House Bill No. 388

Introduced By simon, benedict, harp, wells, prouse, grinde, thomas, molnar, baer, mcgee, keenan, sprague, tuss, denny, sliter, jabs, marshall, stovall, mills, mcculloch, cocchiarella, hertel, emerson

A Bill for an Act entitled: "An Act defining and revising building code law terms; expanding the types of buildings exempt from building codes; expanding the duties of municipalities and counties; providing that rule changes are of significant interest to the public; changing provisions relating to certification of building codes by the department of commerce; and amending sections 50-60-101, 50-60-102, 50-60-106, 50-60-203, 50-60-204, and 50-60-302, MCA; AND PROVIDING AN EFFECTIVE DATE."

Be it enacted by the Legislature of the State of Montana:

Section 1.  Section 50-60-101, MCA, is amended to read:

"50-60-101.   Definitions. As used in parts 1 through 4 and part 7 of this chapter, unless the context requires otherwise, the following definitions apply:

(1)  "Building" means a combination of any materials, whether mobile, portable, or fixed, to form a structure and the related facilities for the use or occupancy by persons or property. The word "building" shall must be construed as though followed by the words "or part or parts thereof".

(2)  (a) "Building regulations" means any law, rule, resolution, regulation, ordinance, or code, general or special, or compilation thereof enacted or adopted by the state or any municipality, including departments, boards, bureaus, commissions, or other agencies of the state or a municipality relating to the design, construction, reconstruction, alteration, conversion, repair, inspection, or use of buildings and installation of equipment in buildings.

(b) The term does not include zoning ordinances.

(3) "Code enforcement program" means the plan for enforcement of the building regulations adopted by a municipality or county and includes the local building department and the staff associated with executing any aspect of the program's purposes or functions.

(3)(4)  "Construction" means the original construction and equipment of buildings and requirements or standards relating to or affecting materials used, including provisions for safety and sanitary conditions.

(4)(5)  "Department" means the department of commerce provided for in Title 2, chapter 15, part 18.

(5)(6)  "Equipment" means plumbing, heating, electrical, ventilating, air conditioning, and refrigerating equipment, elevators, dumbwaiters, escalators, and other mechanical additions or installations.

(6)(7)  (a) "Factory-built building" means a factory-assembled structure or structures equipped with the necessary service connections but not made so as to be readily movable as a unit or units and designed to be used with a permanent foundation.

(b) "Factory-built building" does not include manufactured housing constructed after June 15, 1976, under the HUD, National Mobile Home Construction and Safety Act of 1974.

(7)(8)  "Local building department" means the agency or agencies of any municipality charged with the administration, supervision, or enforcement of building regulations, approval of plans, inspection of buildings, or the issuance of permits, licenses, certificates, and similar documents prescribed or required by state or local building regulations.

(8)(9)  "Local legislative body" means the council or commission charged with governing the municipality.

(9)(10)  "Municipality" means any incorporated city or town and its jurisdictional area as defined by subsection (10) of in this section.

(10)(11) (a) "Municipal jurisdictional area" means the area within the limits of an incorporated municipality unless the area is extended at the written request of a municipality.

(b)  Upon request, the department may approve extension of the jurisdictional area to include:

(i)  all or part of the area within 4 1/2 miles of the corporate limits of a municipality;

(ii) all of any platted subdivision which is partially within 4 1/2 miles of the corporate limits of a municipality; and

(iii) all of any zoning district adopted pursuant to Title 76, chapter 2, part 1 or 2, which is partially within 4 1/2 miles of the corporate limits of a municipality.

(c)  Distances shall be measured in a straight line in a horizontal plane.

(11)(12) "Owner" means the owner or owners of the premises or lesser estate, a mortgagee or vendee in possession, assignee of rents, receiver, executor, trustee, lessee, or other person, firm, or corporation in control of a building.

(12)(13) "Recreational vehicle" means a vehicular type unit primarily designed as temporary living quarters for recreational, camping, or travel use, which either has its own mode of power or is mounted on or towed by another vehicle, including but not limited to a:

(a)  travel trailer;

(b)  camping trailer;

(c)  truck camper; or

(d)  motor home.

(13)(14) "State agency" means any state officer, department, board, bureau, commission, or other agency of this state.

(14)(15) "State building code" means the state building code provided for in 50-60-203 or any portion of the code of limited application and any of its modifications or amendments."

Section 2.  Section 50-60-102, MCA, is amended to read:

"50-60-102.   Applicability. (1) Except as provided in subsection (5), state building codes do not apply to:

(a)  residential buildings containing less than five dwelling units or their attached-to structures, any farm or ranch building of any size, and any private garage or private storage structure of any size used only for the owner's own use, located within the municipality's or county's jurisdictional area, unless the local legislative body or board of county commissioners by ordinance or resolution makes the state building code applicable to these structures;

(b)  mines and buildings on mine property regulated under Title 82, chapter 4, and subject to inspection under the Federal Mine Safety and Health Act; or

(c)  petroleum refineries, industrial process facilities, the primary economic activity of which occurs at petroleum refineries, sugar beet refineries, primary metal smelters and refineries, gas and other fuels processing facilities, pulp and paper mills, cement plants, lime and mineral products plants, sulfur plants, chemical plants, power plants, ELECTRICAL SUPPLY STATIONS SUBJECT TO THE NATIONAL ELECTRICAL SAFETY CODE, or fertilizer manufacturing plants, except:

(i) a structure classified under chapter 7, section 701, group B, division 2, and chapter 9, section 901, group H, outside of process units, of the 1991 edition of the Uniform Building Code; or

(ii) a structure located outside of processing units and used for office, professional, or service-type transactions, including storage of records and accounts and a structure used for consumption of food and beverages.

(2)  Except as provided in subsection (5), the state may not enforce the state building code under 50-60-205 for the buildings referred to in subsection (1). Local governments that have made the state building codes applicable to the buildings referred to in subsection (1) may enforce within their jurisdictional areas the state building code as adopted by the respective local government.

(3)  When good and sufficient cause exists, a written request for limitation of the state building code may be filed with the department for filing as a permanent record.

(4)  The department may limit the application of any rule or portion of the state building code to include or exclude:

(a)  specified classes or types of buildings according to use or other distinctions as may make differentiation or separate classification or regulation necessary, proper, or desirable;

(b)  specified areas of the state based upon size, population density, special conditions prevailing in the area, or other factors that make differentiation or separate classification or regulation necessary, proper, or desirable.

(5)  (a) For purposes of promoting the energy efficiency of home design and operation, the provisions of the state building code relating to energy conservation adopted pursuant to 50-60-203(1) apply to residential buildings, except:

(i)  farm and ranch buildings; and

(ii) any private garage or private storage structure attached to a residential building and used only for the owner's own use.

(b)  The provisions of the state building code relating to energy conservation in residential buildings are enforceable:

(i)  by the department only for those residential buildings containing five or more dwelling units or otherwise subject to the state building code; and

(ii) through the builder self-certification program provided for in 50-60-802 for those residential buildings containing less than five dwelling units and not otherwise subject to the state building code."

Section 3.  Section 50-60-106, MCA, is amended to read:

"50-60-106.   Powers and duties of municipalities. (1) The examination, approval, or disapproval of plans and specifications, the issuance and revocation of building permits, licenses, certificates, and similar documents, the inspection of buildings, and the administration and enforcement of building regulations within the municipal jurisdictional area shall be are the responsibility of the municipalities of the state.

(2)  Each municipality may or county certified under 50-60-302 shall, within its jurisdictional area:

(a)  examine, approve, or disapprove plans and specifications for the construction of any building, the construction of which is pursuant or purports to be pursuant to the applicable provisions of the state or municipal building code, and direct the inspection of the buildings during and in the course of construction;

(b)  require that construction of buildings be in accordance with the applicable provisions of the state or municipal building code, subject to the powers of variance or modification granted to the department;

(c)  during and in the course of construction order in writing the remedying of any condition found to exist in, on, or about any building that is being constructed in violation of the applicable state or municipal building code. Orders may be served upon the owner or his authorized agent personally or by sending by registered or certified mail a copy of the order to the owner or his authorized agent at the address set forth in the application for permission for the construction of the building. Any A local building department, by action of an authorized officer, may grant in writing such time as may be reasonably necessary for achieving compliance with the order.

(d)  issue certificates of occupancy, as provided in 50-60-107;

(e) issue permits, licenses, and such other required documents in connection with the construction of the buildings as required a building;

(f) ensure that all construction-related fees or charges imposed and collected by the municipality or county are necessary, reasonable, and uniform and are:

(i) used only for building code enforcement, which consists of those necessary and reasonable costs directly and specifically identifiable for the enforcement of building codes, plus a maximum of an additional 10% of the identified direct costs to cover indirect costs; and INDIRECT COSTS CHARGED ON THE SAME BASIS AS OTHER LOCAL GOVERNMENT PROGRAMS NOT PAYING ADMINISTRATIVE CHARGES AS DIRECT CHARGES. IF INDIRECT COSTS ARE WAIVED FOR ANY LOCAL GOVERNMENT PROGRAM, THEY MUST ALSO BE WAIVED FOR THE PROGRAM ESTABLISHED IN THIS SECTION. INDIRECT CHARGES ARE LIMITED TO THE CHARGES THAT ARE ALLOWED UNDER FEDERAL COST ACCOUNTING PRINCIPLES THAT ARE APPLICABLE TO A LOCAL GOVERNMENT.

(ii) reduced if the amount of the fees or charges accumulates above the amount needed to enforce building codes for 6 months. The excess must be placed in a reserve account and may only be used for building code enforcement. Collection and expenditure of fees and charges must be fully documented.

(3) Each municipality or county certified under 50-60-302 may, within its jurisdictional area:

(e)(a)  make, amend, and repeal rules for the administration and enforcement of the provisions of this section and for the collection of reasonable fees, which shall be comparable to fees imposed or prescribed by existing local building regulations and charges related to construction;

(f)(b)  prohibit the commencement of construction until a permit has been issued by the local building department after a showing of compliance with the requirements of the applicable provisions of the state or municipal building code; and

(c) enter into a private contract with the owner or builder of a building that is not or will not be within the jurisdiction of the municipality or county under which the municipality or county will provide reviews, inspections, orders, and certificates of occupancy for a fee and under conditions agreed upon by the parties. Municipal or county powers of enforcement may not be exercised."

Section 4.  Section 50-60-203, MCA, is amended to read:

"50-60-203.   Department to adopt state building code by rule. (1) (a) The department shall adopt rules relating to the construction of, the installation of equipment in, and standards for materials to be used in all buildings or classes of buildings, including provisions dealing with safety, sanitation, and conservation of energy. The department may amend or repeal the rules. The adoption, amendment, or repeal of a rule is of significant public interest for purposes of 2-3-103.

(b)  In adopting rules Rules concerning the conservation of energy, the department shall must conform those rules to the policy established in 50-60-801 and to relevant policies developed under the provisions of Title 90, chapter 4, part 10.

(2)  The department may adopt by reference nationally recognized building codes in whole or in part , but this does not prevent the department from adopting and may adopt rules more stringent than those contained in national codes.

(3)  The rules, when adopted as provided in parts 1 through 4, constitute the "state building code" and are acceptable for the buildings to which they are applicable.

(4)  The department shall adopt rules that permit the installation of below-grade liquefied petroleum gas-burning appliances in single-family dwellings."

Section 5.  Section 50-60-204, MCA, is amended to read:

"50-60-204.   Public hearing required -- effective date of certain rules. (1) Except as provided in subsection (2), a rule, amendment, or repeal of the state building code is a matter of significant public interest for purposes of 2-3-103 and may not take effect until after a public hearing by the department.

(2)  If a hearing with adequate public notice pursuant to 2-3-103 has been held by the department of justice with respect to the duties contained in chapter 3 of this title or by the board of plumbers, the department of public health and human services, or the state electrical board on a proposed rule relating to building and equipment standards in their respective fields, a public hearing by the department is not required. The proposed rule is effective upon approval of the department and filing with the secretary of state as a part of the state building code."

Section 6.  Section 50-60-302, MCA, is amended to read:

"50-60-302.   Certification of municipal and county building codes. (1) A county or municipality may not enforce a building code unless:

(a) the code enforcement program has been certified by the department as in compliance with all applicable statutes and department certification rules;

(b) the code adopted current adopted code, a current list of fees to be imposed, and a current plan for enforcement of the code have been filed with and approved by the department.;and

(c) all inspectors inspecting or approving any installations, which if accomplished commercially require state licensure, must themselves be properly and currently state-licensed as journeymen in that craft or occupation OR BE CERTIFIED BY THE INTERNATIONAL COUNCIL OF BUILDING OFFICIALS before being permitted to inspect or approve any installations.

(2)  The department shall set forth adopt additional rules and standards governing the certification of municipal and county building code enforcement programs as required in subsection (1) which must include provisions for prompt revocation of certification for lack of compliance with any applicable statute or rule. The rules and standards must include provisions for the department to ensure that all code enforcement program functions are being properly performed at all times.

(3) In addition to maintaining the continued compliance oversight required in subsection (1), the department shall conduct a detailed and fully documented annual review to ensure continued local government compliance with all requirements of applicable statutes and rules.

(4) If the certification of any local government code enforcement program is revoked for any violation or deficiency, the state resumes its original jurisdiction for state building code enforcement within the municipal or county area and the local government may not be permitted to continue to exercise any building code enforcement authority over incomplete construction projects."