CHAPTER 8

HB 285-FN-LOCAL - FINAL VERSION

10jan02...1954h

21feb02...2852eba

2002 SESSION

01-0041

10/09

HOUSE BILL 285-FN-LOCAL

AN ACT relative to the adoption of a state building code.

SPONSORS: Rep. Clegg, Hills 23; Sen. Francoeur, Dist 14

COMMITTEE: Municipal and County Government

ANALYSIS

This bill establishes a state building code and repeals the authority for local adoption of building codes by reference.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

10jan02...1954h

21feb02...2852eba

01-0041

10/09

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Two

AN ACT relative to the adoption of a state building code.

Be it Enacted by the Senate and House of Representatives in General Court convened:

8:1 Findings and Purpose.

I. The general court finds that a multiplicity of construction codes and standards currently exist in this state. The general court further finds that the model codes of the International Building Code 2000, the International Plumbing Code 2000, the International Mechanical Code 2000, the International Energy Conservation Code 2000, and the National Electric Code 1999, are recognized construction codes whose uniform adoption as the state building code pursuant to this act will insure that the state has a uniform, modern construction code which will protect the public health, safety, and welfare.

II. It is the intent and purpose of this act to:

(a) Provide requirements for construction consistent with nationally recognized standards;

(b) Permit to the fullest extent feasible the use of modern technical methods, devices and improvements, consistent with reasonable requirements for the health, safety, and welfare of occupants or users of buildings and structures; and

(c) Insure adequate protection of the public health, safety, and welfare.

8:2 Cities; Reference to State Building Codes. Amend RSA 47:22 to read as follows:

47:22 Grant of Power. The board of mayor and aldermen, or the corresponding governmental body of any city, is hereby empowered and authorized in the passing and adopting of ordinances, establishing codes, rules and regulations for the construction of buildings, relating to the installation of plumbing, the use of concrete, masonry, metal, iron and wood, and other building material, the installation of electric wiring, and fire protection incident thereto or for the prevention of fires to adopt any [nationally recognized code, rules and regulations to develop good engineering practice or safety that have been printed as a code in book form or such portions thereof by reference thereto in such ordinance] additional regulations provided that the regulations are not less stringent than the requirements of the state building code under RSA 155-A or the state fire code under RSA 153; provided, that upon adoption of such ordinance wherein such code, rules and regulations or portions thereof have been incorporated by reference, there shall be filed 3 copies of such codes, rules and regulations in the main office of the municipal department or agency administering the same and 3 copies in the office of the city clerk. All copies of any code, rules and regulations filed as provided herein, shall be for use and examination by the public.

8:3 New Hampshire Building Code; Construction Standards. RSA 155-A is repealed and reenacted to read as follows:

CHAPTER 155-A

NEW HAMPSHIRE BUILDING CODE

155-A:1 Definitions. In this chapter:

I. "Building" means building as defined and interpreted by the International Code Council's International Building Code 2000.

II. "County" means the local legislative body of a county in which there are unincorporated towns or unorganized places.

III. "Local enforcement agency" means for a municipality that has adopted enforcement provisions or additional regulations under RSA 674:51, the building inspector or other local government official with authority to make inspections and to enforce the laws, ordinances and rules enacted by the state and by local government that establish standards and requirements applicable to the construction, alteration, or repair of buildings.

IV. "New Hampshire building code" or "state building code" means the adoption by reference of the International Building Code 2000, the International Plumbing Code 2000, the International Mechanical Code 2000, the International Energy Conservation Code 2000, as published by the International Code Council, and the National Electric Code 1999. The provisions of any other national code or model code referred to within a code listed in this definition shall not be included in the state building code unless specifically included in the codes listed in this definition.

V. "Person" means any individual or organized group of any kind, including partnerships, corporations, limited liability partnerships, limited liability companies, and other forms of association, as well as federal, state or local instrumentalities, political subdivisions, or officers.

VI. "Structure" means structure as defined and interpreted by the International Code Council's International Building Code 2000.

155-A:2 State Building Code.

I. Except as provided in paragraphs II and III, all buildings, building components, and structures constructed in New Hampshire beginning one year after the effective date of the section, shall comply with the state building code and state fire code. The construction, design, structure, maintenance, and use of all buildings or structures to be erected and the alteration, renovation, rehabilitation, repair, maintenance, removal, or demolition of all buildings and structures previously erected shall be governed by the provisions of the state building code.

II. Standards, including definitions, established by the most recent edition of the Life Safety Code, NFPA Doc. No. 101, shall take precedence over all standards in the state building code relative to means of egress.

III. All new buildings shall conform to the requirements of the state fire code adopted pursuant to RSA 153:5 and to the extent that there is any conflict between the state building code and the state fire code, the state fire code shall take precedence unless otherwise determined by the board, subject to the review provisions contained in RSA 155-A:10.

IV. To the extent that it does not conflict with any other provision of law, the issuance of permits and the collection of fees pursuant to the state building code is expressly reserved for counties, towns, cities, and village districts.

V. Except for buildings owned by the state or the university system, the issuance of certificates of occupancy pursuant to the state building code is expressly reserved for counties, towns, cities, and village districts.

VI. Counties, towns, cities, and village districts may adopt by ordinance pursuant to RSA 674:51 any additional regulations provided that such regulations are not less stringent than the requirements of the state building code pursuant to this chapter and the state fire code pursuant to RSA 153.

VII. For any municipality which has not adopted an enforcement mechanism for the state building code under RSA 674:51, the contractor of the building, building component, or structure shall notify the state fire marshal concerning the type of construction before construction begins excluding one- and 2-family dwellings.

VIII. The contractor of a building, building component, or structure shall be responsible for meeting the minimum requirements of the state building code. No municipality shall be held liable for any failure on the part of a contractor to comply with the provisions of the state building code.

IX. Nothing in this chapter shall be construed as amending, repealing, or superseding any local law, ordinance, code, or regulation, except local building code requirements that are less stringent than the state building code, and all buildings, building components, and structures shall comply with all applicable state or local building and fire code requirements, land use restrictions including but not limited to subdivision regulations, use and location restrictions, density and dimensional limitations, or historic district laws or ordinances.

X. Nothing in this chapter shall be construed to permit or encourage the state to initiate or assume an independent role in the administration and enforcement of the New Hampshire building code for a building or structure that is not owned or operated by the state unless otherwise authorized by law.

XI. No state agency, authority, board, or commission shall modify the state building code, unless approved by the state building code review board pursuant to RSA 155-A. Nothing in this chapter shall affect the statutory authority of the public utilities commission, the state board for the licensing and regulation of plumbers, or the state electricians' board, to administer their respective programs, provided that any changes to codes adopted under the rulemaking authority of these agencies shall not be implemented until approved by the state building code review board.

155-A:3 Local Amendments; Application. For a municipality which has adopted an enforcement mechanism or additional regulations to the state building code pursuant to RSA 674:51:

I. The municipality may adopt local amendments to the state building code which do not prohibit minimum implementation and enforcement of the state building code.

II. The procedure for amendment shall be in accordance with applicable statutes and local regulations.

III. At a minimum, the municipality shall ensure that implementation and enforcement includes:

(a) Review and acceptance of appropriate plans.

(b) Issuance of building permits.

(c) Inspection of the work authorized by the building permits.

(d) Issuance of appropriate use and occupancy certificates.

IV.(a) The provisions of this chapter and any local amendments under this section shall not be construed to restrict or encumber the local governing body's authority relative to the appointment, removal, or duties of municipal employees and the organization of municipal departments.

(b) Any provision of the state building code that conflicts with existing or amended local ordinances, regulations, policies, practices, or procedures regarding the appointment, removal, or duties of municipal employees and the organization of municipal departments, shall not apply.

155-A:4 Permit Required. Before starting new construction or renovation of schools, halls, theaters or other public buildings the person responsible for such construction shall obtain a permit signed by the board of selectmen, after its due consideration of any written recommendations of the fire chief. In municipalities that have adopted an enforcement mechanism pursuant to RSA 674:51, the permit under this section shall conform to the locally adopted process.

155-A:5 Accessibility of Public Buildings. Notwithstanding RSA 155-A:2, all new buildings constructed by the state or any of its agencies, and all new schools, halls, theaters, or other public buildings in this state in which more than 100 people can be assembled shall be required to provide at least one entrance and exit designed so that the public areas of the entire building are accessible to persons with disabilities.

155-A:6 Inspection of State Buildings. The commissioner of safety and the commissioner of transportation shall provide for periodic safety inspection of all occupied public buildings owned by the state.

155-A:7 Enforcement Authority.

I. The local enforcement agency appointed pursuant to RSA 674:51 shall have the authority to enforce the provisions of the state building code, provided, however, that where there is no building inspector, the state fire marshal or the state fire marshal's designee shall have the authority to enforce the provisions of the state building code, subject to the review provisions contained in RSA 155-A:10.

II. Upon the request of a local enforcement agency, state agencies, boards, and commissions may provide advisory services and technical assistance concerning any building or any construction project in the local enforcement agent's jurisdiction.

III. The local enforcement agency appointed to enforce the state building code shall have the authority to inspect all buildings, structures, construction sites, and other places in the jurisdiction. If consent for such inspection is denied or not reasonably obtainable, the local enforcement agency may obtain an administrative inspection warrant under RSA 595-B.

155-A:8 Penalty. Fines, penalties, and remedies for violations of this chapter shall be the same as for violations of title LXIV, as stated in RSA 676:15 and 676:17.

155-A:9 Fees. The municipality may establish fees to defray the costs of administration, implementation, and enforcement of the state building code and any local amendments. Such fees shall be for the general use of the municipality having responsibility over the local enforcement agency.

155-A:10 State Building Code Review Board.

I. There is established a state building code review board consisting of the commissioner of safety or the commissioner's designee, and 15 additional members appointed by the commissioner of safety as follows:

(a) One architect licensed in this state for a minimum of 5 years, nominated by the board of architects established in RSA 310-A:29.

(b) One structural engineer licensed in this state for a minimum of 5 years, nominated by the board of engineers established in RSA 310-A:3.

(c) One mechanical engineer licensed in this state for a minimum of 5 years, nominated by the board of engineers established in RSA 310-A:3.

(d) One electrical engineer licensed in this state for a minimum of 5 years, nominated by the board of engineers established in RSA 310-A:3.

(e) One representative of the state's municipalities, nominated by the New Hampshire Municipal Association.

(f) One municipal building official, nominated by the New Hampshire Building Officials Association.

(g) One municipal fire chief, nominated by the New Hampshire Association of Fire Chiefs.

(h) One municipal volunteer fire chief, nominated by the New Hampshire Association of Fire Chiefs.

(i) One building contractor, primarily engaged in the business of constructing non-residential buildings, nominated by the Associated General Contractors of New Hampshire.

(j) One building contractor primarily engaged in the business of constructing residential buildings, nominated by the New Hampshire Home Builders Association.

(k) One representative from the state energy conservation code office under RSA 155-D, nominated by the New Hampshire public utilities commission.

(l) One master plumber licensed in this state for a minimum of 5 years, nominated by the state board for the licensing and regulation of plumbers established in RSA 329-A.

(m) One mechanical contractor with a minimum of 5 years experience, primarily engaged in the business of mechanical construction, nominated by the New Hampshire Plumbing and Mechanical Contractors Association.

(n) One master electrician licensed in this state for a minimum of 5 years, nominated by the New Hampshire Electrical Contractors Business Association.

(o) One representative of the Committee on Architectural Barrier - Free Design nominated by the governor's commission on disability.

II. The term of each member shall be 3 years except that persons initially appointed under subparagraphs I(a), (d), (g), (j) and (m) shall serve one-year terms, and persons initially appointed under subparagraphs I(b), (e), (h), (k) and (n) shall serve 2-year terms. The chair shall be appointed by the commissioner of safety. Board members shall be appointed for no more than 2 consecutive 3-year terms.

III. The board shall be administratively attached to the department of safety under RSA 21-G:10.

IV. The board shall meet to review and assess the application of the state building code and shall recommend legislation, as the board deems necessary, to modify the requirements of the state building code and the state fire code in order to provide consistency with the application of other laws, rules, or regulations, and to promote public safety and best practices.

V. The board may adopt rules to update or change the state building code manuals for the codes described in RSA 155-A:1, IV, to the extent the board deems that such updates or changes are necessary, provided that any such updates or changes are ratified by the adoption of appropriate legislation within 2 years of their adoption. If such updates or changes are not ratified, then the rules shall expire, notwithstanding RSA 541-A:17, I, at the end of the 2-year period. With the approval of the commissioner of safety, the board shall be authorized, pursuant to RSA 541-A, to adopt rules relative to procedures of its operation and appeals to the board.

VI. The board shall review the National Fire Protection Association Building Code and its companion manuals when published, and shall review any other building codes when published, in order to evaluate whether the state should continue with the International Building Codes and its manuals, switch to other codes or adopt a combination of codes.

155-A:11 Appeals of Decisions of the State Fire Marshal.

I. The board shall hear appeals of variances or exceptions to the state fire code that have been granted or denied by the state fire marshal or the state fire marshal's designee, and appeals of a decision of the state fire marshal or the state fire marshal's designee, in enforcing provisions of the state building code pursuant to RSA 155-A:7, I.

II. The board shall hold a hearing within 40 days of receipt of a complaint, unless an extension of time has been granted by the board at the written request of one of the parties and shall render a decision within 30 days of the conclusion of a hearing.

155-A:12 Appeal From Board's Decision.

I. A party to the proceeding shall have the right to file a petition in the superior court of the county in which the building or structure is located to review the final order of the board within 30 days of the date of the final order.

II. At the earliest practical time, the court shall review the record as developed before the board, together with any written legal argument presented to the court. Based on that review, the court may affirm or reverse the decision of the board or order that oral argument be held. As justice may require, the court may remand the case to the board for further findings and rulings. The petition for appeal shall set forth all the grounds upon which the final order is sought to be overturned. Issues not raised by the appellant before the board shall not be raised before the superior court. The burden of proof shall be on the appellant to show that the decision of the board was clearly unreasonable or unlawful.

III. No new or additional evidence shall be introduced in the superior court, but the case shall be determined upon the record and evidence transferred, except that in any case, if justice requires the review of evidence which by reason of accident, mistake, or misfortune could not have been offered before the board, the superior court shall remand the case to the board to receive and consider such additional evidence.

8:4 Energy Conservation in New Building Construction; State Building Code. RSA 155-D:2, II is repealed and reenacted to read as follows:

II. "Code for Energy Conservation in New Building Construction" or "code" means the applicable parts of the state building code as defined in RSA 155-A.

8:5 Modular Housing; State Building Code. RSA 205-C:1, II is repealed and reenacted to read as follows:

II. "State building code" means the state building code pursuant to RSA 155-A.

8:6 Modular Building Standards. Amend RSA 205-C:2 to read as follows:

205-C:2 Modular Building Standard.

I. All modular buildings and building components [installed in New Hampshire] ordered on or after [July 24, 1992] the date one year after the effective date of RSA 155-A:2 shall comply with the [BOCA National Building Code and the National Electrical Code] state building code and the state fire code.

II. All modular buildings and building components bearing a label of certification pursuant to the requirements of this chapter shall be deemed by local enforcement agencies as meeting the [BOCA National Building Code and the National Electrical Code. Such certification] state building code, however, such certification shall not be deemed to preempt enforcement of any state or local standards governing installation or work performed on the building site, including but not limited to site grading, foundations, driveways, on-site water and sewer systems or connections to off-site systems, and electrical line connections to the power source.

III. Nothing in this chapter shall be construed as amending, repealing or superseding any [other state or] local law, ordinance, code or regulation, and all modular buildings and building components shall comply with all applicable state or local building requirements that exceed the [BOCA National Building Code or the National Electrical Code,] state building code, in addition to any land use restrictions including but not limited to subdivision regulations, use and location restrictions, density and dimensional limitations, or historic district laws or ordinances.

8:7 New Paragraph; Electricians; Rulemaking. Amend RSA 319-C:6-a by inserting after paragraph V the following new paragraph:

V-a. The applicable version of the National Electrical Code with any discretionary changes, provided that any such changes are no less stringent than provided in the state building code administered and approved by the state building code review board under RSA 155-A;

8:8 Plumber's Board; State Plumbing Code; Adoption by Reference; Rules. Amend RSA 329-A:15 to read as follows:

329-A:15 State Code; Rules.

I. The board shall adopt such plumbing rules under RSA 541-A as it may deem necessary for the protection of the public health. Such rules shall be considered minimum standards. [The rules shall be no less stringent than the plumbing provisions of the 1984 edition of the BOCA Basic Plumbing Code sponsored by the Building Officials and Code Administrators International, Inc.] The board [may] shall adopt [the BOCA code] the International Plumbing Code, as published by the International Code Council, by reference, provided it specifies which sections of the code are in force in New Hampshire and makes specific and discretionary provisions in the code, subject to the provisions of RSA 155-A:2, XI.

II. The board shall periodically review the rules adopted under paragraph I to assure that they are not less stringent than the most recent edition of the [BOCA] International Plumbing Code published at the time of the review.

8:9 Environmental Services; Public Water Systems; Plumbing Code. Amend RSA 485:41, III to read as follows:

III. Adopt rules governing the installation of pipes, fixtures and other apparatus which are used to connect the water system to a building. Such rules shall be considered minimum standards. [The rules shall be no less stringent than the applicable provisions of the current edition of the BOCA Basic Plumbing Code, sponsored by the Building Officials and Code Administrators International, Inc.] The department [may] shall adopt the [BOCA code] International Plumbing Code as published by the International Code Council by reference, provided the department specifies which sections of the code are in force in New Hampshire and makes specific any discretionary provisions in the code subject to approval by the state building code review board. The department shall periodically review the rules adopted under this paragraph to assure that they are no less stringent than the requirements of the current [BOCA] code.

8:10 Zoning and Planning; Building Codes. RSA 674:51 is repealed and reenacted to read as follows:

674: 51 Power to Amend State Building Code and Establish Enforcement Procedures.

I. The local legislative body may enact as an ordinance or adopt, pursuant to the procedures of RSA 675:2-4, additional provisions of the state building code for the construction, remodeling, and maintenance of all buildings and structures in the municipality, provided that such additional regulations are not less stringent than the requirements of the state building code. The local legislative body may also enact a process for the enforcement of the state building code and any additional regulations thereto, and the provisions of a nationally recognized code that are not included in and are not inconsistent with the state building code.

II. Any such ordinance adopted under paragraph I by a local legislative body shall be submitted to the state building code review board for informational purposes.

III. The local ordinance or amendment adopted according to the provisions of paragraph I shall include, at a minimum, the following provisions:

(a) The date of first enactment of any building code regulations in the municipality and of each subsequent amendment thereto.

(b) Provision for the establishment of a building code board of appeals as provided in RSA 673:1, V; 673:3, IV; and 673:5.

(c) Provision for the establishment of the position of building inspector as provided in RSA 673:1, V. The building inspector shall have the authority to issue building permits as provided in RSA 676:11-13 and any certificates of occupancy as enacted pursuant to paragraph III, and to perform inspections as may be necessary to assure compliance with the local building code.

(d) A schedule of fees, or a provision authorizing the governing body to establish fees, to be charged for building permits, inspections, and for any certificate of occupancy enacted pursuant to paragraph III.

IV. The regulations adopted pursuant to paragraph I may include a requirement for a certificate of occupancy to be issued prior to the use or occupancy of any building or structure that is erected or remodeled, or undergoes a change or expansion of use, subsequent to the effective date of such requirement.

8:11 Rulemaking Required. The state building code review board established by this act shall adopt rules under RSA 541-A within 6 months of the effective date of RSA 155-A:2 relative to the operation of the board, the procedure for appeals to the board, and procedures for updating or changing the state building code.

8:12 Repeal. The following are repealed:

I. RSA 205-C:1, XII, relative to the definition of the National Electrical Code.

II. RSA 674:52, relative to local adoption of building codes by reference.

III. RSA 675:9, II, relative to filing exemption for national building codes adopted by reference.

8:13 Effective Date.

I. RSA 155-A:10 as inserted by section 3 of this act shall take effect 30 days after its passage.

II. The remainder of this act shall take effect 180 days after its passage.

(Approved: March 18, 2002)

(Effective Date: I. RSA 155-A:10 as inserted by section 3 of this act shall take effect April 17, 2002.

II. The remainder of this act shall take effect September 14, 2002.)