Hacking the Building Code: Part Three - Use is the key factor

In the wake of the tragic Ghostship fire in Oakland, I got more involved with our local planning and building departments, as well as some local artist spaces and maker associations who were looking for advice. I also have taken many complex and unusual projects from concept to finished construction in many different cities. From this experience, I’ve realized that a guide to interacting with building officials and codes for people looking to do creative things with space was sorely needed. This series of blog posts hopes to be that guide. I’ll be posting these over the next few months with the intent to make a comprehensive guide.

The prior posts in the series are available here:

Hacking the Building Code: Part one - What are building codes and where do I find them?

Hacking the Building Code: Part Two - Building Officials and how to approach them.

Disclaimer

This series is purely for informational and educational purposes and does not constitute professional or legal advice. While this information is provided by Because We Can, and while we endeavor to keep this information up to date and correct, we make no representations or warranties of any kind, express or implied, as to the accuracy or completeness of this information. We do not provide any guarantees or warrant and do not accept any liability on your actions from this information. Any reliance you place on such information is therefore strictly at your own risk, and we highly recommend you hire a building professional (like us) to review your specific case.

Use

‘Use’ is the pivot upon which all of these codes turn. Every building has what’s called a Certificate of Occupancy on file at the City. This is the officially listed Use for the building, which in turn defines what standards it has to meet.

It goes like this: let’s say you have a new product you prototyped in your garage, you just had a wildly successful kickstarter, and now it’s time to scale up and make them For Real in a proper space to do so. 

This is an Industrial Use, specifically a Manufacturing Use, and you’ll need to find a building to rent where you can legally have that Use.

From our first chapter, we can follow the same order of authority. The City Laws define if a Use is even allowed in the city, and what permits and requirements you may need for that use in some cases. City laws will define if you can even have welding or certain toxic chemicals in your space without a special permit, how much noise you can make, and what hours your business can be open. It could very well be that you’ll need to locate your new venture in another City altogether than the one you live in!

The Planning / Zoning Department gets to say where certain Uses in the City are allowed, so that a potentially loud and messy industrial manufacturing space doesn’t get to be located in the middle of a quiet residential area. So even though there’s an awesome storefront former retail space just down the street from your garage that could be a perfect spot for you to build your manufacturing facility, it might not be Zoned for that Use, and simply won’t work without lots of expensive and time-consuming work put into it to change the Use, the Zoning, or get a Variance (more on all of those later).

The Building Department gets to say how a building needs to be built based on its Use, such that an industrial building such as your manufacturing facility has to be more fire-resistant than a home, so it has to be in a building where the outside walls are ‘non-conbustable’ i.e. made of concrete or metal, and has to have fire sprinklers. So again, that awesome retail space we just talked about might pass Zoning, but will never pass Building without lots of expensive renovations.

And the Fire Department, OSHA, Health Department, and other agencies get to say what your space needs to operate safely for its specific Use, such as requiring a certain number of fire extinguishers and alarms in your manufacturing space and healthy noise limits for those working inside of it. There are lots of agencies like this you may need to work with depending on your Use. A cafe within a Makerspace might also need the Health Department to review it, or an educational space might have someone from the local schools in charge of it. 

So what the Use of a space is can be a very big deal, as is changing the use. 

Changing Use

What’s critically important to understand is if you change the Use of a building, legally you are supposed to apply for a change to the Certificate of Occupancy. And in order to get that you need to most likely change the building itself to meet the new standards that new use requires. This even applies to spaces within a building, which while maybe not needing a change to the Certificate of Occupancy, still would be required to meet the new standards the new Use brings. 

So, for example, a warehouse meant for making stuff in (and not just storage) is probably listed as a ‘F-1 Light Industrial Use’ on its Certificate of Occupancy at the City. In order to legally be built in the first place, it had to meet the standards of a building of that use in that location. That means a certain number of exits, a certain level of fire-resistance in its construction, a certain number of bathroom and parking spots, and other rules it had to follow. Possibly limits, too, imposed by the zoning code or city law about that use as well, such as how big it can be, when it can be open, how much noise it can make, or what forms of pollution it can produce.

Now let’s say someone rents or buys this particular warehouse with the intention of using it as an event space. That is what’s called a ‘Change of Use’. Event spaces have different, more strict standards that have to be met because there will be way more people in an event space than in a warehouse. So now that warehouse, which was legal before, does not meet those new standards, and is not legal for this new Use. If you were to go down to the City and apply for a new Certificate of Occupancy to change the building into a legal event space, they would refuse until you got the building up to the new standards that use requires. Unless the building is renovated to meet the new building and fire code standards for an event space, such as adding exits, fire wall separations, exit signage, lighting, bathrooms, fire sprinklers, etc. it can’t legally be used as an event space. Also, the Planning Code may not allow for that use in the area the building is in, for they deem it to be a traffic problem or a disruption to the neighbors of that area. Finally, the city itself may have additional local laws that require you to get special permits for certain kinds of events, or certain sized events, or not allow you to serve booze or even coffee without special licenses.

So changing the use of a building is a big deal. It ‘triggers’ all sorts of required upgrades and modifications to be legal. And sadly, it’s far too easy to do, and something creative people can stumble into without meaning to. 

Because this also applies to spaces within a building. So with our warehouse example above, let’s say that only part of the building is going to be for events, and most of it is going to be for making things (like artist studio spaces with a gallery in the front). Well as long as that event space isn’t more than a certain percentage of the overall space, you wouldn’t need to get a new Certificate of Occupancy. But you would need to make the event space part meet the more strict codes it requires, like adding exits and signage and changing out the doors, and in some cases maybe even completely separate it from the rest of the inside of your building depending on what the fire separation rules state for that kind of building and Use.

For example, your friendly small CO-OP Hackerspace / Coworking / Cafe that’s rented a storefront retail space somewhere is suddenly gifted a used pick-and-place line complete with silk-screening station and board oven. Awesome! You’ve got an empty back room where it could go, and the smarts to set it up and start cranking out boards for you and your friends. Coffee and circuit boards! What else goes better together? 

Except that the space you’re in isn’t on file for making circuit boards as it’s Use, your city doesn’t allow anything like that anywhere near food, your local zoning doesn’t allow manufacturing in this neighborhood, the only room you’ve got to put it in isn’t fire rated and doesn’t have the right ventilation for it, and you didn’t change out the fire extinguishers in that room and don’t have good exits and emergency shut-offs.

So by accepting that used tool, and locating it in that back room, you’ve just inadvertently changed the Use of that space, and now you’ve got troubles you won’t be aware of until you possibly get into big trouble.

So the best thing is to find a space in the first place that already supports the sorts of things you’d like to do, even if it may not be the ideal location. If you want to be industrial for example, then go find industrial space, and compromise on your location. The next best thing is to be aware of the issues that arise when changing the use of a space, and to take steps to make that use legal. So putting a Makerspace into your local school’s unused storage space? That’s awesome, but check about fire sprinklers and exits first. The hardest thing to do is change the use of an entire building, and it’s not to be taken on lightly. So no matter how cool and cheap to rent that old church might be, it’s going to make a terrible bar without way more work than you might be thinking.

Violations

Ironically, while Use flows down from the City to the various agencies like the Fire Department, in terms of a renter or building owner’s concerns regarding legality and getting in trouble, it flows the other way. In other words, violations of fire code are severely punished, fire inspectors are supposed to do regular surveys of buildings, and the fire marshal has a huge amount of power and special rights.

Building Code violations, on the other hand, are only found when reported by someone, and typically lead to fines until the issues are addressed unless things are so bad a building is outright condemned. Zoning violations, while obviously bad and illegal, also are only found unless reported, and again, mostly result in fines. And the City might never get around to actually following up on things. So while it’s a terrible idea to not follow any of these codes, if you have found that you are not legal and are struggling to get legal start with Fire, and then Building, and then Zoning, and then the City.

And in some cases, when someone is doing something that isn’t really allowed, but is a really great idea, and everything else is legal and up to code, sometimes the Powers That Be will allow that Use to continue if it’s deemed a good thing for the community, and allow what’s called a Variance or in some special cases even revise the Codes to allow it. Variances are special permissions given as a one-time case to allow for you to not have to follow some specific section of code, or to follow a different set of standards instead. 

For example, you could get a Variance from Zoning to allow you to use what was a shipping / receiving area in an office building as a prototyping shop, even though manufacturing isn’t allowed in that neighborhood. Variances can take a very long time, and lots of expensive professionals to obtain, so don’t rely on them as a given to fix a situation. In our example here, you may have to go before a Planning board (that only meets a few times a year) and make your case to get the Variance, arguing (and showing via plans and pictures) that the Use is both safe and good for the community.

Also sometimes a Variance isn’t needed, for the City will change it’s rules if it’s a good enough idea. After all, it’s all made of people. A great recent example of a City changing the rules to support something new and good is what happened with the urban farming movement in Oakland. Some people rented some defunct and almost-abandoned lots in a forgotten corner of an industrial area of Oakland and turned it into an awesome urban farm. They followed all the rules they knew of in regards to farming and food, but it turns out ‘farming’ wasn’t an allowed Use within that part of Oakland. But everyone thought it was a great idea. So the City assigned a planner to work with the urban farming folks and revise the Planning Code to add in the rules needed to cover this sort of creative use, and then helped get the farm to be fully legal. And set the rules for other people to be able to follow, to allow for more such farms to more easily exist.

So don’t break the law. It’s a terrible idea. But just know that if you break the law without knowing, but are doing something great and doing it in a safe way, you can probably work with the authorities to fix the problem (even revising the rules!) and make everything better for everyone. With our urban farming example, if those folks had been unsafe with lots of Health and Fire Code violations, they would have simply been shut down. YMMV.

Occupancy

In many codes, the Uses are collected together into what’s called an ‘Occupant Code’ or just ‘Occupancy’. So for example many professional ‘Maker’ uses all get grouped under ‘F-1’ for ‘Light Manufacturing’. So a wood shop, a welding shop, a machine shop, a 3D printing and assembly shop, etc. would all just be an ‘F-1’ Occupancy. Most office use falls under a ‘B’ occupancy, residential under an ‘R’ occupancy such as ‘R-1’ or ‘R-3’, etc. This is important, for many rules within the Codes are written in reference to the Occupant Code of a space, and not the more specific Use that may be listed on the Certificate of Occupancy.

So in our next chapter we’ll do a deep dive into the various Occupancies and what they mean for different uses and codes.