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OP-ED: Unreinforced Masonry Notice Requirements and the Scarlet Letter

February 27, 2019

Overview

The saga involving Portland’s regulation of unreinforced masonry (URM) buildings continues, pitting building owners against the city over newly required warnings to tenants and the public about safety in the event of a major earthquake. As most participants in this industry are aware, the city this past fall issued an ordinance that requires owners of URM buildings to clearly and conspicuously label them as such. With that requirement comes the attendant concerns of future marketability of the building to tenants and potential buyers.

This has understandably left many building owners looking for solutions, but unfortunately, best practices have been very difficult to identify because the city’s URM placarding program is anything but settled. Perhaps the easiest course to set is the wider one: before fretting about the potential impacts from a URM label, owners may be well served by taking the time to discover whether their building is, in fact, unreinforced.

Ordinance No. 189201 requires URM building owners to post by March 1, 2019 (or by Nov. 1, 2020 for nonprofit building owners), a placard that states: “This is an unreinforced masonry building. Unreinforced masonry buildings may be unsafe in the event of a major earthquake.” Similarly, building owners must provide this same notice to existing tenants.

The ordinance also requires the following term to be included in all lease or rental agreements executed after March 1, 2019: “This building, which you are renting or leasing, is an unreinforced masonry building. Unreinforced masonry buildings have proven to be unsafe in the event of an earthquake.”

While the ordinance was scheduled to take effect on March 1, 2019, a federal judge recently ordered that implementation of the ordinance be delayed by two months, until May 1. That order was entered in connection with a lawsuit filed by a group of masonry building owners against the city in December 2018 (Masonry Building Owners of Oregon, et al v. Wheeler, et al).

In that case, the building owners allege that the ordinance forces them to engage in compelled speech, in violation of the First Amendment to the United States Constitution. In other words, the building owners argue that by requiring them to notify existing tenants, the public and prospective tenants of their buildings’ possible instability in the event of an earthquake, the ordinance violates the building owners’ right to refrain from speaking. The building owners argue this right is not outweighed by the city’s purported interest in protecting its citizens. The building owners also argue the ordinance is impermissibly vague in violation of the due process clause of the 14th Amendment.

Whether the ordinance withstands this legal challenge (or others) remains to be seen. But if the ordinance is implemented as planned, URM building owners will need to comply. So, if the ordinance goes into effect, what should a concerned building owner do?

Simply stated, if the building is not properly on the city’s URM inventory, the building owner does not need to do anything. Before worrying too much over the prospect of slapping a scarlet letter on one’s building, an owner should confirm it is actually unreinforced. Oregon law (as of the date of this article) does not affirmatively require an owner of a commercial building to pay for and/or perform seismic upgrades, except in connection with a change of building occupancy classification or certain building renovations. However, such renovations or even work not triggering seismic upgrades may have pushed a building far closer to being reinforced than the building’s owner and the city appreciate.

Title 24 of the Portland City Code defines unreinforced masonry as: “adobe, burned clay, concrete or sand-lime brick, hollow clay or concrete block, hollow clay tile, rubble and cut stone and unburned clay masonry that does not satisfy the definition of reinforced masonry as defined herein. Plain unreinforced concrete shall not be considered unreinforced masonry for the purpose of this Chapter.”

The roots of the city’s inventory started with a visual survey of buildings fitting this description, and goes back some 20 years. While the city has taken steps to update the inventory periodically with building permit and inspection information, it is almost certainly not 100 percent accurate.

An owner who has previously performed seismic upgrades to its building should evaluate whether those upgrades are sufficient to declassify the building as “unreinforced masonry,” thus requiring removal from the city’s inventory. Sometimes, the reinforcement needed is not as costly as building owners assume, and may include such steps as tying the walls to the foundation, tying the roof to the walls, and reinforcing roof parapets. Owners should consult a licensed engineer to look at the building’s history and its current state to determine whether the work performed over the years meets the city’s relevant reinforcement requirements.

If an engineer determines that the seismic upgrades are likely enough to get the building removed from the unreinforced masonry inventory, the owner can file a code appeal with the Portland Bureau of Development Services. While this process is not always straightforward, if successful, the building can avoid receiving a label as a forever potentially bad place to be during an earthquake. And more importantly, the owner can obtain some level of confidence that the building need not be subject to the requirement for a full bevy of costly upgrades likely still to come from City Hall.

Column first appeared in the Daily Journal of Commerce on February 26, 2019.

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