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HomeMy WebLinkAboutDocket#20-0102LukeCyrDecision COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. BUILDING CODE APPEALS BOARD DOCKET NO. APP-BCAB 20-0102 ____________________________________ ) Luke S. Cyr, ) Appellant ) ) v. ) ) Town of Yarmouth, ) Appellee ) ____________________________________ ) DECISION Introduction This appeal is before the Massachusetts Building Code Appeals Board (“BCAB”) as a result of an application filed on September 24, 2020 with respect to construction activities on an existing single-family dwelling located at 132 Indian Memorial Drive, Yarmouth, Massachusetts. G. L. c. 143, § 100; 780 CMR R113.1 (“Appeal Application”). On or about August 26, 2020, Town of Yarmouth Local Inspector Tim Sears issued a Violation Notice to Lucas S. Cyr. The Violation Notice stated that roofing work and demolition of a chimney had taken place without a building permit as required by 780 CMR 51.00, R105.1; and Cyr had not allowed entry as required by 780 CMR 51.00, R104.6. (Exhibit 1-A). As a result, Appellant sought review by the BCAB regarding an interpretation, order, and/or direction by the building official. Notices of hearing were issued and the hearing was held on November 5, 2020. All interested parties were provided an opportunity to testify and present evidence and argument to the BCAB.  The following individuals appeared at the hearing: (for Appellant: Lucas S. Cyr; Attorney David T. Fulmer); (for Appellee: Timothy Sears). The following BCAB members were present and participated in the hearing: Steven Frederickson; H. Jacob Nunnemacher; John Couture. Patricia Barry, the BCAB’s clerk was also present. Exhibits The following documents were accepted in evidence: 1. BCAB20-0102 Appeal Application (4 pages); 1-A. August 26, 2020 Violation Notice re: 132 Indian Memorial Dr – work without permit (1 page); 2. Two photographs of subject property (2 pages); 3. Town of Yarmouth Assessor record for 132 Indian Memorial Drive (2 pages). Findings and Discussion Cyr’s attorney represented that the work described in the Violation Notice, roofing work and demolition of a chimney, took place before Cyr acquired ownership of the property. Cyr’s attorney argued that the Town provided no evidence that Cyr did any of the roofing work or chimney demolition. Cyr’s attorney represented that Cyr acquired the property through foreclosure by a bank lender. Before the foreclosure, according to Cyr’s attorney, the chimney had been removed. When Cyr first looked at the dwelling, he found, in the interior, that there was a gap where chimney once had been. Cyr’s attorney also was emphatic that, at no time since Cyr acquired ownership of the property was there a chimney, thus Cyr could not have been responsible for removal of the chimney that must have taken place well before Cyr had any control over the property. But Cyr’s attorney also represented that Cyr paid someone to perform the roofing work. According to Cyr’s attorney, Cyr had nothing to do with the roofing work except for paying for the cost of the work. Further, the attorney represented that Cyr did not obtain a building permit because he, Cyr, was not doing the work himself; he hired someone else to do the roofing work. Cyr’s attorney emphasized his belief that Cyr was not responsible for the absence of a building permit for the roofing work because responsibility for obtaining the building permit rested solely with the roofer whom Cyr hired. Based upon the attorney’s representations and Cyr’s testimony, the BCAB found there was no doubt that Cyr had control over the property in order to have new roof coverings installed over the entire roof. (See also photograph in Exhibit 2, showing new roof coverings, and what also appears to be new siding, versus the siding as indicated by the photograph in the Assessor record in Exhibit 2.) The Town (Sears) concluded that the chimney was in existence when Cyr acquired title to the property as of May 29, 2018. In support, the Town provided a copy of the Town Assessor’s record, printed 9/20/2019, which reflects the existence of a fireplace and chimney. (Exhibit 3). (The Assessor’s record also shows a sale date of 05-29-2018 to Cyr.) Further, the Town argued that the owner is always responsible as required by 780 CMR for any work regulated by 780 CMR that takes place on the property. The Violation Notice also indicated that Cyr had not allowed entry by the Building Department, which Sears concluded should have been allowed pursuant to 780 CMR 51.00, R104.6. In response, Cyr testified that he had been trying to get electrical service restored to the property. He has no objection to the Building Department’s entering the house. But he also admitted (under testimony) that he was hesitant about allowing the Building Department to enter because of what he believed were the Building Department’s false accusations against him about the roofing work and the chimney. As he testified, “Who knows what else they are going to try to accuse me of.” Further, notwithstanding what had already been represented by him and his attorney, Cyr testified that all he “did in that house was paint and plaster; [he] did not need a permit to paint and plaster.” In addition, he testified that, “when it comes time to do plumbing or any type of electrical, then [he] will pull that permit.” Cyr testified that he was never aware of the existence of a chimney. He argued that what is shown by the photograph in Exhibit 3, which clearly shows the existence of a chimney, might be only a “cap.” Again, he claimed that, when he first looked at the inside of the property when he acquired the property, there was no fireplace or chimney in the interior. Note also that the date of the photograph in Exhibit 3, which obviously shows exterior siding that is very different from the siding in the photograph in Exhibit 2, is not clear. Cyr insisted that the Building Department had no evidence about the roofing work and the chimney. He argued that, based on only the Building Department’s drive-by inspection from the exterior, the Building Department concluded that he was responsible for the absence of building permit(s). He, again, expressed his hesitancy in complying with the Building Department’s Violation Notice because he did “not want to open a can of worms for something [he] did not do.” “The [BCAB] may grant a variance from any provision of [780 CMR or the “Code”] in any particular case, may determine the suitability of alternate materials and methods of construction, and may provide reasonable interpretations of the provisions of [780 CMR]; provided, however, that [BCAB] decisions shall not conflict with the general objectives set forth in” G. L. c. 143, § 95.  In exercising its powers under this section, the [BCAB] may impose limitations both as to time and use, and a continuation of any use permitted may be conditioned upon compliance with regulations made and amended from time to time thereafter.” G. L. c. 143, § 100. The Violation Notice correctly stated 780 CMR 51.00, R105.1. There was no dispute that the roofing work that took place was regulated by 780 CMR, thus the work required obtaining a building permit prior to taking place. Similarly, there was no dispute that demolition of an existing chimney also was work that required a building permit as mandated by R105.1. Note also that a building permit must “be kept on the site of the work until the completion of the project.” 780 CMR 51.00, R105.7. Thus, if a building permit for the work is not on site, the presumption is that a building permit has not been issued and work is prohibited from taking place. As Cyr and his attorney made abundantly clear, they believe that Cyr cannot be held responsible for complying with the Violation Notice because Cyr, himself, did not do any of the regulated work. The BCAB found, however, that their belief is misplaced. The following provisions of 780 CMR apply to the facts. “The owner shall be responsible for compliance with the provisions of 780 CMR.” 780 CMR 51.00, R102.8.1.” “To obtain a permit, the owner or authorized agent shall file a permit application . . . .” 780 CMR 51.00, R105.3. “Any person who commences any work on a building or structure governed by 780 CMR before obtaining the necessary building permit shall be in violation of 780 CMR and subject to penalties.” 780 CMR 51.00, R109.4. “It shall be unlawful for any person, firm or corporation to erect, construct, alter, extend, repair, move, remove, demolish, occupy or change the use or occupancy of any building, structure, or equipment regulated by 780 CMR, or cause the same to be done, in conflict with or in violation of any of the provisions of 780 CMR. 780 CMR 51.00, R114.1. (emphasis added). Thus, based on these provisions, the BCAB and the BBRS have consistently interpreted 780 CMR to apply also to property owners. In addition, the BCAB has always understood that other requirements also impose on property owners responsibility for Code compliance. For example, G. L. c. 143, s. 51 specifies: “The owner, lessee, mortgagee in possession or occupant, being the party in control, of a place of assembly, theatre, special hall, public hall, factory, workshop, manufacturing establishment or building shall comply with the provisions of this chapter and the state building code relative thereto, and such person shall be liable to any person injured for all damages caused by a violation of any of said provisions.” G. L. c. 143, s. 51. (emphasis added). Ford. v. Boston Housing Authority, 55 Mass. App. Ct. 623, 626 (2002) (“A violation of the code is evidence of negligence as to the consequences of the code and its regulations were intended to prevent.”). See also “Violations of 780 CMR shall be enforced in accordance with the applicable provisions of M. G. L. c. 143, M. G. L. c. 148, and M. G. L. c. 148A.” 780 CMR 51.00, R114.3. “Whoever violates any provision of the state building code, except any specialized code as described in section ninety-six, shall be punished by a fine of not more than one thousand dollars or by imprisonment for not more than one year, or both, for each such violation. Each day during which a violation exists shall constitute a separate offense.” G. L. c. 143, s. 94(a), 3d para. In sum, although BCAB appreciated that Cyr hired others to perform the roofing work, the fact that those others failed to obtain a building permit did not relieve Cyr of his obligation to ensure that his property complied with 780 CMR. With respect to the chimney work, the BCAB finds that it was reasonable for the Building Department to conclude that, based on the information it had at the time, Cyr was also responsible for the demolition of an existing chimney system, construction activities also regulated by 780 CMR. Although the BCAB also took into account both representations by Cyr’s attorney and Cyr’s own testimony that the chimney work may have predated Cyr’s ownership, the BCAB found that Cyr remained ultimately responsible, for purposes of 780 CMR, to ensure that the chimney removal did not cause other Code failure(s). For example, even if it were assumed that someone else removed the masonry for the chimney system but, somehow, left what Cyr asserted was the “cap” atop the roof in the photograph in Exhibit 3, the roofing work would still have to comply with the Code’s requirements for the roof system beneath the supposed former “cap.” The roofing work would necessarily also have to deal with the space in the roof deck and system left by the former chimney. (There could also be other issues about structural integrity of the existing dwelling after removal of a chimney system.) As the hearing made clear, Cyr also contested the Local Inspector’s authority to enter the premises pursuant to 780 CMR 51.00, R104.6. The BCAB was not persuaded that the Local Inspector exceeded his authority with respect to the existing conditions of this house. A building that has been vacant and without utilities may harbor unsafe conditions that R104.6 is intended to help identify. For example, the BCAB explained that electrical inspectors typically require, pursuant to the State Electrical Code, inspection of the interior of a dwelling such as this, which has been vacant and has had its electrical service terminated. Reasons include ascertaining whether any of the interior electrical systems may be damaged, thus creating hazards when electrical power is restored to those systems. Thus, it is to an owner’s obvious benefit to allow electrical inspection before electrical power to a dwelling is restored in circumstances such as these. In sum, a building permit or permits are required now for the roofing work and removal of the chimney, even after the fact. The property owner inherits Building Code failures in a property, thus acquires responsibility for correcting those Code errors. Thus, what needs to happen now is proper permitting for the roofing and the chimney work so those Code failures are not raised again if/when Cyr decides to sell the property, for example. After all, Cyr’s attorney stated that he would like to make arrangements for the Building Department to enter the premises, in order to resolve the issues. Conclusion and Order In sum, the BCAB found that Appellant’s requested relief would, in these particular circumstances, conflict with the general objectives set forth in G. L. c. 143, § 95. A motion was made motion to AFFIRM the Local Inspector’s determinations as set forth in the Violation Notice about R105.1 and R104.6. The motion was approved unanimously. Accordingly, the requested relief is DENIED. SO ORDERED, BUILDING CODE APPEALS BOARD By: H. Jacob Nunnemacher_ Steven Frederickson____ John Couture H. Jacob Nunnemacher Steven Frederickson, Chair John Couture DATED: December 14, 2020 Any person aggrieved by a decision of the State Building Code Appeals Board may appeal to Superior Court of the Commonwealth of Massachusetts in accordance with M.G.L. c. 30A, § 14 within 30 days of receipt of this decision.