When is a Permit Required?

Ask the Expert When is a permit required?
by John R. Schneider

Q. As a new association board member, I would like to know when a contractor has to obtain a permit. We currently have to replace a sewer line damaged by tree roots, plus we’re adding some additional lighting to the common area. Some contractors have told us no permits are required, and others have said they are required, and that the association must get them. Who is right?
C. W., Hayward

The permit process is one of the most important parts of any construction process and the one often misunderstood by both home owners and contractors. Requiring permits and inspections is the only way a municipality can ensure that work to a building will meet minimum levels of health and safety. Work not done to code can compromise the safety of a structure, present significant disclosure issues when the property is sold, and may effect insurance coverage in the event of an accident or property damage resulting from the work performed. These exposures to liability are the main reasons all work should be done with permits.

The requirement for a building permit is in the 2007 California Building Code which states;
“§108.4.1 Permits. A written construction permit shall be obtained from the enforcing agency prior to the erection, construction, reconstruction, installation, moving or alteration of any building or structure.”

This applies to work done by anyone, whether a contractor, home owner or association. There are four types of permits required in residential construction; building, electrical, plumbing and mechanical permits. The instances when a permit is not required are listed in the California Building Code but it is always wise to check with the local authority. Though the work might not require a permit Section 108.4.1 continues with this admonition;
“Exemptions from permit requirements shall not be deemed to grant authorization for any work to be done in any manner in violation of other provisions of law or this code.”

A simple repair to a water line, exterior siding, or to a roof covering would usually not require a permit. However, replacing a section of damaged sewer line, re-routing a water supply line damaged by tree roots, adding additional lighting to a common area, or replacing a furnace or water heater would usually require that a permit be obtained.

A permit allows the municipality to inspect and approve of work being performed before it is covered up, and once more when the job is completed. You’d think that replacing a sewer line would be straight forward but there are several things that must be checked to ensure the work is done properly. I’ve seen many repairs where improper fittings were installed or the piping was not installed on a firm compactable base. These conditions could restrict the proper drainage of the piping or allow the piping to sag and crack when it is backfilled with dirt. Once covered over these conditions would have not been visible to anyone, and it could take months before signs of a failure were visible. Having a permit gives a municipal inspector an opportunity to inspect the work before it is covered over and concealed.

The California Business and Professions Code require licensed contractors to have permits (when required) for all work they perform, but it does not require the contractor to actually obtain the permit themselves. The property owner or the association they are working for may obtain them. Although an owner or association can obtain permits for most work performed by contractors, there are several good reasons why they should not.

When a person applies for a permit, they fill out and sign a legal document (the permit application) stating that they are either the owner-builder or contractor for the work, and assume full responsibility for the work done. This includes making sure the work meets all applicable building codes and ensuring that inspections are called for and the work is approved by the municipality.
Reputable contractors know they are responsible for obtaining permits, and they will include the costs for permits in their bids. Contractors who want the owner or association to pull the permit, or state that a permit was not necessary usually do so for one of three reasons. The contractor is not licensed, and therefore cannot obtain a permit, they don’t want to include the cost of permits in their bids to look more competitive, or they know their work would not pass inspection. Any reason not to pull a permit should be a red flag for the party paying for the work, unless the work being performed does not require it.

It should be emphasized that obtaining a permit does not mean the work is automatically approved by the Authority having jurisdiction. A contractor might obtain a permit, but never call for an inspection. At the job completion, the association is left with work that was never checked or approved by the municipality. The ultimate responsibility of ensuring the work is code complying falls on the permit holder. Don’t assume that responsibility by agreeing to take the permit out for the contractor, and be aware that obtaining a permit is only part of the permit process.

For a permit to be complete, the building department must called for a rough inspection before the work is covered up (with dirt, siding or sheetrock), and then a finial inspection to look at the finished job. If a person does not call for a rough and a final inspection, the permit will become invalid. This means that the work was never approved by the municipality. If the job extends over several months, and an inspection is not called for within 180 days of obtaining the permit or since the last inspection, the permit will be considered void, and a new permit will have to be obtained and paid for.

The cost of a permit is based on the valuation of the work being performed, which includes labor and material. Municipalities are allowed through adopted ordinances, to charge fees for services they provide. The fees charged for permits must cover the administration costs of reviewing and approving the plans, and the costs of providing the required site inspections. Over the years, cities have developed data for costs to provide permit and plan checking services for various sizes and types of projects. Typically, the cost of a permit runs about 1 ½% to 3% of the estimated cost of a project. On smaller jobs, the cost for a permit will be closer to 3% of the job, and on larger jobs, the permit cost will be much lower. On very small jobs or jobs with specific replacements such as a water heater or furnace replacement or a section of a sewer line, the permit fee will be a set price.

If you don’t know what permit or inspections are required for a certain repair or modification that the association may want to do, call or visit your local building department and ask. Be sure to inquire if there are any local ordinances or design requirements that may affect your job. Not only will they try to answer your question, they can usually supply you with printed information about specific requirements for various aspects of work and what the potential permit costs will be.

John R Schneider is a licensed General Building Contractor, and certified Code Specialist. Since 1985, he has been president of All About Homes, Inc., an East Bay consulting company that specializes in the investigation of construction related deficiencies, the management of projects, and the facilitation of disputes between owners, associations, and vendors. Mr. Schneider is a member of the ECHO Maintenance Panel. Questions or comments can be directed to Mr. Schneider at jrschneider@allabouthomes.com.

© 2010, by John R. Schneider, all rights reserved.

Understanding Construction Terms

Scope of Work:  Every job or task has a number of processes through which it must go to reach completion.  A scope of work defines each step necessary to complete the job in a safe, compliant, and successful manner.  A scope of work is usually created in conjunction with plans and specifications..  It is the baseline document along with the terms of the contract that establishes the parameters of a job and how the work is to be performed.  A thorough scope of work will result in competitive and comparative bid proposals.

Contractor and Sub-Contractor Procurement/Bidding:  When a project is designed and a scope of work is defined, costs to perform the work must be obtained.  This is referred to a “putting a job out to bid”, and is usually done through a formal Request for Proposal (RFP).   The RFP would outline and define the general nature of the work to be performed, the license and insurance requirements of the bidding contractors, and include the scope of work.  Without an RFP and a detailed scope of work, contractors bidding a job will not necessarily be qualified and will not be bidding on the same items or amount of work.  This is the main reason bid proposals result widely varying costs.

Project Scheduling:  Once a scope of work has been established,  a schedule must be created to reflect the time it takes to complete each task to complete the project, and how each task will integrate into the flow of the job.  The project scheduling is usually devised by the contractor awarded the contract.  It will detail the start of the job, each phase of work, material delivery, inspections, and a date for completion.

Phased Construction Inspections:  Once work is started, it is advisable to have someone, preferably a third party, perform inspections at the different phases of construction to verify that work is being performed according the plans and specifications.  This becomes more important when various trades are involved, and can be valuable when determining whether a progress payment should be made.

Phased Contractor Payments:  One of the most important tenets of construction is to only pay for materials or services delivered.  Often times, contractors receive more payments than services delivered and this is when problems occur.   A payment schedule should be prepared that clearly defines when a contractor should receive a payment, and how much the payment will be.  Payments should be associated with “phases’ of the project.  For example, on a small addition, payments could be scheduled once demolition and site preparation have been completed, once the foundation is poured, once the addition has been framed, and once it has been finished.  It is always wise to withhold 10% from the final payment until a final walkthrough of the project is performed to verify it’s completion.

Permit and City Management:  Almost all work performed in the demolition, construction, or modification of a structure requires permits and approvals from the local municipality.  This requirement can be found in the state building code and local ordinances.  The reasoning is simple; there must be a means to ensure work is performed in a safe and workmanlike manner.  All licensed contractors are required to obtain permits and approvals for work requiring permits.  There are few exceptions to the need to get permits, with painting and cosmetic work being excepted.  Always consult with the local building department to verify if permits are needed when performing any type of repairs or construction.

Owner Punch List:  Owners are best served by inspecting each aspect of work, or by hiring an independent construction specialist to evaluate that the work has been done according to the plans and specifications, and in a workmanlike manner.  This should be done at each phase of work and prior to making a progress or final payment.  It’s common to find items which need to be addressed, and these items are compiled into a (punch) list.  This list is then given to the builder/contractor to fix.  Once the punch list is completed, and verified, final payment can be made.

 Final Payment Inspections:  The final payment represents not only the completion of the job and the work performed, it represents the owner’s acceptance of the work.  Once final payment is made, it can be difficult to get the contractor back to complete unfinished items or work not reflecting acceptable standards of workmanship.  At least 10% of the final payment should be withheld until it can ascertained the work is truly complete.   It is always advisable to have an independent construction professional or the designer/engineer associated with the project review the work and verify it complies with the plans, specifications, and contractual requirements.

Illegal Patio Covers Draws City’s Attention Q&A

QUESTION

“We just finished building a large patio cover in our back yard, when one of our neighbors complained about it to the city. Someone from the building department came by and said that the structure was illegal. He gave us notice that we have 30 days to either tear it down, or go through the planning and permit process to make it legal.

What gives the city the right to tell me what I can and cannot build? Since when do patio covers need permits, and why would we have to go through the planning process?” –  S.E., Pleasanton

ANSWER

Every municipality is required by law to have what is known as a General Plan; a detailed outline as to how it is to be developed and managed, in order to meet current and future needs. The General Plan addresses seven basic issues of how a city will be laid out, how traffic will move through the area, where parks, schools, businesses and open spaces will be located, and how such issues as noise and overcrowding will be controlled.

In order to enforce the requirements of the General Plan, a municipality adopts ordinances or laws that specifically detail what will be allowed in a particular area or zone of the city. Located in the municipal code, these “zoning regulations” are approved by the city council and reviewed and updated every five to ten years. Everyone can have input to this process, but it is usually the local planning department that oversees the development of the General Plan and controls its enforcement.

Zoning laws and city ordinances give a city the authority to determine what someone can and cannot do, to a particular piece of property. There are zoning laws that stipulate the shape, size, design, and color a building can be, where it can be located on a lot, and what type of accessory structures will be allowed.

In order to understand how these ordinances come into effect, it is important to look beyond an individual piece of property. I spoke with George Thomas, Building Official for the City of Pleasanton, who explained that when an area is first developed, the developer will meet with the city, and will negotiate what will be allowed for that particular group of homes. These agreements then become the basis for regulating what can occur in the development. “The city’s concern is the overall look of the development, how it affects roads and traffic, and how it will enhance the community. In this way, the city can preserve its character and charm, while allowing for growth and expansion,” commented George.

There are actually several different players that are involved in the planning and zoning process of any given city. Besides the city council, the planning department and the planning commission are the two most influential . The planning department is the governmental agency that oversees the enforcement of zoning. It can make suggestions and recommendations to the city council on whether zoning laws should be changed.

The planning commission on the other hand, is a group of private individuals, appointed by the city council, who can also make recommendations or changes to zoning and planning issues. If an individual wants to appeal a decision by the planning department, a hearing can be arranged with the planning commission to determine an outcome.

Zoning ordinances vary dramatically from city to city, and usually address accessory structures such as patio covers, particularly if they are over ten feet in height. From a code point of view, patio covers are considered to be roof structures that people can gather under. They must be constructed to sustain live and dead loads, and built to resist lateral movement. Patio covers have been addressed in the Uniform Building Code for over 35 years, and normally require the issuance of a building permit.

For the city to ask you to go through the planning department, I would assume that your patio cover is over ten feet in height, is not built as a conforming structure, or does not have the proper property line setbacks. Most cities require at least a five foot setback at the rear, and a three foot setback at the side property line. Violating property line setbacks can expose a property owner to liabilities in the event of the spread of fire, or damage that may occur because of the structure failing when people are near. The best way to handle this is to find out what is essential for a patio cover to be considered safe and code complying.

Home owners can protect themselves, and prevent this situation from occurring, if they check with the city building or planning department before beginning any constructing or remodeling on their homes. The staffs in these departments are more than willing to answer any questions a home owner may have regarding new construction or additions. Also, most municipalities have brochures and handouts that clearly outline what is required before a construction project is started.

Sidewalk Repair, Who is Responsible?

QUESTIONS

We just moved into a new housing development and we are having problems with the contractor fixing some large cracks in the driveway and sidewalk. The cracks were caused by trucks and heavy equipment crossing our lot to finish up work on the house next door. The builder keeps saying that the city will fix the sidewalk when the development is done at the end of the year. I called the city and they say that it is the builder’s responsibility. Who is responsible for repairing our driveway ?

“I live in an older neighborhood, and for years the tree the city planted in the sidewalk area has been causing the sidewalk to crack and lift. It has gotten so bad, that last week one of the neighbors tripped on the sidewalk and injured their hip. I called the city and they said that the maintenance and repair of the sidewalk is the responsibility of the home owner. They stated that I needed to get a permit if I take out a section of the sidewalk. Isn’t the city was responsible for the maintenance of the sidewalks?”

ANSWER

In order to understand who is responsible for the maintenance and repair of the sidewalk, it helps to know that most people’s property line stops somewhere on the house’s side of the sidewalk. In some municipalities, the property line goes right up to the sidewalk, in others it can stop a few inches or feet before the sidewalk begins. This raises the question, “If a home owner’s property line stops short of the sidewalk, is the property owner responsible for its maintenance and repair?”

The answer is yes. Although a home owner does not actually “own” the sidewalk in front of their property, they are still held responsible for maintaining the condition of the sidewalk and the public right of way. The reason is, the public right of way is not only for the convenience of others, it also benefits the home owner by allowing safe access to their own home.

Whether this right of way may ends at the inside edge of a sidewalk, is not always clear. In some developments the right of way may end two feet beyond the inside edge of the sidewalk. This portion of the right of way could be used for the installation of underground utilities such as electrical, telephone and cable. A home owner would not be able to build or erect any permanent structure, planter, or fence that may affect passage in this area.

For many years, California has required a 40 foot right of way for city streets and sidewalks. This is the minimum width of a residential street and sidewalks to ensure that vehicular and pedestrian traffic have a safe and un-encumbered space to travel on.

To enforce these requirements, the local government has the authority to control how streets and sidewalks are installed, and how they are to be maintained.

For example, before a new sub division can be built, the builder must submit plans outlining how all of the streets and sidewalks will be installed. These plans must meet the strict guidelines of the local public works department, or city engineer.

Once approved, the builder is then responsible for installing the streets and sidewalks for the development.

Usually a year after the development is completed, the municipality will inspect the streets and sidewalks. If they find the streets and sidewalks in acceptable condition, they will assume the control for their continued use and maintenance. If sidewalks are badly cracked or damaged, the local government will not accept control until corrections are made. Builders are therefore ultimately responsible to ensure that the sidewalks, driveways and streets are in serviceable condition.

In existing neighborhoods, the city also maintains control of the streets and sidewalks, and how they are repaired. If the city receives a complaint that a sidewalk is cracking and lifting so as to create a tripping hazard, they will notify the home owner and request that they fix the condition. For a crack to be considered a tripping hazard, it would have to have a gap of about one half inch, or a lift of three quarters of an inch. If the owner does not fix the condition, the city can hire a sub contractor to make the repair, and bill the home owner.

Many times in older neighborhoods, where the trees in the parking strips have caused damage to several blocks of sidewalks, the city will contract with a sub contractor to repair the entire area. When this is done, the billing for the home owner often appears as a fee on the property taxes.

Repairing a sidewalk does not always require that the sidewalk be replaced. If there is only one or two large cracks or lifts in the sidewalk, they can usually be repaired by the home owner with patching concrete, or mortar. Cracks more than one half inch should be filled with mortar and leveled off. Raises or lifting of the sidewalk more than one half inch high should be bridged with the patching compound to create a smooth sloping surface.

Cracks or lifts larger than these may require that a section of the sidewalk actually be replaced. This will require a permit to ensure that the work will meet the local guidelines. Before attempting to perform any major repairs to a sidewalk or driveway, the public works department or city engineer should be consulted. They can answer any questions that you might have and will usually provide handouts and drawings outlining their requirements. They will also be able to tell you if there are any special programs through the city that may share in the costs of repairing or replacing damaged sidewalks.