Preparing for the 2013 California Building Standards Code

The California Building Standards Commission (“CBSC”) recently announced that it has adopted the 2013 California Building Standards Code (the “2013 Code”).1 The California Building Standards Code was last published in 2010, and the 2013 Code will be available online on July 1, 2013.2 The 2013 Code, which incorporates proposals made by the Department of Housing and Community Development, Division of the State Architect, Office of Statewide Health Planning and Development, Office of the State Fire Marshal, Department of Public Health, the California Energy Commission, industry stakeholders, and members of the public, is scheduled to go into effect on January 1, 2014.

Real estate developers and parties entering into commercial leases should note that the proposed 2013 Code, which applies to nearly all commercial and residential structures in California, makes significant changes to California’s Energy Code, Building Code, Green Building Code, and Plumbing Code.

Energy Code

The California Energy Commission has responsibility for adopting, implementing and updating energy efficiency building standards, with local city or county building departments generally possessing the authority to verify compliance with the standards.3 Changes to the California Energy Code (the “Energy Code”) include additions and amendments to the energy and water efficiency standards for buildings, including residential, nonresidential, high-rise residential, hotel and motel buildings (the “2013 Building Energy Efficiency Standards”). The 2013 Energy Code covers all buildings except hospitals, nursing homes, correctional centers, jails, and prisons.4

In the 2013 Building Energy Efficiency Standards, the California Energy Commission (“CEC”) implements certain standards designed to improve the energy efficiency of newly constructed buildings as well as additions to and alterations of existing buildings. As noted by the California Building Standards Commission, the 2013 Energy Code has been extensively rewritten to conform with California’s policy that all new residential buildings by 2020, and all new commercial buildings by 2030, have a “zero net energy” footprint,5 i.e., buildings should either produce on site all the energy required by (i) the buildings’ systems for heating, cooling, water heating, and lighting, and (ii) the buildings’ appliances or else return to utility companies an amount of energy equivalent to the amount of any electricity or natural gas that the buildings use.

The State Energy Resources Conservation and Development Commission concluded that the 2013 Building Energy Efficiency Standards will affect housing costs, adding an estimated $2,290 to the cost of constructing a new residential building.6 Although the 2013 Building Energy Efficiency Standards will require additional capital expenditures, the resulting increase in energy efficiency attributable to the new standards may offset some or all of these costs by requiring buildings to use less energy. Additional information, including the 2013 Building Energy Efficiency Standards, Reference Appendices, and Adopted Errata, is available on the California Energy Commission’s website.7

Building Code

The Department of General Services’ (DGS) Division of the State Architect (DSA) has adopted new accessibility standards in Part 2, Chapter 11B, extensively revising the Building Code in order to harmonize state standards and those set forth in the Americans with Disabilities Act (ADA)8. The access standards proposed by the DSA attempt to reconcile over 2,500 items where the existing California standards differ from the federal standards set forth in Titles II and III of the Americans with Disabilities Act of 1990, published in the Federal Register on September 15, 2010, which adopted revised accessibility standards known as the 2010 ADA Standards for Accessible Design (2010 ADAS)9. These modifications to the Building Code were required because the federal requirements of the 2010 ADAS explicitly preempt state standards after March 15, 2012, and under California law, the DSA must propose accessibility standards at least as stringent as the federal requirements under the ADA10. Some of the changes were previously implemented by the DSA’s Access Compliance Emergency Regulations Package, which was approved by the Building Standards Commission on July 19, 2012; such changes have been effective since August 1, 201211. These include modifications to standards applicable to designated aisle seats, accessible water closets, toilet tissue dispensers, accessible drinking fountains, proportion of characters for visual and tactile signs, mounting locations and heights for signs, as well as a specific limited exception to items constructed in compliance with previous codes.12 The standards that the DSA adopted apply to a broad category of buildings, including publicly funded buildings, structures, sidewalks, curbs and related facilities; privately funded public accommodations and commercial facilities; and public housing and private housing available for public use.

Green Building Code

The 2013 Building Energy Efficiency Standards also update the energy efficiency divisions of the California Green Building Standards Code.13 CEC has created a set of prerequisites for residential and nonresidential “Reach” standards for energy efficiency.

Residential Voluntary Measures

Generally, newly constructed low-rise residential buildings will need to meet or exceed the requirements of the California Building Energy Efficiency Standards. Those seeking to have their buildings comply with the first level of advanced energy efficiency will need to meet the Tier 1 standards; those seeking to have their buildings comply with the second level, the Tier 2 standards. The voluntary prerequisites described above may be mandatory if adopted by a city, county, or city and county.

Nonresidential Voluntary Measures

Nonresidential, high-rise residential and hotel/motel buildings will also need to meet or exceed the requirements of the California Building Energy Efficiency Standards. Newly constructed buildings as well as additions and alterations fall within the scope of the Green Building Standards Code.

Plumbing Code

Extensive changes have also been made to the Plumbing Code (California Code of Regulations, Title 24, Part 5), which is based on the 2012 Uniform Plumbing Code (published by the International Association of Plumbing and Mechanical Officials). CBSC adopted extensive revisions to the standards applicable to alternate water sources for non-potable applications, e.g., gray water,14 and the regulations that apply to the installation, construction, alteration, and repair of non-potable rainwater catchment systems. 15

Implications

Owners and Developers of Commercial Real Estate

Owners and developers of commercial real estate who anticipate acquiring, operating, or modifying real estate may incur additional costs as a result of 2013 Code. Any long term project that will have permitting submissions made after January 2014 will need to comply with the new code. Owners and developers should bear in mind that they may need to make significant capital expenditures or alterations to their properties in order to make them comply with new or revised parts of the Building Code, especially those that relate to energy and accessibility standards. With respect to the Energy Code, owners and developers should note that the standards vary by climate zones, so that buildings in more extreme climates may require taking additional measures in order to conform with the Energy Code, although buildings in all climate zones will require solar-ready roofs.16 Moreover, owners and developers should prepare themselves for additional regulations implemented by cities, counties, and other local government agencies. Such regulations may be even more stringent than the state regulations or may make some of the voluntary standards mandatory. Furthermore, owners and developers should prepare themselves for legal claims that others may assert against them for non-compliance with the 2013 Code, particularly with respect to its accessibility provisions.

Owners and operators planning to make additions or modifications should also note that as of the effective date of the 2013 California Green Building Code (Part 11 of the California Green Building Standards Code or “CALGreen”), additions or modifications with a permit valuation or estimated construction cost of $200,000.00 or 1,000 square feet will now fall within the scope of CALGreen; previously, CALGreen applied only to additions or modifications with a permit valuation or estimated construction cost of $500,000.00 or 2,000 square feet. 17

Landlords of Commercial Property

Commercial landlords will need to ensure that they and their property managers will meet the new requirements, particularly with respect to accessibility. They should also remember that local governmental agencies may impose additional, more stringent requirements. While not a new requirement imposed by the 2013 Code, the addition of California Civil Code Section 1938 that was enacted as part of Senate Bill 1186 will require commercial property owners and lessors to state on their leases or rental forms executed on or after July 1, 2013 whether they have had a Certified Access Specialist (CASp) inspect their properties and, if so, whether the properties meet applicable accessibility standards. Landlords who intend to have inspections made by a CASp should note that the inspections will cover the new accessibility standards of the 2013 Code starting next year. In addition, landlords may need to make certain alterations to proposed modifications to buildings in order to conform with the new energy regulations.

Lessees of Commercial Premises

Lessees entering into long-term commercial leases should note that many standard commercial leases neither have representations and warranties made by lessors that the premises meet accessibility standards nor require the landlord to make modifications to the premises so that such premises conform to new accessibility standards. Consequently, commercial lessees should negotiate for additional representations and warranties and covenants to their leases or for diminished rents to account for any expenditures that they will have to make to update their facilities to comply with the 2013 Code.

Footnotes

1. Press Release, Building Standards Comm’n, 2013 California Building Standards Code Adopted (Jan. 29, 2013), http://www.documents.dgs.ca.gov/bsc/PressReleases/Final-2013-Code-Adoption.pdf [hereinafter SBSC Press Release].
2. Assemblyman Brian Nestande has sponsored a bill, Assembly Bill 292, that would amend Section 11344 of the Government Code, which would make the full text of the 2013 Code available for free. Assemb. B. 292 (Cal. 2013).
3. See Building Energy Efficiency Standards: Frequently Asked Questions, Cal. Energy Comm’n 2 (May 2012),available at
   http://www.energy.ca.gov/title24/2013standards/rulemaking/documents/2013_Building_Energy_Efficiency_Standards_FAQ.pdf [hereinafter 2013 Energy Efficiency Standards FAQ].
4. Id.
5. Id.
6. 2013 Energy Efficiency Standards FAQ, supra note 3, at 1.
7. 2013 Standards Related Documents, Cal. Energy Comm’n,
   http://www.energy.ca.gov/title24/2013standards/supporting_docs.html (last visited Mar. 29, 2013).
8. Press Release, Cal. Dep’t Gen. Serv., New Construction Regulations Enhance Accessibility (Jan. 25, 2013),
   http://www.documents.dgs.ca.gov/dgs/pio/releases/2013/Access.pdf. For a comparison of the accessibility provisions of the 2010 California Building Code and the 2013 California Building Code, see Cal. Dep’t Gen. Serv., Div. of the State Architect, 2013 Building Code Update for Accessibility (Jan. 18, 2013), available at http://www.documents.dgs.ca.gov/dsa/access/CrossRef_01-18-13.docx.
9. The State Architect’s Corner, Cal. Dep’t Gen. Serv.,
   http://www.dgs.ca.gov/dsa/AboutUs/state_architect.aspx (last visited Marc. 29, 2013).
10. Cal. Dep’t Gen. Serv., Div. of the State Architect, Initial Statement of Reasons for Proposed Building Standards of the Division of the State Architect 2 (Aug. 30, 2012), http://www.documents.dgs.ca.gov/dsa/access/2013CBC_DSA-AC_ISOR_08-30-12.pdf.
11. A summary of the Emergency Regulations Items, along with their 2010 California Building Code Chapter 11B section numbers, is available at
    http://www.documents.dgs.ca.gov/bsc/prpsd_chngs/documents/erm_files/2012/Emergency-Regs-Summary-080612.pdf (last visited Mar. 29, 2013).
12. See generally Cal. Dep’t Gen. Serv., Div. of the State Architect, Finding of Emergency of the Division of State Architect (Jun. 27, 2012), http://www.documents.dgs.ca.gov/dsa/access/2010CBC_Regs-FindingOfEmergency_rev06-27-12.pdf.
13. California Green Building Standards Code, Cal. Code Regs. tit. 24, pt. 11 (effective Jan. 1, 2014).
14. “Gray water” is untreated wastewater, including wastewater from bathtubs, showers, bathroom washbasins, clothes washing machines, and laundry tubs.
15. “Rainwater catchments” are facilities designed to capture, retain, and store rainwater flowing off a building, parking lot, or any other manmade impervious surface for subsequent onsite use.
16. 2013 Energy Efficiency Standards FAQ, supra note 3, at 3.
17. Cal. Code Regs. tit. 24, pt. 11, § 5.701.1 (2010).