BLDG CODE APPEAL BOARD 08/07/2017 w
CHARLES D. BAKER
GOVERNOR JOHN C.CHAPMAN
UNDERSECRETARY OF
Commonwealth of Massachusetts CONSUMER AFFAIRS AND
KARYN E. POLITO BUSINESS REGULATION
LIEUTENANT GOVERNOR Division of Professional Licensure
CHARLES BORSTEL
JAY ASH Office of Public Safety and Inspections COMMISSIONER,DIVISION OF
SECRETARY OF HOUSING D 1 Ashburton Place, Rm 1301 • Boston • Massachusetts • 0210$ PROFESSIONAL LICENSURE
ECONOMIC DEVELOPMENT
Date: August 8,2017
Name of Appellant: Robert LaBelle
Service Address: LaBelle Roofing
304 Boston Post Road
Wayland, MA. 01778
In reference to: 5 School Street
Salem, MA. 01970
Docket Number: 16-0004
I
Property Address: 5 School Street
Salem,MA. 01970
Date of Hearing: June 20, 2017
Enclosed please find a copy of the decision on the matter aforementioned.
Sincerely:
BUILDING CODE APPEALS BOARD
Patricia Barry,Clerk i
cc: Building Code Appeals Board,Building Official
I
1
;a TELEPHONE: (617)727-3200 FAX: (617)727-5732 http://www.mass.govidps
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. BUILDING CODE APPEALS BOARD
DOCKET NO. APP-BCAB16-0004
LaBelle Roofing, Inc., )
Appellant )
V. )
City of Salem, )
Appellee )
DECISION
Procedural History
This matter first came before the State Building Code Appeals Board ("Board" or
"BCAB") as a result of an appeal application Appellant LaBelle Roofing filed pursuant to G.L.
c. 143, § 100 on June 21, 2016 ("Application"). The Application concerns two dwelling units
within an existing multi-family building and condominium located at 5 School Street, Salem, MA
("Condominium"). Pursuant to the Application, a hearing was scheduled for August 11, 2016,
notices of the hearing were provided to the parties, and the hearing was held on, August 11,
2016. No one appeared on behalf of LaBelle at the hearing. As a result, we orally dismissed the
matter on August 11, 2016.
After the close of the August 11, 2016 hearing, but before our written decision
memorializing our dismissal was issued, LaBelle requested holding another hearing. By written
decision dated September 8, 2016, we denied LaBelle's request to hold another hearing. On or
about September 16, 2016, LaBelle again requested holding another hearing, and, by letter
dated November 29, 2016, we denied the request. LaBelle filed an appeal with the Superior
Court (Superior Court C.A. No. 1684CV03982). The Court allowed a Joint Motion for Remand
and Stay, dated May 2, 2017, by and among LaBelle, the City of Salem, and the Attorney
General of the Commonwealth on behalf of the Board ("Remand").
Pursuant to the Remand,we held a hearing on June 20, 2017. The following individuals
appeared at the hearing to provide testimony and argument: (for Appellant: Robert LaBelle;
Attorney Andrew F. Caplan); (for Appellee:Thomas St. Pierre (for the Building Department);
David Cody (for the Fire Department); (Condominium unit owners: Stephanie Perras, of Unit 5;
Kathleen Daley of Unit 6; Sharon Bonner of Unit 8). Appearing for the Board: Richard Crowley;
H.Jacob Nunnemacher;John Couture; Board Clerk: Patricia Barry).
1
We also considered the following evidence: (1) State Building Code Appeals Board
Appeal Application; (2) photograph from a real estate listing showing pre-existing skylight in
one of the Units in the Condominium; (3)three photographs of parts of exterior walls and four
interior photographs of various parts of new skylight units in the Condominium.
Findings and Discussion
1. Sometime in October 2015,the Unit owners of Units 5, 6, 7 and 8 hired LaBelle to
replace existing skylights in the Units. The Unit owners and the Condominium
association chose and approved the replacement skylights.
2. On November 19, 2015, the City of Salem issued building permits B-15-1268 and B-15-
1269 to Contractor Robert LaBelle for the installation of two skylights in Unit 7 and two
skylights in Unit 5 of the Condominium. On November 30, 2015, the City issued building
permit B-15-1298 to LaBelle for the installation of two skylights in Unit 6, and, on the
same day, issued building permit B-15-1299 to LaBelle for the installation of seven
skylights in Unit 8 of the Condominium.
3. LaBelle installed Velux "Fresh Air", deck-mounted, "No Leak Skylights", which have
mechanical systems that limit the amount of clear opening. (See photograph showing
chain running between sill and lower edge of sash.). The amount of clear opening
allows for ventilation but cannot accommodate a person attempting to climb out and
onto the roof.
4. The former skylights in Units 5 and 6 allowed for greater clear openings, according to
those Unit owners. The owners of Units 5 and 6 believed that the new skylights would
have similarly large openings, allowing them to climb out onto the roof, if necessary.
5. The building in which the Condominium is located was originally constructed as a
school. Sometime in or about 1987,the building was converted from a school to a
condominium containing multiple dwelling units. During the renovations for the
conversion, skylights were installed in the roof systems for Units 5, 6, 7 and 8, which
have access to the top floor of the building (which was the former attic space for the
building). Each of these four units has two levels, the main level and the former attic
level. The upper floor of each unit has been used for bedrooms. The only windows in
the upper floor bedrooms are skylights. The locations and openings for the skylights
have not changed since they were originally constructed in the roof system.
6. The skylight openings are located such that the sills for the skylights are approximately
66" above the floor. The replacement skylights were installed in the existing openings.
7. LaBelle admitted that it did not occur to him to consult the City's Building Commissioner
about the locations of the skylights during the building permit application process.
LaBelle considered, among other things,the age of the existing conditions; that the
rooms might not originally have been bedrooms (although he saw that beds were in the
rooms and he also speculated that the rooms might have originally been approved as
bedrooms when the conversion was permitted in the 1980's);the height of roof above
grade (so high that, according to LaBelle, even if one got to the roof, it is a long way to
grade); and that it would be difficult for someone to navigate snow/ice on the roof if
trying to get out through the skylight during winter conditions.
2
8. LaBelle admitted that the skylights were located too high above the floor to comply with
the Code's requirements in effect in 1987 and those in effect now for Emergency Escape
and Rescue. (See section 2101.10.3 of the 0 Edition of 780 CMR and 780 CMR 1029, 8th
Edition). But he believed that the City must have approved the location and installation
of the skylights sometime in the 1980's as part of the renovation and condominium
conversion work. He did not, however, verify whether the City approved the rooms as
bedrooms during the conversion work. He testified that skylights did not appear to him
as viable means of escape. In sum, he believed that replacing the existing skylight units
with new units in accordance with what the Unit owners and the Condominium
specified was reasonable under these particular circumstances.
9. There is no evidence that the locations of the existing skylights in the bedrooms was
identified as an issue to be resolved when the City issued the building permits to
LaBelle. As noted above, building permits were issued, and work proceeded pursuant to
those building permits.
10. At some point after new skylight units were installed,the Unit owners of Units 5 and 6
complained to the City about LaBelle's installation of the new skylights. The Unit
owners of Units 7 and 8, however, did not complain to the City about LaBelle's work in
their Units.
11. The City issued a Violation Notice, dated May 16, 2016 for 5 School Street, Units 5 and 6.
The Violation Notice stated the following: "The roof window units installed do not meet
the egress requirements set forth in the Massachusetts State Building Code for sleeping
areas. The height from the finished floor elevation to the bottom sill of one (1) unit
exceeds the forty-four inches (44") required by the code. Furthermore,the roof window
units are venting units only and do not meet the window egress requirements of the
State Building Code. Although the locations of the units were existing, all efforts
including but not limited to discussions with the Building Department should have been
made to bring the violations into compliance." (May 16, 2016 letter from the Building
Commissioner to Robert LaBelle).
12. By letter dated June 22, 2016,the Building Commissioner also told LaBelle that the 4th
Edition of the State Building Code was in effect at the time the window skylight
openings were originally constructed. The 4th Edition specified that the sill height of an
egress window must not be more than 44 inches above a finished floor. In this letter,
the Building Commissioner notes that LaBelle did not create the height violation. But
the letter also points out that the venting skylights do not meet the clear opening
requirement of 3.3 square feet with a minimum dimension of 24" x 20" as specified in
the 4th Edition. (See Section 2101.10.3 of the 4th Edition).
13. The City could not find records showing the original floor plans of the condominium
used for the conversion in the 1980's. The City found no records in its files that the
rooms in which the skylights are located were originally planned to be used as
bedrooms. In any event,the rooms in which the skylights are located have been used as
bedrooms for at least several years.
14. The City's Fire Department confirmed that its fire ladder apparatus could reach the roof
and Fire Department personnel could reach the skylights if someone were able to exit
through them to the roof.
3
Discussion
The issue before us is whether the City's determinations about the Building Code set
forth in the Building Commissioner's May 16, 2016 and June 22, 2016 are correct. We generally
agree with the City but further discussion, analysis, and direction are warranted, as follows.
LaBelle argues that we should consider the fact that, by virtue of his contracts with the
owners of the four Units, each Unit owner chose the type of new skylight she or he wanted to
have installed. We do not agree with LaBelle's argument because an owner and/or contractor
may not choose, by themselves, to avoid Code compliance. Code compliance cannot be waived
by contractual agreement by and among private parties.
The City argues that, given the existing conditions of the locations of bedrooms, LaBelle,
as a holder of a Construction Supervisor License, should have alerted the City and consulted it
before installation of new skylights, which carried forward the same hazards, with respect to
Emergency Escape and Rescue Opening requirements, associated with the pre-existing units. In
addition, the City believes that LaBelle and the Unit owners should have considered means to
make the existing skylight openings better usable for emergency escape, such as allowing the
installation of some type of ladder to reach the sills of the skylights and changing the opening
mechanisms for the skylights to make them easier to open and pass through.
The owners of Units 5 and 6 claimed that the pre-existing skylight units could be fully
opened to allow easier access to the roof. However, they found that the replacement skylight
units from the skylight vendor, Velux, could not be fully opened. (See also Exhibit 3
photographs). Thus,they would like skylights that could be easily opened to allow escape to
the roof from the bedrooms.
By contrast,the owner of Unit 8 never thought about using the skylights as a means of
escape. In her unit, the pre-existing skylight unit did not have quick-release mechanisms. It
always had a crank mechanism for opening the skylight, which limits the amount of clear
opening. She also found that she would need a ladder to reach the skylight in order to exit
from it, and she found that the skylight unit was too heavy to lift. Finally,the owner of Unit 8
maintained that each of the owners could have reviewed the Velux catalog and chosen
whatever unit s/he wished to have installed,thus one could have chosen a skylight unit that
better met her/his wishes. The Unit 8 owner was pleased with her choices and believes that
LaBelle did excellent work in the installation of her skylights. (The owner of Unit 7 also agreed
with LaBelle's installation of the new skylights, according to the Unit 8 owner.)
According to the Unit 8 owner, each of the four Units was initially advertised as having
bedrooms on its upper level while no bedrooms were located on the lower level. She testified
that the condominium master deed and documents reflect those configurations and that it is
not practicable to have bedrooms on the main floors of the Units. Thus, Unit owners may not
want to relocate bedrooms in order to comply with the Building Code. (In addition, even if
4
these owners eliminated bedroom use of the upper floors, it might be difficult to enforce that
type of restriction, all while the emergency escape and rescue hazards remained.)
The heart of the problem in all four units, although the Building Commissioner cited only
Units 5 and 6 in his Violation Notice, is that the bedrooms do not have sufficient emergency
egress or rescue openings as required by the Building Code in effect at the time the bedrooms
were first created. Section 2101.10.3 of 780 CMR, 41h Edition of the State Building Code
specifies:
Sleeping rooms shall have at least one (1) openable window or exterior
door to permit emergency egress or rescue. A required window must be
openable from the inside without the use of separate tools, and shall conform to
the following:
1. The sill height shall not be more than forty-four (44) inches above the
finish floor;
2. shall provide a minimum net clear opening area of 3.3 square feet
with a rectangle having minimum net clear opening dimensions of
twenty (20 inches by twenty-four(24) inches, in either direction. If a
double hung unit is used,then such dimensions shall apply to the
bottom half. 780 CMR 2101.10.3, 4th Edition of the State Building
Code, effective 9/1/80 through 3/1/91.
(Note also that the present requirements for new construction of buildings containing three or
more dwelling units specify a maximum sill height of 44" and a minimum net clear opening of
5.7 square feet; minimum width of 20"; minimum height of 24" for emergency escape and
rescue openings. 780 CMR 1029.2, 8th Edition. The present skylights do not comply with the
requirements in either the 4th or 81h Editions of the Code.) The possibilities that this error was,
for example, overlooked initially and/or approved in the 1980's do not eliminate requirements
to comply with the Code today in order to help ensure safety going forward.
Although the Code recognizes pre-existing conditions that may have been approved
pursuant to prior editions of the Building Code, not all conditions are "grandfathered." "The
legal occupancy of any structure existing in the date of adoption of this code shall be permitted
to continue without change, except as is specifically covered in this code or as deemed
necessary by the building official for the general safety and welfare of the public." 780 CMR
102.6. (emphasis added).Thus, we agree that the Building Commissioner had the authority,
"for the general safety and welfare of the public," to issue a violation notice and require steps
to improve safety, rather than allow these specific Code violations to persist. As a result, we
concur with the Building Commissioner's discussion of the Code sections in his letters to LaBelle
dated May 16, 2016 and June 22, 2016.
In addition, we find that, given the existing conditions of bedrooms that have only
skylights,there likely was reason for LaBelle to consult the Building Commissioner before
installation of the new skylights. "The [Construction Supervisor] license holder shall
5
immediately notify the building official in writing of the discovery of any violations which are
covered by the building permit." 780 CMR 110.R5.2.15.3. We also recognize, however,that
some combination of not fully identifying the issues by LaBelle and/or the City during the
building permit application process may have contributed to the delay in confronting these
Code issues. In any event, regardless of what might have happened before LaBelle replaced the
existing skylights with new units in the same openings,the Code issues still remain to be
addressed, and the work LaBelle supervised should not have made existing conditions
potentially more hazardous.
Although the work involves an existing building and the scope of work involves a Level 1
Alteration under the 2009 International Existing Building Code ("IEBC") Section 403 (as adopted
j and amended by Massachusetts as part of 780 CMR), these particular circumstances do not
allow the replacement of the existing skylight units with new like-kind units. 780 CMR 102.6.
We find that the present circumstances create the types of challenges that call for relief from,
and conditions to allow, variations/relief from complete Code compliance. G. L. c. 143, § 100.
("The appeals board may grant a variance from any provision of this code in any particular case,
may determine the suitability of alternate materials and methods . . . may impose limitations
both as to time and use . . . .")
As for Units 5 and 6, we find that requiring full compliance with the 4th Edition's
requirement at this juncture would present an unfair burden. The upper floor space has been
used for bedrooms since the building was converted to the Condominium, and it is
impracticable, if not infeasible, to create an emergency escape and rescue opening with a sill
height of 44 inches. However, the replacement skylights must not make a non-conforming
situation worse, and the new skylights must better accommodate emergency escape/rescue.
As noted above,the City's Fire Department represented that its team can effect a rescue from
the roof, so there is good reason to ensure that the skylights continue to allow for roof access,
in the event the primary egress from a bedroom is not available due to fire (or anything else).
For these reasons, we will allow a variance from the sill height requirements, but require
that at least one skylight in each of the bedrooms be replaced or adequately modified to allow
for easy escape onto the roof. In addition, a permanent ladder must be installed from the
bedroom floor to the sill that allows for access to the skylight. The Unit owners might also
consider whether other safety measures such as additional smoke detection and fire alarm
system/components realistically could be added to the building.
Although we may infer that the same Code issues about the skylights exist in Units 7 and
8,the City issued decisions with respect to only Units 5 and 6. Thus,further verification of the
conditions in Units 7 and 8 is necessary. We find that the Building Commissioner has the
authority to verify the status of the skylights in Units 7 and 8 and determine whether the same
Code issues exist as in Units 5 and 6. He may then issue a written determination about the
Code issues for the skylights in Units 7 and 8.
6
Thereafter, LaBelle or any other licensed Construction Supervisor and the owners of
Units 7 and 8 could determine measures, to address the existing conditions with respect to
Code compliance,that meet or exceed what is being required for Units 5 and 6 and propose
those specific measures to the Building Commissioner.
The Building Commissioner would, then, in turn, determine if he could authorize those
measures, pursuant to 780 CMR 104.10 through 104.12. If he were to authorize those
measures,then this matter would be concluded. However, if the Building Commissioner were
to determine that the BCAB must review and approve the proposed measures pursuant to G. L.
c. 143, § 100, before being implemented, then an appeal could be filed as to Units 7 and 8.
Whether that appeal is filed by LaBelle and/or other qualified individuals will be for the Unit
owners to determine. Although LaBelle filed the Appeal on behalf of at least some of the Unit
owners, ultimate responsibility to ensure Code compliance in the Condominium and the Units
rests with the Unit owners. 780 CMR 102.8.1.
Conclusion and Order
Accordingly, based on the particular facts and circumstances described above,we
unanimously concur with the Building Commissioner's Code analyses set forth in his letters
dated May 16, 2016 and June 22, 2016; ORDER that at least one of the skylights in each of the
bedrooms in Units 5 and 6 Unit allow emergency escape and rescue via the roof; ORDER that
those skylights in Units 5 and 6 be accessible by a permanent ladder; and ORDER the Building
Commissioner to inspect the bedrooms and skylights in Units 7 and 8, and that the owners of
Units 7 and 8 must, at minimum, address the violations in accordance with the measures
ordered for Units 5 and 6.
f r
r6
H.Jacob Nunnemacher Richard Crowley, Chair John Couture
DATED: August 8, 2017
Any person aggrieved by a decision of the State Building Code Appeals Board may appeal to
Superior Court in accordance with G.L. c.30A, § 14 within 30 days of receipt of this decision.
7