What is the overall intent of the code?
The building code sets minimum standards for the design and construction of all buildings and structures in the commonwealth. The intent is to ensure that all citizens are afforded a consistent level of safety in all buildings in which they visit, live or work. A code user may choose to exceed requirements of the code, but may not design or construct to a lesser standard.
What if I am not able to abide by the provisions of the code verbatim, are there appeals procedures?
The BBRS maintains an active Building Code Appeals Board (BCAB) which meets at least twice each month. In order to file an appeal with the BCAB, a notice of violation must first be issued by the municipal or state building official charged with the enforcement of the code. This notice identifies the subject matter to be addressed at the appeal.
Once an appeal application is stamped as received by the BBRS, a stay of proceedings is enacted. This stay prevents a building official from taking further action with regard to the subject of the appeal. Also, it allows the applicant to continue to work on the project. However, please be aware that work is continued at the applicant’s risk. A stay of proceedings may not be applicable if an inspector has issued a stop work order.
Among other things, Appeals Board members may allow variances to provisions of the code or may offer interpretations to clarify disputes relative to a code provision. However, it is not the intent to simply waive code provisions in disregard of its public safety intent. Therefore, an applicant must demonstrate first a need for variance (if this is the intended relief) and then identify how he\she will achieve a comparable level of safety for building occupants. An applicant should always keep in mind that the code is a public safety document and that arguments relating to an appeal case should focus on issues of safety and compliance with the intent of the code; arguments should not focus on monetary savings for a project, at least not entirely.
Generally, it takes about 30 to 90 days after receipt of an application for a case to be heard. Although most cases are decided on the day of the hearing, Board members have 30 days following the hearing to issue a written decision. Technically, the decision is not finalized until the written decision is issued. Depending on complexity, cases may, at times, be continued and\or taken under advisement for determination at a later date.
If an appellant or other party is aggrieved by the Board’s determination, he\she may request a reconsideration of the decision. Reconsideration requests must be filed in writing within 10 days of receiving the written decision. It is important to note that a reconsideration may only be considered on the basis of new evidence. Reconsiderations are not intended simply as a second chance to review the case. Reconsiderations are reserved for those rare instances where all facts relating to a matter may, for one reason or other, not have been suitably brought forward and examined during the hearing. Reconsideration request are required to be reviewed by Board members who originally heard the case. If a majority of Board members agree that new evidence exists, a new hearing will be scheduled. Otherwise, aggrieved parties may appeal a decision of the Board to a court of law.
Appeals procedures follow the informal\fair hearings procedures as defined in 801 CMR 1.02. Interested parties may retrieve this document by visiting this link.
Are there other reasons for filing an appeal?
An appeal may also be filed for a building official’s failure to act on a matter. The code allows a period of 30 days for a building official to review and act on an application for permit. Technically, if a response is not received within this period an appeal may be filed on the 31st day. However, such quick action is not recommended. Like most people, building officials can get behind on their workload. If the thirty day period passes without a response, call the building official, documenting the day and time, to see if a response is forthcoming. If a response is not received via phone, try corresponding in writing, by certified mail if so desired. If these methods fail, an appeal may be filed to address the issue of the inspector’s failure to act.