Letter to Members of the New York State Building Codes Council

February 28, 2006

Author: Michael Hanley

To: Members of the New York State Building Codes Council

Date: February 28, 2006

Re: Review of City of Rochester Lead Paint Poisoning Prevention
Act as a “More Restrictive Local Standard”

In connection with the State Building Code Council’s review of the City of Rochester’s Lead Paint Poisoning Prevention Act, we submit the following three comments for your consideration:

1. Insofar as Rochester’s local ordinance amends a local maintenance code, not a construction code, the State Building Codes Council is not obligated to review the ordinance as a “more restrictive local standard.”

Section 379 of the Executive Law provides that:

. . the legislative body of any local government may duly enact or adopt local laws or ordinances imposing higher or more restrictive standards for construction within the jurisdiction of such local government than are applicable generally to such local government in the uniform code. Within thirty days of such enactment or adoption, the chief executive officer, or if there be none, the chairman of the legislative body of such local government, shall so notify the council, and shall petition the council for a determination of whether such local laws or ordinances are more stringent than the standards for construction applicable generally to such local government in the uniform code. During the period in which the council is considering such petition, such local laws or ordinances shall remain in full force and effect.

The Rochester law under review is not a construction code, but rather amends Rochester’s local property maintenance standards for existing housing units in order to assure that lead-based paint hazards will be addressed, and that in doing so, the property owners will not expose occupants (or future occupants) to increased hazards by disturbing lead based paint without using adequate precautions. As discussed more fully below, the state’s uniform Property Maintenance Code has no specific provisions addressing lead-based paint hazards, and has no requirements regarding the use of lead-safe work practice when lead-based paint is disturbed.

Although the “more restrictive local standards” approval requirement provided for in Section 379 of Article 18 of the Executive Law does not apply to local property maintenance codes, that is not to say that the state lacks authority under Article 18 to promulgate regulations establishing minimum standards for property maintenance. We merely offer that the specific requirement under Section 379 of Article 18 that the local municipality submit any more restrictive local construction code for approval by the state Building Code Council does not apply in connection with more restrictive local maintenance standards. Apart from the overall intent to provide minimum safety standards for fire protection, with respect to the aspects of the Article intended to address questions of uniformity and multiplicity, the purpose of the 1981 revisions to Article 18 was (as stated in Section 371) to avoid duplication in construction codes. It was certainly not the intent of the legislature to interfere with local efforts to address safety concerns other than fire prevention.

A state law which would have the effect of preempting the routine police powers of a municipality to regulate health and safety must be narrowly construed. Accordingly, the language used by the legislature regarding the Building Codes Council review requirement, i.e., its choice to limit the provision to “construction” codes, must presumed to have been an intended distinction and should be given literal application.

We would encourage the Council to seek an opinion from the office of the Attorney General if there is any question whether it is appropriate for the State Building Codes Council to review a maintenance standard as opposed to a construction standard as a “more restrictive local ordinance.”

2. If the Council determines that it must review the Rochester Lead Poisoning Prevention Act, the ordinance should nonetheless be approved insofar as Section 379 specifically exempts from the state’s approval requirements any matter not addressed in the state’s Uniform Fire Prevention and Building Code. The local ordinance provisions at issue (addressing lead-based paint hazards and the use of lead-safe work practices) are not in any way addressed in the Uniform Fire Prevention and Building Code or in the Property Maintenance Code for the State of New York.

Executive Law Section 379, subdivision 3 states that:

Nothing in this article shall be construed to prohibit any municipality from adopting or enacting any building regulations relating to any matter as to which the uniform fire prevention and building code does not provide, but no municipality shall have the power to supersede, void, repeal or make more or less restrictive any provisions of this article or of rules or regulations made pursuant hereto.

The clear and stated intent of Section 379, then is not to interfere with local safety standards related to subjects which had not been included in the state’s own regulations.

There are no provisions in the Property Maintenance Code that address lead-based paint hazards in existing buildings. There are two provisions relating to deteriorated paint, but those provisions do not take into account whether that paint is lead-based or not, and include no provisions for requiring that lead-safe work practices be used if lead-based paint is disturbed, as by sanding, scraping or burning. (Sections 303.2 addresses exterior paint conditions and Section 304.3 addresses interior paint conditions). Neither of these provisions describe or make a violation the problems created by lead-based paint hazards that may be present on intact (i.e. nondeteriorated) paint surfaces. For example, the EPA and HUD definitions for “lead-based paint hazards” (included verbatim in the Rochester ordinance) include hazards created by the presence of lead-base paint from intact paint on friction, impact or chewable surfaces.

The provisions of the Rochester ordinance do not interfere with the state’s efforts to require that deteriorated paint violations be addressed. The new ordinance merely requires that in doing so the owner address the deteriorated paint violation using federally recognized lead-safe work practices when the paint is found to be lead-based, or is presumed to be lead-based because of the age of the building.

3. If the Council concludes that the Rochester ordinance does include matters addressed in the state’s Property Maintenance Code, the Rochester ordinance should nonetheless be approved because it is “reasonably necessary” to address “special conditions” in the Rochester area.

Executive Law Section 379, subdivision 2 states that:

If the council finds that such higher or more restrictive standards are reasonably necessary because of special conditions prevailing within the local government and that such standards conform with accepted engineering and fire prevention practices and the purposes of this article, the council shall adopt such standards, in whole or part.

A reading of this provision actually underscores the argument that Section 379 was intended to apply to construction codes only, but to the extent that it might be concluded that Section 379 applies to a maintenance code, the language of subdivision 2 would have to take into account the special needs in the Rochester area.

Outside of New York City (which is exempt from Article 18, and which already has in place its own local lead-paint ordinance) only the City of Buffalo has more children poisoned annually by lead than the city of Rochester. As has been documented in the submissions made by the city, lead poisoning is having a devastating impact on the city’s schools, on the juvenile justice system, and on the vitality of city neighborhoods.

The Department of Health’s 2004 plan, “Eliminating Childhood Lead Poisoning in New York State by 2010,” reports that, statewide, only 2.7% of the children in New York State had Elevated Blood Lead Levels in excess of 10 μg/dl. In many of Rochester’s neighborhoods, however, the incidence level exceeds 30%. (See the table presented at, “Lead Poisoning Among Young Children in Monroe County, Center for Governmental Research, May 2002.

Three factors that HUD has accepted as key indicators of housing likely to contain lead hazards are: 1) the proportion rental housing, 2) the age of the housing stock, and 3) the poverty of the neighborhood. Rochester's housing is at extreme risk on all three measures. According to U.S. census data, nearly 60% of Rochester's occupied housing is rental housing, and over 95% of those rental units were built before 1980. In fact, over 70% of the city's rental units were built before 1960 and have a very high probability of containing lead paint. On top of that, the oldest neighborhoods with the largest proportion of rental units are also the poorest sections of the city. The percentage of children under 18 living in poverty in the city is 38%, making Rochester one of the highest poverty areas in the state. In fact, that poverty level reaches to between 48% and 54% in three of the city's ten planning sectors. It's not surprising then, that Rochester’s incidence rate for children with elevated blood levels is at or near the highest in the state.

With respect to whether the measures taken by the city are “reasonably necessary,” we note that the city has adopted an approach to carrying out its inspections for lead based paint hazards that targets the housing most likely to pose lead hazards by establishing a designated “high risk” area which was based upon an examination of the actual incidents of lead poisonings over an eleven year period, based on county health department data.

With respect to the question of “accepted engineering and fire prevention practices,” we again note that it is clear this provision was intended to apply to construction, not maintenance, standards. Nevertheless, to the extent that the Codes Council wishes to apply this standard to Rochester’s property maintenance code, we note that the local lead-paint ordinance incorporates by reference the clearance standards of the federal regulations as developed over a decade by the EPA and HUD. The only new standard that is applied is the standard for porches, since the EPA and HUD no longer provide specific clearance standards for exterior porches, but in our area they could not be ignored. Local studies have documented that lead dust on porches is a significant source of lead contamination in houses in the Rochester area. Accordingly, the Rochester ordinance has extended to porches the EPA’s similar standard for window troughs, and additionally provided that a heads-up warning be provided to occupants when the porch exceeds the safe levels for interior floors, so that occupants know they should take extra precautions to protect their children.

Accordingly, the Rochester ordinance reflects reasonably necessary measures addressing special local conditions using accepted practices and standards. 

Conclusion:

While we believe that the State Building Codes Council is not required under Executive Law § 379 to review Rochester’s lead-paint ordinance as a “more restrictive local standard,” if the Council chooses to do so, we request that the Council either 1) Approve the ordinance based upon the fact that it addresses a matter not considered in the state’s uniform code, or 2) Approve the ordinance based upon the fact that it reasonably addresses special local conditions using accepted practices and standards.