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BCC Ruling No. 16-18-1446

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Ruling No.: 16-18-1446
Application No.: P 2016-10

 

BUILDING CODE COMMISSION

IN THE MATTER OF Subsection 24(1) of the Building Code Act, S.O. 1992, c. 23, as amended.

AND IN THE MATTER OF Subsections 8.(2.2) and (2.3) of the Building Code Act, 1992 when considering Sentence 1.3.1.3.(1) and Table 1.3.1.3. of Division C of Regulation 332/12, as amended, (the “Building Code”).

AND IN THE MATTER OF an application by Brian Fawcett, for the resolution of a dispute with Dean Findlay, Chief Building Official, to determine whether the Chief Building Official complied with the requirements of Subsections 8(2.2) and 8(2.3) of the Building Code Act, 1992 and Division C, Sentence 1.3.1.3.(1) of the Building Code to issue or refuse to issue the permit and, in the case of a refusal to issue the permit, to provide in writing all of the reasons for the refusal within the time period set out in Table 1.3.1.3. of the Building Code regarding at 284 Lake Street, Peterborough, Ontario.

APPLICANT

Brian Fawcett
Lakefield, Ontario

RESPONDENT

Dean Findlay
Chief Building Official
City of Peterborough, Ontario

PANEL

Mina Tesseris, Chair-Designate

PLACE

City of Toronto, Ontario

DATE OF HEARING

May 2, 2016

DATE OF RULING

May 2, 2016

APPEARANCES

Brian Fawcett
Lakefield, Ontario
Applicant

Dean Findlay
Chief Building Official
City of Peterborough, Ontario
Respondent

RULING

 

1. Particulars of Dispute

The Applicant applied for a building permit under subsection 8(1) of the Building Code Act, 1992 to convert an attached garage of an existing 2 storey, 228 m², Group C occupancy building to a laundry room containing four washing machines, at 284 Lake Street, Peterborough, Ontario.

The dispute between the parties involves whether the Chief Building Official (the Respondent) complied with subsections 8(2.2) and 8(2.3) of the Act and Division C, Sentence 1.3.1.3.(1) of the Building Code. Specifically, whether the Chief Building Official issued or refused to issue the permit and, in the case of a refusal to issue the permit, to provide in writing all of the reasons for the refusal, within the time period prescribed in Table 1.3.1.3. of Division C of the Building Code.

2. Provisions of the Building Code in Dispute

Act: subsections 8(2.2) and (2.3)

Decision

(2.2) If an application for a permit meets the requirements prescribed by regulation, the chief building official shall, unless the circumstances prescribed by regulation apply, decide within the period prescribed by regulation whether to issue the permit or to refuse to issue it. 2009, c. 33, Sched. 21, s. 2 (2).

Same, reasons for refusal

(2.3) If the chief building official refuses to issue the permit, he or she shall inform the applicant of all of the reasons for the refusal of the permit and shall do so within the period prescribed by regulation. 2002, c. 9, s. 14 (2).

Building Code: Division C, Sentence 1.3.1.3. (1)

1.3.1.3. Period Within Which a Permit is Issued or Refused
  1. (1) Subject to Sentences (2) and (3) and unless the circumstances set out in Sentence (6) exist, if an application for a permit under subsection 8 (1) of the Act that meets the requirements of Sentence (5) is submitted to a chief building official on or after the day subsection 2 (2) of Schedule 21 to the Good Government Act, 2009 comes into force, the chief building official shall, within the time period set out in Column 3 of Table 1.3.1.3. corresponding to the class of building described in Column 2 of Table 1.3.1.3. for which the application is made,
    1. (a) issue the permit, or
    2. (b) refuse to issue the permit and provide in writing all of the reasons for the refusal.

Table 1.3.1.3.
Period Within Which Permit Shall be Issued or Refused

Forming Part of Article 1.3.1.3.

Item

Column 1

Column 2

 

Class of Building

Time Period

1.

(a) A detached house, semi-detached house, townhouse, or row house where no dwelling unit is located above another dwelling unit.

(b) A detached structure that serves a building described in Clause (a) and does not exceed 55 m2 in building area.

(c) A tent to which Section 3.14. of Division B applies.

(d) A sign to which Section 3.15. of Division B applies.

10 days

2.

(a) Buildings described in Clause 1.1.2.4.(1)(a), (b) or (c) of Division A, other than buildings described in Column 1 of any of Items 1 and 4 of this Table.

(b) Farm buildings that do not exceed 600 m2 in building area.

15 days

3.

(a) Buildings described in Clause 1.1.2.2.(1)(a) or (b) of Division A, other than buildings described in Column 1 of any of Items 1 and 4 of this Table.

(b) Farm buildings exceeding 600 m2 in building area.

20 days

4.

(a) Post-disaster buildings.

(b) Buildings to which Subsection 3.2.6. of Division B or any provision in Articles 3.2.8.3. to 3.2.8.11. of Division B applies.

30 days

 

3. Applicant’s Position

The Applicant advised the Commission that a building permit application with drawings were submitted to the City of Peterborough on March 18, 2016 and that the permit application fees were paid on March 30, 2016.

The Applicant informed the Commission that the permit application proposed to convert an attached garage to a laundry room containing four washing machines in an existing 2 storey, 228 m², 3 unit, Group C occupancy building. He advised that according to Table 1.3.1.3. there was a 15 day time frame for the Respondent to either refuse the permit application with reasons or to issue the permit.

The Applicant reported that during the permit processing time frame, the building department had raised concerns as to whether the proposed renovation would result in a laundry facility for use by the public. The Applicant submitted that in order to address this concern, the building owner offered to provide an affidavit to the building department to affirm that the use of the new laundry service room would, in fact, be for the sole and exclusive use of the residents of 284 Lake Street, despite the owner's original intention to open the laundry facilities to the public.

The Applicant submitted that he e-mailed the building department on April 13, 2016 to obtain a status update on his permit application and inquired whether an affidavit from his client would be required to confirm the intended use of the laundry room. The Applicant advised that a response by the municipality's permit technician was received on April 13, 2016, which explained that in order for the laundry room to be considered in compliance with the zoning bylaw, three modifications would be required and further, an affidavit would not be accepted.

The Applicant explained that on the same day he requested the specific articles of the zoning by law that were in contravention and further, on April 14, 2016 attempted to address the three outstanding issues outlined by the permit technician in her April 13, 2016 e-mail. The Applicant submitted that it was his position that the April 13, 2016 e-mail and follow up e-mail of April 15, 2016 from the permit technician were vague, as they did not outline the specific zoning bylaws that were allegedly in contravention. As a result, it was his position that the e-mails did not constitute a refusal with reasons by the Chief Building Official as required by Division C, Sentence 1.3.1.3.(1) of the Building Code.

The Applicant advised that prior to the hearing, on April 28, 2016, the Chief Building Official met with his client (the building owner) whereupon an agreement was signed by both parties. The agreement stipulated certain requirements that the building owner would meet as well as, modifications to the building permit application drawings. The Applicant advised that as a result of the signed agreement a permit was issued to the building owner on April 28, 2016.

The Applicant maintained that the permit application and drawings were submitted to the building department on March 18th, that payment was made for the application permit fee on March 30th, and that correspondence providing deficiencies were issued on April 13th and April 15th by the permit technician of the building department. The Applicant submitted that the last day for the permit to have been issued in accordance with Division C, Table 1.3.1.3. was April 21st and that the permit was not issued until April 28, 2016.

The Applicant asserted that the time frame for the Respondent to respond to the permit application was 15 days and that the Respondent had neither issued the building permit nor refused to issue the building permit with reasons within the specified timeframe.

4. Respondent’s Position

The Respondent reported that in February 2016, the building owner of the subject property was found to have caused construction without a permit for the establishment of a commercial laundromat, which is contrary to the municipality's zoning bylaw provisions.

The Respondent agreed that the subject building permit application with associated fees was deemed complete on March 30, 2016. The Respondent stated that after reviewing the permit application, the Applicant was advised, via e-mail on April 13, 2016, of the required amendments to the building permit plans to address the concerns regarding an ongoing violation of the zoning bylaw.

The Respondent further submitted that on April 14, 2016, the Applicant, via e-mail, disputed the building department's required amendments to the building permit and required a response concerning the non-issuance of the permit.

The Respondent reported that approximately one hour later on April 14, 2016, the Applicant was informed that "it is the Chief Building Official's determination that the application facilitates an ongoing violation of zoning, given recent past history of the use of the building in question, contrary to the requirements of applicable law". The Respondent submitted that the correspondence of April 13 and 14, 2016 provided the Applicant the written reasons for refusal of the permit application in accordance with Subsections 8(2.2) and 8(2.3) of the Building Code Act, 1992 and Division C, Sentence 1.3.1.3.(1) of the Building Code.

The Respondent maintained that the Applicant was well aware of the fact that the permit in question would not be issued until the Chief Building Official was satisfied that the application was compliant with applicable law and that this was communicated to the Applicant in advance of the permit review time period of 15 days, which expired on April 20, 2016.

5. Commission Ruling

It is the decision of the Building Code Commission that the Respondent did comply with the requirements of Subsections 8(2.2) and 8(2.3) of the Building Code Act, 1992 and Division C, Sentence 1.3.1.3.(1) of the Building Code regarding a permit application at 284 Lake Street, Peterborough, Ontario. Under these subsections, the Respondent is required to issue or refuse to issue the permit and, in this case a written refusal to issue the permit, with the reasons for the refusal, was issued within the applicable time period set out in Table 1.3.1.3. of Division C of the Building Code.

6. Reasons

  1. Sentence 1.3.1.3.(7) of Division C of the Building Code specifies when the time periods set out in Table 1.3.1.3. commence. It states:

    Subject to Sentence (9) and (10), the time period described in Sentences (1) to (3) and Clause 6(b) shall begin on the day following on which an application that meets the requirements of Sentence (5) is submitted to the chief building official. The requirements in Sentence (5) include the payment of all fees that are required.

    The parties agreed that a building permit application with the associated fees was submitted to the City of Peterborough on March 30, 2016. As a result, it is March 31, 2016, the day following the day on which an application meeting the requirements of Sentence (5), that the applicable time period set out in Table 1.3.1.3. commenced in this case.

    The parties also agreed that the construction proposed under the application in question was subject to the 15 day time period set out in Table 1.3.1.3. of Division C of the Building Code.

  2. Sentence 1.3.1.3.(8) provides that the time periods described in Table 1.3.1.3. do not include Saturdays, holidays and all other days when the offices of a principal authority are not open for the transaction of business with the public.

    In the present case, the applicable 15 day time period ended on April 20, 2016, and the Respondent was required by that date to issue or refuse to issue a permit in respect of the Applicant’s permit application and, if the permit was refused, to provide in writing all reasons for the refusal.

    The Commission heard evidence that written communication was submitted by the building department's permit technician to the Applicant on April 13, 2016, which informed that there were deficiencies with the permit application related to the contravention of a zoning bylaw. Further, a second e-mail was sent out to the Applicant the following day, on April 14, 2016 by the permit technician, which stated in part, that it was "the Chief Building Official's determination that the application facilitates and ongoing violation of zoning contrary to the requirements of applicable law”.

    Based on the evidence and testimony provided, it is the Commission's opinion that the e-mails sent on April 13 and 14, 2016 by the building department to the Applicant fulfills the Chief Building Official's obligations under Sentence 1.3.1.3.(1) of Division C of the Building Code to, within the time period set out in Table 1.3.1.3. of Division C, to either issue the permit or refuse to issue the permit and provide in writing all the reasons for the refusal.

Dated at the City of Toronto this 2nd day in the month of May in the year 2016 for application number P 2016-10.

Mina Tesseris, Chair-Designate