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28 BECKFORD ST_APPEAL BORAD_ DECISION y kp y` MAURA HEALEY LAYLA R. D'EMILIA GOVERNOR Commonwealth of Massachusetts UNDERSECRETARY,CONSUMER AFFAIRS AND BUSINESS KIM DRISCOLL Division of Occupational Licensure REGULATION LIEUTENANT GOVERNOR Office of Public Safety and Inspections SARAH R.WILKINSON COMMISSIONER,DIVISION OF YVONNE HAD 1000 Washington Street, Suite 710 OCCUPATIONAL LICENSURE SECRETARY,EXECUTIVE OFFICE OF ECONOMIC DEVELOPMENT Boston, Massachusetts 02118 Date: July'14, 2023 Name of Appellant: Danielle Hanrahan & Elaine Wintman Service Address: Rolfe Franke-Otten 30 Beckford Street Salem, MA. 01970 In reference to: 28 Beckford Street Salem, MA. 01970 Docket Number: 23-0040 Property Address: 28 Beckford Street Salem, MA. 01970 Date of Hearing: June 1, 2023 Enclosed please find a copy of the decision on this matter aforementioned. Sincerely: BUILDING CODE APPEALS BOARD Patricia Barry,Clerk: Cc: Building Code Appeals Board, Building Official (40Y TELEPHONE: (617)701-8600 FAX: (617) TTY/TDD: (617)701-8645 http://www.mass.gov/dpi COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. BUILDING CODE APPEALS BOARD DOCKET NO. APP-SCAB 23-0040 Rolf Franke-Otten, ) Petitioner/Appellant, ) V. ) Building Commissioner, City of Salem, ) Appellee ) DECISION and ORDER Introduction This application is with the Massachusetts Building Code Appeals Board ('SCAB") because an application was docketed on April 26, 2023, about property at 28 Beckford Street, Salem MA. G. L.c. 143, § 100. ("BCAB Application"). On or about February 16, 2023, City of Salem Building Commissioner, Thomas St. Pierre, issued a letter re: "Building Code complaint regarding 28 Beckford Street." (Exhibit 1-A). The letter explained the Building Commissioner's understanding of facts and his application of 780 CMR to those facts, in response to a complaint by Rolf Franke-Otten, dated January 31, 2023. The Building Commissioner concluded that he "must respectfully decline to enforce the stated section you reference. If you find other information, let me know." Petitioner Rolf Franke- 1 Otten sought review from the BCAB of the BCAB Application and, if the Application were accepted for further review, to obtain an interpretation and/or about a failure to act.1/2 Notices of hearing were issued for a hearing with the BCAB to occur on June 1, 2023. The hearing was held on June 1, 2023, during which the parties had opportunity to testify and present evidence and argument to the BCAB.3 The following individuals attended the hearing. For Petitioner/Appellant: Rolf Franke-Otten; luliana Dindudoiu; Michael Szymanski. For owner of the property at 28 Beckford Street: Danielle Hanrahan; Elaine Wintman. For the Building Commissioner: Stavroula Orfanos"; Robert Ouellette. The following BCAB members were present and participated in the hearing: Kristen McDonough; John Couture; and David Riquinha. Patricia Barry, the BCAB's clerk, also was present. I"Whoever is aggrieved by an interpretation,order, requirement, direction or failure to act by any state or local agency or any person or state or local agency charged with the administration or enforcement of the state building code or any of its rules and regulations,except any specialized codes as described in section ninety-six,may within forty-five days after the service of notice thereof appeal from such interpretation,order, requirement,direction,or failure to act to the appeals board.Appeals hereunder shall be on forms provided by the appeals board and shall be accompanied by such fee as said appeals board may determine." G. L. c. 143, §100. Note that, although the Appeal Application specified a request for an interpretation, the hearing revealed that Appellant would also have liked any relief from being required to install an automatic fire sprinkler system for the building to serve some or all three dwelling units. Thus, a variance from the Code's requirement to install an automatic fire sprinkler system, for example, could have addressed Appellant's request to avoid the requirement. Regardless, the BCAB's consideration of the facts and arguments included full consideration of Appellant's objectives to complete the project without installing an automatic fire sprinkler system. 2 The BCAB Application was initially submitted on March 28, 2023,within the 45-day limit mandated by G. L.c. 143, §100. The Application, however,was not complete at that time. The application was completed on or about April 26, 2023. ;Remote hearings are conducted pursuant to the Act extending the emergency measures(originally pursuant to Exec.Order No. 591(Mar. 10, 2020)as amended)through April 1, 2022. "An Act Relative to Extending Certain COVID-19 Measures Adopted During the State of Emergency;'St. 2021,c. 10. See https://www.mass.gov/service- details/updated-guidance-on-holding-meetings-pursuant-to-the-act-extending-certain-covid-19-measures. Remote hearings continue to be conducted, per Section 7,Chapter 22 of the Acts of 2022. See https://malegislature.gov/Laws/SessionLaws/Acts/2022/Chapter22. Per An Act Making Appropriations for the Fiscal Year 2023 to Provide for Supplementing Certain Existing Appropriations and for Certain Other Activities and Projects(Chapter 2 of the Acts of 2023),provisions regarding remote meetings have been extended from March 31, 2023,to March 31, 2025. The BCAB hearings have been,as always,held in accordance with G. L.c.30A and 801 CMR 1.02,Informal/Fair Hearing Rules to ensure all parties are adequately heard and the members of the BCAB can evaluate evidence and argument. "According to Stavroula Orfanos'testimony during the hearing,Thomas St. Pierre was not available for the hearing session on June 1,2023, because he was serving jury duty that day. In addition,she reported that Mr.St. Pierre's last official day as Building Commissioner also was that day,June 1, 2023. Orfanos was able to testify on behalf of the Building Department and Mr.St. Pierre. 2 Exhibits The following documents were accepted in evidence: 1. State Building Code Appeals Board Appeal Application (4 pages); 1-A. February 16, 2023, letter to Rolf Franke-Otten from Thomas St. Pierre, re: "Building Code complaint regarding 28 Beckford Street" (1 page); 1-B. March 27, 2023, narrative by Rolf Franke-Otten, including documents (he further marked as "ANNEX 1: Pictures" and "ANNEX 2: Documents" (further marked as "Document 1" through "Document 10") (24 pages); 2. Emailed Notice of Hearing for June 1, 9:30 a.m. hearing session (1 page); 3. List of people who attended hearing (1 page); 4. Copy of overhead photograph of 30 and 28 Beckford Street (www.google.com/maps/place/­30+Beckford+St,+Salem,+MA+01970) (1 page). Findings' Rolf Franke-Otten owns the property at 30 Beckford Street, Salem. His property directly abuts property at 28 Beckford Street, Salem. As part of the BCAB Application, Franke-Otten submitted a land plan. (Exhibit 1-13, p. 19, "Document 5"). The plan appears to provide an outline of a building on Beckford Street, identified as #30. The plan is dated January 5, 1983. The parcel of land at#28 Beckford Street is not clearly identified on this plan, but it appears to be partly identified on the plan as property of "Ralph T. & Pauline F. Hurder." (To further clarify the locations of the two properties and the buildings on each, a copy of a Google Maps overhead photograph is enclosed. This copy was readily found via public website by searching for 30 Beckford Street, Salem (see e.g., www.google.com/maps/place/30+Beckford+St,+Salem,+MA+01970).) (Exhibit 4). On December 2, 2012,the City of Salem's Building Department issued Building Permit No. B-2012-0599 to Robert Ouellette to "REPAIR/REPLACE KITCHEN CABINET REPLACEMENT SAME LAYOUT WITH NEW CABINETS AND COUNTERS USE OF EXISTING SINK AND APPLIANCE" at 28 Beckford Street. (Exhibit 1-13, p. 22, "Document 8"). Pursuant to the Building Permit, Ouellette supervised/performed the described work. His customer insisted that the existing appliances in the kitchen be retained and reinstalled because they still functioned well (and, according to Ouellette's testimony,the customer was very frugal). Thus, all the appliances and s Findings and conclusions were reached in accordance with G. L.c. 30A and 801 CMR 1.02. 3 mechanical systems were reinstalled. An exterior vent hood already fastened to the exterior side of the North wall of the building was not relocated. The existing mechanical systems were reinstalled to connect to the exterior vent hood. On July 14, 2022, the Building Department issued Building Permit No. B-22-809 for "Roofing— Replace existing roof" at 28 Beckford Street. (Exhibit 1-13, p. 24, "Document 10"). On January 30, 2023, the Building Department issued Building Permit No. B-23-86 to "Repair/Replace —Replace siding on one side of the house." (Exhibit 1-B, p. 20, "Document 6"). Photographs in evidence (offered by Franke-Otten) show appearances of the exterior vent hood and part of the wall in which it is located. These represent appearances in those areas purportedly "before and after siding replacement on July-August 2022." (Exhibit 1-B, pp. 6-8, "ANNEX 1: Pictures"). Franke-Otten concluded that existing vent hood was changed as part of the wall siding work. See Exhibit 1-13 "ANNEX 1: Pictures". Franke-Otten speculated about what he believed might have changed in the kitchen. He did not know whether the owners (Hanrahan and Wintman) installed a new microwave vent combo, or they left the old one, or they changed the kitchen layout a little bit. By letter dated December 5, 2022, Franke-Otten, submitted a complaint to the Building Department. Franke-Otten stated, "The property at 28 Beckford Street has an active domestic cooking exhaust fan that generates noxious fumes and terminates directly over [his] property line onto [his] land, far less than three feet from their property line." (Exhibit 1-B, p. 23, "Document 9"). Franke-Otten reiterated and further clarified his observations in the BCAB Application. "[Tjhe exhaust vent is located on the north side of the 28 Beckford Street house, which ends, literally, at that property's property line. However, the exhaust terminates over the property line, and the vent cap itself protrudes about 5" into [his] yard and is close to [his] frequently-occupied patio." (Exhibit 1-13, p. 2). Franke-Otten emphasized, both in the BCAB Application and in testimony during the hearing, his observations about the effects of "smoke, fumes and unpleasant odors" that emanate from the vent hood on the North wall of the 28 Beckford Street house. (Exhibit 1-B, p. 2). Franke-Otten represented in the BCAB Application that the present owners of 28 Beckford Street purchased that property "on December 15, 2017. Soon after that, an occupant of[his] house at 30 Beckford Street started complaining about the smells and odors, which were making her nauseous and sick." (Exhibit 1-B, pp. 2-3). Franke-Otten testified that he rents his house his to sister-in-law. He recalled that he did not have any complaints from his sister-in-law until Hanrahan and Wintman (the owners of 28 Beckford Street) moved in to 28 Beckford Street. Thereafter, he received complaints about smells. From August 2022 through end of January 2023 and into early February, he "just got stunk out," he recalled. He testified, "I don't know what they are cooking . . . but it don't smell like normal, normal food, at least like what I eat." In response to smells, Franke-Otten "placed a movable trellis on [his] property but close to the exhaust [on the wall of 28 Beckford Street]. A few weeks after, on November 29, 2022, 4 [he] received a letter from the Building Commissioner demanding [he] remove the trellis as it was supposedly illegally placed at less than 5 feet from the property line," according to Franke- Otten. (Exhibit 1-B, p. 3). By letter dated November 29, 2022, the Building Commissioner "instructed [him] to relocate or remove this structure within ten days of receipt of this notice. Failure to comply with this order will result in daily zoning fines in which each day will constitute a new violation." (Exhibit 1-B, p. 15). The letter cited Salem Zoning Ordinance 3.2.2.4 and told Franke-Otten that he could appeal this order to the Salem Zoning Board of Appeals. No evidence was offered about whether Franke-Otten availed himself an appeal process to the Zoning Board of Appeals. By letter dated January 31, 2023, Franke-Otten submitted a complaint to the Building Commissioner. (Exhibit 1-B, p. 10, "Document 1"). In that letter, he reiterated information about fumes/smells, described above, and provided his analysis of how 780 CMR should apply (including copies of his research of 780 CMR). In response to Frank-Otten's letter of January 31, 2023, the Building Commissioner issued the February 16, 2023, letter that is the subject of the BCAB Application.6 Discussion and Conclusions The [BCAB] may grant a variance from any provision of[780 CMR or the "Building Code" or "Code"] in any particular case, may determine the suitability of alternate materials and methods of construction, and may provide reasonable interpretations of the provisions of [780 CMR]; provided, however, that [BCAB] decisions shall not conflict with the general objectives set forth in" G. L. c. 143, § 95.7 G. L. c. 143, § 100. In exercising its powers under this section, 6 Michael Szymanski once resided at 30 Beckford Street and is a friend of Franke-Otten. Szymanski testified that Franke-Often is a long-time contractor in Massachusetts and held a CSL. According to Szymanski,he and luliana Dindudoiu have been helping Franke-Otten because of some language issues and because they believed they needed to a get a straight answer from the Building Commissioner about the Commissioner's February 16, 2023, letter. BBRS records contain a record for a CSL for Rolf J. Franke,CS-048354, Gloucester MA,which was issued 8/24/2011. No CSL records were found for anyone with the last name, "Franke-Often" or "Otten." Szymanksi testified that they filed the BCAB Application because they wanted to learn why their complaint about vent was not addressed by the Building Commissioner. "'The powers and duties of the board set forth in section ninety-four[the BBRS] shall be exercised to effect the following general objectives: (a) Uniform standards and requirements for construction and construction materials, compatible with accepted standards of engineering and fire prevention practices,energy conservation and public safety. In the formulation of such standards and requirements, performance for the use intended shall be the test of acceptability, in accordance with accredited testing standards. (b)Adoption of modern technical methods,devices and improvements which may reduce the cost of construction and maintenance over the life of the building without affecting the health, safety and security of the occupants or users of buildings. (c) Elimination of restrictive,obsolete, conflicting,and unnecessary building regulations and requirements which may increase the cost of construction and maintenance over the life of the building or retard unnecessarily the use 5 the [BCAB] may impose limitations both as to time and use, and a continuation of any use permitted may be conditioned upon compliance with regulations made and amended from time to time thereafter." Id. The first issue the BCAB had to decide was whether Franke-Otten was "aggrieved" as that term in understood in accordance with G. L. c. 143, § 100. The BCAB found that the exhaust system in the building at 28 Beckford Street could create a reasonably foreseeable effect on people at 30 Beckford Street.' Thus, having determined that Franke-Otten was "aggrieved," as that term in § 100 has been interpreted and applied by the BCAB, the BCAB moved on to reviewing the Building Code issues the BCAB Application raised.' The next issue was Franke-Otten's argument that the vent hood and the mechanical system connected to it did not comply with 780 CMR 51.00, M1506.3 as specified in the 9ch Edition of 780 CMR. He emphasized the requirement in M1503.3 that "exhaust openings shall terminate not less than 3 feet . . . from property lines . . . ... (Exhibit 1-B, pp. 1-2). The facts showed that the exhaust vent on the North wall of the building at 28 Beckford Street is located much closer than 3 feet from the real property line between the two properties. But Franke-Otten's argument failed to consider parts of 780 CMR 51.00 that apply to existing conditions. "Features of existing construction which do not meet the requirements of 780 CMR 51.00 for new construction shall be presumed to have the regulations, codes or laws in effect at the time of construction or alteration and, if so, shall be deemed nonconforming." 780 CMR 51.00, AJI01.1 (emphasis added). See o/so 780 CMR 51.00, R102.6.1 "Laws in Effect." The requirements of 780 CMR 51.00, M1506.3 (91h Edition) apply only to new construction during the effective period of the 911 Edition. The BCAB concurred with the Building Commissioner's research that editions of 780 CMR in effect when the vent hood likely was initially installed did not include the 3-foot set back specified in 780 CMR 51.00, M1506.3, 91h Edition (first effective on October 20, 2017). of new materials, or which may provide unwarranted preferential treatment of types of classes of materials, products or methods of construction without affecting the health,safety, and security of the occupants or users of buildings." G. L. c. 143, §95. 8 Note that present and former editions of 780 CMR included requirements for mechanical ventilation systems, such as those that direct kitchen fumes to the exterior,out of a building. No doubt that one benefit from those requirements was to help improve life safety for occupants of the kitchen and building. For the limited purposes of this decision as applied to only these facts,the BCAB concluded that part of the intent of an exhaust system is to direct fumes out and away from a building,where, presumably,fumes would dissipate and not create an adverse effect on those outside of the building,some distance away. 9 The facts showed an obvious, close, proximity between the vent hood on the North wall of the building at 28 Beckford Street and the real property line between that property and the property at 30 Beckford Street. The existing building at 28 Beckford Street has its North side virtually contiguous with the lot line. However,the BCAB does not believe that,for example,an abutter to a property has any type of presumption of"aggrieved"status for the application of G. L.c. 143, § 100 to some Building Code issue on that nearby properly. Further,nothing about the evidence and the BCAB's reasoning as applied to the evidence in this BCAB Application will bind or preclude any future BCAB in its analysis of"aggrieved"status. 6 Franke-Otten also argued that differences between the existing vent hood, before siding replacement, and what appears to be a different vent hood, after siding replacement (Exhibit 1-. B, p. 6) were so different from each other that compliance with new construction requirements of 780 CMR 51.00, M1506.3 (91h Edition) should have been triggered when the siding work occurred in 2022. Further, he argued that, given his perceived changes about the quality/extent of exterior odors he has detected while standing his property, something regulated by 780 CMR must have happened in the kitchen since the work Ouellette supervised in 2012. He argued that the BCAB must make an inference that something inside the building at 28 Beckford Street that the 91h Edition of 780 CMR regulates must be causing/contributing to odors on his property---something must have changed. His argument was based on the assertion that Ouellette, who performed the work in 2012 pursuant to Building Permit B-2012-0599, could not, now, testify that: he's recently been in the kitchen; and he can now confirm that the mechanical systems connected to the exterior vent hood had not changed since the work he did in 2012. Further, Franke-Otten argued that recent, Code-regulated work must have occurred in the kitchen given the absence of building permit records for that work. He found records for building permits for other work (see Exhibit 1-B), but not for the work he believed must have occurred inside. Thus, he argued that the BCAB should infer that Code-regulated work must have occurred, based on the absence of any building permit records for work he believes must have occurred that has caused/contributed to the increase in noxious smells." But insufficient evidence was offered to show that work, regulated by the 9`h Edition of 780 CMR, had occurred at 28 Beckford Street that could have, related to the smells. The absence of building permit records (e.g., building permit application records or resulting r0 On behalf of Franke-Otten, Dindudoiu asserted during the hearing, "Modifications to the mechanical systems had to go through the approval process,which,there is no record of such" Again, this assertion amounted to the conclusion that the absence of records about something must support an inference that the"something" must have happened. She would like to believe that a cause for the smells must have been some, more significant, change to the mechanical systems in the kitchen than only the minor replacement of the exterior vent hood. That type of inference can never meet the evidentiary requirements for BCAB findings. G. L. c. 30A, §11(1)("Evidence may be admitted and given probative effect only if it is the kind of evidence on which reasonable persons are accustomed to rely in the conduct of serious affairs.Agencies may exclude unduly repetitious evidence,whether offered on direct examination or cross-examination of witnesses.") In addition,she asserted that they have a right to know about interior changes to 28 Beckford Street but admitted that they cannot enter to the house to verify what changes they believed must have happened inside it. Because they could not enter and investigate the interior of the building at 28 Beckford Street,she insisted that they were entitled to an answer from Oullette;that he must now confirm that nothing inside the house changed from when he did the kitchen work in 2012. However, nothing in G. L.c. 143, § 100 and 780 CMR, based on the evidence, affords her or Franke-Otten the rights she described to further investigate the inside of 28 Beckford Street. Further,assuming that Franke-Otten's and Dindudoiu's observations about increased smells on their property were accurate,another possible inference is that the only change is what is being cooked inside 28 Beckford Street, not the means by which food smells are getting expelled from the house. 7 building permits) alone does not prove that work regulated by 780 CMR occurred. The inference that Franke-Otten would like the BCAB to make is not supported by anything close to sufficient evidence. 801 CMR 1.02(10)(h).11 Insufficient evidence was offered to warrant modifying or overturning the Building Commissioner's decisions in his letter dated February 16, 2023.12 Conclusion and Order Accordingly, the BCAB considered a motion to AFFIRM the Building Commissioner's February 16, 2023, letter (Exhibit 1-A) and deny Petitioner's request ("Motion"). The Motion was approved by unanimous vote. SO ORDERED, BUILDING CODE APPEALS BOARD By: Kristen McDonough John Couture David Riquinha Kristen McDonough John Couture, Chair David Riquinha DATED: July 14, 2023 " Note also that the BCAB found that testimony and documentation evidence showed that the former vent hood and the subsequent vent hood "after siding replacement" (Exhibit 1-B, pp.6-8)were very similar to each other in size, location,configuration,and function. The Building Code generally allows in-kind replacement of these types of parts that comport with the edition of 780 CMR in effect at the time of original installation of those parts. 780 CMR 51.00,A/301.1("Unless stated otherwise, nothing in Appendix J shall require the upgrading or replacement of any existing nonconforming feature or component of an existing building, provided the feature, component or system is in serviceable condition. [But c]omponents or features of an existing building which, in the opinion of the building official, are dangerous, unsafe,damaged, significantly deteriorated or which otherwise present a threat to occupants or to public safety shall be remediated in accordance with 780 CMR 51.00." (emphasis added)). Evidence was insufficient to warrant upgrading to 91" Edition requirements. Evidence was insufficient to warrant concluding that the Building Commission failed to appropriately exercise his discretion in reaching the conclusions stated in his letter dated February 16, 2023. "The BCAB offered some suggestions during the hearing about laws and regulations other than G. L.c. 143,4 100 and 780 CMR that might apply to the circumstances about these two properties, such as smells emanating from the vent hood on the North wall of the building at 28 Beckford Street, and/or disputes between the owners of the two properties. Those suggestions were based on extensive experience BCAB members bring to any BCAB application,based on what they have encountered in their other roles, in and out of public service. (The collective experience of three BCAB members amounts to many years of being directly involved in life safety matters regulated by the Building Code and Fire Code and of being aware of other laws and regulations that might apply to real property matters.) But those were only suggestions. The BCAB has authority to direct parties about only G. L. c. 143,4 100 and 780 CMR based on relevant evidence presented as part of the hearing process. 8 Any person aggrieved by a decision of the State Building Code Appeals Board may appeal to Superior Court of the Commonwealth of Massachusetts in accordance with M.G.L. c. 30A, § 14 within 30 days of receipt of this decision. 9