Effective September 15, 2019, New Hampshire’s building codes – specifically the International Building Code, International Residential Code, International Plumbing Code, International Mechanical Code, International Existing Building Code and International Energy Conservation Code – will upgrade from their current 2009 versions to the 2015 versions published by the International Code Council. The ICC updates its proposed codes every three years (there is already a 2018 version published), and New Hampshire is finally catching up to other New England states.
There are bound to be some fits and starts in implementing the transition – a subject the legislation adopting the 2015 codes did not address, and which is therefore left to the municipalities to deal with. As of this writing, very few towns and cities have posted any guidance on how they will handle plans and applications already submitted to building code officials for approval under the 2009 versions.
It seems clear that approvals received prior to September 15, 2019 for plans and applications submitted under the old code will be honored without requiring revisions to implement new code changes, even for construction completed and building inspections conducted after that date – at least if the project is completed within a reasonable time thereafter. Section 107.3.2 of the 2015 International Building Code and Section 106.3.2 of the 2015 International Residential Code both provide that “This code shall not require changes in the construction documents, construction or designated occupancy of a structure for which a lawful permit has been heretofore issued or otherwise lawfully authorized, and the construction of which has been pursued in good faith within 180 days after the effective date of this code and has not been abandoned.” (The Town of Amherst has tweaked this by imposing a completion deadline of 180 days after September 15 for projects seeking to avail themselves of this safe harbor.)
The thornier question is what to do about plans and applications in the pipeline that have not yet been approved by September 15 and are premised on the old code. Don’t expect consistency here. Some municipalities will take a hard line and insist on compliance with the 2015 codes. (The Town of Chester, for example, has announced that “Any plans or applications submitted on or after September 1, 2019 must be designed to meet these codes. Any project slated to begin after September 1, 2019 must also meet the new codes, regardless of application submittal date.”) Others will continue to apply 2009 codes to pre-September 15 applications. (The City of Nashua, for example, advises that projects “which have submitted an application for review prior to September 15, 2019 will be permitted to continue finalizing designs, receive permitting and have inspections performed to the applicable codes in effect at time of application, provided that final ‘For Construction’ building and building systems plans are submitted no later than December 15, 2019.”)
Pragmatically, a court challenge is more likely to be mounted against a strict approach (builders fully invested in a project designed to the 2009 codes may not be willing to eat significant redesign costs lying down) than against a lenient approach (someone injured due to a condition permitted by the 2009 code but forbidden by the 2015 code will likely see their lawsuit falter on a “discretionary function immunity” defense). I suspect that many towns will favor the Nashua approach over the Chester approach for that reason.
But don’t count on it. If you will be applying for a building permit between now and September 15 in a town that has no published guidance on this issue, make a phone call and ask. If you don’t get a straight answer – and maybe even if you do get a straight answer (local code enforcement officials’ off-the-cuff guesses, fueled by their desire for more time to study up on the changes, can get overruled later, spawning the kind of “municipal estoppel” lawsuits that make construction lawyers wince) – the wiser course may be to submit plans that comply with the updated code, even if it means having your architect troubleshoot and revise your design.
There are bound to be some fits and starts in implementing the transition – a subject the legislation adopting the 2015 codes did not address, and which is therefore left to the municipalities to deal with. As of this writing, very few towns and cities have posted any guidance on how they will handle plans and applications already submitted to building code officials for approval under the 2009 versions.
It seems clear that approvals received prior to September 15, 2019 for plans and applications submitted under the old code will be honored without requiring revisions to implement new code changes, even for construction completed and building inspections conducted after that date – at least if the project is completed within a reasonable time thereafter. Section 107.3.2 of the 2015 International Building Code and Section 106.3.2 of the 2015 International Residential Code both provide that “This code shall not require changes in the construction documents, construction or designated occupancy of a structure for which a lawful permit has been heretofore issued or otherwise lawfully authorized, and the construction of which has been pursued in good faith within 180 days after the effective date of this code and has not been abandoned.” (The Town of Amherst has tweaked this by imposing a completion deadline of 180 days after September 15 for projects seeking to avail themselves of this safe harbor.)
The thornier question is what to do about plans and applications in the pipeline that have not yet been approved by September 15 and are premised on the old code. Don’t expect consistency here. Some municipalities will take a hard line and insist on compliance with the 2015 codes. (The Town of Chester, for example, has announced that “Any plans or applications submitted on or after September 1, 2019 must be designed to meet these codes. Any project slated to begin after September 1, 2019 must also meet the new codes, regardless of application submittal date.”) Others will continue to apply 2009 codes to pre-September 15 applications. (The City of Nashua, for example, advises that projects “which have submitted an application for review prior to September 15, 2019 will be permitted to continue finalizing designs, receive permitting and have inspections performed to the applicable codes in effect at time of application, provided that final ‘For Construction’ building and building systems plans are submitted no later than December 15, 2019.”)
Pragmatically, a court challenge is more likely to be mounted against a strict approach (builders fully invested in a project designed to the 2009 codes may not be willing to eat significant redesign costs lying down) than against a lenient approach (someone injured due to a condition permitted by the 2009 code but forbidden by the 2015 code will likely see their lawsuit falter on a “discretionary function immunity” defense). I suspect that many towns will favor the Nashua approach over the Chester approach for that reason.
But don’t count on it. If you will be applying for a building permit between now and September 15 in a town that has no published guidance on this issue, make a phone call and ask. If you don’t get a straight answer – and maybe even if you do get a straight answer (local code enforcement officials’ off-the-cuff guesses, fueled by their desire for more time to study up on the changes, can get overruled later, spawning the kind of “municipal estoppel” lawsuits that make construction lawyers wince) – the wiser course may be to submit plans that comply with the updated code, even if it means having your architect troubleshoot and revise your design.
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