November 2008 Press & charter

Michigan Energy Code Goes Into Effect

Lee Schwartz, Executive Vice President for Government Relations, Michigan Association of Home Builders, 1-800-748-0432

As a result of the decision in circuit court last week, the state's new energy code went into effect at 7 AM, Monday, October 27, 2008.

The new 2003 energy code can be downloaded from the Bureau of Construction Code’s website:

http://www.michigan.gov/documents/dleg/dleg_bcc_muec_print_version_102408_254281_7.pdf

One and two-family homes or townhouses less than three stories in height that were permitted or had their plan review approved before this morning may be built under the old code. Projects from this point forward will be governed by the standards outlined below:

How Projects are Impacted When the Michigan Construction Codes are Updated or Modified

Bureau of Construction Codes & Fire Safety

A D V I S O R Y

While the code sets forth the provisions for plan review and permit application, a written application may not be submitted at the time of preliminary discussions and this causes some confusion regarding which code is applicable at the time of a change in the codes during mid-design or when the design of a project is nearing completion.

It may be argued that the date of the application of a plan review or permit is the demarcation of which code is applicable. Another view would note that the project was under review if ongoing, informal discussions with code officials were taking place as the project was being designed.

Each individual situation should be reviewed based on its merits. However, to avoid any uncertainty, the below scenarios have been outlined for your guidance:

• When a project is in the design phase, professionals and construction contractors should be engaged in on-going discussions with the code officials regarding project requirements from the on-set of the project. Therefore, when code changes are being contemplated, they would be discussed up front so that all parties are aware of potential changes that may impact the design of a particular project.

• When a project design is likely to be completed prior to the enactment of new code provisions, but the project isn’t submitted prior to the effective date of the new code, the new changes would need to be contemplated. However, as stated in the above case, where the design professional has submitted preliminary design documents for discussion with a code official it may be argued that while the application had not been submitted, the code official and design professional were engaged in review of the project before the actual submission of the finalized plans.

• Once the plans have been approved or the permit has been issued, the code under which the project was approved/issued is the applicable code throughout the completion of the project. A person aggrieved by a decision of a local or state code official may appeal that decision to the construction board of appeals. In such cases, an appeal shall be heard under the provisions of Section 15 of the Stille-DeRossett-Hale Single State Construction Code Act. A construction board of appeals may grant a variance where the literal application of the requirement would result in an exceptional, practical difficulty where the performance of the particular item, with respect to the variance being sought, meets the intended performance of the code and does not compromise the health, safety and welfare of the people of the state and the specific condition justifying the variance is not so general in nature as to cause an amendment to the code.

JELD-WEN Windows and Doors Earns SFI® Presidents Award

Klamath Falls, Ore. September 26, 2008 — JELD-WEN® Windows and Doors has been recognized for its outstanding efforts in supporting the green building market by promoting its Sustainable Forestry Initiative® Inc. (SFI) certification.

JELD-WEN Windows and Doors Inc. is the world’s leading manufacturer of reliable windows and doors. Based in Klamath Falls, Ore., JELD-WEN began as a small Oregon millwork plant with 15 employees in 1960, and has grown to more than 20,000 employees in nearly 150 locations worldwide. Today the company manufactures a full breadth of windows, doors and garage doors, and has earned numerous awards and endorsements for reliability, innovation and excellence.

Circuit Court Dissolves Injunction Against Enforcement of Energy Code

From the Michigan Association of Home Builders, October 24, 2008

Three and three-quarters years after it was first issued in February of 2005, Ingham County Circuit Court Judge Joyce Draganchuk has dissolved the injunction against the enforcement of Chapter 11 of the International Residential Code as the state’s new energy code. This clears the way for the new energy code to go into effect. While it was in place the injunction reduced the construction cost of new homes by over $561,000,000 (561 million, 600 thousand dollars).

Following the opinions and orders of the higher courts in this case, the circuit court reiterated that the Single State Construction Code does require that the code and changes to it be cost-effective and that the law supplies a detailed definition of the factors to be considered in determining whether the code meets the test of cost-effectiveness. Prior to this decision, the 2008 Energy Code Committee appointed by DLEG had recommended the adoption of a new energy code despite being given a study by DLEG staff proving the new requirements did not meet the law’s cost-effective standards.

The higher courts also made clear that, in this case, the circuit court could not review the record to decide whether the proposed code was cost-effective. The circuit court was not allowed to review the documents or assertions in the record individually to determine whether they were true or false and was prohibited from deciding whether the factual matters cited by the director were true or not. Instead, the court was instructed in this case only to look at whether the director had some support in the record from which he might have rationally concluded that the code might be cost-effective.

The court also found the statutory authorization to the director, standing alone, allows the director broad authority to amend, add, or delete provisions of the code, without setting specific limits. As the director may adopt codes and standards by reference, the IECC or IRC Chapter 11 may be adopted to amend the code.

That reading of the single section of the authorizing statute departs from the common understanding — derived from the history of amendments that replaced the general authority to adopt any code with a list of named codes – that the naming of the MUEC as part of the code meant that it may not be removed and replaced by the director as was done in 2004-2005.

The Department of Labor and Economic Growth has not yet decided when enforcement of the new code will begin or if it will be supplanted by the proposal from the 2008 Energy Code Committee. That information is expected before the end of the month and we will be distributing widely to MAHB members.

There will be a round table devoted to this issue at the October 30th MAHB Fall Board meeting.

November 2008 Press & charter

Michigan Energy Code Goes Into Effect

JELD-WEN Windows and Doors Earns SFI® Presidents Award

Circuit Court Dissolves Injunction Against Enforcement of Energy Code

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