CA balcony ordinance white paper

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On June 16, 2015, in Berkeley, California a group of students and their friends at an off-campus party enjoyed the view from a cantilevered balcony. Shortly after midnight, the balcony collapsed, resulting in the tragic deaths of six and an additional seven injuries. Sadly, one of the initial survivors later died of their injuries. A national conversation ensued, highlighting that the building was just constructed less than 10 years prior, and that the balcony had held less weight than it was designed for. Investigations revealed a missing layer of draining membrane, and that the property manager deferred maintenance despite indications of water intrusion into the supporting wood substrate. Wood rot of the support framing led to the balcony being severed near the face of the building. The investigation’s findings allowed the families of the victims a multi-million-dollar settlement against the building owners and their property manager. The state legislature proposed Senate Bill 721 for apartments in an effort to prevent future tragedies, which the governor signed into law. This new ordinance requires inspections of not only cantilevered balconies, but of all wood-reliant exterior elevated elements (often called EEEs or E3). The fast-approaching first inspection deadline is January 1, 2025, and subsequent inspections must be provided by January 1 every six years thereafter. Despite the challenges posed in achieving compliance with the ordinance, there are larger opportunities for property asset management and reducing liability.

California’s balcony inspection ordinance: Turn a fast-approaching challenge into asset management opportunities

Fall 2022

White Paper

Development of toxicity values and reference doses to further evaluate potential human health risks associated with PFAS exposure.

Developing Toxicity Values and Reference Doses

USEPA has established a Preliminary Remediation Goal (PRG) of 70 ppt for groundwater that is a current or potential source of drinking water in locations where no other current state or tribal groundwater standard for PFAS exists.

Developing recommendations for cleaning PFAS-contaminated groundwater

PFAS have yet to be designated as a hazardous substance under CERCLA. With that being said, the USEPA does use its enforcement authority under other existing statutes, including the Safe Drinking Water Act (SDWA), Toxic Substance Control Act (TSCA), and Resource Conservation and Recovery Act (RCRA) to require cleanups of PFAS where necessary. Additionally, 172 PFAS compounds are already included under the Toxics Release Inventory (TRI) reporting program for the 2020 fiscal year. The TRI program requires certain industries to report annually on the quantities of certain hazardous chemicals that they manage during their processes.

Designating PFAS as a regulated “hazardous substance” under CERCLA

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A decade-long response to a tragedy

Photo credit: ABC News

The image presented below (courtesy of the City of Berkeley’s EEE Inspection Program) illustrates that EEEs may include balconies, decks, porches, stairways and walkways more than 6 feet above ground. To fall under the ordinance, an EEE must rely, in whole or in a substantial part, on wood or wood-based products for structural support or stability. Any building with wood reliant EEEs and more than two residential units must be inspected.

Scope of the challenge

Some researchers estimate that over 40% of balconies suffer from undetected water damage. The purpose of the ordinance is to determine whether wood reliant EEEs and associated waterproofing elements are in good, safe condition, adequate working order, and free from fungus, deterioration, decay, or improper alteration to ensure safety. To support the ordinance objective of enhancing public safety, state law requires the inspector be a registered architect, civil engineer, general contractor (Class A, B or C-5), or an ICBO-certified plans examiner or building inspector. Each inspection results in a report required by law to include photographs and narrative to establish a baseline of the current condition of the inspected components for comparison to subsequent inspections. The report states expectations of future performance, projected service life, and recommendations for further inspection or repairs. The ordinance requires 15% of the wood reliant EEEs be inspected both above and below the walking surface. If the wooden elements and steel fasteners are covered by finishes, then selective removal of finishes will be needed to see the bare wood and fasteners. Finish removal is followed by patching so that moisture can’t be reintroduced. Access points, both on the EEEs and below, may need to be blocked for inspector and tenant safety as the work is performed. If access can't be safely and easily achieved to inspect the underside of an EEE, a hydraulic lift, swing stage, scaffolding, or other more elaborate access may be required. This can add expense and complexity to the inspection effort, increase the number of personnel required on site, and add the logistical challenge of re-routing tenant pathways to avoid equipment-related hazards. If the inspection indicates corrective work is needed, but conditions don’t pose an ‘immediate threat’ (a term used in the ordinance) to safety, a permit application for the work is needed within 120 days of the inspector’s delivery of the report. Once a non-emergency permit is approved, the building owner has 120 days to make the repairs unless an extension is granted by the Authority Having Jurisdiction (AHJ). If the owner doesn’t comply with the repair requirements within 180 days, the inspector is required by law to notify the AHJ and the owner. If within 30 days of the date of the notice the repairs are not completed, the owner may receive a civil penalty, currently set at hundreds of dollars a day. If the inspector determines any of the EEEs pose an immediate threat to occupants’ safety, and that preventing occupant access or conducting emergency repairs (including shoring) is necessary, then the AHJ is to be provided a copy of the report within 15 days of its completion. In this case, a final report is added to the scope, to follow up and ensure all required repairs are complete. Review of existing construction documents—such as structural, architectural waterproofing details and relevant prior permits—and of prior due diligence reports is not only ideal, but arguably an important first step for a thorough inspection. Once the report is delivered, owners keep the report available for two inspection cycles (12 years). The report must be disclosed and delivered to the buyer at the time of any subsequent sale, who must themselves keep it on hand for the remainder of the two cycles.

Balconies are architecturally attractive features, and both occupants and guests enjoy the amenity. They can have a long useful life when design, construction and maintenance are thoughtfully integrated. Conversely, that life can be shortened drastically without proper preventative measures. Wood damage can occur at any time, beginning in the timber groves or in the built environment. It may result from water intrusion, insect infestation or fungus. One or all may be present, but there’s often a common theme: water intrusion occurs, resulting in damage to the structure. In most cases of EEE damage, water appears to be the culprit. The beginnings of water intrusion can often be found in poor design details, lack of quality construction, and deferred maintenance. The following measures can help in avoiding water intrusion: Design and construction quality: •Review the specifications for everything installed as an EEE, so wood and fasteners remain dry •Prime all edges of wood trim, particularly at finish detailing •Slope surfaces of balconies away from the face of the building for drainage purposes •Install flashing and waterproofing membranes carefully to drain water from sheathing, trim and structural members •Inspect sealants to their product specifications when first applied •Install inspection access points to limit demolition for future inspections Maintenance: •Create and implement a maintenance program •Remove and re-apply sealant in advance of the product expiration date. •Incorporate the following into a checklist and point out to the inspector any occurrences at EEEs: -Exterior doors or windows that are difficult to open -Penetrations that have leaks -Evidence of ponding of water -Stains on finishes -Blisters, splits or peeling paint -Wood trim that is soft, splitting, evidencing biological growth, or with cavities forming -Loose or weakening connections at balcony rails, posts or stair-stringers -Framing that sags or bounces more than usual

Thoughtful design, quality construction, and regular maintenance: the triple play for a safe balcony

Building codes, ordinances, and laws often establish minimum requirements, so when compliance is the end goal, it only goes so far to reduce risk and liability. To develop a plan that incorporates asset management considerations and minimizes downtime and loss of revenue, a multi-disciplinary approach is needed. Stakeholders need expert advice on maintenance and overcoming any deficiencies in the design or quality of construction. EBI provides our clients with expertise based on our decades of experience in due diligence, engineering and design with a deep bench of authorities in waterproofing, structural, architectural and more to help our clients more effectively manage their assets.

Turning a challenge into opportunities

At EBI, we go beyond what’s expected. We leverage our expertise to identify all potential risks to your asset. Team up with our professionals to plan your compliance with the ordinance and reduce all aspects of property risk. Even if you’ve already taken steps toward complying with the ordinance, we can review those steps to ensure an integrated, multi-disciplinary approach to mitigating risk and reducing liability.

The authors

Jeff Falero, PE Director of Structural Evaluations and Forensics P: (415) 603-1408 jfalero@ebiconsulting.com Paul Roberts Director of Architecture and Engineering P: (813) 955-2859 proberts@ebiconsulting.com

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Read more The building code response to tragedy

City of Berkeley’s EEE Inspection Program)