Building Code Blues: Will New York be Left Behind?

Julia Vitullo-Martin, January 2005

New York City has routinely victimized itself with its own sense of exceptionalism—the idea that it is too big or diverse or unusual or complex to be governed by the same rules as other cities. New York simultaneously prides itself on having often been an important innovator—such as being the first city to adopt a building code in 1850. Yet 155 years later, the city finds itself mired beneath its arcane and intricate code, laid out in over 700 pages, while competitor cities here and abroad are taking a different tack—adopting an outside, recognized code, usually the International Building Code, to replace their locally written ones. The international move to standardize building, fire, and energy conservation codes is one of the most important of our times. Is New York going to be left behind?

A widely accepted code like IBC opens up cities—any city—to new competition, enabling architects, builders, and developers from all over the world to bid on projects. It permits the use of common, tested, cheaper materials. And it reduces the opportunistic corruption of individual inspectors.

Already at least partly operational in 44 states, IBC's uniform standards would make life much easier—and less expensive—for housing and development professionals. Unlike New York City's code, IBC is clear, comprehensive, and flexible. And, unlike the city's code, IBC differentiates between new construction and rehabilitation. The IBC bandwagon is one that the Bloomberg administration rightly wants to join.

But the administration was stopped cold at the November 2004 hearings held by the City Council, which grilled Department of Buildings Commissioner Lancaster for two hours and subsequently permitted only labor representatives to testify. (Plumbers and teamsters, who had started lining up at dawn outside City Hall, packed the council chamber.) Arthur Klock, director of training for Plumbers Local 1, testified emotionally—but not substantively—in support of the existing code: "We hold in our hands a living document, passed down from those who came before us."

Precisely. Ours is an outdated code in thrall to the past.

THE MATERIALS PROBLEM

New York's code directly affects the costs of construction by dictating the types of materials that can be used in a building, detailing the kinds of structures that can be built, and establishing the code compliance review process—itself a significant barrier to building.

Despite ongoing technological advances in materials and construction methods, the code has not been changed significantly since 1968. (The several amendments have generally added new regulations and levels of review.) Under the city's Materials and Equipment Acceptance Process any material or equipment used in constructing a building must be approved by DOB. That would not be so bad if the approval process were more efficient. Materials must meet a reference standard established in the building code itself or promulgated by DOB. But any standard already in the code can only be changed by City Council legislation—a requirement that tends to politicize any proposal. Does the new material require less labor? Is it made in New York? Will its approval hurt an existing local business? Jerry Salama, co-author of a study of construction costs in New York, says that both approval processes are "complicated, time-consuming and expensive, making it that much more difficult to innovate and introduce less expensive materials and equipment."

The materials issue is particularly burdensome for affordable housing developers, whose narrow profit margins dictate that they keep their construction costs as low as possible. Technology should be a big help. But it's often not, because "the MEA process keeps New York from using cutting-edge technology," says Patty Noonan, Vice President of the Partnership for New York City. "Builders who want to use energy-efficient materials to lower operating costs run right into the MEA issue. Say you want to put in a new boiler that no one's used here. You have to go through an onerous process to get a reference number—and then you may not get it." The code can actually prevent units from being affordable by mandating unnecessarily expensive materials.

Take, for example, the handsome new condominium building, 1400 on Fifth, in Harlem. Its developer, Carlton Brown, says, "Because of this whole ridiculous MEA process, we don't have access to the same materials and equipment in New York as the rest of the country. We don't get the newest, best materials because manufacturers, who don't know the depth of the New York market, are not going to spend a million dollars trying to get their new product approved."

In order to reduce his building's energy consumption by 70%, Brown (who builds "green, affordable housing") installed a geothermal heat pump to heat and cool his building. That same unit could also have heated all the hot water in the building for free—except that it's not permitted. "The plumbers don't want it here," says Brown.

THE PLUMBER PROBLEM

The plumbers have many special prerogatives and they intend to keep them. The current code requires, for example, that any business doing plumbing in New York City be majority owned by a licensed New York City master plumber, whose home base is within city limits. Plumbers argue that this home rule requirement adds an additional level of protection and accountability, ensuring New Yorkers that plumbers respond to local needs. But, of course, home rule restricts competition, thereby increasing costs. Further, the plumbers get additional political mileage from allying themselves with the fire department in opposing plastic pipes, which are allowed nearly everywhere else in the country. Some fire experts urge that plastic pipes be banned because they can become toxic when burned—even though under the city’s proposed implementation plastic pipes would only be permitted in fully sprinklered buildings.

Brown is a Manhattan developer. The situation is even worse in the boroughs, which were divided by the code into fire zones that assumed that low-rise neighborhoods would develop into high-rise, Manhattan-like areas. Randy Lee, chairman of the Building Industry Association of New York City, points out that neighborhoods that had been traditionally developed with standard, low-rise, low-density houses 50 to 70 years ago suddenly found in the late 1960s that only steel-framed, noncombustible, fully sprinklered houses were up to code. "And," adds Lee, "the Department of Buildings had no methodology to square it away." These destructive provisions stayed and were enforced, costing home owners and their neighborhoods millions of dollars in unnecessary costs. Fire consultants, says Lee, "basically want every house in New York to be made of concrete and fully sprinklered."

WHAT’S NEXT

The Bloomberg administration is still hoping that its blueprint bill will be passed by the City Council in the spring. Ironically enough, despite the outraged testimony of plumbers and teamsters, the administration's bill doesn't even deal with details. Rather, it simply provides a timeframe for adopting IBC, with modifications to the city's code to be put forward one by one to the City Council. Indeed, if the volatile plumbers are any indication of the politics to come, New York's reform efforts will be doomed as special interests continue to shout down each important reform as it's proposed.

By adhering to its own code, New York City is not only out of step with the major cities of the world, it is out of step with its own region. The entire tri-state region of New York, New Jersey, and Connecticut has adopted the IBC—with the exception of the five boroughs of New York City. The administration's bill, which is only a first step in a long, arduous legislative process, deserves to be passed. Then the negotiations will begin in earnest.

IMPORTANT DATES

1975: American Institute of Architects proposes "One Code: A Program of Regulatory Reform for the United States"

1968: New York City passes a substantially revised building code that remains little changed today, despite many amendments increasing regulatory detail

1986: Various professional groups propose a Common Code Format so that agreed upon elements would be in the same chapters of different codes

1999: Seeing disputes arising among different code groups, AIA demands a Single Code, which becomes a rallying cry of reformers

2003: Mayor Bloomberg's code commission recommends that New York City adopt the IBC with provisions for local modifications

2004: DOB urges passage of blueprint bill to begin adoption of IBC