State regulators violated the Pennsylvania constitution when they updated standards that ensure buildings are accessible to people with disabilities, claims a lawsuit filed last week by a trade group for residential builders.
- The Pennsylvania Builders Associationdoesn’t oppose standards for accessibility, according to association CEO Daniel Durden.
- It simply opposes the most-recent revision process, which unfolded last year and could raise construction costs for multifamily buildings going forward, Durden said.
- “We don’t want to be seen as opposed to improving accessibility,” he said. “We don’t want to be the impediment to that. But we do want to make sure that it’s done in a way that makes sense.”
How is it done now: Through the state’s Uniform Construction Code, which is enforced by the Pennsylvania Department of Labor & Industry.
- The state code is comprised of a mix of other codes developed primarily by the International Code Council, or ICC, a private nonprofit that sets industry standards.
- The council revises the standards on a regular basis, and L&I basically incorporates the updates.
- In 2008, however, state lawmakers created an advisory council and blessed it with the power to accept, reject or tweak the updates.
- The council includes representatives from labor and industry, as well as elected officials, all appointed by the governor and the legislature.
Then what’s the problem: The advisory council has no say over updates to the ICC’s accessibility standards, according to the builders’ lawsuit, which was filed in Commonwealth Court.
- Thus, the lawsuit argues, the latest revisions represent an unconstitutional delegation of authority to an outside entity.
- The latest revisions – published at the end of 2021 in the Pennsylvania Bulletin – also are more stringent than the existing requirements of the Americans with Disabilities Act and the Fair Housing Act, according to the lawsuit.
What are the revisions: They touch on features like the width of hallways and the spacing for wheelchair users to navigate kitchens, Durden said. Some are more technical in scope.
- They apply generally to multifamily dwellings like townhome complexes, not to single-family homes, he added.
- However, some changes could apply to other types of buildings, such as provisions covering water fountains and bathrooms.
- For residential builders, Durden said, the changes will raise costs at a time when affordable housing is a government priority.
- He did not have a cost estimate. But, he said, “We know it’s going to be more. We know for some of the changes it’s going to be a lot more,” he said.
- For other changes, the cost might not be that much, he acknowledged. But designers still will have to rethink their plans.
- A spokesperson for L&I declined to comment, citing the pending litigation.
The legal line: The builders’ lawsuit frequently cites a recent case that sent shudders through the world of workers’ compensation.
- In that case, known as Protz, the Pennsylvania Supreme Court sided in 2017 with people making arguments similar to the builders – that reliance on an outside entity to set state rules represented an unconstitutional delegation of authority.
- The ruling in the Protz case led to new legislation.
- Durden said the easiest fix in the builders’ case would be empowering the existing advisory council to review and, if needed, modify updates to accessibility standards.
- “I think this is the path of least resistance,” he said.