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BCC Ruling No. 95-43-463

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BUILDING CODE COMMISSION DECISION ON B.C.C. #95-43-463

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

AND IN THE MATTER OF Article 3.2.3.1. of Revised Regulation of Ontario 1990,Regulation 61, as amended by O.Regs. 400/91, 158/93, 160/93 and 383/94 and 20/95 (the "Building Code").

AND IN THE MATTER OF an application by Mr. Nick Sampogna, 928773 Ontario Ltd. for the resolution of a dispute with Mr. Bernie Roth, Chief Building Official, City of Scarborough concerning whether extending the limiting distance required for the west exposing building face onto an adjoining parcel of vacant land to permit the use of unprotected window openings will provide sufficiency of compliance with Article 3.2.3.1. of the Ontario Building Code, at Glen Park Co-Operative Inc., 2495 Eglinton Avenue East, Scarborough, Ontario.

APPLICANT

Mr. Nick Sampogna, President
928773 Ontario Ltd.

RESPONDENT

Mr. Bernie Roth
Chief Building Official
City of Scarborough

PANEL

Roy Philippe, Chair
Michael Lio
Michael Steele

PLACE

Toronto, Ontario

DATE OF RULING

September 19, 1995

APPEARANCES

Mr. Stephen Bernatt, Architect
Stephen Bernatt Architect
For the Applicant

Mr. Vish Bhapkar
Manager, Architectural/Structural
City of Scarborough
The Respondent

RULING

  1. The Applicant

Mr. Nick Sampogna, 928773 Ontario Inc., is the holder of a permit under the Building Code Act, 1992 to construct a 9 storey building comprising retail commercial occupancy on the ground floor and residential occupancy on the 2nd to 9th floors, at Glen Park Co-Operative Inc., 2495 Eglinton Avenue East, Scarborough, Ontario.

  1. Description of Constrution

The project is a 9 storey building comprising retail commercial occupancy on the ground floor and residential occupancy on the 2nd to 9th floors .

The west exposing building face of the building has a limiting distance of 2050 mm for the first storey (Group E - Retail) and 50 mm for the upper storeys (Group C - Residential).

A building permit was granted for the subject building on the basis that a Building Materials Evaluation Commission (BMEC) approved Window Sprinkler System would be used on the west exposing building face.

  1. Dispute

The dispute between the Applicant and Respondent concerns sufficiency of compliance with the technical interpretation of Article 3.2.3.1. of the Building Code. At issue is whether the limiting distance required for the west exposing building face may be extended onto an adjoining parcel of vacant land to permit the use of unprotected window openings.

  1. Provision of the Building Code

Subsection 3.2.3. Spatial Separation and Exposure Protection of Buildings

Article 3.2.3.1. Limiting Distance and Area of Unprotected Openings

  1. Except as provided in Articles 3.2.3.9. to 3.2.3.11, the area of unprotected openings shall not be more than that set forth in Tables 3.2.3.A. or 3.2.3.B. for the limiting distance applicable to the exposing building face under consideration.

  1. The area of the unprotected openings in an exposing building face shall be the aggregate area of unprotected openings expressed as a percentage of the area of the exposing building face in Tables 3.2.3.A. and 3.2.3.B.(Sentence 3.2.3.2.(1).)

  1. For the purposes of determining the type of construction and cladding and the fire-resistance rating of an exterior wall, the exposing building face shall be taken as the projection of the exterior wall onto a vertical plane located so that no portion of the exterior wall of the building or of a fire compartment, if the fire compartment complies with the requirements of Sentence 3.2.3.2.(1), is between the vertical plane and the line to which the limiting distance is measured and, for these purposes, the area of unprotected openings shall be determined from Table 3.2.3.A. or Table 3.2.3.B.

  1. For the purposes of determining the actual percentage of unprotected openings permitted in an exterior wall, the location of the exposing building face is permitted to be taken at a vertical plane located so that there are no unprotected openings between the vertical plane and the line to which the limiting distance is measured.

  1. Where fire fighting facilities cannot reach the building within 10 min of the alarm being received, the limiting distance shall be doubled.

  1. Applicant's Position

The Applicant submitted that there is an open space to the west of the subject property that establishes sufficient distance from adjacent townhouses to permit unprotected window openings in the nine storey building.

The Applicant proposed to use the adjoining property to increase the limiting distance from the west exposing building face.

  1. Chief Building Officials Position

The Respondent submitted that a building permit was issued on the basis of a Building Materials Evaluation Commission (BMEC) approved Window Sprinkler System being used for the window openings in the west exposed building face. The applicant is now proposing to delete this system and use an adjoining property to increase the limiting distance, since at the present time this parcel of land is vacant.

The Respondent does not agree with the Applicants proposal since the definition of limiting distance requires the distance to be measured to the property line (not to infringe on adjoining property owners rights). The Respondent submitted that when a building permit application is processed, the Building Code is applied to the building under that application. The Building Code cannot control what is or is likely to be built on adjoining land in the future. The adjoining owner has the right to measure the limiting distance to the property line and construct any future building accordingly.

  1. Commission Ruling:

It is the decision of the Building Code Commission that not providing protected window openings on the west building face does not comply with the requirements of the Building Code.

  1. Reason:

No evidence was provided that the adjacent property owner was prepared to enter into an agreement with the applicant, registering on title of both properties the existing spatial separation between buildings and thereby allowing the spatial separation to be calculated as if the buildings were constructed on the same property.

Dated at Toronto, this 19th day, in the month of September, in the year 1995, for application number 1995-39.

Roy Philippe

Michael Lio

Michael Steele