Recently got into an interesting conversation with a friend and we can’t seem to agree:
I’m a licensed Architect in NYC with ten years of experience filing projects at the Building Department. My friend is under the impression that when drawing sets are reviewed and approved by plan examiners, that if a code issue isn’t picked up by the plan examiner, then the architect isn’t liable.
I strongly disagree with that, but I am struggling to find an official document from the NYC building department or building/administrative code that states that architects are still responsible designing code-compliant buildings even if a code issue isn’t discovered during the plan examination.
Everyday Architect
Jun 30, 20 8:00 pm
Section 105.4, Validity of Permit: "The issuance or granting of a permit shall not be construed to be a permit for, or an approval of, any violation of any of the provisions of this code or of any other law. Permits presuming to give authority to violate or cancel the provisions of this code or other law shall not be valid. The issuance of a permit based on construction documents and other data shall not prevent the commissioner from requiring the correction of errors in the construction documents and other data. The commissioner is also authorized to prevent occupancy or use of a structure where in violation of this code or of any other law." (2014 NYC Building Code)
citizen
Jun 30, 20 8:04 pm
So, if the plan-checker misses a drawing sheet stuck to another sheet and fails to mark a code-related item, then your friend can leave doors off a stairwell? Or design a 24" tall guardrail? That's silly on its face.
jeiffert
Jun 30, 20 8:07 pm
I tend to agree with you. But I doubt that the NYC building department, or any building/administrative code would have any provision for assigning liability. That gets worked out in courts.
On the other hand, I would be surprised if the building department didn't have some sort of limitation of liability for plan examiner omissions.
Everyday Architect
Jun 30, 20 8:16 pm
To put their argument in another context, if your friend robs a store at gunpoint and there is no police officer around to see them do it, does that mean they haven't broken the law? What if a police officer sees them leaving the store but didn't know they had just robbed it? What if the police officer says, "have a nice day," as your friend passes? What if the police officer notices your friend's hands are full and holds the door for them? Just because something isn't caught (or perhaps more egregiously overlooked) doesn't mean there has been no crime and there is no potential for consequences.
I'm preaching to the choir, I know ... but c'mon! Get some smarter friends.
citizen
Jun 30, 20 8:18 pm
I have some wonderful, sweet, dumb friends. That's fine. I just don't go to them for advice :o/
midlander
Jun 30, 20 8:33 pm
is your friend a licensed architect? [facepalm if yes]
Everyday Architect
Jun 30, 20 8:44 pm
You could also point them to the General Administrative Provisions of the Code (all bold emphasis mine), Section 28-104.2.4 Conditions of approval, "All construction documents approved by the commissionershall be conditioned upon and subject to compliance with the requirements of this code and other applicable laws and rules in effect at the time of issuance of the associated work permit or place of assembly certificate of operation."
... and Section 28-104.2.10 Revocation of approval, "The commissioner may, on notice to the applicant, revoke the approval of construction documents for failure to comply with the provisions of this code or other applicable laws or rules; or whenever there has been any false statement or any misrepresentation as to a material fact in the submittal documents upon the basis of which such approval was issued; or whenever an approval has been issued in error and conditions are such that approval should not have been issued. Such notice shall inform the applicant of the reasons for the proposed revocation and that the applicant has the right to present to the commissioner or his or her representative within 10 business days of personal service or 15 calendar days of the posting of service by mail, information as to why the approval should not be revoked."
Ancient Sheds
Jun 30, 20 8:46 pm
Bulgar - you're ALWAYS liable, matter fact you are to correct the NYC building department if they make a mistake, and you're liable if you don't. I know from experience, trust me.
BulgarBlogger
Jun 30, 20 8:54 pm
These are great! Thanks!
I am designing two new multi-family buildings in Manhattan and I asked my friend for a second opinion (yes he’s a licensed architect with 30+ years of experience) on objections from the DOB.
The objection was labeled a zoning objection (there was even a zoning citation), but the objection was on its face irrelevant. It was about a stair/mechanical room bulkhead on a roof. The zoning objection suggested the bulkhead was an obstruction, but it wasn’t. However, the objection required the submission of area calculations as evidence. That is all fine- but in reviewing the objection, I also discovered that there is a separate building code issue about rooftop structures not exceeding a third of the area of the roof on which they are built.
My friend told me to answer to objections literally and not worry about the building code area issue. That makes me nervous and frankly I don’t want to ignore it. His argument was that once the building department approves the drawings and a Certificate of Occupancy eventually issued, I can wipe my hand clean. Beyond that, he asked what is the danger in having a slightly over-built bulkhead?
Ancient Sheds
Jun 30, 20 8:58 pm
well yes in a way your friend is correct. in most cases the DOB will not require you correct the mistake. sometimes they will make it a real hassle to get the CO, but if you jump through enough hoops you will be ok. now if it comes up in a say a AG review offering plan and its not code, simply have the lawyers cite the error and inform the buyers they are purchasing something not to code.
BulgarBlogger
Jun 30, 20 9:29 pm
What you just said comes into conflict with everything cited above. Shaking my head...
Ancient Sheds
Jun 30, 20 10:04 pm
yes, if you're being a professional architect about it, but it is the NYC DOB, so you're friend is also correct.
Everyday Architect
Jun 30, 20 10:11 pm
Another way to think of it ... all the above is what you would answer on the ARE. What Ancient Sheds says is what you might actually do in practice. It may not be THE correct answer, but it might be a correct answer given the circumstances.
BulgarBlogger
Jun 30, 20 10:17 pm
My answer:
BulgarBlogger
Jun 30, 20 10:17 pm
Whatever exposes me to
BulgarBlogger
Jun 30, 20 10:17 pm
To the least liability...
Everyday Architect
Jun 30, 20 10:45 pm
That's also a good answer
Flatfish
Jul 1, 20 11:18 am
One of the most common types of third-party lawsuits against architects is subsequent property owners trying to recover costs associated with remediating zoning and code issues that were created before they owned the property. Say some neighbor at some point in the future decides that they are impacted in some way by the too-big rooftop structure - for instance they claim it obstructs their view of whatever, or casts a shadow on something - then they can file a complaint. In not-that-unusual worst case scenarios property owners are required to demolish non-compliant structures. If the property owner (who may be somebody different than your friend's client by that point) has expenses associated with correcting the non-compliant construction, he can sue to recoup from the architect, among others.
You could rationalize that the particular project is never going to negatively impact anybody - but sometimes these kinds of cases are filed by neighbors with some other agenda. Even on this forum there have been threads started by spiteful neighbors coming here looking for information on how to screw the guy next-door over inconsequential code and zoning bullshit.
mightyaa
Jul 1, 20 12:54 pm
Since I sort of do this for a living (expert witness in construction defect cases)… Building Department approvals and sign-offs don’t mean shit. Never have and they can’t be sued. You can though. Building Codes are adopted as law under City Statues. What my report looks like is one of the first things is I reference the adopted building code your design violated; it is “per se negligence” basically meaning you violated a law or regulation where there is no defense. There is only ONE loophole; in the first chapter, the Chief Building Official can waive any code requirement. So, if you specifically point out where you are violating the building code and ask for a waiver, you have a ‘get out of jail free’ card if they give you their blessing. A dirty secret though; You can decide your own risk. You’ll lose in court IF, and in somethings it is a really big IF, this violation ever causes a problem. In some cases, like a threshold bulkhead to keep water from flowing down a stair, might be less of a risk than a flush rollout opening; basically, you are more likely to be sued over water damage than a trip hazard. btw; since my reports are my opinion, I'll sometimes back the other architect in some of this; reasonable and prudent sometimes means when handed a shit condition, you may have violated code, but you did it with the best intentions and used the best solution.
threeohdoor
Jul 1, 20 3:28 pm
Do it the right way. Plan examiners always miss things first (second, third..) pass and reserve the right to review things after the fact, even during a PAA. Often, you'll get brownie points for the examiner or the supervisor if you both address the objection, and fix whatever broke while addressing the objection. At the exam, just imply that you assumed the examiner wanted the BC evidence as well as the zoning calculations.
DOB claims zero liability...it's all on the stamping professional.
threeohdoor
Jul 1, 20 3:31 pm
In my experience, the junior plan examiners run off of their crib sheets, verbatim. The older staff basically use the sniff test to assess the amount of BS in your approval set, knowing full well you'll come back in 6-9 months with a PAA showing "as-built" conditions.
mightyaa
Jul 1, 20 6:12 pm
What!!? They miss stuff? lol... I've just spent all day figuring out how to very politely call my Landscape plan reviewer an idiot and how to read a set of plans. It is incredibly hard to not just say he's stupid and obviously did not look at the set. Live growth roof, replacing the waterproofing.... all plants have to go to access the work area. "What is the extent of disruption and provide details to protect the plantings during construction"... seriously? I was half tempted to say we'll levitate the plantings off the roof with anti-gravity rays and hand water for the duration of construction. Instead, I carefully worded a response that the demolition plan has all his answers; hence the inclusion of the landscape plans and details for the put-back.
wurdan freo
Jul 2, 20 2:51 pm
Hahaha.. that's hilarious... actually... I'm crying. Just told my plan reviewer that his conditional review that included a blower door test to 3 ach/ hr per 2015 IRC made no sense for the remodel and addition I was submitting on for a house built in 1975. He responded with, "You're right. Ignore that. You're not required to do a duct leakage test." doh!
PaulKersey
Jul 2, 20 1:38 pm
Bulgar,
You can disagree all you want with your friend, and then you can tell it to the judge as they say. I truly hope this never happens, but we live in one of the most litigious cities in the US, and as a licensed architect you are at the top of the pyramid - lawsuit wise any.
About 30 years ago when I got my license, I told my then boss the news and he said - "congratulations! now you can be sued like the rest off us".
Recently got into an interesting conversation with a friend and we can’t seem to agree:
I’m a licensed Architect in NYC with ten years of experience filing projects at the Building Department. My friend is under the impression that when drawing sets are reviewed and approved by plan examiners, that if a code issue isn’t picked up by the plan examiner, then the architect isn’t liable.
I strongly disagree with that, but I am struggling to find an official document from the NYC building department or building/administrative code that states that architects are still responsible designing code-compliant buildings even if a code issue isn’t discovered during the plan examination.
Section 105.4, Validity of Permit: "The issuance or granting of a permit shall not be construed to be a permit for, or an approval of, any violation of any of the provisions of this code or of any other law. Permits presuming to give authority to violate or cancel the provisions of this code or other law shall not be valid. The issuance of a permit based on construction documents and other data shall not prevent the commissioner from requiring the correction of errors in the construction documents and other data. The commissioner is also authorized to prevent occupancy or use of a structure where in violation of this code or of any other law." (2014 NYC Building Code)
So, if the plan-checker misses a drawing sheet stuck to another sheet and fails to mark a code-related item, then your friend can leave doors off a stairwell? Or design a 24" tall guardrail? That's silly on its face.
I tend to agree with you. But I doubt that the NYC building department, or any building/administrative code would have any provision for assigning liability. That gets worked out in courts.
On the other hand, I would be surprised if the building department didn't have some sort of limitation of liability for plan examiner omissions.
To put their argument in another context, if your friend robs a store at gunpoint and there is no police officer around to see them do it, does that mean they haven't broken the law? What if a police officer sees them leaving the store but didn't know they had just robbed it? What if the police officer says, "have a nice day," as your friend passes? What if the police officer notices your friend's hands are full and holds the door for them? Just because something isn't caught (or perhaps more egregiously overlooked) doesn't mean there has been no crime and there is no potential for consequences.
I'm preaching to the choir, I know ... but c'mon! Get some smarter friends.
I have some wonderful, sweet, dumb friends. That's fine. I just don't go to them for advice :o/
is your friend a licensed architect? [facepalm if yes]
You could also point them to the General Administrative Provisions of the Code (all bold emphasis mine), Section 28-104.2.4 Conditions of approval, "All construction documents approved by the commissioner shall be conditioned upon and subject to compliance with the requirements of this code and other applicable laws and rules in effect at the time of issuance of the associated work permit or place of assembly certificate of operation."
... and Section 28-104.2.10 Revocation of approval, "The commissioner may, on notice to the applicant, revoke the approval of construction documents for failure to comply with the provisions of this code or other applicable laws or rules; or whenever there has been any false statement or any misrepresentation as to a material fact in the submittal documents upon the basis of which such approval was issued; or whenever an approval has been issued in error and conditions are such that approval should not have been issued. Such notice shall inform the applicant of the reasons for the proposed revocation and that the applicant has the right to present to the commissioner or his or her representative within 10 business days of personal service or 15 calendar days of the posting of service by mail, information as to why the approval should not be revoked."
Bulgar - you're ALWAYS liable, matter fact you are to correct the NYC building department if they make a mistake, and you're liable if you don't. I know from experience, trust me.
These are great! Thanks!
I am designing two new multi-family buildings in Manhattan and I asked my friend for a second opinion (yes he’s a licensed architect with 30+ years of experience) on objections from the DOB.
The objection was labeled a zoning objection (there was even a zoning citation), but the objection was on its face irrelevant. It was about a stair/mechanical room bulkhead on a roof. The zoning objection suggested the bulkhead was an obstruction, but it wasn’t. However, the objection required the submission of area calculations as evidence. That is all fine- but in reviewing the objection, I also discovered that there is a separate building code issue about rooftop structures not exceeding a third of the area of the roof on which they are built.
My friend told me to answer to objections literally and not worry about the building code area issue. That makes me nervous and frankly I don’t want to ignore it. His argument was that once the building department approves the drawings and a Certificate of Occupancy eventually issued, I can wipe my hand clean. Beyond that, he asked what is the danger in having a slightly over-built bulkhead?
well yes in a way your friend is correct. in most cases the DOB will not require you correct the mistake. sometimes they will make it a real hassle to get the CO, but if you jump through enough hoops you will be ok. now if it comes up in a say a AG review offering plan and its not code, simply have the lawyers cite the error and inform the buyers they are purchasing something not to code.
What you just said comes into conflict with everything cited above. Shaking my head...
yes, if you're being a professional architect about it, but it is the NYC DOB, so you're friend is also correct.
Another way to think of it ... all the above is what you would answer on the ARE. What Ancient Sheds says is what you might actually do in practice. It may not be THE correct answer, but it might be a correct answer given the circumstances.
My answer:
Whatever exposes me to
To the least liability...
That's also a good answer
One of the most common types of third-party lawsuits against architects is subsequent property owners trying to recover costs associated with remediating zoning and code issues that were created before they owned the property. Say some neighbor at some point in the future decides that they are impacted in some way by the too-big rooftop structure - for instance they claim it obstructs their view of whatever, or casts a shadow on something - then they can file a complaint. In not-that-unusual worst case scenarios property owners are required to demolish non-compliant structures. If the property owner (who may be somebody different than your friend's client by that point) has expenses associated with correcting the non-compliant construction, he can sue to recoup from the architect, among others.
You could rationalize that the particular project is never going to negatively impact anybody - but sometimes these kinds of cases are filed by neighbors with some other agenda. Even on this forum there have been threads started by spiteful neighbors coming here looking for information on how to screw the guy next-door over inconsequential code and zoning bullshit.
Since I sort of do this for a living (expert witness in construction defect cases)… Building Department approvals and sign-offs don’t mean shit. Never have and they can’t be sued. You can though. Building Codes are adopted as law under City Statues. What my report looks like is one of the first things is I reference the adopted building code your design violated; it is “per se negligence” basically meaning you violated a law or regulation where there is no defense. There is only ONE loophole; in the first chapter, the Chief Building Official can waive any code requirement. So, if you specifically point out where you are violating the building code and ask for a waiver, you have a ‘get out of jail free’ card if they give you their blessing. A dirty secret though; You can decide your own risk. You’ll lose in court IF, and in somethings it is a really big IF, this violation ever causes a problem. In some cases, like a threshold bulkhead to keep water from flowing down a stair, might be less of a risk than a flush rollout opening; basically, you are more likely to be sued over water damage than a trip hazard. btw; since my reports are my opinion, I'll sometimes back the other architect in some of this; reasonable and prudent sometimes means when handed a shit condition, you may have violated code, but you did it with the best intentions and used the best solution.
Do it the right way. Plan examiners always miss things first (second, third..) pass and reserve the right to review things after the fact, even during a PAA. Often, you'll get brownie points for the examiner or the supervisor if you both address the objection, and fix whatever broke while addressing the objection. At the exam, just imply that you assumed the examiner wanted the BC evidence as well as the zoning calculations.
DOB claims zero liability...it's all on the stamping professional.
In my experience, the junior plan examiners run off of their crib sheets, verbatim. The older staff basically use the sniff test to assess the amount of BS in your approval set, knowing full well you'll come back in 6-9 months with a PAA showing "as-built" conditions.
What!!? They miss stuff? lol... I've just spent all day figuring out how to very politely call my Landscape plan reviewer an idiot and how to read a set of plans. It is incredibly hard to not just say he's stupid and obviously did not look at the set. Live growth roof, replacing the waterproofing.... all plants have to go to access the work area. "What is the extent of disruption and provide details to protect the plantings during construction"... seriously? I was half tempted to say we'll levitate the plantings off the roof with anti-gravity rays and hand water for the duration of construction. Instead, I carefully worded a response that the demolition plan has all his answers; hence the inclusion of the landscape plans and details for the put-back.
Hahaha.. that's hilarious... actually... I'm crying. Just told my plan reviewer that his conditional review that included a blower door test to 3 ach/ hr per 2015 IRC made no sense for the remodel and addition I was submitting on for a house built in 1975. He responded with, "You're right. Ignore that. You're not required to do a duct leakage test." doh!
Bulgar,
You can disagree all you want with your friend, and then you can tell it to the judge as they say. I truly hope this never happens, but we live in one of the most litigious cities in the US, and as a licensed architect you are at the top of the pyramid - lawsuit wise any.
About 30 years ago when I got my license, I told my then boss the news and he said - "congratulations! now you can be sued like the rest off us".
Best wishes
Peter