# Building Code Board of Appeals



## Kao Chen (Aug 7, 2015)

How many of your jurisdictions have a formal building code board of appeals? For a very long time I've been trying to convince my Board of Aldermen that as a legislative body they should not be hearing judicial appeals to building and fire code enforcement. They are politicians and their knowledge of building/fire codes is extremely limited whereas a building code board of appeals is typically made up of architects, engineers and professional contractors with a minimum of ten years of experience with a working knowledge of the codes.

I'm trying to get an idea what the typical appeal process is like in other areas so I can report back to the Board. Politicians hate to give up power, real or perceived.

Thanks for your input.


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## mtlogcabin (Aug 7, 2015)

We have a building codes appeal board that consist of an architect, engineer, general contractor, construction trade person, plumber, mechanical and a resident at large from the city.

Now after saying all that they have not met for over 18 years. If you are doing your job correctly and are backing everything up with code then there is nothing to "appeal". The board is not authorized to waive or reduce code requirements and with all the other sources for code application, this forum being the best, there should not be a reason to seek an appeal to your decision.


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## cda (Aug 7, 2015)

One other thing is hopefully they are looking at the code and not approving waivers of the code !

113.2 Limitations on authority. An application for appeal shall be based on a claim that the true intent of this code or the rules legally adopted thereunder have been incorrectly interpreted, the provisions of this code do not fully apply or an equally good or better form of construction is proposed. The board shall have no authority to waive requirements of this code.

As stated above about how many times a year have they been meeting ?????


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## Kao Chen (Aug 7, 2015)

Reply

Absolutely. you are correct. Appeals are extremely rare, especially knowing my winning personality and powers of persuasion (LOL). There is however a history in my jurisdiction of the local school system requesting "variances" to the codes. The local school is powerful and has a budget about 4 times that of the city. Before my tenure, in the 90's, the school doubled the size of the Middle School. Even under the BOCA codes a sprinkler system was required and the superintendent balked at the cost. The appeal was bought before the Board of Aldermen who then granted the variance even though it was clearly stated in our ordinance that they had no authority to grant variances from the code. At least 3 members of the Board had been or were employees of the school system. The city stupidly assumed a huge liability.

Codes are big issue in my area because we had a horrible condo fire that result in the deaths of 4 very young children. These condos (not in my jurisdiction) were built before that area had codes. No sprinklers, no fire rated assemblies, no area wide fire alarm system. What a tragedy.


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## fatboy (Aug 7, 2015)

We have a board comprised of three positions knowledgeable in plumbing/mechanical, electrical, structural and two at-large (any trade). Works well.


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## Rick18071 (Aug 7, 2015)

I owned an old building where I wanted to convert a empty store on the first floor into two apartments. There is two existing apartments on the 2nd floor. I was not the inspector or did I live in this borough. The borough's inspector wanted me to install sprinklers. I went to the borough to appeal. They said they had no appeals board. I told them they are required to have an appeals board per state law. They said alright, we make you the chairman of the appeals board. They got 4 more volunteers (that where also landlords). After I won the appeal I resigned as a member of the board of appeals. The whole process went very smooth.


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## TheCommish (Aug 7, 2015)

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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