THE END OF BUILDING PERMITS
NOVEMBER, 2010

Last week, I received a root canal and a crown. Earlier this year, my son broke his arm while playing soccer. Several years ago, I was party to a protracted lawsuit arising from a labor dispute. In each case, licensed professionals - a dentist, a couple of doctors, and a small army of lawyers - provided their services without asking the government once for its permission.  Architects are also licensed professionals who provide valuable services.  Why, then, does their work require a building permit? Why is there a unique plan check process for each project that is constructed but not for each operation performed by a surgeon or each lawsuit filed by an attorney?

Having passed rigorous tests and met additional requirements, all professions are licensed by the state in which they practice and expected to respect its relevant regulations. In return, the professional's title is protected to prevent unscrupulous people from undermining the professional’s own investment and the public’s trust in the profession. The state generally does not review the professional’s work before it is performed, but does reserve the authority to investigate or audit the professional and deal harshly with complaints. This seems like both a fair and pragmatic arrangement that serves the public’s interest to protect its own health, safety and welfare without creating a police state of government monitors to oversee every tonsillectomy and legal brief.  The great exception to this rule, of course, is construction, where local governments must pre-approve each proposed structure for its intent to comply with the law before construction is allowed to commence. What is going on here? Where did the architecture profession – along with the building engineering professions - seemingly turn left while everyone else turned right?

The answer stems from the long entrenched tradition of building trades and the relatively short history of architecture as a recognized profession. (NOTE: I’ll focus on architecture, but the same lessons can generally be applied to all engineers who apply their professions to the design and documentation of structures.) Architecture is a relatively young profession (but an old practice) dating only from the late 19th century in the US and Europe. Before the general acceptance of architecture as a profession, and still today to a lesser degree, the practice of designing buildings was simply a “trade” and part of the arts & crafts traditions. For thousands of years before anyone was called an “architect,” people were building and building trades such as carpenters, masons and stonecutters lead these efforts. Although architects sometimes like to trace their history to “master builders” of centuries past, and even as far as the Egyptian god, Imhoptep (my gods, we’re an egotistical lot!), it is unclear whether the modern equivalent of yesterday’s “master builder” is today’s architect or in fact a general contractor.

The idea that some trades could be called “professions” dates from 16th century Europe and the development of the middle class. Although buildings were obviously being designed by individuals and groups of people for centuries, the idea that the practice of architecture might be a “profession” was only born in the late 18th century as a fitting preoccupation for gentlemen. The Architect’s Club, founded in England in 1791, was one of the first architectural societies and admitted only members of the Royal Academy or other fine arts academies. The first professional organizations did not begin until the early 19th century in Europe and the mid 19th century in US with the formation, in December 1836, of the American Institution of Architects by Thomas U. Walter and a handful of Northeastern architects. 

Progress establishing the profession’s dominion over building design was slow, and most practices and protections associated today with architects were only codified in 20th century. Licensing of architects and protection of the title, “architect” title, were not pervasive until well into the 20th century, while related professions such as interior design and landscape architecture are still unlicensed today in most areas.

The drafting of building plans also dates only from the 19th century. Prior to drafting, builders depended on full scale details drawn in chalk on boards, built models and pen and ink perspectives. Drafting conventions grew as buildings became more complex and distant from the designers, but also in response to a growing need to create legal record and satisfy requirements of the earliest building codes. It is interesting to follow the current trends in Building Information Modeling (BIM) to move the profession away from drafting as its primary means of communication and towards computer-based modeling, elaborate perspectives and full scale, in the sense that they have no drawing scale, details. It may be that drafting, one of the most fundamental skills taught in architecture schools for generations, is one day dismissed as an aberration in the very long history of communicating design intent.

So, architecture as a profession and drafting construction documents grew up more or less together and are not so old that they should be looked upon as “permanent” or “natural” conditions of society. They are basically 19th century inventions built on top of trades in response to the prevailing conditions at that time. The body of law called building codes also was invented and developed in the late 19th century and early 20th century first to protect the public, but also to set performance standards and regulate the building trades. Architects are expected to enforce the building codes on behalf of the state by using drafting to communicate to the trades how a building is to be built.

Long before architecture became a profession, other professions such as medicine and law also evolved from trades, but gradually they eliminated through regulation the legal practice of the trades from which they evolved. Today, there is no legal “trade” of medicine, dentistry or law to compete directly with these respective professions. There are para-medics and para-legals, but these are clearly very limited and different. When drugs are prescribed, teeth extracted, surgery performed or lawsuits argued in court, it is assumed to be done by a fully licensed professional otherwise – without consideration for the actual quality of the work performed – it is null, void, and illegal.

In contrast to these professions, several legal means exist to practice building design (aka architecture), and they are common today. For example, licensed civil and structural engineers can generally supplant the architect as the designers of record for a building, vouching for the design’s overall conformity to codes, even though they have probably not been trained in architecture or even the life safety sections of the code. In most areas of the country, individuals and building contractors can take responsibility for the design of small structures up to designated limits such as three stories in height and two-units. Housing that is produced in a factory and delivered to the site may be the product of unlicensed designers and systems engineers licensed by the states transportation department. Ceding control of your teeth, your fortune, your freedom, and your health to a professional class is one thing, but the roof over your head, too? The cliché, “A man’s home is his castle,” reflects a powerful and deeply rooted attachment to direct control over one’s shelter, and our society does not appear ready to allow it to be monopolized by one profession.

Because there are multiple paths by which a building can be designed and because the architectural profession became pervasive throughout the country only after the development of the building codes that regulate it, a new bureaucracy that did not depend on the existence of the architect was created to verify code compliance: the Building Department. Entrenching matters further, the Building Department is funded through fees collected from the same people that it regulates, generally making it a profit center for local governments and a popular mechanism for increasing revenue without increasing taxes.

As a consequence of Building Departments that are redundant with the architect’s skill set, geared to verify plans coming from the least qualified group of people, and incentivized to catch errors, an adversarial relationship naturally develops between the plan checker employed by the government and the architect licensed by the same government. Well-trained professionals become tempted to rely upon the building plan checker to “catch” code deficiencies in their documents as there is no financial incentive for the architect or the client to do better than a trades person; their drawings will incur the same scrutiny, delay and cost as anyone else’s. A cat and mouse game develops between the permit applicant and the building authority. To the detriment of their primary responsibility to protect public health, safety and welfare, architects focus only on defending their client's parochial interests under the oft-cited guise of providing “professional service.” The ideal of a licensed professional representing the community and the health, safety and welfare of society slides into in conflict with the actual way in which architecture is practiced and remunerated under the current system.

The entire system is frustrating and wasteful for everyone, but architects get the worst of all worlds. They pass rigorous tests to be licensed by their state with approximately the same statutory obligations to uphold the law as other professions, but they must submit each of their drawings to the same type of case-by-case review as an unlicensed trade. Not even a licensed driver needs a new permit for each trip to the store. The government effectively deputizes the architect to defend its laws, but then denies him the trust and authority to enforce them. Since the architect cannot represent the state, her only alternative to make a living is to represent the client against the state which devalues the architect and tends to only “punish the good.”

Before going further, however, we should deflate the myth that pre-checking construction drawings somehow ensures higher construction quality or greater conformance with building codes.

First, there is no reason to expect that a plan checker within just the few hours available to review a project, and with no greater qualification than the architect(s) who has(have) prepared the documents for possibly months, can provide anything more than a superficial peer review that has any value greater than the few hours devoted to it. In practice, of course, document errors are often found, just as other errors are missed and new ones even introduced by the person doing the checking. This is consistent with the practice of peer review found in any scientific or technical field. The problem is compounded by the expectation that plan checkers are anyway paid to find errors so there is an incentive to produce drawings only good enough to pass the plan checker, not necessarily good enough for the architect’s own professional standards or even good enough to construct the building.

Secondly, as the name “plan checker” implies, a plan checker verifies plans, not actual compliance with building codes. That is the job of a building inspector in the field. When an problem is found in permit documents, it is not a building code error, but a documentation deficiency that may or may not translate into an actual construction error later. There are many checks and balances in the system to prevent deficiencies in documents from being constructed. Moreover, to an astounding degree, the plan check process is about documenting compliance with abstractions that are not actually built, such as exiting and accessibility paths, standard toilet and elevator details, minimum and maximum stair dimensions (not the actual ones), pre-existing conditions, highly theoretical predictions of energy consumption, and more. All plan check comments serve only to correct shortcomings in documentation rather than actual design or construction.

We can characterize the building permit process used more or less consistently everywhere in the US as a very expensive and mostly futile attempt to police someone's intentions to respect or to violate the building code. Imagine if the IRS annually audited both your actual tax returns and your accountant’s intention to file your tax return. Imagine if the police prohibited you from leaving your driveway because your spouse or mechanic has not documented your intention to not speed.

Let’s look at a very simple example in some depth. No actual building code violation occurs by simply drawing a door that swings in the wrong direction. A violation only occurs if the door is installed incorrectly. The plan check process assumes that if the door swing is wrong on the drawings, then the contractor (and not the architect who actually drew it poorly) intends to violate the code at some time in the future and this needs to be prevented. It is true that this could happen, but anyone with construction experience knows that this is just speculation. Errors are frequently caught by experienced subcontracors through product submittals and shop drawings. For example, the door supplier would probably know how the door should be correctly installed or the architect and contractor might detect the problem when reviewing shop drawings. It is also worth noting that this same system of redundancy that catches drawing errors can also introduce new errors in the field, long after the plan checker is out of the picture.

But, let’s stay with the door swing. If the door swing is drawn incorrectly, the plan checker might ask the architect to change the drawing so there is at least one fewer potential code violation during construction and no explicit potential code violation in the drawings. Drawing the door swing wrongly is an error of “commission” in the drawings. But what if no door swing is indicated at all, or the door is shown in a closed position, or there is some other ambiguity about it? This could be an error of “omission,” because information is lacking and the checker must speculate how the contractor will install the door. The drawings are not clear. The plan checker might require the architect to add the correct door swing, but all he or she is doing is ensuring that correct instructions for regarding that particular issue are available.  Any conclusion beyond that is only speculation.

The example of a door swing is simplistic, of course, but illustrates how any set of drawings for even a very simple building is only an abstract representation of something that might be constructed in the future. Like a business plan for a start-up company, a battle plan for a military campaign, or a detailed itinerary for a future trip, drawings are not the thing itself, but a more or less comprehensive description of what it is intended to be. By the very definition of abstraction, drawings (and even building information models) cannot fully document every aspect of how a building will be constructed. At its core, the building permit process is predicated on “pre-catching” presumed code violations based on a well-intentioned but incomplete description of the owner’s and the contractor’s intentions.

Under the current system, local governments might enjoy their revenue stream from permit fees, and certain individuals benefit from steady employment, but, in reality, everyone loses. The state loses because it bears a double burden for licensing professionals and then enforcing regulations as if the professionals did not exist. This creates backlogs in the permit system, which ultimately cost the government in deferred property tax revenue and deferred spending on construction. In a large city, dozens of plan checkers are employed to review drawings when they could be inspecting actual work, auditing professionals for competency and dealing only with exceptions and complaints. Both speed and safety would be improved, and there would still be fees income.

The profession loses for many of the same reasons. The system of documenting and checking design intentions consumes massive time and fees, both of which are ultimately passed on to the client and the clients’ clients without adding any value to the actual building. Moreover, without any special status for code enforcement from the state, the architecture profession has difficulty defending its own value in comparison to non-professionals in the residential market and other engineering professions acting in the commercial and institutional markets. Ironically, the profession’s adversarial posture relative to the state devalues it relative to the clients it is hired to serve.

The clients and consumers lose because – of course – they ultimately pay for this broken system through higher fees, construction costs, housing prices, office rents, taxes, and delay (therefore adding to financing costs). Clients who want to build are also demoralized by this system founded on distrust and delay and are more likely to seek all possible alternatives to building. This is not only bad for a local government’s economy, but for notions of a democratic society as well.

The solution to this problem is very hard, but not very complicated: building permits should be abolished, and every building project larger than a dog house should require the direction of a licensed architect. It is illegal for a non-licensed person to administer medical care. It is illegal for anyone to consume certain drugs without a doctor's prescription. It is prohibited for a non-licensed person to practice law before a court or to fill your cavities. The elimination of building permits is not as radical as the idea that they exist in the first place.(Let’s interject here that we have not discussed the concept of planning approvals, which are very different because they are part of a larger democratic process of accommodation and most zoning ordinances address only high level issues such as building area and envelope, parking configuration, and appropriate use. They set the rules of arbitration between the client’s proposed specific land use and the community’s desired long term land use at a macro scale.)

It should be impossible to build without the approval and oversight of a licensed architect employing an appropriately complete set of documents. Plan checkers should be transformed into plan auditors and trainers who periodically review the architect's documents for accuracy and completeness and have the power to sanction non-complying architects. Ask the IRS: the multiplying effect of the threat of future audits would improve document quality far more than increasing the number of plan checkers devoted to each plan. Building departments would continue to inspect constructed work, to rule on exceptions and ambiguities in the building code, and become “auditors” of the architect's documents and practices.

Building departments could smoothly transition to this new system by first launching a voluntary program to “certify” certain architects who can bypass the plan check process in exchange for accepting greater responsibility and potential practice audits in the future. A certification exam, based on the same code training that plan checkers currently receive would be required with obligatory annual refresher exams. The cost of this program would be paid by the certified architect who would see his or her value increase exponentially in proportion to the time cut out of the plan review process.

After this pilot program is in place, market forces would be allowed to work. The “certified” architects will logically be more expensive than their colleagues because they assume more responsibility (perhaps with greater insurance premiums) and ongoing training costs, but the client would see a net savings in reduced permit fees (but these would not go away since there are still costs for site inspections and the auditing), reduced overall project time and far greater predictability. Society at large will also benefit by aligning the building department with the design profession so that they work together towards more code compliant and safer buildings.

Architects are licensed by states to enforce building codes and protect the public health, safety and welfare. They should assume this responsibility and be empowered to authorize building construction, subject to the similar types of audits and controls already in place among in other professions.