There was an interesting article in our Sunday paper the other
day about houses built of straw bales.
I can just hear your response to that topic: "Code enforcement
officers are hassling me because I want to use a wood composite
they haven't seen before, but they're approving houses made of
straw. Who's running the building department, the three little
I'm not sure how houses built of straw bales meet code —
but since they get occupancy permits, they obviously do. Still,
I can understand your question: "So why am I having so much
What Building Codes Do
Think about how building codes work. They aren't written to
force you to use only certain materials or designs, or to
exclude the use of straw bales or any other products as
building materials. It just seems that way.
Codes are written to ensure that those straw bales — or
whatever — meet the code's health and safety
For example, the code will require some level of fire
resistance, so that if the building catches fire the occupants
have time to get out alive.
If the people who want to use straw bales can demonstrate that
the burn time of straw bales meets the code standard, it
doesn't matter if the code enforcement officer thinks straw
houses are the worst idea since the Hindenburg — he
should still give them a pass on the fire-
What if he won't? We'll get to that in a minute.
You Bear the Burden of Proof
Let's talk about that new wood composite you want to use for
Suppose the code enforcement officer is concerned about the
load-carrying capacity of those joists. If he or she waves you
off, your only choice is to prove that the wood composite will
carry the load — or you can use something else.
All the code officer has to do is express his concern. He
doesn't have to prove he's right; you have to prove he's
Evaluation reports. Since you don't
have a scientist or a lab tech on the payroll, how are you
going to find that proof?
Start by contacting the manufacturer. Odds are the company
already has proof in the form of an evaluation report from the
ICC Evaluation Service (ICC-ES), a subsidiary of the
International Code Council.
The process works like this: The manufacturer fills out an
application to have the material evaluated and pays an
accredited laboratory to test it. The results are given to the
ICC-ES, which does a technical evaluation.
If the ICC-ES determines that the material meets code, it
issues an evaluation report. The report describes the material,
what it's approved for, and the conditions under which it can
be used. The report is proof that the material or method meets
Manufacturers, naturally, want to sell you stuff, so they make
it easy to get reports. They can mail you the report for a
particular product or you can download it from the Web.
When It's Less Clear-Cut
Straw bales, of course, don't have manufacturers. So for them
you would need to look elsewhere for proof. The same holds true
for any project in which you're doing or using something really
unique. Look to trade and scientific journals for articles to
bolster your argument, or check the published proceedings of
the code body.
If you don't find anything helpful, you may have to hire a lab
to do professional testing. First, though, check the Internet
to see if someone else has already performed the test and can
provide the results. The reference librarian in your local
public library would be an enormous help to you in finding this
Design issues. Remember that the problem might
not be with the materials you're using — it might be your
Let's say, for instance, that energy costs create a sudden new
demand for sealed, unvented attics as a means of bringing hvac
ducts into conditioned space.
If the inspector isn't familiar with this method, he might
insist you install vents. But that would defeat the purpose of
what you want to do. It would be up to you to prove that your
method would work.
If you plan to seal the attic with a particular material, like
sprayed-in-place foam insulation, the manufacturer should be
able to help. Otherwise, you need to do some research or get a
stamped design from an architect or engineer.
Is any of this going to cost extra money? You betcha.
Will it be worth it? That's between you and your clients
— I assume you're using this unusual design or product
because they asked for it. If that's the case, there are two
provisions you should write into your contract.
Contract provisions. First, the contract needs to
say that the cost of meeting code is part of the building cost.
This is important because proving that you met code might wind
up costing more than you anticipated. After all, engineers,
architects, and lab techs make a nice living.
Second, make it clear in your contract that you're using this
new material or this unusual design at the customer's request,
and you're advising the customer that new materials and designs
can carry unforeseen risks. That language will be your
protection if the straw bales — even after being approved
by the code enforcement officer — do turn out to have a
big fire problem.
Wouldn't the fact that you met code requirements get you off
the hook for using a dangerous material?
It couldn't hurt, but trust me: You still need to get that
sign-off from your customer.
There's One Last Resort
Suppose you've done everything I've advised and the code
enforcement officer is still objecting. Although you think your
evidence is convincing, he doesn't. What then? Should you
appeal to the building department?
If the building department is big enough and the inspector
who's objecting isn't in charge — or isn't the only one
there — you could try appealing. But in many towns, there
isn't a neutral party for you to appeal to, which means your
only recourse is to go straight to court.
Does the court have the authority to overturn a code
enforcement officer? Yes, it does.
Remember, though, that in court you will still have to prove
that your design or material meets the health and safety
standards of the code.
Quenda Behler Story, author of The Contractor's
Plain-English Legal Guide, has practiced and taught law for
more than 25 years.