All new construction in Massachusetts, such as the Homeland Builders Inc. manufacturing facility in Fall River (above), must meet the standards of the Massachusetts State Building Code to obtain a permit.
Jim Davis wants to build a small addition onto his modest home for his growing family. ABC Development Corp. has obtained a 10,000-square-foot parcel in the heart of the financial district and wishes to build a 30-story office tower catering to high-end law firms. While these two projects seem to have little in common, the regulatory hurdles and reviews both projects must undergo are eerily similar.
Both projects require a building permit. For many building owners and developers, obtaining a building permit is like finding the Holy Grail. The building permit is the beginning of the end of what can be a long and arduous journey. This article will clarify why so many steps are involved in obtaining a building permit.
Building permits are issued by the local building official. All local building officials are certified by the Massachusetts’ Board of Building Regulations and Standards. All building officials are charged with enforcing the Massachusetts State Building Code (780 CMR) and the Regulations of the Architectural Access Board (521 CMR). The 780 CMR contains most of the life-safety regulations applicable to the construction and renovation of new and existing buildings, while 521 CMR contains requirements for access by disabled persons. It is a separate regulation from the Americans with Disabilities Act, which is a federal statute. Most building officials are also responsible for enforcing the local zoning ordinance.
Zoning is an instrument of public policy, designed to shape and guide the development of the built environment. Zoning regulates the use and dimensional parameters of private and municipal buildings and land. Zoning ordinances attempt to balance the rights of the individual property owner with the rights of the abutters, neighbors and the community at large. The zoning ordinance that may prevent Jim Davis from building his addition is the same zoning ordinance that prevents a fast-food restaurant from opening up next to his home.
Zoning ordinances divide communities into multiple zoning districts, such as residential, commercial and industrial. Each of these types of districts in turn may be divided into subdistricts, such as one-family, two-family and multiple-family residential. The regulations include “use tables” which indicate which uses are allowed in certain districts and which uses may require special permits or variances. The ordinances also contain “dimensional tables” which indicate minimum lot sizes, setback requirements, height limits, parking requirements and so on. Both Jim Davis’ addition and ABC Development’s office building would be subject to this type of review.
Review Process
Many ordinances also have development review provisions, to ensure community input and to allow municipal planners to review larger projects more thoroughly. In the city of Boston this is known as “Article 80” of the Zoning Code. The proposed building by ABC Development would be subject to this type of review.
The local building official will not issue a building permit for a proposed project if it does not meet all requirements of the zoning ordinance. The building official is not granted the authority to grant exceptions if some requirements are not met. This is within the purview of the local planning board or zoning board of appeals. These exceptions are typically known as special permits, conditional-use permits or variances.
The 780 CMR is promulgated by the Commonwealth’s Board of Building Regulations and Standards. It contains most of the life-safety regulations for the renovation of existing buildings and for the construction of new buildings or additions to existing buildings. While each city or town has its own local zoning code or ordinance, all municipalities in Massachusetts are subject to the requirements of 780 CMR.
Like zoning ordinances, 780 CMR has different uses, which have different sets of requirements. However, there is little overlap between the two types of codes so the requirements of each code must be reviewed independently of the other. For example, a local zoning ordinance may have a separate listing for the uses travel agency and professional office. The 780 CMR classifies both these uses as business uses so from the perspective of 780 CMR there is no change of use. Other uses within 780 CMR include mercantile, educational, residential and assembly. There are also special uses such as high-rise buildings and day care centers, which have specific requirements in addition to the overall code requirements.
The 780 CMR contains requirements for means of egress, fire alarm and sprinkler systems and energy conservation. There are also restrictions, which may limit the size of buildings if constructed of certain materials. For example, a wood-frame apartment building is limited to two stories, 35 feet in height and 4,800 square feet of building footprint, while the same building constructed of steel and concrete can be three stories, 40 feet in height and 9,600 square feet of footprint.
All this information must be presented to the building official in the form of drawings and plans. If the building is larger than 35,000 cubic feet in volume, 780 CMR requires that these plans be stamped and signed by a registered architect or engineer. The building official must review these plans for compliance with every provision of 780 CMR prior to the issuance of the building permit. Both Jim Davis’ addition and the office building of ABC Development are subject to this review.
The 521 CMR regulates access by the disabled in all public buildings and in all areas of other buildings that are open and available for use by the public. The regulations do not cover areas not open to the public, such as the back offices of a travel agency or private offices in office buildings. They also do not regulate single-family homes, although certain apartment and condominium buildings are covered.
All new buildings must have their public areas in full compliance with 521 CMR. There are three sets of thresholds which determine the degree of compliance required for projects in existing buildings, all based on the dollar cost of the proposed work. These costs are measured over a 36-month period, so multiple small dollar projects must be added together to determine the overall level of compliance required for the building.
The lowest threshold is work costing $100,000 or less. Any work performed must comply with 521 CMR. For example, a pizza shop that is replacing its front counter must have a section of the new counter accessible to disabled persons. There is no requirement to modify other areas of the pizza shop for accessibility.
The next threshold is work in excess of $100,000, but less than 30 percent of the assessed value of the building (minus the assessment of the land). If this pizza shop decided to replace its floors and ceilings in addition to the front counter and the cost of this work exceeds $100,000, they would be required to modify the front entrance to be accessible, even if they were not initially intending to do so. If they provided a bathroom for use by the patrons this would also need to be modified to be accessible.
Work in excess of 30 percent of the assessed value of the building requires that the entire building be modified to be fully accessible.
All the relevant cost information must be presented to the building official as part of the building-permit review process. Jim Davis’ project is not subject to this review, while ABC Development’s office building is subject to this review for the public portions of the building.
To expedite the issuance of a building permit plans, documentation must be submitted to the local building official showing compliance with all codes that are applicable for the project. Non-compliance with any of the applicable codes is cause for the building official to deny issuance of the building permit until compliance is achieved.
