Maine Moves Toward Statewide Building Code

(from Maine Townsman, August/September 2010)
By Jeffrey Austin, Legislative Advocate, MMA

Around noon on May 27, an entity called the Technical Building Codes and Standards Board (the Board) met in a windowless conference room within the sprawling Department of Public Safety complex in Augusta and unanimously voted to adopt the the first statewide building code in Maine history. That code goes by the acronym MUBEC, which stands for the Maine Uniform Building and Energy Code. Even though the heavens didn’t move and the Earth didn’t shake, this was one of the more significant public policy changes in Maine in recent times.

The adoption of a statewide building code, will affect the way municipalities manage the building-inspection process, with different impacts on different municipalities. This article is an overview of the statewide building code and the major issues that municipalities should consider. MMA has created a webpage where more information may be found, including a nine-page “Q&A” document. That webpage is http://www.memun.org/public/MMA/svc/SFR/BuildingCode/default.htm

Statewide Law

The law calling for the adoption of a statewide building code was enacted by the Legislature in 2008 with some fix-up amendments enacted in 2009. The laws impact several Titles of law in the Maine statutes. Both acts are posted at the MMA website as is an “annotated” version assembled by MMA staff that attempts to synthesize the major elements of both acts into a single document.

The first point to be made is that the code will be effective statewide – it will apply in all municipalities, even those that have never had a building code before. The method of enforcement created by the Legislature is somewhat convoluted and has caused confusion as to the applicability of the code. But the law is quite clear. Regardless of the enforcement regime in a particular community, MUBEC applies in all of the organized (non-LURC) territories in Maine. All persons engaged in the construction of any buildings should be aware that the building code will govern construction in all Maine municipalities as of December 1, 2010.

What is MUBEC?

MUBEC is not a single code. It is composed of four different codes and four standards.

These are national codes and standards adopted by three entities. The four building codes are the product of the International Code Council (ICC) and the air quality standards are the product of the American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE). The Maine Radon Code is a standard adopted by the American Society for Testing and Materials.

Not every element of each of these codes has been incorporated into the MUBEC. In fact, in the course of adopting the MUBEC the board deleted several chapters of the individual codes in their entirety.

Furthermore, some of the code provisions were inconsistent or difficult to reconcile with the state Fire Code. The Board is also adopting a series of amendments to help “harmonize” the MUBEC with the Fire Code.

Because the organizations which produce the codes are private organizations, it is not possible to download and print the codes for free. Purchasing them is an option, but they can be quite expensive.

The ICC codes and ASHRAE standards are viewable online for free but they may not be downloaded or printed for free. The Maine Radon Code is a standard produced by the American Society for Testing and Materials (ASTM). Links to all three organizations may be found on the MMA webpage.

The State Planning Office has expressed its intent (hope) to provide one copy of the full MUBEC at no cost to any municipality that is enforcing the code.Members of Building Code Board

The Board and the Bureau

The building code law(s) established both a Building Code Board and a Bureau of Building Codes and Standards. The Board is an 11-member volunteer board, plus the Commissioner of the Department of Public Safety who is an ex-officio member. The members are appointed by the Governor and represent many impacted parties, including two municipal code enforcement officers.

The Building Code Bureau is a two-person office within the Department of Public Safety. The Director and Administrative Assistant are responsible for providing the staff support for the Board and the day-to-day administrative duties of code interpretations, processing requests for code amendments and answering questions from the general public. The Director of the Bureau is Richard Dolby, a former code enforcement officer from the City of Augusta. The Bureau’s website can be found at: http://www.maine.gov/dps/bbcs/

On July 26, the Board held its formal rulemaking public hearing on the adoption of the MUBEC. Approximately 60 people attended. While no real opposition to the adoption of MUBEC was expressed, several builders and a few municipal officials did raise some concerns. The three-hour hearing was dominated by testimony from at least 5 fire fighters, a sprinkler system association representative and a representative from the National Fire Protection Association (NFPA) who criticized the Board’s decision to not require all new single-family homes be constructed with a sprinkler system.

MMA provided testimony to the Board and the testimony can be found on the MMA webpage.

The Board is scheduled to meet on August 19 at the Department of Public Safety complex in Augusta. The presumption is that the Board will vote on the final adoption of MUBEC at that meeting.

WHAT IS REQUIRED?

The building code law splits municipalities into two categories – those over 2,000 in population (as of the last Census) and those under 2,000 in population.

For municipalities under 2,000 in population, the law requires no municipal action of any kind. The only potential change is that if such a municipality currently has a locally adopted building code, that code will be void as of December 1, 2010, just like all other municipally adopted codes in Maine. Otherwise, a municipality under 2,000 does not have to do any enforcement. Our understanding is that the vast majority of municipalities under 2,000 do not have a locally adopted building code.

This isn’t to say that the MUBEC does not affect municipalities under 2,000. Construction in these communities must meet code; there is just no required municipal enforcement.

For municipalities over 2,000 in population, there is an enforcement obligation. Certificates of occupancy may not be issued by a municipality with a population over 2,000 without first receiving a report that indicates the construction meets code. So, those municipalities must either revise, or in some cases implement a certificate of occupancy program.What's in the Series? The MUBEC Code

Maine law has long mandated that municipalities over 2,000 in population employ an inspector of buildings and establish a “certificate of occupancy” process. Under the new building code law, it is this certificate of occupancy process that must incorporate the MUBEC provisions.

In the late 1800s there were several significant fires in Maine including the big fire of 1866 that burned much of Portland. The insurance industry sustained such heavy losses in these fires that it pressured the Legislature to require that buildings be constructed in such a fashion as to “see that all proper safeguards against the catching or spreading of fire are used.” And further, that no building could be occupied without a certificate that the building is “safe from fire.” However, no real guidance, or detailed mandate, was ever enacted to clarify what this meant. Accordingly, for some municipalities the certificate of occupancy process has never been well-developed or enforced.

It was into this 100-plus-year-old law that the Legislature inserted the obligation to enforce the MUBEC such that the mandate now is for municipalities over 2,000 in population to issue certificates of occupancy for new construction or significant reconstruction. That is, occupancy may not occur until “the building official has given a certificate of occupancy for compliance with the Maine Uniform Building and Energy Code.” This is the mandate.

Who Will Inspect?

This is where municipalities have a choice. The state building code laws require builders to hire certified third-party inspectors to conduct the required inspections unless the municipality has voluntarily chosen to have a certified municipal building inspector do the work.

A municipal code enforcement officer / building inspector (CEO) may enforce the code. The Legislature is hopeful that CEOs who currently enforce a municipally adopted building code will continue enforcing the MUBEC as they had their municipal code – as long as they satisfy a new training and certification standard for MUBEC.

However, municipalities don’t have to use municipal CEOs/building inspectors to do these inspections. The Legislature made it clear that municipalities are not obligated to conduct these MUBEC inspections.

The building code law calls for the emergence of a new kind of inspector, a certified “third-party” inspector. If a municipality does not voluntarily choose to have a municipal CEO conduct the inspections, the law mandates that homebuilders (or commercial property developers) hire a third-party inspector to determine if the construction satisfies the MUBEC. These third-party inspectors would then submit to the municipality a report stating that the project meets code in order to receive a certificate of occupancy.

The law is also clear that a municipality receiving a third-party inspector reports has no obligation to review, verify or otherwise insure the accuracy of that report. The certificate of occupancy process could be little more than a clerical function for a municipality if that is what it chooses. A municipality may choose to do more and reserve the right to review these reports for accuracy before issuing a certificate of occupancy. For many communities this might be the appropriate “hybrid” approach where the municipality doesn’t have to conduct inspections, but maintains an oversight role.

It’s important to remember that no municipality, even the largest communities with the most well-established building code departments, is obligated to conduct inspections with municipal CEOs or building inspectors. Some of these communities will undoubtedly choose to control the inspections and insure the quality of construction in their communities. However, they too can rely on third-party inspectors and this may be more likely to happen with respect to the inspections associated with some of the more technical codes or larger commercial projects.

In order for an individual to become a third-party inspector, he/she would have to be certified by the State Planning Office (SPO). The SPO has recently conducted rulemaking to establish the certification qualifications. The SPO rule can be viewed at this web address: http://www.maine.gov/spo/ceo/index.htm. Essentially, a third-party inspector has to take a certain amount of training and pass some written tests.

[No tests have yet been offered and accordingly no certified third-party inspectors exist. SPO indicates that the intention is to offer testing in September. SPO Training Coordinator Amanda Lessard can be contacted with questions about testing.]

Municipal CEOs who are going to enforce the code also need to be certified. The testing requirement will be waived for CEOs who have experience enforcing national model building codes. However, ongoing training will be required.

The system of inspections is the key policy discussion and the primary decision that boards of selectmen, town and city councils and legislative bodies must make. Will your community choose to actively enforce the building code with a certified municipal inspector? If not, the public will need to abide by the state’s building code law and hire a third-party inspector.

May a Municipality Amend the MUBEC Locally?

Generally, local amendments to the MUBEC code are not allowed, except that local ordinances which are inconsistent with MUBEC are permitted to the extent they govern the administration of local code enforcement.

A major policy goal of the Legislature in adopting the MUBEC code was to establish a uniform set of standards across the state. This would make it easier for architects and builders who would no longer need to spend time figuring out which codes applied in which communities.

A provision in the final law, however, states that local ordinances that establish an enforcement protocol for that municipality are allowed – even if they are inconsistent with the MUBEC’s enforcement provisions. So, MMA has interpreted the statute to mean that all of the steps associated with enforcement – included locally adopted permitting requirements, fees, documentation, inspections, timelines and appeal processes – may continue to exist or may be enacted even if they are distinct from the enforcement provisions contained in the national model codes and incorporated into MUBEC.

Conclusion

The MUBEC and the associated rules, regulations, certifications and statutory amendments are part of an ongoing process and changes to the information given above may occur. Additionally, there is more information about issues like sprinklers for residential construction and the process the Board will use to amend the code in the future that this article hasn’t touched on. Please visit the MMA webpage and the Bureau webpage for more information. A panel discussion on the building code is scheduled for the MMA convention in October.