Challenge to PA Building Code Falls Short

September 2010Newsletters In the Zone

In its effort to reform the manner by which Pennsylvania adopts its statewide building code, the Pennsylvania Builders Association filed suit against the Department of Labor and Industry earlier this year. On August 25, 2010, the Commonwealth Court ruled on that challenge in favor of the state.

The crux of PBA’s argument was that the Pennsylvania Construction Code Act (PCCA), enacted in 1999, improperly vests legislative authority with a third party, the International Code Council (ICC), instead of with the General Assembly in violation of Article II, Section 1 of the Pennsylvania constitution.

Pursuant to Section 304(a) of the PCCA, the Department of Labor and Industry is mandated to promulgate regulations by December 31 of each year that the ICC model codes are modified, in order to likewise update the state’s Uniform Construction Code (UCC). Consequently, the Department of Labor and Industry amends its regulations to adopt the newest editions of the codes without going through the typical notice-and-comment rulemaking.

In 2008, the state legislature created and the governor appointed representatives to a Review and Advisory Council (RAC) to examine and potentially exclude code provisions from Pennsylvania’s UCC.

In deciding this case, the court found the ICC wielded extraordinary power over the codes adopted pre-RAC (e.g., 2006 IRC, etc.). Such code adoption could have possibly been unconstitutional. However, in light of the legislature’s creation of the RAC, a mechanism existed to examine the reasonableness and feasibility of any new building codes. Since the state was not obligated to adopt the latest ICC codes “sight unseen,” no violation presently exists for the adoption of the current 2009 I-codes.

As a result of this ruling, the 2009 building codes will remain in effect, including the 2011 phase-in of sprinklers for single family homes. The next code adoption cycle is scheduled to occur on December 31, 2012, with the 2012 I-codes.

For more information, please contact Robert W. Gundlach, Jr. at 215.918.3636 or [email protected].