How to Get Started: Legalizing Unpermitted Construction

Welcome to the ‘Brave New World’

(updated 12/21/2016) You may or may not be familiar with Aldous Huxley’s book of the same name. It describes a society that had been established that had separated itself from all of the traditional forms of life and had established completely modern ways and means of completing the work to be accomplished. After reading it, it leaves one with a feeling of hopelessness and dreariness regarding the ‘future’. While a part of the bleak science fiction of the last century, it and other ‘classics’ such as Orwell’s 1984 among other things presents a picture of an oppressive and tyrannical version of life where people are controlled by a police state which masquerades as a friend but in reality is a slave master.

Over the course of the last year, I have come across a few people, clients and otherwise, who have the view that we are living in such a time. They cite their experiences with various municipalities as evidence that this is in fact a reality for us today. I will politely and cordially refrain from stating my personal views on such matters for the moment (although I think I have stated them elsewhere), and deal with the matter at hand… namely, if you have found yourself to be the subject of investigation as well as the object of some bureaucratic structure, you need to tread lightly. I will in this post feature a number of aspects of things to consider related to the whole process, and hopefully how one may extricate oneself from potential nightmares without losing your business or too much money.

Regardless of the relevance of those books to today’s society, we do live in a world where there are increasing requirements on us to keep laws which range in impact, cost, density size and complexity. These laws also affect our capabilities of doing things such as running a normal business. The laws on the cover / face value attempt to codify the protection of life, safety and health. But, the laws (and in this example, I am being more specific) and especially the building codes are written according to the various capabilities of one group, say, the steel industry, to lobby more effectively than the wood industry. The resulting lobbying results in a codified monopoly where the building owner or building tenant is the one who pays the price while the lobbyists are laughing their way to the bank.

So, as a client or potential client, there are a few things that you can do that will help you when you are trying to get your project legalized:

  1. You need to be extremely humble. Because you have committed an illegal act, at best you are viewed as naïve and at worst a perpetrator. Regardless of which of these you are, until your work is legalized, you are in a position of needing to be held accountable.
  2. You don’t have a friend at City Hall if you have constructed items illegally. They will most likely be kind and polite, but as far as your work is concerned, the various governing officials are willing to rake you over the coals, so to speak, if you are unwilling to comply with what they require of you. In this type of a situation, you need to be willing to play their game or quit and go home. This ‘quitting’ may mean that you move your business to another location.
  3. Don’t think that you can successfully fight them unless you have a boatload of cash. In that case, you would have been better off hiring an Architect from the beginning and pursuing things their way from the outset.
  4. If you have a time constraint, don’t count on things going your way. An architect is available to help you try to get your situation legalized. But, since you pursued your work without a permit, you have put yourself in a tough spot. In reality, the only thing an architect can do is stamp plans. He can try to help you cover the things that you left out, neglected or basically just ignored. But ultimately, it is your responsibility to deal with the reality of the work that you have begun.
  5. Your illegal construction is going to cost you money to be fixed. It will cost you time to be fixed. Putting pressure on any of the various people you have to deal with, be they City Officials, Architects or whomever, will only muddy the water and make things more difficult for yourself.
  6. If you have decided on a scope of work (legalize construction), don’t change it without a contract, so that everyone, your architect included, is on the same page and expectations for the process are all managed.
  7. Don’t try to sneak illegal things by them. They won’t take too kindly to your trying to do it, and it will invite 10X more scrutiny than you would normally encounter.

It would have been cheaper to do it the right way in the first place. But now, for some reason, you need to bring your commercial building, tenant improvement or residence up to the current building code. To do it, you will follow the process that everyone else uses to get their work permitted the right way:

  1. Submittal to planning
  2. Submittal to Building and Safety
  3. Clearance through governing agencies
  4. Obtain the permit
  5. Do the work
  6. Obtain the Certificate of Occupancy (if it is a business)

A few relevant facts in working with Grizzly Bear Architecture and Design on LUC projects:

  • Of the nine LUC projects we have worked on through the end of 2016, five have been residences and four have been businesses.
  • The cost impact to the client of fixing the work has ranged from a few hundred dollars to half a million dollars. In each situation, the governing authority has either been complained to by a third party concerning the work to be performed or the authority was driving by and saw the work being performed without a permit.
  • We have spent over 760 man hours on LUC projects
  • The overall breakdown by our function is the following:
    • Architect of Record = 2%
    • Project Architect=41%
    • Drafting= 47%
    • Clerical=10%
  • The costliest impact has been when the client needs to have an issue addressed from both a ‘Planning’ and a ‘Building and Safety’ consideration.
  • If an only ‘Building and Safety’ is relevant to the work to be completed, there is much less time spent.
  • Consultants have been needed on four of the nine jobs
  • Residential- Minor Impact Percentages: Building and Safety alone
    • Architect of Record = less than 1%
    • Project Architect=23%
    • Drafting= 62%
    • Clerical=15%
  • Residential- Major Impact Percentages: Planning / Building and Safety combo
    • Architect of Record = less than 1%
    • Project Architect=51%
    • Drafting= 44%
    • Clerical=4%
  • Business- Minor Impact Percentages:
    • Architect of Record = less than 1%
    • Project Architect=28%
    • Drafting= 63%
    • Clerical=9%
  • Business- Major Impact Percentages:
    • Architect of Record = less than 1%
    • Project Architect=48%
    • Drafting= 36%
    • Clerical=16%
  • Residential – shortest time to completion has been less than 6 hours; greatest time to completion has been over 250 man hours.
  • Business- shortest time to completion has been less than 18 hours; greatest time to completion has been over 210 man hours.
  • Ultimately, the speed of getting it up to code is mostly dependent upon the client and secondarily the combination of design and permitting processes. If it takes the client a long time to consider how he will move forward, then the whole process will slow down.
  • The main issues you will encounter are those related to costs and time and the interaction between both. The more time it takes, the more you can save money to get the work accomplished. The flip side is that the longer you wait, the more money it will cost you in fees and citations from the City, which can range from several hundred to several thousand dollars.
  • The greatest length of time chronologically has been two and a half years. The shortest has been less than two weeks.
  • It is cheaper and easier to demolish everything that was done than to fix it. Fixing it requires bringing the structure or building in question up to current codes. If demolition is your choice, you still need to have a demolition permit.
  • Planning is the first place to start. If your work is acceptable to the Planning Department, then your costs will be limited to building permit issues. If you need to obtain special variances or other types of permission, then the process is longer and thereby more expensive.

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