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LTR & DECISION OF ST APPEAL BOARD RE ROOF WINDOW The Commonwealth of Massachusetts Department of Public Safety \'f11 ►1 Board of Building Regulations and Standards r One Ashburton Place, Room 1301 ,w see v 1^� Charles D.Baker Boston, Massachusetts 02108-1618 Matt Carlin Governor Phone (617) 727-3200 Commissioner 'Karyn E.Polito Richard P.Crowley Lieutenant Governor Fax (617) 727-5732 Chairman Daniel Bennett 14.11,1 t'.mass.hovi clps Felix I.Zemel Secretary Administrator Date: September 8,2016 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 Property Address: 5 School Street Salem, MA. 01970 Date of Hearing: August 11,2016 Enclosed please find a copy of the decision on the matter aforementioned. Sincerely: BUILDING CODE APPEALS BOARD Patricia Barry,Clerk cc: Building Code Appeals Board,Building Official 1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. BUILDING CODE APPEALS BOARD DOCKET NO.APP-BCAB16-0004 Robert LaBelle (d/b/a LaBelle ) Roofing, Inc.) et al., ) Appellant ) v. ) City of Salem ) Appellee ) DECISION Introduction This matter came before the State Building Code Appeals Board ("Board") as a result of an appeal application filed pursuant to G.L. c. 143, § 100 ("Application"). Robert LaBelle filed an Application seeking an interpretation with respect to the replacement of existing skylights in some of the dwelling units in a six-unit condominium located at 5 School Street, Salem, MA ("Appeal"). Procedural History On or about May 16, 2016, the Building Commissioner for the City of Salem issued a Violation Notice. The Violation Notice stated the following: Our office received a concern regarding non-compliant roof window units and incorrect floor to sill heights in sleeping areas at the property located at 5 School Street, Units 5 & 6. The permits were applied for and was granted . . . . The concerns were investigated by the Department and the alleged violations were confirmed in Unit 5, and believed to be duplicated in Unit 6. The roof window units installed do not meet the egress requirements set forth in the Massachusetts State Building Code for sleeping areas. The height form 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. 1 The work that has been done to this point in time has not been inspected, and the final sign-offs on permits . . . shall not occur unit said violations are corrected. In a letter dated June 22, 2016, the Building Commissioner provided further information to LaBelle, stating: The section of the code that I feel you violated is section 2101.10.3 of the 4th Edition of the State Building Code. This was the edition in play at the time of the 1987 conversion from a school to a condo. This section is titled 'Emergency Egress'. Section # 1 talks about the sill height of an egress window being no more than 44 inches off the finished floor. I realize that you did not create this violation and that it dated back to the 1987 construction of the condos. The sill height is about six feet from the floor. Section # 2 talks about a clear opening of 3.3 square feet with a rectangle having a minimum of 24" x 20" in either direction. It is this section which I believe is a violation. The venting skylights, that you installed, do not meet the egress requirements of this section. This is why I have not signed-off on your building permit. The Appeal was filed on June 21, 2016 by Robert LaBelle, d/b/a LaBelle Roofing, Inc. ("LaBelle"). Notice of the Appeal Hearing was provided to Appellant, via e-mail in accordance with Board procedures, on July 29, 2016. Notice of the Appeal Hearing specified a start time of 9:30 a.m., August 11, 2016. The Board held the hearing on August 11, 2016. As of approximately 11:15 a.m. on August 11, 2015, the Board found that LaBelle had not appeared at the hearing, while a representative from the City, and two unit owners had appeared. LaBelle, and no one on behalf of LaBelle, provided any communication to the Board concerning LaBelle's absence, in advance or on the day of the hearing. Accordingly,the Board found that the Building Commissioner's Violation Notice stands, and, upon our motion, the Appeal was DISMISSED. Since our verbal decision on the record on August 11, 2016, but before the issuance of this written decision dismissing the Appeal, , LaBelle Roofing submitted an e-mail to the Board, on August 16, 2016, in which it was stated that LaBelle "was a few minutes late due to a severe heart problem, and in fact made every effort to appear on time. He did not have a phone number to call, so he was unable to provide a reason why he was detained. A doctor's note is attached, explaining Rob's ongoing condition." The doctor's note, dated August 16, 2016, from Michael J. Mazzini MD, states, "Mr. LaBelle has paroxysmal supraventricular tachycardia ["PST"]. This results in unanticipated and sudden symptoms which may be severe enough to preclude appearing for appointments and can interfere with daily living." By letter dated August 22, 2016, LaBelle stated that he experienced an attack of PST on Wednesday evening (August 10, 2016) which continued into Thursday, August 11, 2016. 2 LaBelle stated that the Building Commissioner called LaBelle's office on the morning of August 11, "as we did not have a phone number to call in Milford." LaBelle stated that, after the initial call with the Building Commissioner, he spoke with the Building Commissioner three more times. LaBelle said, "During the first call, I was told that other cases were being heard and that I might be able to make it. At that point I headed toward Milford. I call the inspector ten minutes later, and asked the inspector to keep me posted, and that I had been dealing with a bout of tachycardia but wanted to make every effort to attend the meeting. When I was about ten minutes away, the inspector called again and said the case was opened and closed already. At this point, I turned around because I was not feeling well and because I was told the case had been closed." As a result of these circumstances, LaBelle requested that another hearing be scheduled. In addition, on August 24, 2016, the Board learned that the owner of Unit#6 did not consent to filing of the Appeal. This owner stated, "I am an owner but was not at the hearing. My co-owner, Steve Manley was there representing me. My name appears on the original violation notice. Since 'egress' is a critical life-threatening issue and our units have been in violation since LaBelle's installation in January—we DO NOT want this appeal to be heard again." Discussion Pursuant to the Informal/Fair Hearing Rules, 801 CMR 1.02, which the Board follows, the Appeal may be dismissed because Appellant failed to appear at the hearing. The Board "shall notify the [Appellant] in writing that a default will be entered against him unless within ten days from the date of said notice he files a motion for a rescheduled hearing, and the motion is granted." 801 CMR 1.02(10)(d). Here, LaBelle received verbal notice about the Board's decision before he received written notice. Based on LaBelle's submissions to date, we find it likely that he would have made the same request and offered the same evidence following receipt of this written decision. But LaBelle obviously did not have the benefit of our written decision about what we decided based on the evidence before us at the hearing. Thus, while the dismissal of the Appeal stands, LaBelle has another opportunity to add to his argument and information he has provided in support of his request to reschedule the hearing. He has, pursuant to 801 CMR 1.02(10)(d), "ten days from the date" he receives this Decision in which to file anything further in "a motion for a rescheduled hearing." 801 CMR 1.02(10)(d). With that in mind, however, we offer further guidance that LaBelle should consider. Even if his request to reschedule the hearing were to be granted, the Board would still need confirmation that the owners of the properties subject to the Appeal have consented to LaBelle's seeking relief from the Building Commissioner's decision(s). The information, so far, indicates that at least one of the unit owners had not consented to the Appeal. 3 In addition, we strongly encourage LaBelle to continue to consult with the Building Commissioner to fully consider all the circumstances and all considerations about how to resolve, or at least, very clearly identify the Building Code issues to be resolved. Conclusion Based only on the evidence and information before us on the date of the hearing, the Appeal is DISMISSED, based on LaBelle's failure to appear at the hearing on August 11, 2016. „?6 LA L?lir/tome:v-0 '1/ ILA,Ci) ava. ';'6 Robert Anderson Richard Crowley, Chair H. Jacob Nunnemacher DATED: September 8, 2016 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. 4 L I.OZ/OZ/9000000 The Commonwealth of Massachusetts o gy, Division of Professional Licensure If Office of Public Safety and Inspections Notice of Hearing You are hereby advised that a hearing has been scheduled in this matter at the time and location specified.The hearing will be conducted pursuant to 801 CMR 1.02, Informal/Fair Hearing Rules,and G.L.c. 30A. You may appear in your own behalf,but you also have the right to have an Authorized Representative accompany,represent or advise you.Please note that an Authorized Representative must provide notice and otherwise comply with 801 CMR 1.02(3) and any other applicable rules. The following hearing has been scheduled: Case APP-BCAB16-0004 Submitted Date June 21, 2016 Submitted by Robert LaBelle Hearing Details Hearing Date&Time June 20, 2017 9:30 a.m. Hearing Location DPS 50 Maple Street Milford, MA.01757 Hearing Officer Hearing Authority BCAB The Corn monwealthofMissai hits eUs,l)iv-is ion.of Pro toss tonal I ice us ore,Office of Public S ale ty and Inspections One AshbirtonPlace, Room 130.1. ; Bo.ton, '.1 02108-Ih18 1e1: (ol7)727-32(1(1 F.u:(617)727-5732 Ilttp: ri.ricer.rn3ss,};or;xabr.f;otc`t7umnt pia-0ycttrh.`s;ilhl-lhbltsi'