Rules That Make Sense—New Jersey’s Rehabilitation Subcode

William M. Connolly

Introduction

Ensuring an adequate supply of affordable housing is a concern in most states and municipalities, and particularly within and close to major cities. New Jersey has an old housing stock, which means that rehabilitation and conversions play a critical role in state, local, for-profit, and non-profit efforts to expand the supply of affordable housing. Half of the state’s 3.1 million houses were built before 1959. In Hudson and Essex, the counties with the state’s two largest cities, the median year for houses is 1941 and 1949, respectively New Jersey also has many older non-residential buildings that are vacant or under-utilized and are good candidates for adaptive re-use.

Rehabilitation of existing buildings is important for several reasons. Redevelopment of urban areas preserves existing open space and helps reduce the amount of suburban sprawl. This improves the quality of life for the jurisdiction’s residents and reduces the impact of development on the environment. Renovating existing buildings in urban areas conserves natural resources by requiring less building material than is used to construct a new structure.

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The Problem

Many existing buildings throughout the United States were built to comply with an earlier building code or with no code, yet are often still safe and sound. With some exceptions, these buildings continue to be occupied, used and maintained. In 1996, local construction offices in New Jersey issued building permits authorizing work that had an estimated cost of more than $7 billion. Additions to and alterations of existing structures account for about 47 percent or about $3.5 billion. In New Jersey’s cities in particular, conversions and rehabilitation projects play an integral role in the creation of decent, affordable housing. In Newark, about $3 out of every $4 of the estimated cost of construction authorized by permit in 1996 was for work on existing houses. In Trenton, housing construction work outpaced new housing construction by more than 14 to 1.

There is housing stock available in many urban areas that remains untapped, in part because rehabilitation projects are required to bring buildings into compliance with current building codes for new construction. For new buildings, complying with the construction code is a straightforward process. Materials to be used, processes to be followed, and safety standards to be met are clearly stated, and the cost of compliance is predictable. It is much less so in the case of existing buildings. Until recently in New Jersey and currently in Massachusetts and elsewhere, construction standards written for new buildings have been applied to rehabilitation work on existing buildings without demonstrated improvements in safety and despite the associated, often prohibitive costs. Building codes developed with new construction in mind are difficult to apply rationally and predictably to existing buildings. Because developers and building owners cannot predict with certainty what will be required to bring a deteriorated building back into use, projects in existing buildings are often not attempted at all and the buildings remain unimproved.

Prior to the development of the Rehabilitation Subcode, the rules in effect in New Jersey triggered code requirements for work in existing buildings based on the cost of the project. The greater the ratio of the cost of the project to the replacement value of the building, the more the building needed to comply with the standards for new buildings. Other approaches, such as the method outlined in Chapter 34 of the 1996 Building Officials and Code Administrators (BOCA) National Building Code, which Massachusetts relies on for its provisions, also use new building construction as the benchmark against which existing buildings are measured. Chapter 34 of BOCA begins with the premise that altered portions of the building must meet requirements for a new structures. As an alternative to this, the code allows the user to go through an extensive evaluation of the building. The building is given points for fire safety systems and features that meet or exceed the code requirements for a new structure, is assessed negative points for features that are viewed as hazardous, and are given no points for those features deemed to have neither a positive nor negative effect on the fire safety of the building. If the existing building does not meet a specified point value after assessing these features, the building owner is required to improve features until the building has enough points. This often requires building owners to add features and fire safety systems to the building that would not be required if the building were new.

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Basing requirements for existing buildings on the standards for new construction causes several problems:

1) In many cases, the requirements for new structures cannot be met in existing buildings. For example, it is difficult, if not impossible, to determine whether turn of the century lumber and bricks meet the current material standards in the code. New building requirements for stairway geometry (minimum tread and maximum riser dimensions) often mean that existing stairways are too steep and need to be replaced. Stairways with shorter risers and wider treads require more room and often cannot fit into existing buildings without totally reconfiguring the space. Other new construction requirements that often cannot be easily met in existing buildings are ceiling height requirements, egress window requirements, and corridor and doorway width requirements.

2) A second problem is predictability. Code officials recognize that making an existing building meet all of the requirements of the code applicable to new buildings is impossible. However, there is little consistency among code officials about which requirements are necessary to improve safety. A building owner often has no idea what will be required prior to submitting plans for review or meeting with the code official. Using the building point evaluation in BOCA Chapter 34 can help reduce the amount of uncertainty. However, it requires a rather extensive evaluation of the exiting building. It also requires the owner to assess up front which improvements will give him the most points per dollar. A level of uncertainty remains because it is difficult to predict what obstacles will be encountered when trying to place a new building system into an existing structure. This uncertainty makes building owners hesitant to undertake building improvements because they cannot predict the cost of the project.

3) Rules that aim to impose new construction standards on existing buildings penalize building owners who want to improve their buildings. Such rules can expand the applicant’s scope of work by requiring a building to renovate portions or features of the building that are neither unsafe nor in disrepair. For example, because BOCA Chapter 34 counts life safety improvements only when they are made to an entire structure, a building owner who plans to renovate a single floor of his building and is willing to install a fire suppression system on that floor would not be able to use that installation to meet his BOCA Chapter 34 point obligation. If the building owner wanted the installation of the fire suppression system to count, he would have to suppress the entire building. The additional costs associated with expanding the applicant’s scope of work can make a rehabilitation project financially infeasible. This may cause the building owner to abandon planned improvements to the floor. To the detriment of the building, the building owner, and the community, the building remains unimproved. 

The challenge accepted by New Jersey was to develop provisions for existing buildings that were rational, predictable, and that delivered safe and sound rehabilitated structures.

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The Solution

New Jersey’s Rehabilitation Subcode was developed by the Department of Community Affairs with guidance from a 30-member committee under the coordination of the Center for Urban Policy Research at Rutgers University. The committee was composed of code officials, fire officials, architects, historic preservationists, advocates for people with disabilities, and government representatives. The committee met over two years and approved the draft document at its final meeting on January 31, 1997. Department staff then made the draft a proposal, which was published in the New Jersey Register on August 18, 1997. Two public hearings were held. Comments were received and discussed, and some clarifications and improvements to the proposed documents were made. Signed on December 8, 1997, the Rehabilitation Subcode was published as a rule adoption in the New Jersey Register on January 5, 1998.

The Rehabilitation Subcode is not only a change in building code requirements, it is a change in building code philosophy. The past philosophy had been that if a building owner has money to spend on his building, he should be required to spend a good portion of that money to make that building approach the current code for new structures. There are two flaws with this way of thinking. The first is assuming that the goal is to have existing buildings meet the current code for new building construction. Using new building standards for renovated buildings can result in expensive improvements that have little real benefit in terms of occupant safety. The second is that this philosophy ignores the positive effect of money invested to improve an existing building even when not specifically earmarked for code compliance. The past philosophy said to building owners, if you can’t make the leap up to the standards we have set, don’t take the step to make your building better. The Rehabilitation Subcode addresses this problem by, to the greatest extent possible, letting the applicant choose the scope of the project, and by establishing specific requirements that make sense in existing buildings.

Instead of basing requirements on the cost of the work to be performed, the Rehabilitation Subcode bases requirements on the nature of the work. The code establishes specific requirements for each category of work. There are five sets of requirements:

Products and practices list items that are required and those that are prohibited.

Materials and methods explains how to use the materials selected for a project. It does not contain requirements on how much fixing has to be done. The section was developed by going through the model codes for new buildings and taking out the scoping requirements (the provisions that tell how much work must be done). What was left is in materials and methods (the basic characteristics of materials and how they are to be installed).

New building elements are created as part of a rehabilitation project. Each item listed in this section must conform to specific sections of the other technical subcodes of the UCC, which are listed in the new building elements section of the Rehab Subcode. Some examples of new building elements are new atriums, new corridors, and new door openings.

Basic requirements are the most fundamental scoping requirements. They cover such topics as capacity of means of egress, dead end corridors, and exit signs. They are imposed only within the work area when they work is a reconstruction project.

Supplemental requirements are imposed when the work is a reconstruction project and the work area exceeds a certain size.

The Rehabilitation Subcode establishes three types of projects: rehabilitation, change of use, and additions. There are four categories of rehabilitation work: repair, renovation, alteration, reconstruction. Requirements are based on categories of work.

1) “Repair” means fixing a building component that is worn or broken. Under this category, materials and assemblies may be replaced with like materials and assemblies. There is no limit to how much repair may be undertaken in connection with a project. There are only a few specific exceptions to this rule. They include requiring certain products and practices, such as putting in a low flow toilet when a toilet is being replaced, and prohibiting other items, such as certain electrical materials or supplies.

2) “Renovation” is generally restorative in nature, such as the replacement of interior finish, trim, doors, or equipment, but involves the use of different materials. There is no reconfiguration of space. The materials used and the methods of installation must conform to the requirements found in the materials and methods section. The requirements set out in products and practices also apply.

3) An “alteration” project includes reconfiguring existing space. Products and practices and materials and methods requirements apply to alteration work. To address the possibility that the reconfiguration of space could create a safety hazard, there are some additional requirements for alteration work. These specify that the work undertaken cannot create a non-conformity with the basic requirements that did not exist before the alteration began.

This is a key issue to understand. In an alteration, the portion of the building being worked on does not need to be brought up to the standard established in the basic requirements. The basic requirements are used as a measuring stick. The work being done cannot make the building less conforming with the basic requirements that it was before the work was undertaken.

4) “Reconstruction” is a project consisting of the other categories of work where the work includes an entire tenancy (a portion that is under the ownership or control of one owner or tenant) and precludes occupancy during the project. This category involves extensive work to the interior of a building, floor or tenant space. It is commonly referred to as a “gut rehab.” Reconstruction includes repair, renovation, and/or alteration in any combination. Reconstruction does not include projects comprised only of floor finish replacement, painting or wall-papering, or the replacement of equipment or furnishings. Asbestos hazard abatement and lead hazard abatement projects are not classified as reconstruction although occupancy of the work area is not permitted.

Repair, renovation, and alteration work that make up a reconstruction project must comply with the requirements for the applicable category of work. The entire work area must comply with basic requirements. Certain reconstruction projects must also meet the supplemental requirements, which apply only when the work area for a reconstruction project exceeds specific size, and it could not include new building elements, depending on the scope of work.

The Rehabilitation Subcode uses the concept of “work area” to define the portion of the building in which the basic requirements must be met in a reconstruction project. The applicant designates the work as part of the permit application. Only in defined cases specified in the Supplemental Requirements does the code require that the applicant do any work outside of the work area. These are limited to systems in the building that are best applied on a floor-by-floor or building-wide basis. Such systems include fire alarm systems, elevators, and fire suppression systems. When the work area is large enough to justify the installation of these systems on a floor-by-floor, or in some cases, on a building- wide basis, the Rehabilitation Subcode requires them. For example, when the applicant chooses to completely redo a floor of a building and the building is a type that would require a fire suppression system, the owner is required to install the system on that floor and not throughout the building.

5) A “change of use” results from one of two conditions: a change of the building use group or a change in the nature or intensity of the use. The change of use section details what must be done, for example, when a building that has been a store (Use Group M) is changed into a restaurant (Use Group A) or when a small restaurant is expanded into a larger one. The change in the use of the building space may trigger the requirements of one or more of the technical subcodes of the New Jersey Uniform Construction Code. For example, the plumbing subcode may require additional toilet fixtures, the electrical subcode may require ground fault circuit interrupters, or the mechanical subcode may require that the heating, ventilation, and air conditions system be upgraded. The amount of work required depends on whether the change in use of the building creates a greater hazard.

The premise underlying the change of use is reasonable. Only if the change creates a hazard must the hazard be ameliorated. Amelioration is achieved by applying specific requirements spelled out in this section of the Rehabilitation Subcode.

There are six hazard tables in the change of use section. The first table categorizes the overall hazard associated with the new use group relative to the existing use group. The next five tables address specific hazards associated with the following technical issues: means of egress, height and area, exposure of exterior walls, fire suppression, and structural loads. These tables operate independently of one another; each must be consulted. Only where there is an increase in hazard are requirements triggered. There are separate requirements for vertical openings, fire alarm, fire detection, and smoke detectors. There are also separate sections that address work required by the plumbing, electrical, mechanical, or barrier free accessibility subcodes.

6) An “addition” increases a building’s size; the Rehabilitation Subcode applies to the existing portion of the building. An addition is required to comply with the provisions of the technical subcodes for new construction of the Uniform Construction Code. Work in the existing building must comply with the requirements for repair renovation, alteration, and reconstruction, as applicable.

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Not New, But Safe

In addition to being specific, the requirements do not contain many of the arbitrary dimensions that are included in the code for new structures. For example the BOCA National Building Code, which New Jersey uses for new building construction, requires that doors within dwelling units have a 29 3/4-inch clear opening. This essentially means that all doors within a dwelling unit must be 32-inch doors. Safety is not compromised with a 30-inch or even 28-inch door in a dwelling unit. Therefore, the Rehabilitation Subcode does not contain such a requirement nor does it contain other requirements for changes to existing building features without any corresponding improvement in building safety. The thrust of the Rehabilitation Subcode is to ensure a building that meets an acceptable threshold of safety and that it is no less safe after the project than it was before. It results in a safe building, though not necessarily a new building.

Historic Buildings

Imposing new building requirements on existing buildings creates a barrier to restoring historic buildings. Applying new building standards to these structures often disturbs the historic character of the building. Regulations that are specific and tailored to existing buildings can vastly facilitate and improve historic preservation efforts.

The Rehabilitation Subcode includes provisions for buildings that meet the standards for historic buildings established by state or federal agencies. The Rehab Subcode allows the use of replica materials, establishes provisions for historic buildings used as historic museums, and identifies building elements that may meet relaxed code requirements in order to preserve the historic value and integrity of a historic building.

Some of the code requirements that are problematic for historic buildings include door-way dimensions, corridor dimensions, tread and riser dimensions, interior finishes, and door hardware. The Rehabilitation Subcode allows some novel approaches to overcome these problems. For example, it allows existing non-conforming interior finishes to be painted with fire-retardant paint instead of requiring their replacement. It allows owners of certain historic buildings that are open to the public (house museums) to limit their occupant load instead of upgrading egress elements to comply with the regulations for new museums. It also allows flexibility when locating exit signs and permits electrical and plumbing systems that are historic and in view to remain and be repaired with materials and methods consistent with original construction.

Costs and Benefits

The Rehabilitation Subcode has been used in New Jersey for more than a year and is working well. Construction indicators suggest that adoption of the Rehab Subcode has stimulated rehabilitation of existing structures, particularly in the cities. While statewide the estimated cost of alterations and additions grew slightly less than 8 percent between 1997 and 1998, in New Jersey’s larger cities, rehab work grew more rapidly. The estimated cost of all rehab work in Newark grew by nearly 60 percent in the same period, by 84 percent in Jersey City, and by 41 percent in Trenton. While there are certainly other factors contributing to this growth, New Jersey’s Department of Community Affairs attributes much of the increase to the Rehab Subcode. In Newark, nonresidential rehabilitation projects accounted for most of the increase, while housing rehab work continued to decline. This was not the case in other cities or in New Jersey as a whole (see Table 1).

Table 1. Estimated Cost of Rehab Construction Authorized by Building Permits, Selected New Jersey Cities and Statewide: 1996, 1997, 1998

Source: N.J. Department of Community Affairs

Some small scale evaluations have been done on the impact of the subcode. One Jersey City building, after standing vacant for eight years, has been renovated to provide 24 apartment for low- and moderate-income senior citizens and a day care center. The estimated cost savings attribute to the Rehabilitation Subcode were $391,000, about one-quarter of the total project costs. In Trenton, two floors of a vacant office building, more that 50,000 square feet, were renovated for use as a charter school. The Rehabilitation Subcode made it possible for this building to be used and saved an estimated $100,000 to $125,000. While savings on privately funded projects may accrue to owners or to buyers, taxpayers reap the benefits when the project is publicly funded. The Subcode enables communities to stretch public dollars, providing more affordable housing for less and reusing buildings that might otherwise stand vacant or be destroyed.
   

As with any new regulation, especially one that involves a change in philosophy, training is necessary. The New Jersey Department of Community Affairs has a continuing education program for all state-licensed code officials. Rehabilitation Subcode training followed the program already in place, but was expedited as a special program.
   

Two kinds of classes were offered: full-day Rehabilitation Subcode briefings provided an overview and emphasized how to use the code, and half-day workshops, which were limited to approximately 15 code officials per class, gave participants the opportunity to ask questions about the application of the code to specific projects. All working building and fire protection subcode officials were required to attend a full-day briefing. Attendance at a briefing was a prerequisite for the workshop.

In the fall of 1997, 20 full-day briefings were held with 1214 attendees. In the spring of 1998, seven briefings were held with 405 students. In the fall of 1998, four briefings trained 110 officials, and in the spring of 1999, five briefings were held with a total of 118 participants. Thus, from the fall of 1997 through the spring of 1999, 36 Rehabilitation Subcode briefings were held throughout New Jersey, with a total of 1847 code officials trained in the new rules governing construction work in existing buildings.
   

In the spring of 1998, 26 half-day workshops were held with 436 participants. In the fall of 1998, six workshops were held with 22 participants. Rehabilitation Subcode training is now part of the continuing education program for licensed code officials. It is not a mandatory course.
   

The initial cost of training was higher than usual because of the need to provide many training opportunities across the state in any abbreviated time frame. In the first year, the cost per class, which included instructor, room rental, coffee service, and class materials, was approximately $1,700.
   

The Department of Community Affairs made this extraordinary effort to provide training for code officials in advance of the promulgation of the rule because of a strong belief that code knowledge leads to effective enforcement. However, the Rehabilitation Subcode, with its categories of work and specific requirements, provide the code user with guidelines that are easily followed. There is virtually no guesswork involved in applying the code.
  

New Jersey’s Rehabilitation Subcode is an example of government reassessing its regulations and actually improving the effectiveness of the regulations by imposing fewer and more sensible requirements on the public. Building departments win because buildings are improved and made safer. Building owners win because they are able to improve their properties, increase their value, and produce buildings in which people want to live and work. But, most importantly, the public wins because urban areas are revitalized, open space is preserved, resources are conserved and, in general, quality of life is improved. Back to Top

Replication in Massachusetts

As in New Jersey, much of the housing stock in Massachusetts was built prior to the adoption of stringent building codes. Nearly 60 percent of the 2.5 million housing units in the state in 1990 were reportedly built before 1959; 40 percent were built before 1939. The median age of housing units in the state in 1990 was almost 50, as the median year structures were built was given by the Census Bureau as 1953. In Suffolk County, which includes the City of Boston, 73 percent of 290,000 housing units (again 1990) were built before 1959, more than half (56 percent) before 1939. The median age of housing in Suffolk County was 60 years; the 1990 Census gives 1939 as the median year structures were built. Hampden County, which includes the urban areas of Springfield, Holyoke, and Chicopee, had a median year of 1954 for housing structures, as did Worcester County.
   

While data on the value of rehabilitation work undertaken in Massachusetts are not available, and deferred renovation is impossible to estimate, it is generally accepted that building codes designed for new construction are a deterrent to the rehabilitation of older buildings. Adopting a rehabilitation subcode in Massachusetts modeled on New Jersey’s would likely stimulate rehabilitation, particularly in the Commonwealth’s urban areas. The benefits would fall on community residents, taxpayers, and society as a whole. Resources would be conserved as the life of existing buildings is extended. Buildings that might otherwise be abandoned to disrepair and eventually destroyed would be brought back to a usable condition. Public funds for affordable housing would be more efficiently expended, creating more units for the same outlay of funds. The increase in housing stock would benefit comminutes as well as potential tenants. 

New Jersey’s Rehabilitation Subcode has been hailed as a national model for facilitating urban redevelopment efforts. If formed the basis for the Nationally Applicable Recommended Rehabilitation Provisions (NARRP) distributed by the U.S. Department of Housing and Urban Development and received a 1998 New Jersey Historic Preservation Award. An appropriate version of the subcode should be adopted in Massachusetts.

About the Author

William M. Connolly is Director of the New Jersey Division of Codes and Standards, which implements and oversees the enforcement of all construction codes in New Jersey. Mr. Connolly is a registered architect and has been with the State of New Jersey for 26 years. He served as New Jersey’s delegate to the National Conference of States on Building Codes and Standards for 19 years and is a past director and president of that organization. Back to Top

Rehab Subcode