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BCC Ruling No. 98-24-629

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BUILDING CODE COMMISSION DECISION ON B.C.C. #98-24-629

IN THE MATTER OF Subsection 24 (1) of the Building Code Act, 1992.

AND IN THE MATTER OF Sentence 9.10.4.1.(2) of Regulation 61, as amended by O. Reg. 400/91, 158/93, 160/93, 383/94, 20/95 and 395/96 (the "Ontario Building Code").

AND IN THE MATTER OF an application by Ms. Daniela Lepre, Project Coordinator, Leaside Green Inc., 65 Overlea Blvd., Toronto (East York), Ontario for the resolution of a dispute with Mr. Harold Bratten, Director, Building By-Law and Enforcement, Toronto (East York), Ontario to determine whether the proposed mezzanines, as designed, in sixteen units within the project comply with Sentence 9.10.4.1.(2) of the Ontario Building Code at 15 Overlea Blvd., Toronto (East York), Ontario.

APPLICANT

Ms. Daniela Lepre, Project Coordinator
Leaside Green Inc.
Toronto (East York), Ontario

RESPONDENT

Mr. Harold Bratten
Director, Building By-Law and Enforcement
City of Toronto (East York)

PANEL

Mr. Michael Lio (Chair)
Mr. Kenneth Peaker
Mr. Cliff Youdale

PLACE

Toronto, Ontario

DATE OF HEARING

May 21, 1998

DATE OF RULING

May 21, 1998

APPEARANCES

Mr. Blandford Gates, Director
Fliess Gates McGowan Easton Architects Inc.
Toronto, Ontario

The Applicant

Mr. Dean Pheakos, Plans Examiner
Toronto (East York), Ontario
For the Respondent

RULING

  1. The Applicant

Ms. Daniela Lepre, Project Coordinator, Leaside Green Inc., has applied for a building permit under the Building Code Act, 1992 to construct an 82 unit, low rise, residential condominium townhouse project known as Leaside Green, 15 Overlea Blvd, Toronto (East York), Ontario.

  1. Description of Construction

The Applicant proposes to construct an 82 unit, low rise, townhouse condominium project. The individual units are clustered together into several larger blocks. The total building area of each of the blocks is less than 600 m2 (6,460 ft 2). The units are proposed to be constructed of combustible construction, with a 1 hour fire separation between units. The blocks will not equipped with a standpipe and hose system nor a sprinkler system. The individual units are to be provided with a fire alarm and smoke detection system. The buildings are classified as Group C - residential occupancy.

There are numerous different unit types designed for this project. Each of the blocks are a combination of the different unit designs. Four of the Applicant's unit designs contain mezzanines on the third floor. In particular, the mezzanines are found in the Ab, C, D and E unit types, accounting for sixteen units in total. These units are combined in the larger blocks with non-mezzanine units. The sizes of the mezzanines ranges from 22.9 m2 (246 ft2) to 29.3 m2 (315 ft2).

  1. Dispute

The issue at dispute between the Applicant and Respondent is whether the proposed mezzanines, as designed, in sixteen units within the project comply with Sentence 9.10.4.1.(2) of the Ontario Building Code. This provision allows a mezzanine to not be considered as a storey under certain conditions. Complying with Sentence 9.10.4.1.(2) is significant for the construction of the blocks containing mezzanine units since if they are instead defined as floors then the units would be considered as having four floors of building height, meaning they would be subject to the construction requirements found in Part 3 of the OBC. The four floor units would therefore be required, for example, to be constructed of non-combustible construction, or if combustible construction is used then the units must be sprinklered and the separations between the four and three floor units must be two hour rated fire walls.

As a result of this dispute, the Applicant elected to submit plans for a permit showing sprinklers throughout the mezzanine units with two hour fire walls. They are now seeking clarification on the mezzanine issue and wish to revise their building permit to delete the sprinklers and fire walls. The municipality has issued a partial building permit for the blocks that do not contain units with mezzanines, or fourth floors.

  1. Provisions of the Ontario Building Code

Sentence 9.10.4.1(2)Mezzanines not considered as storeys

(2) Mezzanines shall not be considered as storeys for the purpose of determining building height where they occupy an aggregate area not exceeding 40 per cent of the area of the room or the storey in which they are located provided the space above the mezzanine floor has have (sic) no visual obstructions more than 1 070 mm (3 ft 6 in) above such floors.

  1. Applicant's Position

The Applicant submitted that the proposed mezzanines should not be defined as a fourth storey of building height. In her view, the mezzanines comply with the conditions found in Sentence 9.10.4.1.(2). As the Applicant argued, with the mezzanines ranging in size from 22.9 m2 (246 ft2) to 29.3 m2 (315 ft2) none exceed 40 % of the third floor areas within their units. She also indicated that the mezzanines have no visual obstructions more than 1 070 mm (3 ft, 6 in). The Applicant argued that the OBC nor the Guide to the OBC provide any direction on how open in terms of design a mezzanine must be in order to qualify as a mezzanine. As a result, she asserted that the mezzanines are not an additional storey, thus the mezzanine units should be subject to the requirements of Part 9 of the Code.

To underscore her view, the Applicant compared the Leaside Green project with a similar one in the former City of Toronto that also had a "fourth level" in some of the units. That project's fourth levels were considered as mezzanines on the third floors. The Applicant also provided two other examples of joined townhouse condominium blocks that were built according to Part 9, but apparently had four levels.

The Applicant also submitted three separate options for providing sufficiency of compliance with the Part 3 provisions of the OBC if the Building Code Commission were to interpret the subject units as having four floors of building height. Nevertheless, the Applicant still maintained that the mezzanines, as designed, should be considered mezzanines.

  1. Chief Building Official's Position

The Respondent submitted that the proposed mezzanines should be considered as a fourth storey of building height. In their view, the subject mezzanines have a clearly designed floor structure between the third and fourth levels. The mezzanines do not act as intermediate floor levels, nor can they be considered interior balconies. As they indicated, the proposed mezzanines do not meet the OBC definition of mezzanines. From this interpretation that the subject units are four storeys, it is their opinion that the Part 3 provisions of the Code must be applied.

  1. Commission Ruling

It is the decision of the Building Code Commission that the proposed construction does not demonstrate sufficiency of compliance with the requirements of the Building Code and must conform to the requirements of Part 3.

  1. Reasons

i)The proposed mezzanine are considered storeys since they are not an intermediate floor assemblies between the floor and ceiling of a storey.

ii)The proposed mezzanines are considered storeys since visual obstructions exist in the space more than 1070 mm (3 ft 6 in) above the mezzanine floors.

Dated at Toronto this 21st day in the month of May in the year 1998 for application number 1998-24

Mr. Michael Lio, Chair

Mr. Kenneth Peaker

Mr. Cliff Youdale