Construction Board of Adjustment Minutes - 11/10/2022 CONSTRUCTION BOARD of AJUSTMENT & APPEALS
WORK SESSION NOTES
November 10, 2022
PRESENT:
James Cox •Member
Michael Grassi •Member
David Hartwell •Member
Anthony Inman •Member
Leo Lane •Member
Allen Moore •Member
Gary Oatman •Member
Ripley Tate •Member
James McKechnie, Deputy City Attorney •City Staff
Paul Menzies, Assistant City Manager •City Staff
Terry Floyd, Development Services Director •City Staff
Ricky Horton, Chief Building Official •City Staff
Cody Melton, Fire Marshal •City Staff
Brad Scates, Assist. Building Official •City Staff
Martin Wolfe, Plumbing Inspector •City Staff
Christal Cates, Senior Executive Assist. •City Staff
OTHER ATTENDEES iF
Rick Hernandez
Gary Mehan
Larry Nelson
Phillip Townsend
I. CALL TO ORDER
Chairman, Mr. Leo Lane called the meeting to order and turned the floor over to Chief
Building Official, Mr. Ricky Horton for item discussion.
II. REGULAR AGENDA
Mr. Horton reintroduced the item related to the recommendation of adoption of
amendments to the City of Wichita Falls Code of Ordinances — Chapter 22, Article ii —
Building Codes, Sections 107.1, 107.1.1 and 107.1.2, related to requirements for building
permit submittal of documents by a registered design professional and advised he and city
staff were available for any questions the Board may have. Mr. Horton turned the floor over
to Mr. James McKechnie for a presentation from the legal department.
Mr. McKechnie stated at the last meeting held September 29, 2022, the Board asked what
the definition of "design" would be. Mr. McKechnie presented the Practice of Engineering
and the General Rules, noting the two main rules that would apply would be (2) design,
conceptual design, or conceptual design coordination of engineering works or systems; and
(10) a service, design, analysis, or other work performed for a public or private entity in
connection with a utility, structure, building, machine, equipment, process, system, work,
project, or industrial or consumer product or equipment of a mechanical, electrical,
Work Session Notes 2 November 10, 2022
electronic, chemical, hydraulic, pneumatic, geotechnical, or thermal nature. Mr. McKechnie
advised the Board of the exemptions:
(a) A person, sole proprietorship, firm, partnership, joint stock association, or private
corporation is exempt from the licensing requirements of this chapter if:
(1) a representation that engineering services have been or will be offered to the
public is not made or implied; and
(2) the person or entity is erecting, constructing, enlarging, altering, or repairing
or is drawing plans or specifications for:
(A) a private dwelling;
(B) apartments not exceeding eight units for each building in the case of
one-story buildings;
(C) apartments not exceeding four units for each building and having a
maximum height of two stories;
(D) a garage or other structure pertinent to a building described by
Paragraph (A), (B), or(C);
(E) a private building to be used exclusively for:
• (i)farm, ranch, or agricultural purposes; or
• (ii)storage of raw agricultural commodities; or
(F) a building having no more than one story that:
• (i) is not a building exempt from the licensing requirements of this
chapter under Section 1001.053 or subject to Section 1001.407;
• (ii) has a total floor area of not more than 5,000 square feet; and
• (iii) does not contain a clear span between supporting structures
greater than 24 feet on the narrow side.
Mr. McKechnie next advised on the research he had done to determine the definition of
"design' and stated the Texas Supreme Court adopted the Chevron deference analysis
test, which is a four-part test consisting of
• Step 1: Does the agency have authority to enforce the statute (i.e., is the statute
within the agency's area of expertise)?
• Step 2: Does the agency interpretation conflict with the plain language of statute?
• Step 3: Is the agency interpretation reasonable?
• Step 4: Courts will generally uphold agency interpretation
Mr. McKechnie stated in case law the following was found, "When construing statutes, or
anything else, one cannot divorce text from context. The meaning of words read in isolation
is frequently contrary to the meaning of words read contextually in light of what surrounds
them. Given the enormous power of context to transform the meaning of language, courts
should resist rulings anchored in hyper-technical readings of isolated words or phrases.
The import of language, plain or not, must be drawn from the surrounding context,
particularly when construing everyday words and phrases that are inordinately context-
sensitive." Hallmark Mktg. Co. v. Hegar, 488 S.W.3d 795, 799 (Tex. 2016)
Mr. McKechnie advised by following the Courts rules of interpretation and Chevron test of
deference to agency the term "design" would be defined "To form plan or scheme of,
conceive and arrange in mind, originate mentally, plan out, contrive. Black's Law
Dictionary, 6th Ed. 1990." Mr. McKechnie advised the Board the term "design" regarding
Work Session Notes 3 November 10, 2022
engineering is not defined in the Act or our Board rules. However, Board staff has
characteristically said that typical maintenance issues like replacement of equipment is not
considered to be the practice of engineering, especially when it is "in-kind" replacement,
i.e., you are replacing old or not working equipment with the same kind of equipment,
same, size, same loading, same footprint, etc. That being said, the first example of adding
load to an electrical panel would be considered the practice of engineering, whereas
replacing light bulbs/fixtures is considered more maintenance and would not be considered
the practice of engineering. Mr. McKechnie asked if there were any questions the Board
had for him from a legal perspective. No questions were presented and the floor was
turned back over to Mr. Horton.
Mr. Allen Moore asked technical questions about replacing a/c units versus replacing lights.
Chairman Lane gave other examples of having to have a hard line drawn somewhere
without creating more grey areas.
Mr. Moore stated he would like to know when this was originally adopted and what the
reasoning behind the adoption of such. Mr. Terry Floyd stated the quality of the presented
plan sets for review were not acceptable.
Mr. Oatman stated he believed there were various levels of involvement that an engineer
could have and asked what level the City would accept. Mr. Horton stated each project is
different, however, the City would certainly look at each set of plans and consider what the
engineer of record has stated.
Mr. Anthony Inman stated he would like to adopt the state required minimums as this
provides the most flexibility. He stated there was a project involving a pet resort that stated
the City was too difficult in their requirements and therefore built outside of city limits losing
that tax revenue.
Mr. Hartwell asked what initiated the discussion of this amendment. Mr. Floyd stated this
was at the request of City Council to look into this rule and advise on it.
Mr. Ripley Tate stated he is not a design professional but deals with a lot of construction
professionals and hears about problems developers face with city requirements for small
business owners trying to develop. Mr. Tate stated he would like to see the mind-set of the
city staff shift to take the best interest of the developers and not what is easiest for the staff.
Mr. Michael Grassi stated he supports amending to the state minimum requirements since
trade licenses allows them to design. Mr. Horton advised yes, TDLR license allowed them
to design, however, PELS does not agree or follow with TDLR.
Chairman Lane stated even with the state minimum of 20,000sf. the city would still require
a full set of plans with engineers' stamp, this would only cut out the architects.
Mr. Inman asked -how the square footage was calculated. Mr. Horton stated it was a
cumulative calculation under one roof.
Work Session Notes 4 November 10, 2022
Mr. Horton stated to the Board that the life and safety was the biggest concern staff has in
making sure citizens were safe. He advised the recommendations were listed in the
packets handed out by staff for their review and discussion and that no action would be
taken today.
The proposed ordinance revisions for consideration for Chapter 22 — Article II — Building
Codes, Section 107 Submittal Documents were presented in the work session packet as
follows:
Option 1
107.1 General. Submittal documents consisting of construction documents, statement of
special inspections, geotechnical report and other data shall be submitted in one or more
sets with each permit application. The construction documents shall be prepared and
sealed with an official seal by an architect or engineer legally registered under the laws of
the State of Texas regulating the practice of architecture as defined by the Texas
Occupations Code.
Option 2
107.2 General. Submittal documents consisting of construction documents, statement of
special inspections, geotechnical report and other data shall be submitted in one or more
sets with each permit application. The construction documents shall be prepared and
sealed with an official seal by an architect or engineer legally registered under the laws of
the State of Texas regulating the practice of architecture or engineering when the permit
application concerns the following:
visp
1. A building or structure of 5,000 square feet or more in area.
The Board discussed the options presented and what compromise might could be made.
Chairman Lane stated he believed a 3rd option of a 10,000sf. rule for architects and 5,000
for engineers made the most sense and asked staff to come up with this wording and
present at the next meeting.
Mr. Floyd advised the Board the amendment they recommended regarding ventilation
would go before City Council for a vote on Tuesday, November 15th at 8:30am.
Ill. Adjourn
Mr. Leo Lane adjourned the meeting at 2:53pm.
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Chairman Date