Thursday, August 18, 2016

Why I Love This Seriously Flawed Building Code Amendment.

On August 1st, the province of Nova Scotia amended the Nova Scotia Building Code Regulations to clarify that home based businesses that stay within a set of rules are not subject to building code rules meant for commercial occupancies.  This clarification was a great relief.  I spent two years of my life fighting for this clarification. This amendment is a wonderful thing for all of rural Nova Scotia. The amendment is, however, seriously flawed. It's a poorly written rule that is, in itself, red tape and will most certainly cause problems down the road. But that said, it's the perfect rule for Rural Nova Scotia. I'll try to explain what I mean.

In order to understand why this rule is problematic you will need to understand a few facts:

1-There was no need to amend the building code.  The building code was never broken.  The only thing that was ever broken was communication and the only thing that was ever needed was clarification.  We already had very good rules.  They functioned in Halifax, some small Nova Scotia municipalities, in all of Canada and in all of North America.  The planning rules that allow home based businesses to exist are good, well thought out rules that have evolved over time.

2- This amendment has been presented as an "exemption' to certain rules in the building code.  Balderdash. There is no such thing as an exemption to the building code.  I repeat, there is no such thing as an exemption to the building code.  The building code is there to keep people safe in buildings.  An exemption to the code would mean that we are less safe.  The building code amendment has simply clarified which are the correct rules for a building inspector to apply.  That's not an exemption.  That's just about understanding which paragraph to read.

3-Planning and the building code are a happy couple.  They work together and communicate.  Lunenburg and other municipalities insisted they never talked to each other.  The province knew better.  Here's part of a communication to myself from the senior planner for the province of Nova Scotia,

"......Home Based Businesses (HBB) and the relationship between the building code and land use / zoning controls, has, I expect, been significantly informed and made clearer by your experience over the past year. I certainly recognize your point that Home Based Businesses are a planning matter (ie land use / zoning matter) and indeed that is one of the reasons that I was invited to assist and provide input to the Nova Scotia Building Advisory Committee (NSBAC) in their review of this matter......Land use regulation via municipal planning documents work hand in hand with the building code which regulates the design and construction of buildings, in particular as it relates to safety and access. ...."

So, if the province understood how a municipality's planning informs the building code, why didn't they take the simplest route to clarification?  Put in writing, within the code,  that when land use regulations permit a home based business, there is no change of occupancy classification to the house.   End of story.  Two good, but separate rules,  a zoning bylaw and the building code. They live side by side and talk to each other.  That's the way it has always been and that's the way it should have stayed.  But here's what happened instead- the chocolate (zoning bylaw) fell into the peanut butter (the building code) and we got a whole new recipe. I like Reese's peanut butter cups, too, but not in this case.

Here's an example of a possible mess:  The amendment states that no more than 25% of the house can be used for the business or up to 50m2  (a little more than 500 sq. ft.) 25% is a pretty typical number seen in zoning bylaws as the permitted maximum percentage that can be used for a business.  But, when creating zoning bylaws,  this percentage can change from municipality to municipality.  If a town has small homes, then 25% of the house would not be sufficient.  So, let's say that you have an 800 sq. ft. house and this amendment allows you to use 25% of the house.  That's 200 sq. ft., but next to your house you have a little outbuilding that is  250 sq. ft.  Understanding that the average house size is small, and wanting to permit the use of accessory buildings, the municipality might have allowed 40% of the house to be used, but now, because of this amendment, there's a conflict.  The use of a percentage is a planning tool,  each municipality would decide on an appropriate percentage and maximum square footage based on the typical house size in the municipality.  It's whichever number comes first, the percentage or the square footage.  A municipality with large house sizes might apply a low percentage and a municipality with small house sizes might apply a higher percentage.  A municipality can use discretion based on what works for their community.  When the percentage is written in stone, in the building code, discretion has been removed and as a result, we will see instances where the rule makes no sense.

Here's another example:  The business owner needs to be a full time resident.  This is a planning rule.  It doesn't belong in the building code.  Building codes control occupancy load, accessibility and fire safety, but they don't control residency.  Now a building inspector has been given the authority to control something that would ordinarily be out of their jurisdiction.  That scenario often does not end well. Imagine arguing with a building inspector about the 4 months you spend in Mexico each winter and whether or not this qualifies you as a full time resident.

But like I said, I love this amendment.   I love this amendment because of the lady that I talked to today at the farmers market.  She had shared her story with me last year and thanked me for taking on this battle.   I never wrote about her experience.  It was too heartbreaking.  I asked her if I could share the story now and she said I could.  I'm going to change her name.  Let's call her, Laura.

Laura and her husband had a Bed and Breakfast in Lunenburg County.  They were in a terrible car accident.  Her husband was killed.  She was badly injured.  She could not work and went on disability.  When Laura began to heal she decided that she was not up for running a bed and breakfast, but she would instead like to have a small gallery in her house.  The building inspector came and told her she would need fire separation, barrier free access...the works.  The building inspector told her that she would be on the lookout for a sign and if Laura opened her business she would shut her down.  Today Laura came to tell me that she plans on getting that gallery up and running.   This flawed rule is perfect in this situation and it will be perfect in many situations.  This flawed rule will help so many people.

It is an excellent rule for a province that communicates poorly.  It is an excellent rule for those building officials who lack the capacity for discretion.  It is an excellent rule for a province with a multitude of fifedoms.  It is an excellent rule for small municipalities that are not interested in learning from our largest municipality.  It is an excellent rule for small municipalities that are not interested in cooperation with other small municipalities.   It is an excellent rule when there is poor management.  It is an excellent rule when there is an absence of strong leadership.  It is an excellent rule for rural Nova Scotia.

Perhaps one day we will be able to throw this rule away, put in a little paragraph of clarification in the building code and operate like the rest of Canada.  But we're not there yet. In the mean time, I'm happy this amendment exists.


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