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.
