My Terrible Experience with Passive Home Construction

My Terrible Experience with Passive Home Construction

My Terrible Experience with Passive Home Construction

This wiring was the standard workmanship for my new home.

As I continue to build out the final touches of the Emerson Street House (ESH), I am constantly amazed at how much I have learned. I walked into the ESH project thinking that construction in passive homes is fairly straight forward. I was wrong, big time. The wow factor for me has been learning how the builders, architects, and contractors that I trusted to serve my best interests, were only lining their pocket books. Quality and care were secondary to money, and the goal of the project seemed to transition from building my home, to getting a project done as cheaply as possible, while charging me top dollar. Of course, I couldn’t keep this to myself and decided to reach out to the Oregon Construction Contractors Board (CCB) who is responsible for managing all construction contractors in Oregon . The CCB supposed to be advocating on my behalf.

Fast forward many months later and many conversations later, I’m convinced the CCB isn’t doing what is in the best interest of the Oregon community at large. More on that later.

So as a trained accountant, I decided to check out their 2017 budget.

What I found was shocking.

CCB’s Mission

The CCB protects Oregonians by preventing and resolving construction contracting problems by:

  • Licensing contractors and developing licensing standards.
  • Enforcing construction contractor laws.
  • Mediating disputes between homeowners and licensed contractors.
  • Educating the public about licensing requirements.

Background:

In 1972, the Oregon legislature determined that the construction industry would benefit from basic regulations of homebuilders and created the CCB. Today, the CCB regulates both residential and commercial contractors.

In 1970, the US Congress created OSHA (Occupational Safety and Health Act), which is one of the first agencies to set standards for contractors. My father, an underground and solid waste contractor in Boston, conducted his business in an unregulated environment before OSHA. He bid City of Boston Contracts, which required him to hire Union workers. The “Contract rules” included operating standards, many not in writing.  The City employees who supervised the Contracts were paid cash by the Contractors. My father kept detailed records of all cash payments for tax purposes, as did all Contractors.

In 1972, the CCB was the only agency providing Licensing, Enforcement and Education for homebuilders. Today there are private businesses and non-profits agencies that serve the residential and commercial construction industry exclusively by providing Education Classes and Certifications. Contractors spend a significant amount of their time in classrooms and meetings, instead of the job site.

The CCB’s role in enforcement has been hi-jacked by social media apps such as Houzz, Angie’s list, Next Door, Facebook, Twitter, etc.  Folks ask for referrals online and rate their experiences with individual companies. The CCB only provides assurance of no cases settled against the Contractor and then only when a customer accesses the CCB web site.  Social media apps deliver information instantaneously.

The CCB’s mission has strayed from its original mission and is focused on keeping itself in business. Technology has disrupted residential and commercial construction, making the Construction Contractors Board obsolete and unnecessary. Private business and non-profit agencies have emerged and are doing the work that the CCB was originally designed to do.

The Goal of Oregon

Oregonians succeed in vibrant communities that offer opportunities for everyone to reach their full potential.  

A thriving Oregon is resilient and sustains the well-being of current and future generations. 

– Kate Brown, Governor, stated intension from her web site

The CCB is self-serving and no longer serves the needs of current and future generations of Oregonians.

My Awful Experience

Due to overwhelming number of construction defects and constant denial of problems, I decided to file a CCB complaint against Birdsmouth Construction LLC for the Emerson Street House.  There were numerous issues with my house: faulty wiring, plumbing leaks, no ventilation, heat pump failure, closets installed incorrectly, unfinished floors, half the appliances didn’t work, no maintenance manuals, etc. The CCB took 4 months to schedule a mediator. I requested complete documentation for each contractor of the cost plus contract – the original bid, all change orders, and verification of payment – documentation that I am entitled to by law – and the CCB mediator denied my request. We followed the CCB procedures, paid over $43,000 in legal fees, wasted a huge amount of our time and did not get what we asked for and are legally entitled to.

In retrospect, we were foolish to think that any mediator could understand the complexities of residential construction today. The Emerson Street House is a “high-performance” house, Certified Passive Net Zero, by PHIUS+ and Earth Advantage, two non-profit agencies. Both non-profit agencies teach Passive House Courses and Certify Passive House Builders, a clear conflict of interest in my opinion.

Below is a video that was produced by Going Street Films and directed by Erik Odin Cathcart, Earth Advantage, Director, Marketing & Strategy, and featuring Ryan Shanahan, Earth Advantage, Senior Green Building Consultant and Josh Salinger, Founder & CEO, SHP | Certified Passive House Builder, Birdsmouth Construction LLC, outlines our intention for the Emerson Street House.

I originally listed Birdsmouth Construction LLC, Earth Advantage, Small Planet Supply, In Situ Architecture, Caitilin Pope Daum Landscape as collaborative partners on the Emerson Street House web site.

Imagine our surprise when my “collaborative partners” refused to help me correct the “construction defects” in the Emerson Street House or even talk to us. It seems something went wrong on November 2015 and instead of speaking with me, Birdsmouth regressed to old Portland Construction industry solutions – “Gaslighting” and bullying by lawyer.

In the end I did my own research to identify and correct construction defects in the Emerson Street House. My father operated on trust – a man’s word is his bond – which is how I learned construction. After the fact, I realized I was stupid to operate on trust. I learned that I should have hired an Owner’s Representative to oversee Birdsmouth’s work.

My Recommendation – Terminate the Oregon CCB

After my experience with the CCB, I genuinely wondered what benefit they are offering to the community and at what cost. They have a high budget of $16MM, and their share of value is limited to running interference.

I propose, terminating the Construction Contractors Board (CCB) and removing $16,674,481 and 63 positions from the 2017-2019 Total Expense Budget and $16,674,481 from 2017-2019 Total Revenues.

Terminating the CCB will bring down the cost of housing, saving each of the 36,000 licensed contractors $463 and an estimated 20 hours minimum per year in administration and education costs.

Terminating 63 public employees is never an easy decision. However, the construction industry is booming right now which create opportunities for CCB employees to move into private industry. The CCB employees come with an excellent understanding of construction contracting law, including those laws they would like to see changed or modified.

Former CCB employees will be valuable assets to large contractors, in many cases replacing company lawyers and/or outside law firms in drafting documents, interpreting contracts, identifying problems and crafting solutions before problems escalate to law suits. At $50.00 an hour, former CCB employees are affordable as compared to Portland lawyers, where the minimum hourly rate seems to be $300.00 an hour.

Other former CCB employees can hang out their own shingle (on the door of their home, now their live/work space) as an Owner’s Rep, charge $50.00 an hour and make a nice middle class living in their own neighborhood, supporting good local contractors and providing protection from unscrupulous contractors.

Owner’s Reps are becoming more common in the construction industry, replacing the need for the CCB.  In my case, I needed protection from the CCB and Birdsmouth Construction.

The Emerson Street House, an Oregon Benefits Company, is committed to Core Values of ACCOUNTABILITY and TRANSPARENCY. All documents related to building the Emerson Street House, including the CCB Complaint and correspondence with Sub-Contractors and Vendors, are available for review in paper and electronic form upon request. We are particularly interested in sharing with architecture and design students interested in building sustainable, resilient communities.

Share Your Experience

Have you had an experience with a federal, state, county, city, town or other government agency that you want to share? Do you have a suggestion on how to make that agency more efficient by reducing costs and/or eliminating the agency?

E-mail me at diane@emersonstreethouse.com if you wish or just “lurk” in the background, think about what I have to say and share when you feel comfortable.

2 replies
    • DianeFreaney
      DianeFreaney says:

      Thank you for asking. The post has been noticed by folks who prefer to lurk, listen and speak to me privately. I received this e-mail from a colleague, who like you, prefers to remain Anonymous.

      “First and foremost, given the long and frustrating experience that you went through (and are still going through), I am glad that you are telling your story to the world. I am sure people who are embarking on similar journeys will find it useful while others who have traveled a similar path and had similar frustrations can commiserate. I did like the photo of the external box. It might horrify a lot of people like it horrified me when I first laid eyes on it 🙂

      The remainder of this email is my feedback on your blog and feel free to ignore it if you don’t find it useful.

      I feel that you could have created three distinct blogs out of this single and told parts of your story from three distinct POVs.

      First would be from the perspective of what it takes to build a passive house, the trials, the pitfalls and your experience. This could resonate with people who have built passive homes, in the process of building one or thinking about it. You could have a whole discussion around this topic.

      Next is your story about how your issues and grievances were handled, the actors involved including the CCB and the process you went through (or had to go through). This part of your experience was/is independent of the “passive house” aspect and could resonate with anyone who was doing a construction project and had issues that needed resolution.

      Finally, critique of the CCB itself and possible alternate solutions. I totally agree that this is a conversation worth having and a great blog topic. Makes sense to analyze their purpose, budget and source of funding. Personally, I have misgivings about a couple of the things that you suggest as part of your solution.

      Social media…yes, crowdsourcing based on consumer experiences can be a good thing but it can also be extremely biased. Like “free market theory”, it makes certain assumptions. Assumes that the reviews are a representative set of customers to have a legitimate average rating and eventually the “consumer market” will determine its correct rating. The number of stars and/or the superlative used are extremely subjective. Reviewers can leave reviews anonymously, w/o verification or extent of investment and bombard the site with damaging reviews with little recourse for the vendor. Likewise, an unscrupulous vendor can stack the ratings through proxies or bots and/or through sponsorship. Sites are constantly trying to combat this but given the amount of sponsored reviews that exist on the Internet (despite the disclaimers at the end of reviews which readers don’t have patience to get to) this is a losing battle. Bottom line is that online ratings should be used as data points that you should then research further based on the investment in question. If you are deciding where to have lunch then you don’t lose much by taking the ratings at face value. On the other hand if you are hiring a contractor, you must do substantial due diligence. My concern is that people might get lazy and solely depend on online ratings or social media which at the end of the day won’t be an improvement on regulatory bodies. Social media and online tools allow every one of us to have a voice and a platform to vocalize from but it is up to us to use it wisely for conversations and cocreating solutions. It is also up to us to make sure that users of these tools are open, transparent and held accountable. The “self regulation” process won’t happen just because “market forces” and “consumers” will make it so. Look how well that turned out for financial markets 😉

      Owner’s rep…this has existed for a while in various forms in various markets, e.g., real estate buyer broker who represents only the buyer’s interest. It can be a good thing but it is debatable as to whether the intent is always followed. So it still requires the owner and the rep to draw up an “operating agreement”, transparency and process in milestones and payments etc. But hiring an “owner’s rep” is not a panacea. Regardless of trust, due diligence is absolutely required if nothing else to identify incompetence (as opposed to fraud). On a related subject, my understanding was that Birdsmouth was your “general contractor” which is an “owner rep” even if they don’t have a card that explicitly says that. They were supposed to look out for you, have an “operating agreement” with you and be transparent about their processes and payments. Based on your narrative this seems to be a failure on their part to hold their end up. Finally, one is faced with similar issues if one finds “owner rep” not functioning or “owner rep” does or claims to do due diligence but contractor/vendor still turns out to be a bad one.”

      I will be taking my colleagues advice and breaking this blog post into three parts and reposting to encourage further conversation.

      In some ways I am grateful to Birdsmouth Construction for doing such poor work that I had no choice but to do my own research and hire contractors to correct construction defects. If Birdsmouth had met the minimum requirements required for permits, I would have been unhappy without really knowing why.

      Instead I have had the opportunity to meet and work with true craftsmen (and women) – folks who have taught me about the construction industry while doing their work. Folks who believe like I do that the Emerson Street House is a Living Building in a Living Community, not just bricks and mortar.

      Reply

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