Issue DS 2019-078: The petitioner Ted Caplow is seeking a declaratory statement on whether dwelling units as depicted in Figure 1 of the attached petition meet the definition of townhouse under the Florida Building Code, Residential?

Petitioner seeks clarification of the following questions:

Do the dwelling units in Project A meet the definition of townhouse under the Florida Building Code?
Do the dwelling units in Project B meet the definition of townhouse under the Florida Building Code?
Do the dwelling units in Project C meet the definition of townhouse under the Florida Building Code?
If the answer is yes to one or more of the questions (1-3) above, does it follow that the townhouse in that project are subject to the Florida Building Code, Residential , and therefore not subject to the Florida Building Code, Building?

Background:

Grayscale Partners, LLC is a small developer pursuing the design and construction of sustainable and resilient townhouses in several South Florida locales (focused in Miami-Dade County). We are elevating these projects by design, to prepare for sea level rise. We want to be sure that the dwelling units that we wish to build will qualify as townhouses under the Florida Building Code. We have three projects in development that we ask the Commission to consider (see Figure 1). In each project, the townhouses are elevated or partially elevated. We find the definitions in the Code somewhat ambiguous with regard to elevated, or partially elevated, townhouses.

In Project A, the ground floor of each townhouse contains an enclosed garage at the front that does not extend the full depth of the floor plate above it. To the rear of the garage, there is a paved area, owned by that townhouse. These paved areas, one under each townhouse, are connected together to form a driving lane. Each townhouse will grant their neighbors access to their section of this lane, via an easement, so that these neighbors can drive to their own garages, passing beneath the neighboring townhouse(s). No other vehicular access is available.

In Project B, there is no solid enclosure at the ground floor. Each townhouse will own the area

beneath it, and will use this area for parking. They will also allow their neighbors, via easement,

to drive through this area to reach their own homes.

Project C is identical to Project B, except no easement will exist. The space beneath each townhouse will be owned and used exclusively by that unit. A common driveway lies outside the building envelope.

In all three projects A. B, and C, the following conditions are present:

1. The townhouses are three stories above grade in height;

2. The townhouses are built in a row of three or more units (separated by a common wall);

3. Each townhouse has an independent means of egress;

4. Property lines separate each townhouse from its neighbors;

5. Each townhouse extends from the foundation to the roof (via columns in some cases);

6. A yard or public way exists on at least two sides of each townhouse;

7. Each townhouse is designed to comply with the townhouse fire separation requirements

in section R302.2 and R302.2.1 of the Building Code, Residential, as follows:

a. Where the ground floor is enclosed, a common 2-hour fire-resistance-rated wall

will be continuous from the foundation to the roof; and

b. Where the ground floor is not enclosed, the fire barrier continuity requirements of

R302.2.1 will be met by a 1-hour fire-resistance-rating at each slab separating

the area underneath the townhouse from the floor above it (maintaining a total 2-hour rating between adjacent townhouse interiors);

8. In all respects not addressed specifically herein, the townhouses will also comply with all

of the applicable requirements for townhouses in the Florida Building Code, Residential.

6^th Edition (2017) Florida Building Code, Building Chapter 1

101.2 Scope. The provisions of this code shall apply to the construction, alteration, relocation, enlargement, replacement, repair, equipment, use and occupancy, location, maintenance, removal and demolition of every building or structure or any appurtenances connected or attached to such buildings or structures.

Exceptions:

1. Detached one- and two-family dwellings and multiple single-family dwellings (townhouses) not more than three stories above grade plane in height with a separate means of egress, and their accessory structures not more than three stories above grade plane in height, shall comply with the Florida Building Code, Residential.

2. Code requirements that address snow loads and earthquake protection are pervasive; they are left in place but shall not be utilized or enforced because Florida has no snow load or earthquake threat.

6^th Edition (2017) Florida Building Code, Residential Chapter 1

R101.2 Scope.

The provisions of the Florida Building Code, Residential shall apply to the construction, alteration, movement, enlargement, replacement, repair, equipment, use and occupancy, location, removal and demolition of detached one and two-family dwellings and townhouses not more than three stories above grade plane in height with a separate means of egress and their accessory structures not more than three stories above grade plane in height.

6^th Edition (2017) Florida Building Code, Residential Chapter 2

R202 Definitions

[RB]TOWNHOUSE.

A single-family dwelling unit not exceeding three stories in height constructed in a group of two or more attached units with property lines separating such units in which each unit extends from foundation to roof and with a yard or public way on not less than two sides.

[RB]YARD

An open space, other than a court, unobstructed from the ground to the sky, except where specifically provided by this code, on the lot on which a building is situated.

6^th Edition (2017) Florida Building Code, Residential Chapter 3

R302.2 Fire Resistant Construction: Townhouses.

Each townhouse shall be considered a separate building and shall be separated by separate fire resistance rated exterior wall assemblies meeting the requirements of zero clearance from property lines of Section R302.1 for exterior walls.

Exception: A common 2-hour fire-resistance-rated wall assembly tested in accordance with ASTM El 19, UL 263, or in accordance with the Florida Building Code, Building Section 722 is permitted for townhouses if such walls do not contain plumbing or mechanical equipment, ducts or vents in the cavity of the common wall unless such materials and methods of penetration comply with Section R302.4. The wall shall be rated for fire exposure from both sides and shall extend to and be tight against exterior walls and the underside of the roof sheathing. Electrical installations shall be installed in accordance with Chapters 34 through 43. Penetrations of electrical outlet boxes shall be in accordance with Section R302.4.

SECTION R302 FIRE-RESISTANT CONSTRUCTION

R302.1 Exterior walls. Construction, projections, openings and penetrations of exterior walls of dwellings and accessory buildings shall comply with Table R302.1.

“See attached”

R302.2.1 Continuity.

The fire-resistance-rated wall or assembly separating townhouses shall be continuous from the foundation to the underside of the roof sheathing, deck or slab. The fire-resistance rating shall extend the full length of the wall or assembly, including wall extensions through and separating attached enclosed accessory structures.

R302.2.4 Structural independence. Each individual townhouse shall be structurally independent.

Exceptions:

1. Foundations supporting exterior walls or common walls.

2. Structural roof and wall sheathing from each unit fastened to the common wall framing.

3. Nonstructural wall and roof coverings.

4. Flashing at termination of roof covering over common wall.

Florida Statutes (2020)

553.73 Florida Building Code.—

(13) The Florida Building Code does not apply to, and no code enforcement action shall be brought with respect to, zoning requirements, land use requirements, and owner specifications or programmatic requirements which do not pertain to and govern the design, construction, erection, alteration, modification, repair, or demolition of public or private buildings, structures, or facilities or to programmatic requirements that do not pertain to enforcement of the Florida Building Code. Additionally, a local code enforcement agency may not administer or enforce the Florida Building Code to prevent the siting of any publicly owned facility, including, but not limited to, correctional facilities, juvenile justice facilities, or state universities, community colleges, or public education facilities, as provided by law.

DS 2014-043

Question: Since a townhouse unit is consider a single family dwelling unit with zero lot lines, must each townhouse unit have their own separate utilities including the electric, fire sprinkler system if required, and water/sewer service contain within their own buildings?

Conclusion of Law

12. In accordance with s. 553.73, Florida Statutes (2013), the Commission has no jurisdiction by which to issue declaratory statements with regard to land use, zoning, or easements. The Commission has authority to issue declaratory statements with regard to building construction, as reflected in the answer.

13. In response to the Petitioner’s question, the answer is yes, the building should be treated as a separate building pursuant to Section R302.2, Florida Building Code, Residential (2010).

Staff Analysis

Question 1: Do the dwelling units in Project A meet the definition of townhouse under the Florida Building Code?

Question 2: Do the dwelling units in Project B meet the definition of townhouse under the Florida Building Code?

Question 3: Do the dwelling units in Project C meet the definition of townhouse under the Florida Building Code?

Question 4: If the answer is yes to one or more of the questions (1-3) above, does it follow that the townhouses in that project are subject to the Florida Building Code, Residential, and therefore not subject to the Florida Building Code, Building?

Option #1/Petitioner:

We believe the answer to all four questions is yes.

We believe that in each of our projects A, B, and C, these dwellings meet each of the criteria in the definition of townhouse in R202: the dwellings are three stories in height. Each dwelling has its own means of egress. The dwellings are constructed in a group of two or more attached units. Property lines separate each unit. Each unit extends from foundation to roof. Finally, there is a yard on (at least) two sides of each unit.

Further, we believe the townhouses in each project meet the fire separation continuity requirements in R302.2.1. Our interpretation of this section for an elevated townhome is as follows:

(a) In area where a common wall exists, the 2-hour fire resistance rating extends the full length of the wall, as required;

(b) In area where the townhouse is elevated and structurally open beneath and no common wall exists, it is logical that the continuity of the fire separation would apply to the slab above the open portion. Each such slab in our projects will have (at least) a 1-hour fire resistance rating, thus maintaining a total fire resistance rating of 2-hours between townhouse interiors.

Further, we believe that the presence or absence of an easement across, under, or through part of the building has no effect on whether the dwelling unit meet the definition of townhouse under the Building Code, per the earlier finding of the Building Commission DS 2014-043, paragraph (12), and also per the townhouse definition in R202, which does not preclude easements.

Finally, we believe that any dwelling unit meeting the definition of townhouse under the Florida Building Code, as clarified by the Building Commission pursuant to this Petition, would be subject to the Florida Building Code, Residential, and not the Florida Building Code, Building.

Clarification of the correct classification of these projects into the appropriate Building Code, Residential or Building, will have important benefits to these projects and to others, particularly in localities where lot widths and setbacks do not permit a separate driveway outside the building footprint, and where elevation for sea level rise creates and opportunity to use the space beneath the townhouses for parking and/or access.

Option #2/Staff:

Question 1: Do the dwelling units in Project A meet the definition of townhouse under the Florida Building Code?

Answer: The answer to Petitioner’s question is no. The project in question does not meet the fire separation requirements of Sections R302.1, R302.2 and R302.2.1 of the 6^th Edition (2017) Florida Building Code, Residential, which require that each townhouse be considered a separate building and be separated by a separate and continuous fire rated wall assembly meeting the requirements of zero clearance from property lines of Section R302.1 for exterior walls.

Question 2: Do the dwelling units in Project B meet the definition of townhouse under the Florida Building Code?

Question 3: Do the dwelling units in Project C meet the definition of townhouse under the Florida Building Code?

Answer: Since the answers to Questions 1 through 3 are no, the answer to this question is also no. The design and construction of the projects in question are subject to the requirements of 6^th Edition (2017) Florida Building Code, Building and not the requirements of the 6^th Edition (2017) Florida Building Code, Residential.