If a condition is permitted under the 2008 NEC, but violates the 2005 NEC will it nevertheless be issued a violation, by a municipality that has not yet adopted the 2008 code and is still operating under the 2005 Code? (NYC).
(Specifically I am concerned with 690.64(B)(2) which is LESS RESTRICTIVE in 2008 than in 2005.

Will that violation in general automatically be removed (voided, nullified) when the city adopts the 2008 code?

Yekmon:
On this side of the river (NJ) the 'codes' that are in effect upon issuance of the project permit prevail to the closure of that job.

However, a 'variation' could be applied for tho the AHJ for consideration. Variations are not granted for life-safety, or ADA compliance.

In Florida they passed an addendum to the building code to soften the "paved surface" bonding rules to reflect the 2008 changes(680.26(B)(2)(b)(1)), before we adopted the 2008. It is really the only legal way to do it if you are not using 90-4.

I would say yes.
That reminds me of a similar reverse situation where SE cables installed inside buildings under the '08 code were limited to 60-degree C, like NM cables, but might now be rated up to 75-degree C under the 2011.
That is, if this change was actually made. I don’t have the 2011 NEC yet to verify this though

Kjay:
From the 2011 (PDF version), book is in office...is this what you're looking for...

"(4) Installation Methods for Branch Circuits and Feeders.
(a) Interior Installations. In addition to the provisions
of this article, Type SE service-entrance cable used for interior
wiring shall comply with the installation requirements
of Part II of Article 334, excluding 334.80.
Where installed in thermal insulation, the ampacity shall
be in accordance with the 60°C (140°F) conductor temperature
rating. The maximum conductor temperature rating
shall be permitted to be used for ampacity adjustment and
correction purposes, if the final derated ampacity does not
exceed that for a 60°C (140°F) rated conductor.
Informational Note No. 1: See 310.15(A)(3) for temperature
limitation of conductors.
Informational Note No. 2: For the installation of main
power feeder conductors in dwelling units refer to
310.15(B)(7).
(b) Exterior Installations. In addition to the provisions
of this article, service-entrance cable used for feeders or
branch circuits, where installed as exterior wiring, shall be
installed in accordance with Part I of Article 225. The cable
shall be supported in accordance with 334.30. Type USE
cable installed as underground feeder and branch circuit
cable shall comply with Part II of Article 340.
338.12 Uses Not Permitted.
(A) Service-Entrance Cable. Service-entrance cable (SE)
shall not be used under the following conditions or in the
following locations:
(1) Where subject to physical damage unless protected in
accordance with 230.50(B)
(2) Underground with or without a raceway
(3) For exterior branch circuits and feeder wiring unless
the installation complies with the provisions of Part I of
Article 225 and is supported in accordance with 334.30
or is used as messenger-supported wiring as permitted
in Part II of Article 396
(B) Underground Service-Entrance Cable. Underground
service-entrance cable (USE) shall not be used under the
following conditions or in the following locations:
(1) For interior wiring
336.116 ARTICLE 338— SERVICE-ENTRANCE CABLE: TYPES SE AND USE
70–200

It doesn’t appear that they made any real change to this.
Oh well, at least MA allows it to be used at 75-degree C under certain conditions, with the ’08 code anyway.

Lovely little conundrum, isn't it? Maybe we need to keep that in mind when we try to 'perfect' codes, or get into design issues. It's also a caution about blindly accepting whatever the 'wiseguys' decide.

Yet, with a newer 'model' code published, but not adopted, it is simply wrong to enforce language that has since been removed. That's precisely the sort of thing that led to the creation of the jury system - where no one is bound by 'precedent' or 'logic.' Indeed, the jury is the one place where someone can refuse to enforce a law that is seen as simply wrong, or wrongfully applied.

It's no accident that the Soviet author and political prisoner Alexander Solzhenitsyn wrote of several such instances: folks imprisoned for making 'treasonous' or 'antisocial' assertions that were later found to be accurate. Unfortunately, that did not often result in the convicted being released. Nor was the 'system' in any way self-correction; the convict had to petition for a review.

We can't 'petition for review' after a building is built. Once an expensive error is made, the money and time is gone forever. So what's the solution?

Well, I've seen town councils move with lightning speed to enact bans on whatever harmless behavior becomes popular with unpopular ethnic, religious, or age groups. I suggest every inspector get the wheels turning to have enforcement of these questionable code provisions officially be put on hold, as quickly as possible.

Unfortunately code is either adopted as written, modified or not adopted. You can't cherry pick rules from unadopted codes.
We are enforcing laws here and they have to be the law as written.

That is simply not true. All it takes is for the city council to adopt an ordinance, and the ordinance can say whatever you want. I've yet to see a city department that didn't know exactly how to get something voted on at the next board meeting; in the meantime, there's usually a machanism to issue a temporary order until the next meeting.

As for simply enforcing laws as written - the 'just following orders' canard was dethroned decades ago.

Of course, I'm assuming that the town is the AHJ. Where that's not the case .... well, there seems to have been plenty of places that found ways to not comply with various laws to which they disagree. San Francisco's been pretty prominent, for example, in declaring that no city office will do anything to comply with (or enforce) immigration laws.

Simply put, where there's a will there's a way.

Of course I would prefer that this issue not arise. Let's think about that the next time we feel the need to add pages to the code books.

If the city, having jurisdiction, writes an ordinance, the code, as adopted, was "modified" then wasn't it?
The fact remains, until the new code is adopted or until the old code is modified, the code that was adopted is still law.

There is also the doctrine of 'de minimus.' This is the legal doctrine that is referred to when courts refuse to consider cases involving trivial violations; a classic example might be the proverbial ticket for going 1mph over the limit, or suing for $1 worth of damages.

Anyone who has been involved in real criminal prosecutions can tell you of instaqnces where clear violations were not prosecuted because 'they're no way to win.'

Now, put yourself in front of the voters, or the jury, and try to argue: Mr. Smith would have been in compliance last week, will be in compliance next week, but THIS week he's in violation and ought to be punished." Lots of luck with that one.

I take that back. I completely missed the wording "excluding 334.80" in the article that Hotline posted previously and also just read about this in the 2011 changes book, so it looks like SE used for interior installations will again be able to be used at 75-degree C, as long as it’s not embedded in thermal insulation.

I wrote a proposal a couple of cycles ago suggestion they could lift the 60c restriction on all of the 90c cables and they said no, without really saying why.

Energy efficiency is compromised by undersizing wire.

In my commercial contracts, based upon the ultimate economics, it is routine for the specs to demand upsized conductors.

Whereas the CODE is fire safety oriented officialdom is realizing that such a thrust is a wrong.

That in the public-economic interest best practices should become mandates. And that just because you can load a conductor below burning down the dielectric does NOT mean that it is wise for anyone.

----

I expect ever more Title 24 authority to extend and extend until we are mandated to install ONLY best practices - whatever that may be at such time.

As long as you can use THHN at the 75c ampacity and not a cable makes it clear efficiency and voltage drop is not the issue. NFPA seems unclear what the issue really is. The answer in the ROP was along the lines of "that is the way we do it and you have not convinced us to change".
I was really hoping for a real answer about what the difference was. I might have accepted "NM has a plastic jacket that doesn't contain the heat as well" but that wouldn't explain the rule for MC and AC.