Clearfield Borough Argues over UCC Enforcement, Administration

CLEARFIELD – Although Clearfield Borough Council has for the time being resolved the employment status of Code Enforcement Officer Larry Mack, it also adjourned with unfinished business after tabling a motion to immediately “cease-and-desist any Uniform Construction Code enforcement or administration by borough employees.”

Council members Tim Winters and Patricia Kavelak moved and seconded the motion during a Sept. 6 special meeting. However, the council adjourned that meeting without taking any action upon being advised by Solicitor F. Cortez “Chip” Bell III. Both Winters and Kavelak refused to rescind their motion and second when the council re-visited the matter at Thursday night’s special meeting.

Councilman Richard Stewart sought further explanation of the requested “cease-and-desist” action. Winters explained that the borough does have a third-party in the Middle Department Inspection Agency Inc. of Wexford; however, he said the borough doesn’t have anyone in-house that is certified to participate in the administration of the UCC code.

Stewart asked if Winters’ statement was indeed accurate or if anyone could dispute it. Council members, along with Borough Operations Manager Leslie Stott, wanted further clarification regarding what Winters meant by the administration aspect of his motion.

Winters referred council to the state’s UCC code section 403.1, which deals with its application. The code reads that it “applied to the construction, alteration, repair, movement, equipment, removal, demolition, location, maintenance, occupancy or change of occupancy of every building or structure, which occurs on or after April 9, 2004 and all existing structures that are not legally occupied.”

Winters sought input from Councilman James Kling, who previously held the position of code enforcement officer before Mack. Kling said he would answer questions so long as he’s aware of the answers; however, he wouldn’t offer his opinion, as he’s been accused of misleading people by making statements. He believed there were other more authoritative people present to answer any questions and better than he could.

Winters said while there could be someone to answer questions present, he wished the council had someone from the state’s Department of Labor & Industry. Stott said she was neither requested to contact anyone at the state level nor asked to have someone present at the special meeting. Stott noted she had spoken with representatives from the state’s labor and industry department so far as her dealings in this matter.

Winters suggested that council permit his motion to stand as is and to “rise or fall” by vote. He said the council needed to resolve this motion, as it hadn’t been prior to the adjournment of the last special meeting.

Then, Kavelak directed council to UCC code provided in the informational packet from the Sept. 6 special meeting. She read “a person may not perform a plan review of construction documents, inspect construction or equipment or administer and enforce UCC without being currently certified or registered by the department in the category applicable to the work that is to be performed.”

Kavelak said council was aware the borough had a third-party agency to perform plan reviews, which she said doesn’t require an in-house BCO. However, she directed council to another subsection of UCC code, which reads that a building code official “manages, supervises and administers building code enforcement activities. The department, municipality or a third-party agency that operates an enforcement program under the act will employ at least one person certified or registered as a building code official.

“Duties include management of building code enforcement activities, supervision of building inspections or plans examiners, issuing building permits, occupancy permits, notice of violations and orders to vacate and initiation of prosecutions.”

“We do not employ one person who is certified or registered as a building code official,” said Kavelak. “. . . There is a big one right there: issuing building permits. We cannot sidestep building permits for UCC-related activities by issuing zoning permits, which is what we have been doing. We can’t do it. It’s illegal.”

Winters said that the borough has adopted the UCC code and it can’t “pick and choose” once it’s adopted. He said the borough is bound to the UCC code, and it’s very specific. He said once the UCC code is accepted by the borough it accepts the entire code and doesn’t parcel out on a local level.

“That was the purpose of the code . . . to make everything on an even basis across the state,” he said. Kavelak encouraged council to re-read the UCC code provided at their seats, where it stated that the department, municipality or a third-party agency must employ one person who is certified or registered as a BCO.

“I’m not making this up. It’s straightforward. You can read it yourself,” she said. Bell said he read it as one of those three must have someone certified or registered. He said the borough has employed a third-party agency, and they have employed certified or registered BCOs. He didn’t believe it required the borough to employ the third-party agency and then also employ someone in-house.

Kavelak told Bell that she could accept his interpretation, but she’d spoken with someone directly from the state’s labor and industry department and believed differently based on that discussion. She said she has contact information for anyone who needed it for their own research into the matter.

Stott said that the Middle Department was handling its entire BCO program both residential and commercial. Kavelak asked if they were also handling the borough’s building permits to which Stott said the third-party agency wasn’t required to have someone on-site. Winters and Kavelak then asked who was issuing building permits as part of the duties of the UCC code.

Lane Wolfe, manager of the Middle Department, said it does issue the permits and collects paperwork from the borough. He said his agency performs the plan reviews and returns them so the permits can be issued to people.

“We are enforcing the UCC for the borough,” he said. Wolfe explained that the borough isn’t required to employ an official, as there are four different methods of enforcement. He said the borough can use any of the following: employ at least one construction code official in-house; retain one or more third-party agencies; utilize an inter-municipality agreement; or contact the state’s labor and industry department, which will only perform commercial work, not residential.

“You do have the option to use us. That’ why we’re in business,” said Wolfe. At that point, Kavelak and Winters presented Wolfe with building permits and photographs for his review.

In one example, Winters showed Wolfe a zoning permit issued for a Weaver Street  property May 20. He said the permit cited “repairs;” but photographic evidence showed structural construction to its front porch. He contended it should have fallen under UCC code that required a building permit.

Winters presented a second zoning permit issued May 31 for the same property for the demolition of its front porch. Winters contended UCC code was applicable and a building permit should have been issued in this case as well.

Wolfe agreed with Winters in both cases.

“That is the local administration of the UCC code by putting it under zoning,” said Winters. “We are issuing permits that aren’t right and that require a building permit, not a zoning permit.”

In his explanation, Mack said the contractor approached him about replacing the front porch of the house. He advised the contractor that if the porch was 30 inches or more off the ground, he would have to submit drawings for review and approval. He said the contractor decided to lower the porch to below 30 inches, which under UCC code doesn’t require an inspection.

“However, that is a structure. Demolition permits are under the UCC code. You issued a zoning permit for the demolition of the porch,” said Winters. “The other permit was zoning and for the repair of the front porch and its roof.

“You have inspected this property and been there repeatedly. What was done was not repair; that is construction and makes a structural change in the roof line. It originally had a peaked roof and there was new construction. This required a building permit, not a zoning permit.”

Wolfe agreed. Winters thanked Wolfe for his “expert opinion” since they didn’t have a representative from the state’s labor and industry department. Winters added that he discovered the permits and photographs after looking for one day.

Winters said council could vote this motion up or down, but he’d rather have someone from the state’s labor and industry department answer some very specific questions. He said he would also prefer this occur either in-person or via e-mail to eliminate any “he said, she said.”

Bell believed it would be difficult to find someone who was willing to attend that was involved with the UCC enforcement on the state level. Winters said they were already aware of the matter and will be in attendance eventually because formal complaints were filed with the state’s labor and industry department.

When the motion was re-read for consideration, council again asked for clarification on the definition of administration.

“Are we saying that Larry’s signing permits that he shouldn’t be signing?” asked Stewart.

Winters confirmed he’d just pointed that out to council. He said, “This is a zoning permit that should have been a building permit. Do we have a copy of Webster’s in the office so we can look it up and so everyone can agree on a common definition of administration?”

Stott said she felt a lot of shotgun shells were being fired and sought clarification regarding the administrative aspect of his motion. She asked if, under his motion, residents could enter the borough office to complete the permit application and then have Mack send it to the Middle Department. Winters said he couldn’t answer that question without a ruling from the state’s labor and industry department.

“As I was told, ‘no.’ But I will not speak for a party who isn’t here,” he said. Stott deferred the question to Wolfe, who said it probably happens in 90 percent of municipalities.

Stott said she wasn’t disputing Winters’ information, but she wanted Mack to review the presented paperwork with the borough’s BCO Brian Rearick. She also asked Winters again for clarification on his definition of administration because she just presented an example that the borough could perform locally.

Winters said that anything regarding the UCC code should be deferred, such as any necessary administrative paperwork or procedures. Kavelak said people cannot come in for a building permit and leave with a zoning permit.

Winters said he wouldn’t rescind his motion and the council could vote it up or down. Kavelak said she wouldn’t withdraw her second. Bell said the council could table the motion, which Winters was willing to do and the council did.

During the regular council meeting held beforehand, Bell reported his receipt of a letter from Attorney Kim C. Kesner of Clearfield, which alleges substantive and procedural defects with the deck being deemed as unsafe at Kavelak’s business Dingers Grand Slam Grille and Groggery. Kesner sought a response within 10 days.

 

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