Applying for an AAB Variance

The first step in applying for a variance is to determine just what you need relief from. This means, you or your design professional should review the regulations and identify two key facts. First, what level of compliance is required for your project pursuant to 521 CMR 2, and 3? Based on that finding and your proposed plans, you must then determine which of the Board’s regulations you need relief from. The Board’s regulations cover a wide variety of topics from general rules for types of buildings such as restaurants or places of assembly to specific topics such as doors, elevators and walkways. For the Board to be able to assess your request, you need to be specific as to which of the regulations you are seeking variances from.

If you are having trouble determining what relief you need, you can call and speak with a member of the Board's staff at (617) 727-0660.

Once you know what sections you need relief from, there is still more to consider. What sort of relief are you requesting from the Board? While not strict categories, these can be useful ways to think about what relief you are requesting.

• Timed/Temporary Relief: Does your plan involve eventually coming into full compliance at a later phase of construction? Do you need to time to secure additional funds or to meet other legal or regulatory requirements? If so, timed/temporary relief is the right choice for you.

  • Asking for timed/temporary relief is asking the Board to temporarily suspend the requirement that you comply with a particular regulation for a fixed period of time.

  • It is most commonly sought during large multi-phase construction projects, when dealing with special events, or with municipalities responding to complaints.

  • When asking for timed/temporary relief be sure to include:

    • The specific deadline or phasing plan indicating when you will correct the noncompliant item or condition that the Board is granting you temporary relief on.

    • If you are requesting additional time to secure funding for additional work, provide a detailed explanation on how you will secure the necessary funds within the period of time you are requesting.

    • If you are requesting additional time to meet other regulatory or legal requirements (town meeting, zoning, wetlands, hazardous material abatement, etc.), provide a clear timeline of the various regulatory or legal processes you will be going through.

• Modified Relief: Are you failing to meet or comply with a requirement by a de minimis amount? Are you proposing a usable plan for access that doesn't strictly comply with the regulation as written? Then you need modified relief. This is where you are proposing that a particular element be usably accessible, but not fully comply with the relevant regulation as written. This is common in circumstances dealing with existing buildings where the proposed design is accessible, but off from requirements by a small amount. It is important, if you are seeking modified relief, to be sure that what you are proposing is in fact usable for and by persons with disabilities, and to be clear on just what you are proposing to do.

• Full Relief: Are you proposing no access at all to a space or feature? That requires full relief from the Board's regulations. This is the highest level of relief and, as such, generally requires the highest burden of proof. This is most common in existing and historic buildings where access to a particular space is either just outright impossible or would be so expensive as to be practically impossible. This will result in the highest level of scrutiny, so be sure to include the documentation to support your claim that access is either impossible or there is no substantial benefit to requiring it for persons with disabilities.

Once you have figured out what relief you need, it’s time to start thinking about the criteria under which a variance can be granted. In order for the Board to grant a variance, you must prove that compliance is “impracticable”, as defined in 521 CMR 5. That definition describes two different ways compliance may be considered impracticable: 1) compliance is technologically unfeasible; or 2) compliance would result in an excessive cost without any substantial benefit to persons with disabilities.

• Technological Unfeasibility: Is there something about your property or situation that makes compliance impossible to achieve? Would compliance require you to build over your property line, endanger the structure of the building, or is there some other reason that it is physically impossible? An argument of technological feasibility is centered around these situations. With this argument you must show not merely that compliance is expensive or onerous, but that it cannot be physically or legally achieved. Requests relying on this prong should include specific evidence proving the particular reason why compliance cannot be achieved. Such evidence often includes (but need not be limited to) test drawings, engineer’s reports, or other similar documents.

• Excessive Cost Without Any Substantial Benefit To Persons With Disabilities: Unlike the former prong, this test is for cases where compliance is technically possible, but undesirable for some reason or another. For this test you must show both that the cost of compliance is excessive and that compliance would not result in any substantial benefit to persons with disabilities. It is not enough to show one or the other, you must show both elements to prevail.

  • Cost: Whether a cost would be excessive tends to be a relative determination dependent on the context and circumstances of the project. For example, a $10,000 piece of work might be excessive in the context of a $12,000 project, but it might look very different in the context of a $120,000,000 project. Proving excessive cost almost always requires provision of a cost estimate for the work you are arguing is excessively costly. It is difficult to impossible for the Board to judge whether the cost is excessive without knowing what the cost is.

  • Benefit: It is important to emphasize that the requirement is to show that compliance would not result in any substantial benefit to persons with disabilities. Whether something is a substantial benefit is a determination to be made by the Board as it is often dependent on the individual facts of the situation. As such there is no generalized rule, so the use of good judgment is required. Additionally, it is often beneficial to consult groups consisting of or serving persons with disabilities for their perspective. The municipality’s Commission on Disability (if there is one) and the local Center for Independent Living have the ability to comment to the Board on your application and can serve as valuable resources as to the effects of a particular design on persons with disabilities.

Once you’ve figured out what relief you’re seeking, and the justification for that request, you can proceed to the application.

First, download the application itself.

Once you have the application, read the instructions on Page 1 carefully. Next, answer the questions on remaining pages to the best of your ability, being sure to read each question carefully. Most questions are asking for general details about your building or facility to allow the Board to place your request in its proper context. Any information you don’t have yourself can likely be found at your town’s or city’s building department or assessor’s office, some of which may be available online. Question 16 is based on the information you put together at the beginning of this guide and is the central requirement of the application.  In this question, you list the relief you are seeking from the Board and lay out your case for why you believe compliance to be impracticable.  You need not contain your statement in the box on the application - to the contrary we encourage you to attach additional pages in order to support your request. It is important to remember that the first review of your request will be entirely based on the application and attachments, so you should provide whatever you might need for the Board to fully understand the argument you are making as to why you believe compliance is impracticable. Beyond a narrative, which is strongly encouraged, you can also include other documents to support your case. Types of documents you might include are: cost estimates, floor plans, test drawings, photographs, copies of relevant policies, letters of support, or any other relevant document. The only restrictions are that: 1) any documents submitted to the Board are considered public records subject to disclosure under the Public Records Law; and 2) if you are submitting a physical copy of the application the Board cannot accept any document sized larger than 11” x 17”.

For your response(s) to Question 16, please remember that while the Board has architects and building officials among its members, it also has people from other professional backgrounds. Structuring your argument for each request in such a way that your request and evidence is clear, concise, and accessible to laypeople will help ensure the Board fully understands the argument you are making and can successfully rule on the merits without needing to request additional information or clarification from you.

You might notice there are only room for 4 requests, that’s because we have an additional forms you must complete if you are requesting relief from 5 or more sections, the Large Variance Tally Sheet and the Additional Variance Request Sheets.

Once you have completed all questions, you should sign the application on Page 8. Please note, that whoever signs this page is considered the Applicant, and all correspondence from the Board will be addressed to the contact information included on that page. It is of the utmost importance that you provide us with a valid email and mailing address in the space below the signature line. If the contact information you provide is incorrect or invalid, significant delays may be introduced into the process.

Next, it is time to fill out the Service Notice (page 9 of the application). This notice, is your promise to the Board that you have sent copies of your application and all attached documents to the other required parties. Who are these parties? These include the building department for the town or city where the project is located, the commission on disability for the town or city (search the Massachusetts Office on Disability's list of local commissions on disability), and the Independent Living Center for the region where the project is located (you can find your ILC here). To fill out the notice, first fill out the information at the top of the page with the information of whomever will be signing the form. Next, fill in the specifics in the boxes, the first field is for whom you are sending the application to (the required parties), the 2nd field is for how you are sending it to them ( e.g., Certified Mail, Hand Delivery, etc.), the 3rd field is for when you sent it to them.  As of the most recent version of our Application, we no longer require the service notice to be notarized.  However, please be aware that even without a notary stamp both the Application and the Service Notice are considered to be statements sworn under the pains and penalties of perjury.

Now that your application is completely filled out its time to send it in. For this you have two options, electronic or physical:

• Electronic: The rules for electronic submission can be found here or on Page 1 of the Application itself. If you submit via email you are not required to send the Board a physical copy of your application. However, you still must send copies to the other required parties. We generally defer to them as to what method they would like to receive their own copy. Just be sure the Service Notice on Page 9 of the application accurately records how you sent it to them (i.e., the Method of Service field).

• Physical: The Board still accepts physical submission of applications via mail. If you are not submitting your variance electronically you are required to include a CD or DVD containing electronic copies of the application and all attachments with the physical copy. Please note, for security reasons the Board cannot accept these electronic copies via USB Drive.

In order to reduce wasted administrative time, the Board has adopted a zero-tolerance policy on incomplete applications. If your application is not complete at the time of submission. Only completed applications will be docketed.

Once we receive your application, there is a 14-day waiting period to allow the other parties to comment to us if they so choose. After that 14 days, the case will be heard in an administrative review (see the meeting guide for more information on that) at the Board's next scheduled meeting. This means that generally speaking a decision will be made on average between 3-5 weeks after receipt of your application.