Revision: Jan. 9, 2012, midnight
HB 137-FN-LOCAL – AS AMENDED BY THE HOUSE
5Jan2012… 2786h
2011 SESSION
05/10
HOUSE BILL 137-FN-LOCAL
AN ACT relative to the state fire code and the state building code.
SPONSORS: Rep. Hawkins, Hills 18; Rep. C. McGuire, Merr 8
COMMITTEE: Executive Departments and Administration
This bill:
I. Authorizes the fire marshal to adopt and enforce a state fire prevention code, which shall apply to the maintenance of existing buildings.
II. Updates references to the most recent version of the codes in the state building code and defines the state fire code, which shall apply to new construction.
III. Clarifies the authority of the fire marshal to inspect and issue permits for state buildings, including those of the university system.
IV. Permits municipalities to contract with outside entities for building inspection services.
V. Revises the membership and duties of the building code review board.
VI. Ratifies amendments to the state building code made by the building code review board between 2010 and July 1, 2011.
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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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
5Jan2012… 2786h
11-0165
05/10
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Eleven
AN ACT relative to the state fire code and the state building code.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 State Fire Code and State Fire Prevention Code; Rules. Amend RSA 153:5 to read as follows:
153:5 State Fire Code and Fire Prevention Code; Rules.
I. The state fire marshal shall adopt rules, with the approval of the commissioner of safety, to be known as the state fire prevention code, pursuant to RSA 541-A, to further the purposes of this chapter and such applicable fire safety [and building] laws as he or she shall deem necessary for the protection from fire and fire hazards for people in the state and for the general welfare of property and people within the state. The rules [may include, but not be limited to,] shall be limited to the following:
(a) The elimination of fire hazards.
(b) The design and maintenance of life safety features in all occupancy classifications to minimize danger to life from the effects of fire, including smoke, heat, and toxic gases produced by fire.
(c) The design, installation, and maintenance of structures and equipment used for hazardous materials, and the storage, use, manufacture, sale, handling, on-site transportation, transfer, and disposal of hazardous materials, flammable and combustible materials, and hazardous liquids.
(d) The design, installation, and maintenance of fire protection systems, such as automatic fire suppression systems, fire alarm systems, fire detection systems, and portable fire equipment.
(e) The design, installation, and maintenance of heating appliances and equipment, such as solid, liquid, or gas fired fuel burning appliances.
(f) The water supply, access requirements, and conditions that affect firefighter safety for fire department operations.
(g) The keeping, storage, use, manufacture, sale, handling, transportation, or disposal of highly flammable materials and rubbish, and of flammable fluids and hazardous compounds and flammable tablets and may include standards for the materials and construction of receptacles and buildings to be used for any of these purposes.
II. The fire marshal, with approval of the commissioner of safety, may adopt as the state fire prevention code for the purposes of storage, operations, and maintenance of existing buildings, structures, and equipment the most recent edition of the provisions of the national fire protection association code or other recognized codes and standards as rules, in whole or in part; however, such rules shall not require automatic suppressant or sprinkler systems in detached one- or 2-family dwelling units in a structure used only for residential purposes[, in areas of buildings or additions in which the discharge of water would be undesirable as determined by the state fire marshal, or in rooms or areas containing either generators, transformers, telecommunications equipment or facilities, or electronic data processing equipment, or in telecommunications or electric utility company equipment buildings or areas occupied exclusively for telecommunications equipment, electrical transformation and switching equipment, associated electrical distribution equipment, batteries, and standby engines or generators, provided that those spaces or areas are equipped throughout with an automatic fire detection system]. The rules, known as the state fire prevention code, shall apply to the [construction and remodeling of] operation and maintenance of buildings and structures for the containment of flammable liquids and to the operation and maintenance, new installation, and replacement of equipment used in connection with flammable liquids. The rules shall apply to existing buildings, structures, or equipment. The fire marshal may exempt a building, structure, or equipment from such rules if he or she finds that such exemption does not constitute a hazard to the public welfare and safety. A reasonable time, as determined by the state fire marshal, shall be allowed to make necessary alterations. Nothing in this section shall be construed to prevent municipalities from adopting bylaws or ordinances relative to a subject area of rules adopted by the fire marshal in accordance with this section if such bylaws or ordinances are no less restrictive than those adopted by the fire marshal.
III. The fire marshal and fire chief, in accordance with RSA 154:2, shall use the state fire code as defined in RSA 155-A:1, as reviewed and amended by the state building code review board, and any local codes adopted in accordance with RSA 47:22 or RSA 155-A:3, for the purposes of new construction, additions, and alterations. It is the intent of the legislature that there be no conflict between the state building code and state fire code in their adoption or application.
IV. All rules proposed by the fire marshal which amend an existing state fire code shall be submitted to and approved by the state building code review board and shall be subject to legislative ratification pursuant to RSA 155-A:10, IV and V. These rules shall be updated within one year of the legislative ratification of amendments to the state building code either by the initiation of the state fire marshal or the building code review board.
2 Approval of Plans for Construction or Revision of all State Buildings. Amend RSA 153:8-a, I to read as follows:
I. The state fire marshal or, by his or her direction, the deputy fire marshal shall be [solely] responsible for:
(a) Approval of all plans for construction or revision of all state buildings and properties, including the university system, as to compliance with [fire safety measures] the state building code;
(b) Enforcement of the most recent edition of the [Life Safety Code, NFPA Doc. No. 101, in rules adopted by the state fire marshal with the approval of the commissioner of safety under this chapter] state fire prevention code;
(c) [Granting variances or exceptions to the most recent edition of the Life Safety Code, NFPA Doc. No. 101, in rules adopted by the state fire marshal under this chapter. The state fire marshal,] With approval of the commissioner of safety, [shall adopt] adoption of rules, pursuant to RSA 541-A, relative to the granting of exceptions or variances under this paragraph, and rules to be known as the state fire prevention code as provided in RSA 153:5.
(d) Development, in consultation with the commissioner of safety and the commissioner of transportation, of a schedule for the periodic safety inspection of all occupied public buildings owned by the state.
3 New Hampshire Building Code; Definition of Building. Amend RSA 155-A:1, I to read as follows:
I. “Building” means building as defined and interpreted by the International Code Council’s International Building Code [2006] 2009, as amended by the state building code review board and ratified by the legislature in accordance with RSA 155-A:10.
4 New Hampshire Building Code; Definition of Local Enforcement Agency and New Hampshire Building Code. Amend RSA 155-A:1, III and IV to read as follows:
III. “Local enforcement agency” means for a municipality that has adopted enforcement provisions or additional regulations under RSA 674:51 or RSA 47:22, the building inspector, code official, or other local government official [with authority] qualified and authorized 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. For the purpose of enforcement of the state fire code for buildings and structures not owned by the state, the local enforcement agency means the municipal fire chief or his or her representative.
IV. “New Hampshire building code” or “state building code” means the adoption by reference of the International Building Code [2006] 2009, the International Existing Building Code 2009, the International Plumbing Code [2006] 2009, the International Mechanical Code [2006] 2009, the International Energy Conservation Code [2006] 2009, and the International Residential Code [2006] 2009, as published by the International Code Council, and the National Electric Code [2008] 2011, as amended by the state building code review board and ratified by the legislature in accordance with RSA 155-A:10. 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.
5 New Paragraph; Definition of New Hampshire Fire Code Added. Amend RSA 155-A:1 by inserting after paragraph IV the following new paragraph:
IV-a. “New Hampshire fire code” or “state fire code” means the adoption by reference of the Life Safety Code 2009 Edition and Uniform Fire Code NFPA 1, 2009 Edition, as published by the National Fire Protection Association and as amended by the state building code review board and ratified by the legislature in accordance with RSA 155-A:10. The provisions of any other national code, model code, or standard referred to within a code listed in this definition shall be included in the state fire code unless amended in accordance with RSA 155-A:10.
6 New Hampshire Building Code; Definition of Structure. Amend RSA 155-A:1, VI to read as follows:
VI. “Structure” means structure as defined and interpreted by the International Code Council’s International Building Code [2006] 2009, as amended by the state building code review board and ratified by the legislature in accordance with RSA 155-A:10.
7 State Building Code. Amend RSA 155-A:2 to read as follows:
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 prevention 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 prevention code, the [state fire] code creating the greater degree of life safety shall take precedence [unless otherwise determined by the board], subject to the review provisions contained in RSA 155-A:10. If the building and fire code official cannot agree within 2 business days which code creates the greatest degree of life safety, the property owner may choose to comply with either the applicable building code or fire code.
[IV.] III. To the extent that it does not conflict with any other provision of law, and except as otherwise provided in this paragraph, 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 where such activities have been authorized in accordance with RSA 674:51 and RSA 47:22. Pursuant to the state fire marshal’s authority to enforce the state building code under RSA 155-A:7, I, the fire marshal may establish for municipalities that do not have a building inspector or other enforcement mechanism authorized in RSA 155-A:4, with approval of the commissioner of safety and by rules adopted under RSA 541-A, fees to defray the cost of issuing building permits in accordance with the state building code Such fees shall be deposited in the fire standards and training and emergency medical services fund established in RSA 21-P:12-d.
[V.] IV. Except for buildings owned by the state or the university system, the issuance of permits and certificates of occupancy pursuant to the state building code is expressly reserved for counties, towns, cities, and village districts. The state fire marshal shall issue permits and conduct inspections for buildings owned by the state and the university system. Nothing in this section shall prohibit the state fire marshal from contracting with or authorizing a local enforcement agency or other qualified third party for these services.
[VI.] V. Counties, towns, cities, and village districts may adopt by ordinance pursuant to RSA 674:51 or RSA 47:22 any additional regulations provided that such regulations are not less stringent than the requirements of the state building code and the state fire prevention code [pursuant to this chapter and the state fire code pursuant to RSA 153].
[VII.] VI. For any municipality which has not adopted an enforcement mechanism 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. Any municipality that has not adopted an enforcement mechanism under RSA 674:51 may contract with a local enforcement agency or a qualified third party for these services.
[VIII.] VII. The contractor of a building, building component, or structure shall be responsible for meeting the minimum requirements of the state building code and state fire prevention 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.] VIII. 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 or state fire 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.] IX. 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.] X. No state agency, authority, board, or commission shall vary, modify, or waive the requirements of the state building code or state fire 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 commissioner of labor, 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] proposed under the rulemaking authority of these agencies shall not be [implemented] enforced until approved by the state building code review board.
8 Local Amendments; Application. Amend RSA 155-A:3, IV(b), to read as follows:
(b) Any provision of the state building code or state fire 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 provided that the ordinances, regulations, policies, practices, or procedures do not prevent effective enforcement of the state building code or state fire code.
9 Permit Required. Amend RSA 155-A:4 to read as follows:
155-A:4 Permit Required. Before starting new construction or renovation of [schools, halls, theaters or other public] buildings and structures as described in RSA 155-A:2, I, 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].
I. In municipalities that have adopted an enforcement mechanism pursuant to RSA 674:51 and RSA 47:22, the permit under this section shall conform to the locally adopted process. No permit shall be issued that would not result in compliance with the state building code and state fire code.
II. For buildings and structures owned by the state or the university system, the person responsible for such activities shall obtain a permit from the state fire marshal. Before issuing the permit, the state fire marshal shall give due consideration to any written recommendations of the fire chief, building official, or designee in the community where the state building is located.
10 Enforcement Authority. Amend 155-A:7, I is repealed and reenacted to read as follows:
I. The local enforcement agency appointed pursuant to RSA 674:51 or RSA 47:22 shall have the authority to enforce the provisions of the state building code and the local fire chief shall have the authority to enforce the provisions of the state fire code, provided that where there is no local enforcement agency or contract with a qualified third party pursuant to RSA 155-A:2, VI, the state fire marshal or the state fire marshal’s designee may enforce the provisions of the state building code and the state fire code, subject to the review provisions in RSA 155-A:10, upon written request of the municipality.
11 State Building Code Review Board. Amend RSA 155-A:10 to read as follows:
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 additional] following 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 professional 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 professional 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 professional engineers established in RSA 310-A:3.
(e) One representative of the state’s municipalities, nominated by the New Hampshire Municipal Association.
(f) [One] Two municipal building [official] officials, nominated by the New Hampshire Building Officials Association, one of whom shall represent the interests of cities and one of whom shall represent the interests of towns.
(g) One municipal fire chief, nominated by the New Hampshire Association of Fire Chiefs.
(h) One active fire prevention officer, nominated by the New Hampshire Association of Fire Chiefs.
(i) One building contractor, primarily engaged in the business of constructing nonresidential 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 electricians’ board established in RSA 319-C.
(o) One representative of the Committee on Architectural Barrier - Free Design nominated by the governor’s commission on disability.
(p) One [master electrician licensed in this state for a minimum of 5 years] electrical contractor, nominated by Electrical Contractors Business Association.
(q) One representative of the New Hampshire Fire Prevention Society, nominated by that organization.
(r) One fire protection engineer licensed in this state for a minimum of 5 years, nominated by the board of professional engineers established in RSA 310-A:3.
(s) One New Hampshire representative of the residential modular construction industry, nominated by the Modular Manufacturers Association of the Northeast.
II. The term of each member shall be 3 years. The chair shall be appointed by the commissioner of safety. Board members shall be appointed for no more than 2 consecutive 3-year terms. The board shall elect from among the members a vice-chair, who shall assume the responsibilities of the chair in the event of the chair’s absence.
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 state fire 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] amend the state building code and state fire code for the codes described in RSA 155-A:1, IV and IV-a, to the extent the board deems that such [updates or changes] amendments are necessary, provided that any such [updates or changes] amendments are ratified by the adoption of appropriate legislation within 2 years of their adoption. If such [updates or changes] amendments 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.
VII.] The state building code review board shall not adopt or enforce any rule requiring the installation of fire sprinkler systems in any new or existing detached one- or 2-family dwelling unit in a structure used only for residential purposes. This paragraph shall not prohibit a duly adopted requirement mandating that fire sprinkler systems be offered to the owners of dwellings for a reasonable fee.
12 Appeals of Decisions of the State Fire Marshal to the Building Code Review Board. RSA 155-A:11, I is repealed and reenacted to read as follows:
I. Any person aggrieved by a decision of the state fire marshal or the state fire marshal’s designee relative to the application and enforcement of the state building code pursuant to RSA 153:8-a, I(a), the state fire code, or the state fire prevention code may appeal the decision to the board.
13 Powers of the Building Code Board of Appeals. RSA 674:34 is repealed and reenacted to read as follows:
674:34 Powers of Building Code Board of Appeals. The building code board of appeals shall hear and decide appeals of orders, decisions, or determinations made by the building official or fire official relative to the application and interpretation of the state building code or state fire code as defined in RSA 155-A:1. An application for appeal shall be based on a claim that the true intent of the code or the rules adopted thereunder have been incorrectly interpreted, the provisions of the code do not fully apply, or an equally good or better form of construction is proposed. The board shall have no authority to waive requirements of the state building code or the state fire code.
14 State Building Code; Ratification of Changes by the State Building Code Review Board. Pursuant to RSA 155-A:10, V, the general court hereby ratifies the amendments to the state building codes, as defined in RSA 155-A:1, adopted by the state building code review board between 2010 and July 1, 2011, in administrative rules Bcr 300.
15 Repeal. The following are repealed:
I. RSA 155-A:2, II, relative to means of egress in the Life Safety Code.
II. RSA 155-A:6, relative to the inspection of state buildings.
16 Effective Date. This act shall take effect 60 days after its passage.
LBAO
11-0165
12/16/10
HB 137-FN-LOCAL - FISCAL NOTE
AN ACT relative to the state fire code and the state building code.
FISCAL IMPACT:
The Department of Safety states this bill will have an indeterminable fiscal impact on State and county expenditures and county revenue.
The New Hampshire Municipal Association states the bill will have an indeterminable impact on local revenue and expenditures.
There is no fiscal impact on State revenue.
METHODOLOGY:
The Department of Safety states this bill relates to the State fire and building codes. The Department states Section 3 of this bill would replace the National Fire Protection Association standard pertaining to life safety with the International Existing Building Code, which would require State, county, and local governments to meet the new codes for new buildings and renovations. The Division of Fire Safety states this would have a definite impact on State, county, and local government expenditures; however, the cost cannot be determined because the Division cannot estimate the number of, or costs associated with, future State, county, or local government projects.
The Department states Section 5 of this bill would remove the State Fire Marshall’s authority to conduct inspections in communities without a local code enforcement mechanism. The Department states this Section would have no fiscal impact on State or county revenue and expenditures. The Department states this would result in a significant, but indeterminable, increase in local government expenditures for localities with no local inspector. The Department states the bill could cause localities to charge inspection fees to absorb increases in expenditures; however, the Division of Fire Safety cannot determine the amount of increase in local government revenues.
The Department states Section 7 of this bill would require a permit for all construction projects statewide. Additionally, buildings and structures owned by the State or University System would require a permit from the State Fire Marshall. This would require the State Fire Marshall to develop a State building permit system, increasing State expenditures by an indeterminable amount. There would be no fiscal impact on State revenue. The Division of Fire Safety cannot estimate the number of county or local projects planned and therefore, cannot estimate the fiscal impact on county or local governments.
The Department states Section 8 of this bill would remove the authority of the State Fire Marshall to enforce the State building code. The Department states this would increase county and local expenditures by an indeterminable amount in governments where there is no fire code enforcement official. The Department states this Section would have no fiscal impact on State revenues or expenditures.
The Department states Section 12 would repeal three statutes. Repealing RSA 155-A:6 would remove the current language directing the Bureau of Public Works and the State Fire Marshall to periodically conduct safety inspections of all State-owned occupied public buildings. The Department states this could possibly increase State expenditures because ceasing safety inspections would result in greater risk of unmonitored code violations. This could result in undeterminable State repair costs as well as indeterminable liability costs for people injured or killed in State-owned buildings with serious code violations. Repealing RSA 674:34 would remove the powers of local building code boards of appeal, requiring persons aggrieved by local authorities to appeal to the State Building Code Review Board. The Division of Fire Safety states there will be an indeterminable impact on State, county, and local expenditures. The State would incur expenses associated with appeals as the Commissioner’s Office handles all administrative mattes for the Building Code Review Board. Additionally, the local governments would incur an undeterminable impact on local expenditures associated with submitting appeals to the State.
The New Hampshire Municipal Association states this bill would amend RSA 155-A in two significant and potentially inconsistent ways. The bill appears to remove the State Fire Marshall as the default inspection authority in municipalities which have not adopted building codes. This bill would further amend RSA 155-A:2 to state municipalities which have not adopted an enforcement mechanism may contract with a local enforcement agency or qualified third party for inspection services. In the absence of the State Fire Marshall as a default building inspector, it is unclear whether municipalities which have not adopted an enforcement mechanism would be required to contract with a third party building inspector or whether the State building code would be implemented by builders on the honor system if municipalities choose not contract with a building inspector. If the bill does require municipalities to contract with a third party, the Association states it may have a significant impact on municipal expenditures.