Senate Bill No. 286

Introduced By _______________________________________________________________________________

A Bill for an Act entitled: "An Act providing for the inspection of the construction of a facility or alteration of primary function areas for accessibility to persons with disabilities; requiring accessible exterior routes; regulating the alteration of a primary function area; providing for a disclaimer on building permits and certificates of occupancy; amending sections 50-60-101, 50-60-201, and 50-60-203, MCA; and providing an applicability date."

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

NEW SECTION. Section 1.  Inspections. (1) The construction of a building or facility or alteration to a primary function area of a building or facility that is subject to the provisions of this part must be inspected for physical accessibility to persons with disabilities.

(2) The inspection must include the building site and applicable exterior features, such as parking areas, passenger loading zones, public sidewalks, and public transportation stops.

(3) (a) The inspections must be completed by state building inspectors in areas not covered by a municipal or county building code.

(b) (i) Municipalities and counties that have adopted a building code may assign appropriately trained personnel to perform site inspections conducted pursuant to this part.

(ii) Municipalities and counties conducting inspections pursuant to this section must have an enforcement mechanism in place to ensure compliance with the accessibility provisions of this part, including but not limited to denying building permits or certificates of occupancy, injunctions, or other civil enforcement procedures allowed by law.

(4) Existing buildings or facilities that are not undergoing an alteration to a primary function area are not subject to the inspection provisions of this section.

NEW SECTION. Section 2.  Disclaimer. A building permit or certificate of occupancy issued by the state or by a municipality or county must contain a statement that reads: "Compliance with the requirements of the state building code for physical accessibility to persons with disabilities does not necessarily guarantee compliance with the Americans with Disabilities Act of 1990, the Rehabilitation Act of 1973, the Fair Housing Amendments Act of 1988, Title 49, chapter 2, commonly known as the Montana Human Rights Act, or other similar federal, state, or local laws that mandate accessibility to commercial construction or multifamily housing."

NEW SECTION. Section 3.  Accessible exterior routes -- exceptions. (1) Except as provided in subsection (6), for a building or facility subject to the provisions of this part, an accessible exterior route must be provided from public transportation stops located within the boundary of the building site, from accessible parking and accessible passenger loading zones within the boundaries of the building site, and from public sidewalks that are immediately adjacent to the building site, if sidewalks exist, to the building's or facility's accessible entrance served by the transportation stops, parking and loading zones, or sidewalks.

(2) (a) When more than one building or facility subject to the provisions of this part is located on a site, at least one accessible exterior route must connect accessible elements, facilities, and buildings that are on the site.

(b) For the purposes of [section 4] and this section, "element" means an architectural or mechanical component of a building, facility, space, or site and includes but is not limited to telephones, curb ramps, doors, drinking fountains, seating, and restrooms.

(3) An accessible exterior route between accessible parking and an accessible building or facility entrance must be the most practical direct route.

(4) (a) A person or entity constructing a building or facility subject to the provisions of this part is not required to fully comply with the provisions of this section if the person can demonstrate that due to characteristics of the terrain, it is structurally impractical to fully comply.

(b) Full compliance may be considered structurally impractical only in those rare circumstances when the unique characteristics of the terrain prevent the incorporation of accessibility features.

(c) The person or entity shall comply with the provisions of this section to the extent that compliance is not structurally impractical.

(d) The department shall adopt rules to assist builders and building inspectors in determining structural impracticality.

(5) (a) If a paved parking lot is not planned or present for a building or facility subject to this part, a person or entity constructing the building or facility is not required to pave the entire lot, unless otherwise required by law, ordinance, or applicable building code, but shall provide pavement or a similarly firm, stable, and slip-resistant surface for parking spaces designated for persons with disabilities.

(b) An accessible exterior route with a suitably firm, stable, and slip-resistant surface must be provided from the designated parking spaces to an accessible building or facility entrance.

(c) The total number of designated accessible parking spaces in a parking lot or area must be the number provided for in the applicable state or local government building code.

(6) An accessible route is not required in cases where there is not a pedestrian route for the general public.

(7) The state, municipalities, and counties shall use the same accessibility standards.

NEW SECTION. Section 4.  Alteration of primary function area. (1) An alteration that affects or could affect the use of or access to a primary function area in a building or facility that is subject to the provisions of this part must be made to ensure, to the extent possible, that the path of travel to the altered primary function area and the restrooms, telephones, and drinking fountains serving the altered primary function area are readily accessible and usable by persons with disabilities.

(2) (a) A person or entity is not required to make alterations to provide an accessible path of travel to an altered primary function area if in terms of cost and scope the alterations to the path of travel are disproportionate to the cost of the alterations to the primary function area. Alterations to a path of travel to an altered primary function area must be considered disproportionate if the cost exceeds 20% of the cost of the alterations to the primary function area. This subsection does not prohibit an expenditure to alter a path of travel that exceeds 20% of the cost of the alterations to a primary function area.

(b) If the cost of altering a path of travel to an altered primary function area is disproportionate as provided in subsection (2)(a), the path of travel must be made accessible to the extent possible without incurring disproportionate costs. The alterations to the path of travel must be made by providing, in the following order or priority:

(i) an accessible entrance and accessible exterior route from accessible parking and passenger loading zones or from a public sidewalk if the public sidewalk is immediately adjacent to the facility site;

(ii) an accessible path of travel to the altered primary function area;

(iii) accessible restrooms for each sex or a single unisex restroom when allowed by the applicable building code; and

(iv) accessible elements, including but not limited to storage spaces and alarms.

(3) A person or entity subject to the provisions of this section is also subject to the provisions of [section 3(5)(a) and (5)(b)].

Section 5.  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) "Alteration" means any change, addition, or modification in construction or occupancy.

(1)(2)  "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 of the building".

(2)(3) (a) "Building regulations" means any law, rule, resolution, regulation, ordinance, or code, general or special, or any 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)(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. "Factory built building"

(b) The term 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 this section (11).

(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 must be measured in a straight line in a horizontal plane.

(12) "Primary function area" means an area of a building or facility in which a major activity for which the building or facility is designed is carried out. Primary function areas include but are not limited to a customer service lobby of a savings institution, a cafeteria dining area, and meeting rooms of a conference center. Areas that are not primary function areas include but are not limited to boiler rooms, storage rooms, employee lounges, janitorial closets, entrances, corridors, and restrooms.

(13) "Public building" means a building or facility owned or operated by a governmental entity or a private sector building or facility that is open to members of the public.

(14) "Public sidewalk" means a sidewalk located in a public right-of-way.

(11)(15) "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)(16) "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.

(17) "Site" means a parcel of land bounded by property lines or a designated portion of a public right-of-way.

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

(14)(19) "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 6.  Section 50-60-201, MCA, is amended to read:

"50-60-201.   Purpose of state building code. The state building code shall must be designed to effectuate the general purposes of parts 1 through 4 and the following specific objectives and standards to:

(1)  provide reasonably uniform standards and requirements for construction and construction materials consonant consistent with accepted standards of design, engineering, and fire prevention practices;

(2)  permit to the fullest extent feasible the use of modern technical methods, devices, and improvements which that tend to reduce the cost of construction consistent with reasonable requirements for the health and safety of the occupants or users of buildings and, consistent with the conservation of energy, by design requirements and criteria that will result in the efficient utilization of energy, whether used directly or in a refined form, in buildings;

(3)  eliminate restrictive, obsolete, conflicting, and unnecessary building regulations and requirements which that tend to increase unnecessarily increase construction costs, retard unnecessarily prevent the use of proven new materials which that have been found adequate through experience or testing, or provide unwarranted preferential treatment to types or classes of materials, products, or methods of construction;

(4)  ensure that any new buildings constructed with public funds are accessible to and functional for physically handicapped persons according to the principles applicable to accessibility to public buildings for handicapped persons adopted, recommended, or issued as Part II, Uniform Federal Accessibility Standards, as it reads in the Federal Register dated August 7, 1984, and as the department may amend by rule to reflect changes in the principles ensure statewide uniformity in the inspection of exterior features of all newly constructed public buildings and certain altered buildings for physical accessibility to people with disabilities;

(5)  encourage efficiencies of design and insulation which that enable buildings to be heated in the winter with the least possible quantities of energy and to be kept cool in the summer without air conditioning equipment or with the least possible use of such the equipment;

(6)  encourage efficiencies and criteria directed toward design of building envelopes with high thermal resistance and low air leakage and toward requiring practices in the design and selection of mechanical, electrical, and illumination systems which that promote the efficient use of energy."

Section 7.  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, accessibility to persons with disabilities, sanitation, and conservation of energy. The department may amend or repeal the rules.

(b)  In adopting rules concerning the conservation of energy, the department shall 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 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."

NEW SECTION. Section 8.  Codification instruction. [Sections 1 through 4] are intended to be codified as an integral part of Title 50, chapter 60, part 2, and the provisions of Title 50, chapter 60, part 2, apply to [sections 1 through 4].

NEW SECTION. Section 9.  Applicability. [This act] applies to the construction or alteration of buildings subject to the provisions of [this act] for which the applicable building permits are obtained on or after October 1, 1997.