Ruling No.: 24-16-1650
Application No.: B-2024-04
BUILDING CODE COMMISSION
IN THE MATTER OF Subsection 24(1) of the Building Code Act, S.O. 1992, c. 23, as amended.
AND IN THE MATTER OF Sentences 9.3.2.9.(3) and 9.15.4.6.(1) of Regulation 332/12, as amended, (the “Building Code”).
AND IN THE MATTER OF an application by Daniel DiGaetano, for the resolution of a dispute with Keegan Gennings, Chief Building Official, to determine whether the top of the building foundation for a single detached residential dwelling as constructed, provides sufficiency of compliance with Sentences 9.3.2.9.(3) and 9.15.4.6.(1) of Division B of the Building Code at 271 Rosewood Avenue, Crystal Beach, Ontario.
APPLICANT Daniel DiGaetano
Homeowner
Welland, Ontario
RESPONDENT Keegan Gennings
Chief Building Official
Town of Fort Erie
Fort Erie, Ontario
PANEL Alison Orr, Chair Designate
Leszek Muniak
Elektra Vrachas
PLACE via video conference
DATE OF HEARING September 17, 2024
DATE OF RULING September 17, 2024
APPEARANCES Daniel DiGaetano
Homeowner
Welland, Ontario
Applicant
Mark Shoalts, P. Eng.
Shoalts Engineering
Agent for the Applicant
Keegan Gennings
Chief Building Official
Town of Fort Erie Fort Erie, Ontario
Respondent
Nadean Reichelt
Deputy Chief Building Official
Town of Fort Erie
Fort Erie, Ontario
Designate for the Respondent
RULING
1. Particulars of Dispute
The Applicant applied for and received a building permit under the Building Code Act, 1992, to construct a new, two storey single-family, detached residential dwelling of combustible construction, which has building area of approximately 85 m2, at 271 Rosewood Avenue, Crystal Beach, Ontario. The building is constructed and occupied, but the final inspection has not been approved, because of issues that are the subject of this dispute.
The dispute centres around whether the exterior foundation walls of the subject house meet the minimum height requirements above finished ground level, as specified in Sentence 9.15.4.6.(1) of Division B of the Building Code.
Additionally, in dispute is whether the structural wood elements are adequately protected from decay when the vertical clearance between the wood element and the finished ground level is less than what is prescribed in Sentence 9.3.2.9.(3) of Division B of the Building Code.
2. Provisions of the Building Code in Dispute
9.15.4.6. Extension above Ground Level
(1) Exterior foundation walls shall extend not less than 150 mm above finished ground level.
9.3.2.9. Termite and Decay Protection
(3) Structural wood elements shall be pressure-treated with a preservative to resist decay, where the vertical clearance between structural wood elements and the finished ground level is less than 150 mm.
3. Applicant’s Position
The Applicant stated his opinion that the house was built according to the building code. The Applicant explained that adequate clearance between ground and the top of the foundation wall is established at all points around the perimeter of the house except at the side and rear entry points of the house (clearance at the front main entrance is not in dispute).
The Applicant submitted that the hardscape surfaces are more than 6 inches higher than the finished ground level of the property. The Applicant explained that the hardscape surfaces are almost flush with the door sill levels of the side door and rear door so that someone using a walker could easily enter and exit the house.
The Applicant noted that “finished ground level” is not a defined term in the building code. The Applicant submitted that the top of the landscape, i.e., the plants and flower beds, is “ground level”, and is more than 150 mm below the top of the exterior foundation wall. The Applicant’s position is that the installed hardscape should not be considered “ground level.”
The Applicant submitted that the level of the rear patio is flush with the interior finished ground floor level of the house. The Applicant stated that the floor assembly of the ground floor is concrete slab on grade and that the top of the exterior foundation wall and interior finished floor level are flush for barrier-free purposes.
The Engineer, as Agent for the Applicant, advised that, in their opinion, the as-constructed grading of the property is compliant with the two building code requirements that are in dispute. The Agent for the Applicant noted that the surveyor’s lot grading drawing shows that the property has been properly graded for drainage. The Applicant added that rain and snow have not been an issue in the several years the house has been occupied.
In response to the Respondent’s question for whether any tests have been performed to determine if the wood structure has been impacted with mould or decay since the patio had been installed, the Applicant responded that there had not been any formal testing done.
In response to questions, the Applicant advised that the top of the foundation wall was flush with the interior floor slab. The wall framing on top of the foundation wall was at the level of the interior floor slab, which is located 1 inch above the hardscaped rear patio.
In response to questions, the Agent for the Applicant explained that his report represented his professional opinion, based on a visual inspection of the exterior base of the building. Further, the engineer submitted that his professional opinion did not include a review of the building permit drawings. He did not feel it was necessary because the house was already built.
In response to questions, the Agent for the Applicant stated that when he was on site, he could see the top of the foundation wall but not the wood framing. His assessment of the location of the bottom plate of the wood framing was inferred, based on where the finished drywall and door were located.
4. Respondent’s Position
The Respondent referred to the as-built lot grading plan to explain the main area of concern that was raised by the building department. The Respondent submitted that the area of concern commences at the carport on the west side of the building, extends to the rear and wraps around to the north side of the property where the brick stone patio is located.
Referring to the pictures taken during his site visit, the Respondent pointed to the carport area where the grade is less than 6 inches (150 mm) from the finished ground level to the top of the exterior foundation wall. The Respondent noted that the rear patio area is just 1 inch below the interior ground floor level. The Respondent expressed concern that in a heavy rainfall, the water could potentially enter the interior of the building. The Respondent advised that the ground floor structure is slab-on-grade construction.
The Respondent acknowledged that ‘finished ground level’ is not a defined term in the Building Code. However, ‘grade’ is a defined term that the Respondent and the Town reference and understand and interpret “grade” as being ‘finished ground level’. ‘Grade’ is defined in Div. A, Article 1.4.1.2. of the Building Code as meaning “the average level of proposed or finished ground adjoining a building at all exterior walls.”
The Respondent identified the Code provision which requires that the exterior foundation wall with the wood framing bottom plate be at least the minimum 150 mm vertical clearance above grade so that the wood framing is protected from decay due to exposure to moisture from rain and melting snow.
The Respondent submitted that the drawings for the proposed construction depicted a design that met the provisions presently in dispute. The issue came to light upon review of the as-constructed exterior grading. An as-constructed grading plan did not match the proposed lot grading plan. The installation of the driveway and patio pavers increased the height of grade. It is the position of the Respondent that the as-constructed height of grade does not meet the subject requirements of the Code.
The Respondent requested that the grade be corrected, and a new as-built grading plan be submitted for review.
The Respondent advised that a revised drawing from the designer of record that depicts the as-built condition, with compensating measures to address the deficiencies, may also be accepted.
5. Commission Ruling
It is the decision of the Building Code Commission that the top of the building foundation for a single detached residential dwelling as-constructed, does not provide sufficiency of compliance with Sentences 9.3.2.9.(3) and 9.15.4.6.(1) of Division B of the Building Code at 271 Rosewood Avenue, Crystal Beach, Ontario.
Reasons
i) “Finished ground level” is not a defined term in the Building Code. Words and phrases that are not defined in the Building Code shall have the meanings that are commonly assigned to them in the context in which they are used, taking into account the specialized use of terms by the various trades and professions to which the terminology apply. It is the Commission’s opinion that the finished ground adjoining the exterior foundation walls, includes the soft and hard landscaping, pavers, and asphalt.
ii) The Commission received and heard evidence that the exterior foundation walls do not extend 150 mm above the finished ground level in several areas at the perimeter of the building as required by Sentence 9.15.4.6.(1) of Division B of the Building Code.
iii) The Commission did not receive any evidence that the structural wood elements located within 150 mm of finished ground level were treated with a preservative to resist decay as required by Sentence 9.3.2.9.(3) of Division B of the Building Code.
iv) No compensating measures to reduce the possible risk of water infiltration and wood decay were provided.
Dated at the City of Toronto this 24th day in the month of September in the year 2024 for application number B-2024-04.
Alison Orr, Chair Designate
Leszek Muniak
Elektra Vrachas