Q: Are appeals procedures available if I am cited for a violation of the State Building Code? commonwealth of Massachussetts
A: Yes. The BBRS maintains an active Building Code Appeals Board which meets at least twice each month. In order to file an appeal with the State Board, 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. M.G.L. c. 143, §100.
Once an appeal application is stamped as received by the BBRS, the BBRS will enact a stay of proceedings. The Building Code generally allows for a stay of proceedings, with some exceptions. This stay prevents a building official from taking further action with regard to the subject item of the appeal. The applicant may continue work on a project that is stayed. However, please note that the work is continued at the applicant's risk.
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. The Appeals Board will not issue a variance or interpret the code in a way that disregards the code's public safety intent. Therefore, an application for variance must meet two criteria. First, the applicant must demonstrate a need for variance. Second, the applicant must explain how he or she will achieve a level of safety that is comparable to that provided by the code. An applicant should always keep in mind that the Code is a public safety document (with the exception of the energy provisions) and that arguments at appeal should focus on issues of safety and compliance with the intent of the Code. Arguments that focus solely on monetary savings will be largely unsuccessful.
An appeals application may be downloaded by visiting the main menu of the website. Generally, it takes about 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. The decision is not finalized until the written decision is issued. Depending on their complexity, cases may be continued or taken under advisement for determination at a later date.
If an appellant or other party becomes aware of new evidence after the close of the hearing, he or she may request a reconsideration of the decision. Such a request must be filed in writing within 10 days of receiving the written decision, and will only be granted on the basis of new evidence. Reconsiderations are not intended as a second chance to review the case. If an applicant wishes to have the case reviewed on the original evidence, they may appeal the Board's decision in Superior Court pursuant to M.G.L. c. 30A, §14.
Appeals procedures follow the informal\fair hearings procedures as defined in 801 CMR 1.02.
Q: Are there other reasons for filing an appeal?
A: An appeal may 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. If the thirty day period passes without a response, you should 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. If these methods fail, an appeal may be filed to address the issue of the inspector's failure to act.
In addition, a person aggrieved by a decision or order regarding resulting from an interpretation of the Building Code, may file an appeal. In order for the appeal to be heard, the interpretation must have been made by an official or agency authorized to interpret the Building Code (including but not limited to the head of the fire department). See e.g. M.G.L. c. 148, §§26A and 26B, and M.G.L. c. 143, §100.
Q: Do Board members ever issue interpretations of the code by methods other than appeal?
A: Yes. Infrequently, Board members will issue official interpretations relating to specific sections of the Code. However, since this is a rather lengthy process and since interpretations are not typically available to everyone, it is not a preferred method. Copies of interpretations issued by the BBRS are made part of Appendix B in the Sixth Edition of the Code and are available through the main page of the website.
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