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Why We Have A Rehabilitation
Subcode
In
1996, local construction offices in New Jersey issued
building permits authorizing work that had an estimated
cost of over $7 billion. Additions and alterations of
existing structures accounted for about 47% of this
amount. This is a much higher percentage than in most
other states. Rehabilitation work is most pronounced
in New Jersey's cities where conversions and rehabilitation
projects have an integral role in the creation of decent,
affordable housing. In Newark, for example, about $3
out of every $4 included in the estimated cost of construction
authorized by permit in 1996 was for work on existing
houses. In Trenton, housing rehabilitation work outpaced
new housing construction by more than 14 to one.
New
Jersey has an old housing stock, which means that rehabilitation
and conversions play a critical role in state, local,
for-profit, and nonprofit 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 nonresidential buildings
that are vacant or under-utilized and are good candidates
for adaptive re-use.
Existing
buildings that were built to comply with an earlier
building code or with no code are often still safe and
sound. Most existing buildings throughout the United
States, including those in New Jersey, are in this category.
With a few exceptions, these buildings continue to be
occupied, used, and maintained. New Jersey has strong
retrofit codes that apply to all existing buildings
and ensure their safety. It is no longer logical that
a building which can remain unimproved must be upgraded
in numerous respects, many of which provide very little
safety improvement, simply because the owner elects
to improve the building. This approach often deters
any improvement.
Both
in New Jersey and nationally, the building code, which
is oriented towards new construction, can add unnecessarily
to the time and expense of rehabilitating existing buildings
because it was not written with existing buildings in
mind. For new buildings, complying with the construction
code is a straightforward process, but it is difficult
to apply the code 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 that
pose the greatest uncertainty in terms of time and resources
are not attempted at all and the buildings remain unused.
Thus,
the challenge facing 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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What about the standards in New Jersey for alteration
or rehabilitation work in existing buildings—the
25/50% rule?
Prior
to the adoption of the Rehabilitation Subcode, the process
in the Uniform Construction Code for dealing with rehabilitation
in New Jersey was the 25/50% rule. The 25 and 50 percentages
refer to cost - the cost of the alterations in
relation to the value of the building.
There
were three ratios or thresholds in the 25/50 percent
rule which are relevant: (1) under 25%, (2) 25–50%
and (3) over 50% of the building's value. These were
applied as follows:
1.
Where the cost of the work was under 25 percent of the
value of the structure, the code provided that the subcode
official determine the degree to which the alteration
work should meet the code requirements for new construction.
This gave the subcode official a great deal of discretion
and the building owner very little predictability.
2. Where the cost of the work was between 25 and 50
percent of the structure's value, the code required
that the altered or repaired portions meet the requirements
for new structures. The configuration of the existing
building generally made this difficult to achieve, so
that a project often involved one or more variation
requests and, again, very little predictability.
3. When the cost of the work exceeded 50 percent of
the structure's value, the code mandated that the requirements
for new structures be applied to the entire building,
including portions not planned for alteration or repair.
This meant that not only rehabilitated areas, but the
entire upgraded to the standards for new construction.
Again, variation requests were common in this kind of
project because of the limitations of the existing building.
There were three other kinds of percentage rules that
impacted construction projects: additions, accessibility,
and change of use. When additions exceeded 5% of the
area of the existing structure, the existing structure
was required to comply with the code for the following
items: light, ventilation, means of egress, and fire
safety. The 25/50 percent rule affected accessibility
by ensuring compliance with all UCC subcodes for a building
where the replacement value of the structure was 50%
or greater. In a change of use, the building was required
to comply with the requirements of the code for the
proposed new use group.
Where
did the 25/50% rule come from? Research from the National
Conference of States on Building Codes and Standards
indicates that the 25/50% rule first appeared in building
codes as provisions to address nonconforming buildings
within fire districts. As population and building density
increased in urban areas, several fire disasters alerted
communities that fire could consume entire areas of
a city where buildings were of wood frame construction.
Thus, the demolition or replacement of wood frame exterior
walls with conforming construction was required when
the value of work to be undertaken exceeded 50% of the
building's value. The original purpose of the rule,
therefore, was to prevent, rather than promote, the
rehabilitation of certain classes of buildings. It made
some sense 75 years ago when large numbers of existing
buildings met no building code standards at all, but
those buildings are long gone.
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The Development of The Rehabilitation Subcode
The
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 hearing were held. Comments were received and
discussed and some clarifications and improvements to
the proposed document were made. The adoption of the
Rehabilitation Subcode was published in the New Jersey
Register on January 5, 1998.
The
Rehabilitation Subcode is the first comprehensive set
of code requirements for existing buildings. It is a
stand-alone subchapter and, therefore, it contains all
the technical requirements that apply to a rehabilitation
project. This is an important concept.
The
Rehabilitation Subcode is a technical part of the Uniform
Construction Code and, therefore, has no provisions
governing permits. This does not mean that permits are
not required. In fact, the provisions for permits and
other administrative procedures are where they have
always been, in Subchapter 2 of the Uniform Construction
Code, and work that required a permit before the
adoption of the Rehab Subcode, requires a permit now.
This is discussed in more detail in the section on Administrative
Requirements.
Parts of The Rehabilitation Subcode
The
Rehab Subcode is divided into parts that are quite different
from the new construction subcodes and must be understood
if the Rehabilitation Subcode is to be understood.
There
are three types of projects: Rehabilitation;
Change of Use; and Additions.
There
are four Categories of Rehabilitation: repair,
renovation, alteration, and reconstruction. They relate
to the extent of the work undertaken.
There
are five Sets of Requirements: products and practices;
materials and methods; new building elements; basic
requirements; and supplemental requirements that apply
to the categories of work. The best way to see how the
categories and sets of requirements work together is
to review the matrix.
The
Rehab Subcode also includes an Introduction.
Because the rehab subcode is a new approach to establishing
requirements for work in existing buildings and because
it is expected that this subcode will be used both by
those who are familiar with the current Uniform Construction
Code (UCC) and those who are not, it was decided that
this rule should include a less formal, introductory
section than is usually included in regulations.
The
introduction sets the stage for the requirements that
follow. It is designed as a user friendly summary of
the Rehab Subcode. It is critical to understand that
this introduction is not in strict code language and
cannot be cited as a code requirement. The concepts
contained in the introduction are included in the remainder
of the Rehab Subcode.
Terms and Concepts
The
following terms and concepts are used in the Rehab Subcode
in a new way and are central to understanding the Rehab
Subcode as a whole.
Work Area
The
work area is defined in the regulations as "any
entire use, primary function space, or tenancy
comprising all or part of a reconstruction project
as delineated on the approved permit application and
for plans."
Work
area means what it says literally—it is where
the work is being done. The only time the concept
of work area is applied is in a reconstruction
project.
De minimis
This
concept is used only in connection with supplemental
requirements. It may cause concern because it does
not specify a black and white "hard" number.
The supplemental requirements are applicable
when the work area is an entire floor or a specified
percentage of the entire building. In order to prevent
arguments based on what proportion of a floor or building
could remain "untouched" in order to circumvent
the supplemental requirements, the concept of
de minimis, or insignificant, amount of excluded
area was incorporated into this subcode. Admittedly,
this requires judgment by the code official. It is a
move toward invoking common sense and is a move away
from invoking the "letter of the law" without
also applying common sense.
For
instance, rather than use numbers such as 100% of a
floor or 90% of a floor, the rehab code uses words such
as "entire" floor. If an applicant indicates
he or she is doing a reconstruction on everything
on the floor except a closet, that still is equivalent
to the entire floor. Leaving out a small part or an
insignificant portion of the floor is de minimis
and, therefore, does not change the designation of the
work area involving the whole floor. The reason
the words de minimis were chosen instead of a
number, such as 95%, was to eliminate discussions about
how to get to a percentage of what was measured. If,
in the example above, the closet resulted in a number
of 94.1% of the floor area rather than 95%, there could
be a discussion, maybe even an argument, about whether
the provisions triggered by 95% should be applied. Because
there may be a desire to circumvent the supplemental
requirements, the term de minimis was included
to control the tendency to "cheat" or to try
to imply loopholes where none were intended. De minimis
means use common sense.
Tenancy
A
tenancy is an entire building, or a portion of
a building, or a story, or a portion of a story that
is under the ownership or control of one owner or tenant.
This term is used in determining whether a project is
a reconstruction project, which involves an entire building
or tenancy. Within the context of dwelling units,
tenancy means the entire dwelling unit.
Primary Function Space
The
primary function space is the use for which a
building, or portion of a multi-use building, is intended.
The easiest way to define primary function space
is by use group. Just as there can be more than
one use group designation within a building, so can
there be more than one primary function space. The term
is applied to accessibility requirements and is also
used in the definition of work area. Where a
reconstruction is performed on primary function
space, an accessible path of travel to the
reconstructed space must be provided, except that the
cost of providing the path of travel must be proportionate
to the cost of the project. A cost is disproportionate
when it exceeds 20% of the cost of the project. A project
may be a reconstruction project if it includes all of
a primary function space and meets the other
provisions of the definition of reconstruction.
Path of Travel
The
term path of travel refers to the route that
is taken to reach a primary function space. There
are six elements of a path of travel: parking, building
entrance, interior route, bathrooms, drinking fountains,
and telephones. When work is undertaken in a primary
function space, the accessibility of the path
of travel to the primary function space must
be improved. The improvement must be made to one or
more of the six elements of the path of travel
given above, but the cost of the improvement is not
required to be disproportionate to the overall cost
of the planned alteration project. A cost is considered
disproportionate if it exceeds 20% of the project.
Technically Infeasible
The
term technically infeasible applies only to accessibility
requirements. It means that when reconfiguring space
in an existing building, if it is not possible to meet
the full or exact dimension required by the accessibility
standard, the space should comply to as great an extent
as is possible. Meeting an accessibility standard measurement
may be impossible because of structural problems or
it may not be possible without expanding the planned
scope of work. Whichever the reason, the differing dimension
should be recorded by issuing a variation. The easiest
way to think of this provision is to "do what you
can" given the building and the scope of work.
Hazard Index
The
hazard index is used throughout the change of
use requirements to determine whether a change from
one specific use group to another increases the life
safety hazard of the building. The hazard index
is applied through a series of tables in the change
of use section (6.31). There are hazard index
tables for means of egress, height and area, exposure
of exterior walls, exterior wall fire resistance rating,
fire suppression, and structural loads, as well as a
general, relative hazard index table. Back
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Sets
of Requirements
The
five sets of requirements are products and practices,
materials and methods, new building elements, basic
requirements, and supplemental requirements.
Products and Practices
Products
and Practices are lists of items that are required
and those that are prohibited. These requirements apply
to all categories of work. It includes such provisions
as the installation of a low flow toilet when an existing
toilet is replaced.
Materials and Methods
Materials
and methods means what it says—it contains
requirements that tell you what materials to use and
how to use them. It does not contain requirements on
how much fixing you have to do. Materials and methods
applies to all categories of rehabilitation except repair.
This section was developed by going through all the
subcodes and taking out the scoping requirements (the
provisions that tell how much work must be done). What
was left was materials and methods (what kind of material
must be used, how much of the material is to be used,
and how the material is to be installed). The materials
and methods are identified by referencing specific
sections of the particular subcodes.
New Building Elements
This
section lists those items which are considered new building
elements when they 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 newly created
atriums (an atrium that never existed before), newly
created malls in existing buildings, and newly created
floor openings.
Basic Requirements
Basic
requirements apply only in a reconstruction project
and where work is taking place—the work area.
The basic requirements are the most fundamental
scoping requirements. They cover such topics as capacity
of means of egress, dead end corridors and exit signs.
The basic requirements are drawn largely from
subchapter 4 of the Uniform Fire Code and arranged according
to use group.
Supplemental Requirements
Supplemental
requirements are additional work requirements. They
are imposed only when the work is a reconstruction
project, and only when the work area exceeds a certain
size. Each supplemental requirement has its own threshold
of applicability. The supplemental requirements
replace the 50% of the 25/50 rule and are intended to
improve the safety at the building in direct relationship
with the planned scope of work. Like the basic requirements,
the supplemental requirements are arranged by
use group.
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Categories
of Work
Repair:
This category is the most minimal type of rehabilitation
work. The definition of repair contained in the regulations
(NJAC 5:23-6.3) is "the restoration to a good
or sound condition of materials, systems and/or components
that are worn, deteriorated or broken using materials
or components identical to or closely similar to the
existing." 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 a few (and 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. These can be found
in the repair section of the regulations at NJAC
5:23-6.4.
Products
and Practices is the only one of the Sets of Requirements
that applies to repair.
Renovation:
This category is for work that is generally restorative
in nature such as the replacement of interior finish,
trim, doors, or equipment, but renovation involves
the use of different materials. There is no reconfiguration
of space. The regulations (NJAC 5:23-6.3) define
renovation as "the removal and replacement or
covering of existing interior or exterior finish, trim,
doors, windows or other materials with new materials
that serve the same purpose and do not change the configuration
of space. Renovation shall include the replacement of
equipment or fixtures." In general, the materials used
and the methods of installation must conform to the
requirements found in the materials and methods
section (NJAC 5:23-6).
When
renovation work is undertaken, then, there are
two Sets of Requirements that apply: products
and practices and materials and methods.
Alteration:
This category of work involves a change in the layout
of interior space while other portions of the space
remain without rearrangement. Alteration is defined
in the regulations as "the rearrangement of any space
by the construction of walls or partitions, the addition
or elimination of any door or window, the extension
or rearrangement of any system, the installation of
any additional equipment or fixtures, and any work which
affects a primary structural component." There is a
short list of materials that may not be used, as well
as products or practices which must be used when
alteration work is undertaken. The materials and
methods requirements also 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,
which specify that the work undertaken cannot create
a nonconformity 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 than it was before the work was undertaken.
So,
there are three Sets of Requirements that apply
to an alteration project: products and practices,
materials and methods, and basic requirements.
Reconstruction:
This category involves extensive work to the interior
of a building, floor, or tenant space. It is commonly
referred to as a "gut rehab". The regulations define
reconstruction as "any project where the extent and
nature of the work is such that the work area cannot
be occupied while the work is in progress and where
a new certificate of occupancy is required before the
work area can be reoccupied." Reconstruction
includes repair, renovation, 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.
A
reconstruction project has a delineated work area.
A reconstruction project involves an entire use, primary
function space, or tenancy; projects that
do not involve an entire use, primary function space,
or tenancy are not reconstruction projects.
Where
the work area is an entire use, primary function space,
or tenancy, a project becomes reconstruction when two
conditions are met: 1) the area where the project is
taking place cannot be occupied while the work is in
progress; and 2) when a new certificate of occupancy
is required before the area can be reoccupied.
Repair,
renovation, and alteration work that make
up a reconstruction project must comply with
the requirements for the applicable category of work.
The entire 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 a specific size. Each supplemental
requirement has its own threshold of applicability.
The basic requirements and the supplemental
requirements are arranged by use group.
A
reconstruction project includes three of the
Sets of Requirements, products and practices,
materials and methods, and basic requirements.
It may also include a fourth set of requirements, supplemental
requirements, depending on the size of the reconstruction
project, and it could include new building elements,
depending on the scope of work.
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Change
of Use
The
Uniform Construction Code establishes construction requirements
according to the way a building is used. The use, or
function, of a building is called a use group. The Rehab
Subcode also uses these same use groups. The Change
of Use section governs what work must be done when
a building that has been used for one use is changed
to accommodate another use. For example, it details
what must be done when a building that has been a store
is changed into a restaurant.
The
amount of work that is required can range from nothing
to a great deal. Previously, the Uniform Construction
Code provided that any building or portion of a building
undergoing a change of use had to meet code requirements
for new construction. Under the Rehab Subcode, this
has changed. The work required is now dependent on whether
a greater hazard is created. In sum, the change of
use of a building means a change of the use group
as defined in the building subcode or by the provisions
of another subcode.
The
change in the use of a space in a building may not require
that the entire building undergo a change of use
group, but it may mean, for example, that the change
in the way the space is used may trigger the requirements
of one of the technical subcodes of the UCC. 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 conditioning
(HVAC) system be upgraded.
There
are six hazard tables in the change of use
section. It is important to remember in determining
whether work must be done that each of the six tables
must be consulted. The first table deals with relative
use group hazard. This table categorizes all work according
to hazard. The next five tables address 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.
There are additional requirements when the work affects
vertical openings, fire alarms, fire detection, smoke
detectors, or some plumbing, electrical, mechanical,
or accessibility provisions.
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Additions
Additions
are required to comply with the provisions of the technical
subcodes for new construction of the Uniform Construction
Code. Work in the existing building which is related
to the addition must comply with the requirements
for repair, renovation, alteration, and reconstruction,
as applicable, where such work is undertaken.
There
are also some requirements that apply to additions.
For example, the addition cannot extend the height
or area of the building beyond the limits established
by the rehab subcode.
Historic
Buildings
The
Rehabilitation Subcode includes provisions for buildings
that meet the standards for historic buildings established
by the relevant 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.
Administrative
Provisions
As
its name implies, the Rehab Subcode is a subcode of
the Uniform Construction Code. As Subchapter 6, it is
cited as NJAC 5:23-6. Thus, the administrative
provisions of the Uniform Construction Code apply to
rehabilitation projects, as they do to other construction
projects.
The
Department has become aware that questions have arisen
regarding the relationship of the Rehab Subcode, a rehabilitation
project, and a construction permit. The Rehab Subcode
contains NO provisions for permits; all
permit requirements remain where they have always been,
in Subchapter 2 of the Uniform Construction Code, NJAC
5:23-2.
The
Rehabilitation Subcode is a technical subcode and, as
with the other technical subcodes, contains only technical
requirements. The only changes made to Subchapter 2,
the administrative provisions, were the inclusion of
the definitions of the new terms used and applied in
the
Rehab Subcode.
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