OP-ED: At what point must a developer hire an architect?
The dividing line between what a developer can do on its own by way of “design” for a construction project and when a licensed architect or engineer is required has never been entirely clear, but the Oregon Court of Appeals recently provided some much needed guidance on the subject.
In the case of Twist Architecture & Design Inc. v. Oregon Board of Architect Examiners (2016), a Washington architectural firm – not licensed in Oregon – was hired by a developer in Oregon to provide feasibility studies for various proposed big-box projects. The feasibility studies provided aerial view drawings of proposed developments that showed the property boundaries, the surrounding streets, potential locations for buildings (some with square footage), parking space counts and some landscaping. The purpose of the drawings, as the name “feasibility study” implies, was to determine if a project was viable and to market and prelease the buildings in order to pay for development.
The Oregon Board of Architect Examiners, the agency responsible for licensing architects and enforcing the rules against the unlicensed practice of architecture, determined that the drafting of such feasibility studies amounted to the practice of architecture in Oregon and required the services of a licensed architect.
Such an expansive definition of the practice of architecture requiring a license would be very problematic not only for developers but also for anyone in the exploratory phases of a construction project. Would a back-of-a-napkin sketch be the unlicensed practice of architecture in Oregon? What about an artist’s rendering of a proposed structure?
Luckily, the Oregon Court of Appeals provided a more workable definition for what is, and what is not, the practice of architecture that requires a license. The dividing line, as explained by the Court of Appeals in its decision, is that “the practice of architecture necessitates the planning or preparing of work for use in the actual construction, rather than planning for a building in the abstract.”
Draft construction plans – those destined for the permitting process and eventually used in construction – require the services of a licensed architect. But the mere evaluation of a project – whether the property will allow for the required square footage, number of parking spaces and access to roads to make a project worth pursuing – can be performed by anyone regardless of a design professional license.
Our back-of-a-napkin dream projects and Andy Warhol-inspired soup-can skyscrapers are still safe for the amateur designer in all of us.
Column first appeared in the Daily Journal of Commerce on May 25, 2016.