28-006 Code Vt. R. 28-070-006-X

Current through August, 2024

Section 28 070 006 - HISTORIC VARIANCE APPEALS BOARD RULES

Section I Definitions

"Board" shall mean the historic variance appeals board established in 21 V.S.A. 252a(a).

"Code or Rule" shall mean the most recently adopted edition of the Vermont department of labor & industry fire Prevention and building code, and shall include all portions of other fire and building codes incorporated by reference in that code.

"Commissioner" shall mean the commissioner of the department of labor & industry

"Damage or destroy the historic architectural integrity" shall mean to have an undue adverse impact on historically significant features or the historic architectural integrity of the building.

"Department" shall mean the department of labor & industry.

"Equal protection of the public safety and health" shall mean that an alternative method, means or practice taken in lieu of the method, means or practice required by the rule shall, in the opinion of the board, not provide less life safety protection then compliance with the rule.

"Historic building or historic structure" shall mean:

(i) any structure listed in or eligible for listing in the national register of historic places or the state register of historic properties;

(ii) any structure determined to be historically significant by the Vermont advisory council on historic preservation;

"Methods, means or practices to be taken in lieu of the rule" shall include fire prevention and life safety methods, means or practices which are shown to be accepted in other jurisdictions, or modifications to strict compliance with the rule which are shown to be effective, or the use of materials, methods, means or practices superior to the rules requirements. It may also include systems of early detection and warning, drills, and the use of more, trained, staff.

"Undue adverse impact on historically significant features or the historic architectural integrity of the building" shall mean:

(i) that strict compliance with the code or rule will result in the damage or loss of a significant historic feature; and

(ii) that the action represents a clear violation of the secretary of the interior's standards for rehabilitation.

Section II Jurisdiction

(a) Any person authorized to act on behalf of an owner of an historic building, as defined above, which is planning renovation work or which has been the subject of an inspection by the fire prevention division of labor & industry may seek a variance or exemption from the fire prevention code or rules applied to the building. An owner may also seek an extension of the time permitted to bring the historic building into compliance with applicable fire safety rules or codes.

(b) The board shall hear and determine all requests by owners of historic buildings, or their authorized representatives, for variances or exemptions from the rules adopted by the commissioner under 21 V.S.A. Chapter 3, subchapter 7.

(c) The board may permit a person seeking a variance or exemption to phase in compliance with the rules adopted under 21 V.S.A. Chapter 3, subchapter 7 in lieu of or in addition to granting the variance or exemption requested. The period of phased in compliance shall be reasonable but shall state a date by which compliance shall be achieved.

Section III Criteria for Granting a Variance or Exemption Request

A request for variance or exemption may be granted where an applicant has demonstrated that strict compliance would entail practical difficulty, unnecessary hardship, or would damage or destroy the historic architectural integrity of the historic building or structure, or is otherwise found unwarranted, provided that:

(1) any such variance or exemption secures the public safety and health;

(2) any petitioner for such a variance or exemption can demonstrate that the methods, means or practices proposed to be taken in lieu of the rule or rules provide, in the opinion of the board, equal protection of the public safety and health as provided by rule or rules;

(3) the rule or rules from which the variance or exemption is sought has not also been promulgated as a V.O.S.H.A. rule or standard; and

(4) any such variance or exemption does not violate any of the provisions of the architects or professional engineering licensing laws. (Chapters 3 and 20 of Title 26 or any rules adopted thereunder.)

Section IV Burden of Proof

The applicant has the burden of demonstrating:

(a) That the building or structure is an historic building; (The applicant may consult the division for historic preservation for assistance in identifying and evaluating historic buildings); and

(b) That compliance with the rules would entail practical difficulty, unnecessary hardship, or would damage or destroy the historic architectural integrity of the historic building or structure, or is otherwise found unwarranted; and

(c) That all of the criteria numbered 1-4 in section III are met.

Section V The Process

(a) Any person seeking a variance or exemption for work involving an historic building shall file a written request with the commissioner. Evidence that the building is an historic building as defined above shall be submitted with the written request. Photographs, architectural drawings, and other appropriate graphic materials sufficient to show the overall building and affected historic features of the building shall also be submitted with the request.

(1) The request shall describe the rule or rules from which the variance or exemption is sought; A variance request will generally not be considered until a plan review or inspection procedures have been completed by the commissioner or designated representative. A plan review letter or inspection report is generally sufficient to describe the rules from which a variance or exemption is sought;

(2) The reasons why a variance or exemption is sought; and

(3) A description as to how any alternative method, means or practices to be taken in lieu of the rule, provides equal protection of the public safety and health.

(b) A hearing on the request will be set within 15 working days of receiving the written request and materials as outlined in (a) above. An applicant may request a continuance of the hearing date, but must waive, in writing, his or her right to a decision within sixty days.

(c) At the hearing, the board shall take testimony from the applicant and/or his or her representatives, testimony from representatives of labor & industry, and receive and consider other information concerning the request, including, but not limited to, plans, drawings, photographs, factual documents, and test data. All hearings shall be open to the public.

(d) The board shall issue a written determination granting or denying, in whole or in part, any variance or exemption request, or permission to phase in compliance, within 60 days of hearing the request. If a grant is conditional, the condition shall be clearly stated in writing. Failure to act on a request within 60 days shall be deemed approval of the request, provided that the public safety and health is not imminently threatened. A vote of the majority of the board members present shall be binding.

Section VI Reconsideration

Either the applicant or the department of labor & industry may request reconsideration of the board's decision by submitting a written request for reconsideration within ten days of the board's decision.

(a) The basis for reconsideration shall be that the board made an incorrect interpretation of the code.

(b) The board's denial of a specific request for variance or exemption, shall not limit an applicant's ability to seek a variance or exemption based on materially different grounds or evidence.

Section VII Appeals

Appeals of board decisions shall be as provided by V.R.C.P. Rule 75.

Section VIII Agreements Encouraged

Nothing in these rules shall prohibit the applicant and the department of labor & industry from reaching an agreement concerning a variance or exemption, or alternate means of complying with the fire and building code rules.Statutory authority not provided.

28-006 Code Vt. R. 28-070-006-X

EFFECTIVE DATE: January 22, 2003 Secretary of State Rule Log # 03-06
AMENDED: December 2006 [Moved from Department of Labor and Industry]