify the code enforcement official of any fire or explosion involving any structural damage, fuel burning appliance, chimney or gas vent.

7.      Unsafe Structures and Equipment. The code enforcement program must include procedures for identifying and addressing unsafe structures and equipment.

8.      Operating Permits. Operating permits must be required for conducting certain specified activities or using certain specified categories of buildings.

9.      Fire Safety and Property Maintenance Inspections. The code enforcement program must provide for fire safety and property maintenance inspections of all buildings which contain an area of public assembly, all multiple dwellings, and all nonresidential occupancies (other than agricultural buildings used directly and solely for agricultural purposes).* The interval between inspections of buildings containing an area of public assembly cannot exceed one year. The interval between inspections of multiple dwellings and nonresidential occupancies must be consistent with local conditions; provided, however, that such interval cannot exceed one year for dormitory buildings, and such interval cannot exceed three years for all other buildings.

* Executive Law § 381(1), as amended by Chapter 159 of the Laws of 2007, provides that the Part 1203 rules adopted by the Secretary of State shall not “require or be construed to require regular, periodic inspections of (A) owner-occupied one and two-family dwellings, or (B) agricultural buildings used directly and solely for agricultural purposes, provided, however that this shall not be a limitation on inspections conducted at the invitation of the owner or where conditions on the premises threaten or present a hazard to public health, safety, or welfare.”

10.   Complaint Procedures. The code enforcement program must include procedures for addressing bona fide complaints which assert that conditions or activities fail to comply with the Uniform Code or with local laws, ordinances or regulations adopted for administration and enforcement of the Uniform Code.

11.   Condition Assessments of Parking Garages.  The code enforcement program must include provisions requiring condition assessments of parking garages.  The term condition assessment means an on-site inspection and evaluation of a parking garage for evidence of deterioration of any structural element or building component, evidence of the existence of any unsafe condition, and evidence indicating that such parking garage is an unsafe structure.  Initial condition assessments of parking garages shall be conducted prior to a certificate of occupancy or certificate of compliance being issued for new parking garages or by October 1, 2019 if originally constructed prior to January 1, 1984, by October 1, 2020 if originally constructed between January 1, 1984 and December 31, 2002, or by October 1, 2021 if originally constructed between January 1, 2003 and August 29, 2018.  Thereafter, periodic condition assessments shall be conducted at intervals fixed by the authority having jurisdiction, but in no event to exceed three years.  Additional condition assessments could be required before the date of the next periodic condition assessment if recommended by the responsible professional engineer or the authority having jurisdiction.

12.   Record Keeping. The code enforcement program must establish a system of records of the features and activities specified in above and of fees, if any, charged and collected.

13.   Reports. Every municipality responsible for administration and enforcement of the Uniform Code is required to submit an annual report of its activities relative to administration and enforcement of the Uniform Code to the Secretary of State. The Department of State has developed forms to be used in satisfying this reporting obligation. The forms are available on the Department’s website at https://www.dos.ny.gov/dcea/part_1203.html.  

In establishing minimum standards set forth in Part 1203, the Secretary of State has sought to provide sufficient flexibility to allow each local government to establish a program for administration and enforcement of the Uniform Code which is appropriate for local conditions, and to provide local government official with wide discretion in the design and implementation of the program. While the minimum standards set forth in Part 1203 must be satisfied, local needs and circumstances should be considered when designing a local government’s code enforcement program. Members of the staff of the Division of Building Standards and Codes in the Department of State are available to answer questions regarding the process of administering and enforcing the code.

Local government officials should also be aware of the requirements regarding training and certification of code enforcement officers. Pursuant to 19 NYCRR Part 1208 (Uniform Code: Training of Staff), all local code enforcement personnel must complete a prescribed program of minimum basic code enforcement training, and must receive annual in-service training. The Department of State maintains a list of municipal code enforcement personnel who have successfully fulfilled the training requirements for Code Enforcement Officials pursuant to 19 NYCRR Part 1208. This list is posted on Open NY at https://data.ny.gov/Government-Finance/Active-Code-Official-Certifications/civu-giic.

C. Variances

Article 18 of the Executive Law also directs the Secretary of State to promulgate regulations establishing procedures whereby provisions or requirements of the Uniform Code may be varied or modified in cases where strict compliance with the provision or requirement would entail practical difficulty or unnecessary hardship or would otherwise be unwarranted. The Secretary has adopted 19 NYCRR Part 1205 (Uniform Code: Variance Procedures) which establishes a dual process for obtaining variances from Uniform Code provisions. Cases which involve a de minimus variance or a modification which does not substantially affect the code’s provisions for health, safety or security are classified as routine cases and are processed administratively by the Department of State. More substantial variance requests are reviewed and decided by regional boards of review.

Local governments are not authorized to modify or vary any provision or requirement of the Uniform Code. Uniform Code variance can be granted only in accordance with the procedures set forth in 19 NYCRR Part 1205.   

D. More Restrictive Local Standards

Executive Law § 379 provides that a local government may enact or adopt a local law or ordinance imposing standards for construction in the municipality that are “higher or more restrictive” than the corresponding standards in the Uniform Code. If a municipality enacts or adopts such a standard (often referred to as a “more restrictive local standard” or “MRLS”), the municipality must, within 30 days after the enactment or adoption, notify the Code Council and petition the Code Council for approval of the MRLS. If the Code Council finds that (1) the MRLS is, in fact, higher or more restrictive than the corresponding provision of the Uniform Code, and (2) the MRLS is reasonably necessary because of special conditions prevailing within the municipality, and (3) the MRLS conforms with accepted engineering and fire prevention practices and the purposes of Article 18 of the Executive Law, the Code Council will approve (or “adopt”) such MRLS, in whole or part. The Code Council has the power to limit the term or duration of the MRLS, to impose conditions in connection with the adoption of the MRLS, and to terminate the MRLS at such times, and in such manner as the Code Council may deem necessary, desirable, or proper.

A local government that adopts a more restrictive local standard cannot enforce that standard until and unless it has been approved (“adopted”) by the Code Council.

E. Functions of the Department of State

The functions of the Department of State associated with the Uniform Code and the Code Council are performed by the Department of State’s Division of Building Standards and Codes. The Division’s functions are performed by the following Units:

  • Variance Unit. The Variance Unit staff process routine variance petitions and serve as technical advisors to the members of the regional boards of review pursuant to 19 NYCRR Part 1205.
  • Education Unit. The Education Unit coordinates matters regarding the training of code enforcement personnel and conducts both basic training and in-service training classes for local code enforcement officers and other State agency staff.
  • Oversight Unit. The Oversight Unit reviews and investigates complaints regarding local governments’ administration and enforcement of the Uniform Code and Energy Code and complaints that code enforcement officials have failed to materially uphold their code enforcement duties pursuant to 19 NYCRR Subpart 1208-6.
  • Inspection Unit. The Inspection Unit provides administration and enforcement of the Uniform Code and Energy Code within the counties that have “opted out” of their code enforcement responsibilities and for any local governments that have “opted out” within such “opted out” county pursuant to 19 NYCRR Part 1202. 
  • Technical Support Unit. The Technical Support Unit provides technical assistance concerning the Uniform Code to code enforcement officials, fire service officials, architects, engineers, legislators, state agencies, attorneys, builders, and private citizens.  The Technical Support Unit also issues Technical Bulletins and periodic Code Outreach Program e-bulletins.
  • Emergency Management and Manufactured Housing Unit. The Emergency Management and Manufactured Housing Unit administers the Manufactured Housing Program (sometimes referred to as the “mobile home” program) and mediates complaints from owners of manufactured homes pursuant to 19 NYCRR Part 1210.  The Unit also coordinates the Department of State’s readiness and response to emergency events and maintains and supervises the Code Enforcement Disaster Assistance Response (CEDAR) program.
  • Code Development Unit. The Code Development Unit ensures that the Uniform Code and the Energy Code reflect new developments in building construction, fire prevention, and energy conservation.  Staff solicits and reviews proposed code changes.
  • Code Administration for Modular Unit. The Code Administration for Modular Unit enforces the provisions of the Uniform Code pertaining to construction of factory manufactured buildings (modular) prior to site delivery; this process involves a review and approval of building systems submitted by manufacturers, as well as plant inspections, and the issuance of the Insignias of Approval for factory manufactured buildings pursuant to 19 NYCRR Part 1209.

 

The Secretary of State is authorized to provide assistance to local governments and general information to the public pursuant to New York State Executive Law, Article 6-B.  The information in this Memorandum is provided pursuant to that authorization, but is informal only and should not be construed as providing legal advice. Local governments and other persons or entities should consult with their own legal counsel for legal advice.

 

April 2021