Reconciling the 2011 Amendments to the MUBEC Code
(from Maine Townsman, July 2011)
Introduction. The Maine Uniform Building and Energy Code (MUBEC), as enacted into law in 2008 and amended for clarification in 2009, was further amended during this legislative session by two separate bills, LD 1253 and LD 1416. The two bills amend the MUBEC statutes in very different ways. Generally, LD 1253 can be described as a bill making technical and minor substantive changes to the existing MUBEC laws. In contrast, LD 1416 fundamentally changes the statewide applicability of MUBEC and how it is implemented and enforced on the local level. What follows are the descriptions of five areas of conflict between the two enactments that could cause confusion on the municipal level with respect to how the MUBEC code should now be implemented.
Background information. As a matter of existing law, the MUBEC code went into effect throughout the state on December 1, 2010. MUBEC is the currently effective building code statewide regardless of whether it is being enforced at the municipal level. Current law provides that all municipalities over 2,000 in population that had a building code in place prior to the enactment of MUBEC must be enforcing the MUBEC code as of December 1, 2010. All municipalities over 2,000 in population that did not have a building code in effect are given until July 1, 2012 to begin enforcing the MUBEC code under current law. No municipality at or below 2,000 in population is obligated to enforce MUBEC, although the code remains in effect in those communities with the burden of compliance falling on the owner/builder. No municipality under current law actually “adopts” the MUBEC code as other ordinances might be adopted. In fact, current law makes all building code ordinances void unless exactly the MUBEC code. Municipalities are authorized to adopt ordinances governing the enforcement of the code (e.g., fee structure, application procedures, appeal process, etc.), but not the code directly. Total control over the content of the code is given to the MUBEC Technical Building Code and Standards Board.
For point of reference, there are 325 municipalities in Maine with populations under 2,000, representing an aggregate population of 247,000 (19% of the state’s population). There are 81 municipalities in Maine with populations between 2,000 and 4,000, representing an aggregate population of 229,000 (17.5%). There are 86 municipalities with populations over 4,000, representing an aggregate population of 833,000 (63.5%).
The changes to the MUBEC code brought about by the enactment of LD 1253 and LD 1416 will go into effect September 28, 2011.
Issues of conflict between LD 1416 and LD 1253.
1. Issuance of occupancy permits. One element of LD 1416 changes the population threshold triggering obligatory enforcement of MUBEC from 2,001 to 4,001, and further stipulates that in a municipality of 4,000 or less that does not choose to “adopt” MUBEC, the building code does not exist. This change affects the decisions that have to be made by 81 municipalities to either enforce MUBEC or not enforce the code.
Left untouched by this element of LD 1416 is a provision in current law, amended by LD 1253, that expressly requires all municipalities over 2,000 in population to issue a permit prior to occupancy of all newly built structures only if those structures were built according to the MUBEC code (see 25 MRSA, Section 2357-A, as amended by LD 1253 and contrast with 10 MRSA, Section 9724, subsection 1-A, as enacted by LD 1416).
Therefore, when both LD 1253 and LD 1416 are engrossed into state law, the municipalities between 2,001 and 4,000 in population could be in the position of having no MUBEC code while simultaneously required to issue occupancy permits only to structures that are built according to that code.
2. Building official certification to the code. Also untouched by LD 1416 is a provision in current law that requires all municipalities over 2,000 in population to appoint a “building official” fully certified in the MUBEC code (see 25 MRSA, Section 2351-A.) As noted above, this conflict requires up to 81 communities to retain a building official certified in a code that the municipality has not adopted and does not enforce.
3. Ordinance adoption requirements. Current MUBEC law does not require any municipality, regardless of size, to adopt the MUBEC code. What the law allows (but does not require) is the adoption of an enforcement ordinance, rather than the adoption of the actual code. An enforcement ordinance does not contain the actual code standards. The only authority to actually adopt the MUBEC code in current law is the Technical Building Code and Standards Board.
There are currently a number of communities of 2,000 or less in population that are voluntarily enforcing the MUBEC code through the adoption of an enforcement ordinance. It appears that those communities will now be required by the terms of LD 1416 to actually adopt the MUBEC code if they wish to continue the practice of applying a building code.
There are also a number of communities between 2,001 and 4,000 that are enforcing the MUBEC code because they had a building code in place prior to the enactment of MUBEC. Those municipalities probably have not adopted any special ordinances related to MUBEC because they already had administrative code procedures on the books. It appears that those municipalities will now be required by LD 1416 to formally adopt the MUBEC code assuming they wish to continue their current practice.
4. Ordinance voiding statute. LD 1416 establishes two versions of the MUBEC code that can be adopted by those municipalities of 4,000 or less in population that wish to have such a code, both of which are parts of the “mother” MUBEC code. One version is the Maine Uniform Building Code and the other version is the Maine Uniform Energy Code. Although LD 1416 authorizes the adoption of each child (or both) of the “mother” MUBEC code, no change was made to the statute that voids any ordinance adopted at the municipal level that is not the “mother” MUBEC code (see 10 MRSA Section 9724(3)). A straightforward conflict in statute.
5. Appropriate municipal information-sharing between now and late September. Currently, municipalities fall into two general categories. The larger communities that were already enforcing national building codes have implemented MUBEC relatively seamlessly. Rather than implementing MUBEC, at least some smaller communities are trying to get the appropriate information about the statewide building code to the people in their communities that are starting building projects. Many smaller communities, for example, are informing their constituents about MUBEC, providing applicants for building permits with the list of local third party inspectors, etc.
What is the best information town officials should be telling their constituents, particularly if the town does not have the intention of formally adopting the MUBEC code? For example, if a new house is scheduled to be completed before October 1, should it be constructed according to MUBEC to protect its insurability, etc.? If a construction project has substantially begun but will not be completed until after October 1, does the current existence of the MUBEC code have any bearing on the construction standards for that building? Some transition language would be helpful when turning a code on and then off throughout a large geographical part of the state.