Posted by: Patricia Salkin | December 20, 2015

ND Supreme Court Holds Assisted Living Facility was Properly Determined to Require an I-1 Permit under IBC

Editor’s Note: The following is reposted from the Midwest Planning BLUZ blog – http://blogs.extension.iastate.edu/planningBLUZ/2015/09/24/assisted-living-facility-properly-determined-to-require-an-i-1-permit-under-ibc/

Robert Hale began operating Somerset Court, an assisted living facility, in Minot, ND in the late 1990s. In September 2013 Hale applied for a building permit from the city to create a three-story, 70-room expansion of the facility. Under the International Building Code (IBC), which the City adopted in 2009 Hale applied for an I-1 permit which is for commercial/industrial uses. In December 2013 the City’s building official denied the application reporting that required documentation was not submitted. The question is whether the facility should be classified as an I-1 or R-2, a residential classification for apartments. An I-1 classification is required to submit more documentation and install more expensive wiring. Hale asserted he filed the application with an I-1 classification under protest so that foundation and other preliminary work could begin. Hale appealed the denial to the Board of Appeals who upheld the City’s decision.

Hale argues that the City building official misinterpreted the IBC and was wrong to classify the Somerset expansion as an Institutional Group I-1 instead of a Residential Group R-2.

The IBC provides what the “Group I-1” classification includes, stating in part:

This occupancy shall include buildings, structures or parts thereof housing more than 16 persons, on a 24-hour basis, who because of age, mental disability or other reasons, live in a supervised residential environment that provides personal care services. The occupants are capable of responding to an emergency situation without physical assistance from staff. This group shall include, but not be limited to, the following:

Alcohol and drug centers
Assisted living facilities
Congregate care facilities
Convalescent facilities
Group homes
Halfway houses
Residential board and care facilities
Social rehabilitation facilities (Emphasis added.)

Hale argued that his facility is an “independent” residential facility, rather than a “supervised” residential facility. Hale also argues that residents at Somerset do not receive “personal care services.” Somerset does provide: distribution of medicine, meals at an in-house restaurant, a 24-hour emergency call system and a transportation system. Hale argues that these services do not meet the definition of an assisted living facility as defined under North Dakota law of IBC.

However, Somerset provides services and charges rent beyond a standard apartment complex. The building permit application described the addition to an existing “assisted living facility”. Hale markets Somerset to the community as an assisted living facility. Hale also accepted the foundation permit with an I-1 classification. For these reasons, the Board found it appropriate for an I-1 classification and their decision is upheld.

Hale also argued that the City building official misinterpreted the intent and application of state law concerning the “sufficiency” of the documents that Hale submitted. The state law Hale referenced governs the registration of architects and defines the exemptions of when registration is not needed to create an architectural plan, including for “rental apartment units that do not exceed three stories in height…”

The law allows for the city to determine which plans a registered architect must prepare. Hale had plans drawn by an unlicensed design professional, and then later looked over by a licensed professional. The licensed professional would not stamp the drawings because that is against state law. The city wanted Hale to resubmit drawings that were prepared by a licensed professional. Because I-1 is the correct classification for the building, Hale is required by the law to provide drawings by a licensed architect.

Hale v City of Minot, 2015 ND 216, 868 N.W.2d 870 (8/25/2015)

The opinion can be accessed at: http://www.ndcourts.gov/court/opinions/20140337.htm


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Categories

%d bloggers like this: