Tuesday, June 8, 2010

Isn’t the variance application just a piece of paper?

Architectural projects will never be perfect. And sometimes we might have to see how we can be creative in solving issues and still maintain the rules in order to make things work. My good friend Wally Tirado, RAS is a genius when it comes to asking the agency in Texas (TDLR) permission to have certain conditions that may not be able to adhere with the rules, to be able to remain as they are until such time when it can be fixed.  These are called Variance in the State of Texas.  I invited him to be a guest blogger on Abadi Accessibility News and give us his trade secrets on how to get a variance passed in Texas. Hope you enjoy

Isn’t the variance application just a piece of paper? I don’t know let’s find out. Probably one of most common question, I get asked as a Registered Accessibility Specialist is whether this or that qualifies for a variance. Any other question asked of me I will almost always invariably answer “it depends”. However, when it comes to variances, my answer almost always is, “I don’t think so.”

Before you stop reading here and move on, please understand most variances fail because the applicant fails to understand the technical and procedural requirements of how you can qualify for a variance, not because it doesn’t qualify. I have offered seminars on variances so I’ll try to be brief and stick to the basics. Let me make some thing clear first however. As a RAS, as stated in our specific rules of conduct (yes we have them), I am not to, “state or imply the department will approve a variance.” I won’t pretend to either, that’s TDLR’s job.

Let’s start with technical aspects of variances with a couple of important definitions structurally impractical and technically infeasible. Structurally impractical defines whereas in new construction some feature would prevent compliance. Technically infeasible would apply to where some existing condition would prevent compliance. Construction defects, in all likelihood will not qualify for a variance. The condition was created, so would the department waive them?

When you are applying for variance you need to prove that either impracticality or infeasibility exists. Cost is generally not a factor unless it is disproportionate to overall cost of the project. The Department of Justice has defined “disproportionate” as costing more than 20% of overall cost of the project.

Now, on to the procedural aspects of filing a variance. The variance application is not just a cover letter for your resume, it IS your resume. Most variances will fail simply because the form isn’t filled out correctly. Furthermore, don’t assume that the person reviewing the application understands your project or willing to take the time to. Provide as much documentation as it takes to prove your case. Don’t limit yourself to that ¾” wide box to state your intentions. Provide plans, specifications, cut sheets even photographs; anything to help describe the condition.

If you don’t understand the variance process, get help. Ask a RAS or call TDLR, they’ll tell you over the phone where your condition would be a good candidate. Also remember TDLR is a government agency as such, they run on pushing paper, so make sure yours is right. In the beginning of this post I asked, “Isn’t the variance application just a piece of paper?” Well isn’t money a piece of paper too?

Wally Tirado is a RAS with EAB Services, LLC. He can be reached at wally@eabservices.com


Marcela Rhoads said...

Thank you Wally...you never disappoint!

Chris Fish said...

Very informative Wally..thanks.

Robert Posey, AB Program Manager said...

Well written, but you need to consider one other premise. As the state government agceny charged with implementing the Texas Architectural Barriers Act, we are forbidden by law to approve any variance that would violate the federal Americans with Disabilities Act. As I am part of the variance process, I can assure you that the majority of variances are disapproved because the condition the variance is seeking relief from would violate the ADA.

by Marcela Abadi Rhoads said...

Thank you Bob! It is good to hear from you about this. This is by far the most confusing part of the process. Most people that I encounter just think that if there is a construction mistake they can ask for a variance rather than fixing it. It's good to explain what is a good candidate and which one's are not.

Robert Kutner said...

My experience in California has been that the local jurisdictions base their interpretatins of the accessibility requirements upon the California Building Code (CBC). Even though the CBC is generally more stringent than the ADA, complying with the CBC, or obtaining a variance from the local jurisdiction based upon the CBC, does not assure compliance with the ADA.