Board of Appeals

Boards, Commissions & Committees

Board of Appeals - February 4, 2021 Minutes

Members Present: Mike Wild, Justin Schoenberg, Dave Obermiller, Kevin Bartram and Brian Berg.

Members Absent: Clay Dietrich

Others Present: Bruce Taralson, Doug Desotel, Steven Dirksen, Ryan Erickson, Michael Moss, James Showalter, Peter Valkov, Lucas Olson, Gretchen Morlan, Daryl Bachmeier, and Thomas and Kari Smith.

Vice Chairperson Wild called the meeting to order at 9:30AM. Mr. Obermiller moved to approve the minutes of the July 2, 2020 meeting. Mr. Bartram seconded the motion. All members present voted aye and the motion was declared carried.

Unfinished Business
a. Review of Board of Appeals bylaws:

Mr. Taralson stated this item has been placed on the agenda for review of the bylaws. He furthered that the issue of the Annual Meeting date has come up and should be addressed. The issues is that the annual meeting it typically is held over a holiday week and there was an issue with attendance. Mr. Taralson stated that there are two recommended motions enclosed in the packet with one of the motions being preferred. Mr. Taralson stated that what is thought to be the best is to set an alternative month, other than July, to hold the Annual Meeting and direct the board secretary to update the bylaws to reflect the said month. He stated that the alternative motion is to select another date in July to hold the annual meeting. Mr. Berg moved to change the bylaws language of the date of the annual meeting from the first Thursday in July to the first Thursday in August. Mr. Schoenberg seconded the motion. All members presented voted aye and the motion was declared carried.

New Business
a. Appeal requested by Thomas Smith, Owner of 412 5 Street N., Fargo, regarding a plan review determination associated with the separation requirements of the International Building Code (IBC), Table 508.4, footnote b., and the requirements established in the IBC, Section 406.3.1:

Mr. Taralson presented the appeal regarding the project at 412 5 Avenue N., Fargo on behalf of the Inspections Department. Mr. Taralson explained his role as the Director and Building Official and the role of staff under his direction who work as his deputies to enforce the code when he is not present.

Mr. Taralson reminded the Board of the permitting process:

• Accept applications and plans for permits.
• Review plans.
• Write permits on approved plans.
• Inspect for compliance.
• Provide safe buildings for the public. Inspections duties are to the general public and not any specific Owner.

Mr. Taralson stated that this case appears to be complicated based on all of the information provided. He furthered that it is simple due to the only decision needing to be made is whether or not the walls of a private garage constructed inside an open parking garage will be required to be fire barrier rated. He furthered that this case is new, and that this is the first instance in which Inspections has seen with wanting to put private garages inside of a public parking garage. The answer will be that you either agree with the Building Official, or you agree with the appellant. The only thing that complicates this case is the building code, which is not always black and white.

Mr. Taralson presented a review of the project. The Board was shown an aerial view of the location of the project. Mr. Taralson noted the complexity of the project due to multiple properties, multiple owners, the City of Fargo’s involvement in the parking ramp, multiple owners of multiple properties, and property line issues affecting the properties. He furthered that open parking garages are very specific in how they are constructed and that they are open. How much of an opening, how many sides, and the openness requirement of the garages allows them to be not sprinklered.

Mr. Taralson presented a rendering of the finished project, the mercantile project directly to the south of the townhomes, engineered plans, and pictures of the ramp and the private garages to show the future openings for the garages. Mr. Taralson presented pictures of the townhomes to visualize how they will attach to the future parking garages. He stated that there are three garages on the main level, three garages on the second level, and two garages on the third level. He furthered that the issue is whether or not the walls for the private parking garages are fire resistant rated.

Mr. Taralson read aloud the International Building Code (IBC), Section 102.1 General, and stated that the Building Official shall have the authority to render interpretations of this code. Mr. Taralson stated that he, himself, an inspector, or a plan reviewer, can interpret the code and has the authority to interpret the code, but that no one else has the authority to interpret the code. Mr. Taralson furthered that the power of the board is to decide that the code was interpreted correctly, or not correctly. Mr. Taralson read aloud the International Building Code (IBC), Section 113.2 regarding limitations of authority. He stated that the Board does not have the authority to waive requirements of the code.
Mr. Taralson reviewed portions of the plan review completed by Doug Desotel, Inspections Department Commercial Plan Reviewer. The building was classified in Section 311 as Groups S-1, S-2, and U. He furthered that Section 302.2 states that certain uses require specific limitations and controls in accordance with the provisions of Chapter 4 and elsewhere in the code.

Mr. Taralson reviewed the project analysis from the architect and pointed out the architects notation using Section 406.3.1 which states that “private garages shall be classified as Group U. Each private garage will be no greater than 1,000 square feet. Multiple private garages shall be separated by 1-hour fire barriers.

Mr. Taralson reviewed Section 401.1 regarding detailed occupancy and use requirements.

Mr. Taralson reviewed Section 406.1 regarding motor vehicle related occupancies.

Mr. Taralson reviewed Section 406.3.1 Classification, regarding classification of private garages and carports. Mr. Taralson noted that it is the Inspections Department’s interpretation of the garages in question need separation. He furthered that the garages can be related to apartment-type garages, being separated into 1,000 square foot sections.

Mr. Berg inquired whether or not the separation requirement is between each Group U occupancy or around the entire perimeter. He furthered that the language seems to state that each private garage should be separate from other private garages by a one hour fire barrier.

Mr. Taralson stated that in that private strip of garages, each 1,000 square foot garage needs separation. He furthered that there are a lot of things going on in that building, specifically being that it is not sprinklered. He inquired if an authority were to allow someone to put private garages that need separation in an S-2 open parking garage, at what point would the space no longer be considered an open parking garage. Mr. Taralson continued that the code is indicating that should something start to burn inside of the private garage, that the fire is contained in that 1,000 square foot space. He furthered that the appellant has brought up extending the wall to the edge, however, that is not enough. Fire barriers don’t stop, but are continuous and have to meet another fire wall, fire barrier, or something fire rated before it can stop.

Mr. Berg stated that it appears that the designer intended to have 1-Hour separation between the garages as per the code report, however, it seems that the question here is where does that separation stop. He furthered that it appears that the separation is on three sides at this time and not on the front wall and that continuity is important.

Mr. Taralson stated that fire rated construction doesn’t stop in the middle of nowhere, but it always gets to some point. He stated that open parking garages must follow many requirements, and that open parking garages get allowances because they are open. Mr. Taralson reviewed Section 406.5.5 regarding area and height increases, and that this section allows you to have a bigger building, because it is open. He further provided more section numbers for requirements such as Sections 406.6.2 regarding ventilation, and 406.6.3 regarding sprinkler systems, and inquired how these sections may affect the private garages where private materials may be stored.

Mr. Taralson stated that the International Code Council (ICC) was contacted for an opinion. He furthered that Mr. Doug Thornberg from ICC gave the following opinion: “In my opinion, the appropriate provision to apply is Section 406.3.1 requiring basically a one-hour separation between the Group U garages and the Group S-2 such that there is no more than 1,000 square feet of unseparated Group U floor area. This would appear to require separations at minimum at each story of the Group S-2 which obviously can’t be provided due to the ramp access from story to story. Therefore, the only other method would be to handle it individually on each story, which would require the one-hour fire barriers and protected openings as you indicate. They could have up to 1,000 square feet within each 1-hour enclosure. Table 508.4 would only apply if separated occupancies were chosen by the architect.”

Mr. Taralson inquired if this appeal is approved, how many private garages would the Board allow in an open parking garage. He furthered that in the review and according to the Inspections Department’s thinking, there are none that are not separated if just the separation between the private garages is done. He inquired that if the garages are allowed, and there is no number of garages allowed by the code, how many will the Board allow. Mr. Taralson stated that Section 406.3 cannot be ignored, which is a specific section that would override other code sections, and clearly states that all private garages are separated by one hour fire barrier walls.

Mr. Taralson stated that if the appeal is approved, this could create an unsafe public parking garage. He furthered that the Inspections Department requests that the appeal be denied and the applicant ordered to comply with the code as per the department’s interpretation.

The appeal applicant, Mr. Thomas Smith, introduced himself to the Board. Mr. Smith requested that the Board make a determination to support his position regarding the design and development of his project. He stated that his intention is not to request a variance to code requirements, but asked that the Board apply every written requirement but apply none that are unwritten. Mr. Smith appealed to the board to take a look at one determination in particular made by the Inspections Department.

Mr. Smith stated that the project being developed are not townhomes, but condominiums. He furthered that these spaces are different dwelling units within different levels, and as such the parking system located in the adjacent site provides condo owners direct access form their homes to a private garage. Mr. Smith stated that there are many factors that have been worked through including the requirement of the open parking garage. The City of Fargo will soon become the owner of the parking garage and he/they will be the tenants. The agreement mandates that no work will affect the open nature of the parking garage largely because that is what allows the structure to be non-sprinklered. Mr. Smith stated that the garages they are requesting are placed within the parking garage, but even if they were pushed all of the way to an exterior wall, they would not impact the openness requirement on any level. He furthered they are asking for four spaces, not eight as mentioned by Mr. Taralson, but as to the question of how many more garages, is limited by the open parking requirement of Section 406.5. Mr. Smith stated that there is one last step in the process, and that is to request that this Board determine that this project meets the separation requirements of IBC Sections 403.1 and 508. Mr. Smith continued that one of the challenges that his team has faced is not being provided with the detail of the basis of the reviewer’s determination. For months, the reviewer held that they were not achieving the requirements for separation in two of the occupancies as specified in footnote b of Table 508.4. Mr. Smith stated that he received notice from Mr. Taralson that they intended to only assert that the plans do not meet the separation requirements of Section 406.3.1. Mr. Smith stated that today he intends to demonstrate that the plans do meet those requirements. Mr. Smith continued that if in fact the Inspections department no longer intends to assert footnote b, of Table 508.4, which creates a separation between Group U and Group S-2 Occupancies, that aspect will not be argued in the appeal today. He asked that the board provide a
determination in this matter by confirming that Table 508.4 specifies no separation requirement between Group U and Group S-2 Occupancies, and that footnote b does not apply when there is not a required separation. He furthered that earlier, the reviewer had sought the guidance from Doug Thornberg, the technical director from International Code Council (ICC). In his response, the ICC official stated that in his opinion, footnote b would not apply in cases where the specification of Table 508.4 is no separation required. He further described a method that if the designer should specify 508.4 - separated occupancies, there would be no separation required. Mr. Smith furthered that separate occupancies have been chosen by the architect and that this route will not require a separation. The architect reached out again to the ICC official for guidance and understanding as to why the official maintains his position on the code. The official from ICC was very careful to maintain that such determination should be made at the local level which includes this Board of Appeals. Mr. Smith stated that the official stated that his opinion aligns with his (Mr. Smith). He furthered that when presented with this information, the local officials disregarded this information and refused to allow their staff to disseminate this information. Mr. Smith stated that he would demonstrate to the Board that in this narrow matter, that the local building officials are in error and that their determination must be reversed. In addition to the letter from Mr. Thornberg, Mr. Smith stated that he planned to present information that was provided by attending an online ICC seminar covering the use of mixed-occupancies presented by a J.Woodward at an ICC conference in Las Vegas, NV. He furthered that with these ICC resources and reference to the 2018 IBC, he would demonstrate that the plans comply with every separation called for in Section 406.3.1. He stated that he would present a way that Section 508 clearly specifies the separation requirements and that those more specific requirements apply over more general requirements found elsewhere in the code. Mr. Smith read a letter from Mr. Thornberg with ICC to the Board as follows: “I think the primary disagreement is the application of footnote b to Table 508.4. As I have indicated, my personal opinion is that the footnote would not apply where the table permits no separation between the different occupancies. However, the code text can certainly be viewed differently. Since this is an interpretation of the code’s intent, it’s application rests solely with the building official. Based on the language of Section 406.3.2, the separation of the private garages from the public parking garage is based on Section 508. So the interpretation of Table 508.4 is key to applying any fire separation. Since Section 406.3.1 only requires the separation of private garages from each other, it is an entirely different issue. The code does not specifically state the extent of any required 1-hour separation. When applying Table 508 it would be limited to common walls, but that table is not referenced here.” Mr. Smith stated that Table 508 is a part of the International Building Code which he believed shall be applied over the more general requirements of as stated in Section 406.3.1.

Mr. Smith directed the Board to Section 406, and stated that if it were not for the special detail requirements of Chapter 4 relating to motor vehicle occupancies, these garages could be accessory occupancies under the provisions of Table 508.2, but they are not. He furthered that they fall under the private garage definition. Mr. Smith read aloud Section 406.3 – private garages and carports, and stated that Section 406.2 covers standards for all motor vehicle related occupancies. He furthered that Section 406.3 is specific to private garages and Section 406.4 is slightly more restrictive set for public parking garages – open and closed. Mr. Smith stated that his plan will adhere to Sections 406.2 and 406.3. Mr. Smith read Section 406.3.1 regarding Classification to the Board and Section 406.3.2 regarding Separation. Mr. Smith stated that the private garages in question are not adjacent to dwelling units due to the fire wall separating the units from the garages and shall comply with Section 508. Mr. Smith noted that as stated in Section 102.1 on Applicability, that where there is a conflict between a general requirement and a specific requirement, the specific requirement shall be applicable. Mr. Smith stated that the plan reviewers have indicated that the plans do not meet the requirements and have required separations that are similar to fire area separations that are defined and established in Chapter 9. He furthered that they assert that because the separation requirements of 406.3.1 are not specified, they are subject to interpretation. Mr. Smith stated that he agrees that the requirements of Section 406.3.1 are general in their definition, those found in the following section 406.3.2, regarding separation, are not. He furthered that Chapter 1 directs to look at the more specific requirements instead of more general requirements, and the very specific provisions of sections 406.3.2 and 508 shall apply. Mr. Smith stated that he believes that the reviewer arrived at their determination in error by not applying the more specific requirements as the code states shall be done. He furthered that he does not debate the reviewer’s commitment to safety or the belief that the additional safety measures that have been mandated could provide increased protections inside the structure. Mr. Smith noted that the protections he has proposed will already go beyond the code requirements by providing one-hour separation between group U areas which are between 20 - 45% of the maximum allowed by Section 406.3.1.
Mr. Smith reviewed slides from a recent ICC seminar regarding Section 508 – separations and mixed-use occupancies. Mr. Smith reviewed page G113 from the approved design of the open parking garage and noted that it states that mixed uses shall be allowed in the same building as an open parking garage subject to a variety of things including Section 508.1. He noted that mixed occupancies are already approved within the existing parking garage. Mr. Smith stated that going back to the ICC seminar regarding Section 508 and this being specific, fire barriers are per 707, horizontal assemblies per 711, or both. He noted the four key components in Section 508.1 that regulate mixed-occupancy buildings: occupancy classification (includes fire protection), allowable height, allowable area, and separation. He furthered that it is important to note that the determination of the option
depends on the owner/designer, and separated occupancies has been selected which brings them to Section 508.4. He furthered that the building official must verify at least one of those four classifications. Mr. Smith stated that in regard to Table 508.4.4, in Section 406.3.1, there is a requirement not specified in Table 508.4, but Table 508.4 is very clear in that there is no separation requirement between Group U private garages and the adjacent S-2 open parking garage space. He furthered that where occupancy separations also define the limits of any fire areas as established in Chapter 9 for requiring an automatic sprinkler system, additional provisions shall apply. He stated that it seems that this is the sort of separation that the reviewers are mandated and that the separations in question are not fire area separations. Mr. Smith cited Section 901.7 regarding fire areas. Mr. Smith cited Section 903.2.11 regarding specific building areas and hazards and noted that most of those area limitations are 12,000 square feet. He furthered that every single occupancy group has some sort of specified limit, except for Group U. He stated that Group U is clearly the lowest hazard of all of the groups. The separation requirements of Section 406.3.1 are not meant to create a fire area within a Group U occupancy – the area limitation is far smaller than what exists for any of the higher risk occupancies, and in fact, Section 903.2.11 exempts Group U occupancies from fire area limitations. Mr. Smith completed his presentation and summarized his proposal to the Board as follows: 1-hour fire barriers and horizontal assemblies separating all adjacent Group U - private garages, similar wall construction in non-separated areas, however, with unprotected openings, and a reduction in area of Group U – private garages to 20% to 45% of the code limit. Mr. Smith noted that the reason for his appeal is that the overhead clearances within the private garages do not permit any sort of fire protection in the openings in that wall. He furthered that he is not requesting a variance, but only provided that information as a reason for the appeal. Mr. Smith stated that his assertions are as follows: the separation of Private Garage occupancies at 1,000 square feet does not constitute a fire area requiring enclosure, the specification of the separation of adjacent occupancies refers to common walls and horizontal assemblies, specific requirements shall apply over general requirements, and footnote b of Table 508.4 does not apply when the table specifies ‘no separation required’. Mr. Smith stated that the following relief is being sought: for this board to apply all relevant sections of the code, including Section 508.4 – separated occupancies, for this board to find that this proposal complies with the requirements of 406.3.1, and for this board to find that this proposal complies with the requirements of Table 508.4 and footnote b. Mr. Smith thanked the Board for its consideration and ended his presentation.

Mr. Taralson applauded Mr. Smith for activity in code.

Mr. Taralson stated that there is no such thing as an unprotected opening in a fire barrier.

Mr. Taralson stated that regarding Chapter 9 – fire areas are only used to make determinations as to whether a building is sprinklered or not and has nothing to do with this building as the designer stated “no sprinkler system”. He furthered that a sprinkler has not been proposed so this can be thrown out. Mr. Taralson stated that Mr. Smith mentioned using separated occupancies and referred the Board to the code sheet which stated Table 508.4 – separation of occupancies and that Groups S-2 and U equal none or no separation. Mr. Taralson stated that regarding Table 508, Groups S-2 and U, in similar occupancies and certain cases, but not all, no separation is required. Mr. Taralson read from the commentary, “the purpose of Table 508.4 is to set forth the fire resistant rating required for fire barrier walls between and horizontally to separate occupancies. Fire resistance rating and separation is based on the table and the severity of the occupancies as the hazards are the same”. Mr. Taralson noted that NP stands for “Not Permitted” and S stands for “Sprinklered” and that the footnote states required separation shall be reduced by one hour, but not to less than one hour. He furthered that the minimum is one hour separation. Mr. Taralson referred to the commentary regarding footnote b: “spaces used solely for private or pleasure vehicles, may be reduced by one hour, but never less than one hour”. Mr. Taralson stated that Section 406.3 and the anticipated use of the space takes precedence.

Mr. Smith commented on Table 508.4 footnote b and stated that the subject of the sentence is not required separation and when there is no required separation, it cannot be reduced. He furthered that footnote b only applies to those separations which are two hours or more, and that footnote b cannot create a separation where none exists.

Discussion ensued.

Mr. Wild inquired of the open parking design and if the installation of private garages take away the area that makes it an approved open parking garage. Mr. Taralson stated that open garages were constructed first and then the plan for private garages came up. The openness has to do with ventilation and air running through. He furthered that the code isn’t clear as this is a new idea. Mr. Smith stated that the code is clear in that twenty percent of the area is required to be open, and in no way would the addition of the private garages infringe on that twenty percent requirement In the most restrictive case, even if the partition walls were pushed to the exterior, there would be still be the allowed percentage of openness in that space.

Mr. Berg requested an explanation on the continuity regarding the fire barrier. Mr. Taralson stated that continuity for fire barriers falls under Section 707 in the IBC. He furthered that openings cannot be ignored and the code states that openings in a fire barrier shall be protected. Mr. Taralson stated that fire barriers and fire walls are different
in that fire walls need to go to exterior skin and there are requirements outside of that skin. He stated that fire barriers can go to the outside wall but that they do not typically stop in the middle of nowhere and extra wall requirements are necessary.

Mr. Schoenberg inquired of the Fire Department what the procedure would be to extinguish a fire if a fire took place near one of the private parking garages.

Mr. Erickson, City of Fargo Fire Marshall, explained the standard operating procedure to the Board. He stated that in an open parking garage, there are minimum opening requirements that allow to allow heat and smoke to escape and allows the fire department to operate from a standpipe in the stairwell. He furthered that by enclosing stalls, heat and smoke are allowed to build in an area that is not protected and expose elements that are not typically exposed to heat buildup. Mr. Erickson stated that he reached out to other jurisdictions to inquire how this is handled in other cities, and found that this has not been seen before.

Mr. Berg stated that the fire barrier is crux of issue, and that the fire barrier is there to protect two structures, one that is a Group U to a Group U and in between to protect the inside of another building. He stated that as an architect, he cannot interpret the code, and because this is unclear, it falls on the Building Official to provide direction. He furthered that he could see the question of opening protectives and separation between garage units and if the purpose of that separation is to provide protection from one garage unit to the other, by extension it has to be continuous from the garage unit to the garage that it is in. He furthered that if the charge of the Building Official is to protect the public good and welfare, and the code is stating that there needs to be protection of the garages from each other, you can’t protect the garages from each other if the openings aren’t protected. Mr. Berg inquired if there is a way the doors could be repositioned or find a way to protect the area on either side of the partition.

Mr. Taralson stated that continuity is an issue, and that is up to the designer to present, however, it must be clear that the intent of the code is being met. He furthered that the plan reviewer decided early on that this is a room inside of a building. He stated that the way buildings are looked at is that anything with a roof is a building, and that once it is a building, continuity must be met.

Mr. Berg stated that he questions the horizontal continuity and whether or not there is a way to protect that horizontal path. He furthered that he could see the argument from the Inspections Department side and the black and white view of the code language regarding private garages in Section 406.3.1. He stated that the problem is that this is an unprecedented thing, and there is an interpretation that needs to be made.

Mr. Smith stated that he believes that when Table 508.4 is applied that there is specific requirements and an interpretation is not required. He furthered that Section 1 states that the specific requirements with regard to adjacent walls and that Section 406.3.1 is more vague in that it says that they must be separated by fire barriers as per Section 707. He furthered that he is asking the board to look at 508 as there is no separation requirement between Group U and Group S-2 regardless of any situation.

Mr. Obermiller inquired if the the living areas connected to a sprinkler system. Mr. Taralson confirmed that the living quarters are sprinklered. Mr. Smith stated that they have explored that option, but the garages are not intended to be heated the design for sprinkler systems stated that installation would be difficult due to the structure of the ceiling of the garages. He furthered that they have not sought that as a solution, as they did not see that as option because they have not found anywhere in the code where there is a path available to install a sprinkler.

Discussion ensued regarding the use of a sprinkler system and the possibility of using a sprinkler system in this project.

Mr. Wild commended both parties for their work in the code and stated that issue is at hand is whether or not the Building Official’s interpretation is valid.

Mr. Obermiller stated that any decision that the board makes may set a precedence for other projects in the area.

Discussion ensued regarding footnote b in Table 508.4 and requirements of Section 406.3.1., types of vehicles in open parking garages, separations of spaces, continuity of barriers and walls, horizontal assemblies, and one-hour construction.

Mr. Schoenberg motioned to deny the appeal. Mr. Berg Seconded the motion. All members presented voted aye and the motion was declared carried.

Staff Reports
Mr. Taralson stated that the code meetings will begin this Fall, however, there has been an issue with obtaining code books from the International Code Council. Mr. Taralson stated that there may be an adjustment to the bylaws regarding the definition of quorum, however, that will be brought up at the next meeting.

Mr. Berg motioned to adjourn the meeting. Mr. Obermiller seconded the motion. There being no further business to come before the Board, the meeting was adjourned.

Respectfully submitted,

Bruce Taralson
Board Secretary