Section 13A: Architectural access board; members; terms; rules and regulations; penalties; review; definitions
Section 13A. There shall be in the department of public safety a board to be known as the architectural access board, which shall consist of the director of the Massachusetts office on disability or his designee, the secretary of the executive office of elder affairs or his designee, the secretary of the executive office of public safety or his designee, and six members to be appointed by the governor, in consultation with the secretary of the executive office of public safety from lists submitted by the director of the Massachusetts office on disability. Three of the appointive members shall be selected after consultation with advocacy groups in behalf of the physically handicapped. The governor, the secretary, and the director shall exercise their best efforts to ensure that at least two of the appointive members shall be registered architects licensed to practice in the commonwealth. The board shall elect a chairman from among its members who shall serve for one year or until his successor is elected.
Each appointive member shall be appointed for a term of three years, with the members initially appointed serving staggered terms. Persons appointed to fill vacancies shall serve for the unexpired term. Any member shall be eligible for reappointment. Each appointive member shall be paid for each day while in the actual performance of official functions at such rate as shall be approved by the commissioner of administration and shall also receive from the commonwealth all expenses necessarily incurred in connection with such official duties. Any board member appointed by said governor absent from three consecutive board meetings, which absence is not for reasons of health, may be removed from membership by said governor upon request of a majority of the members of the board.
The board shall employ an executive director, who shall appoint, with the board's approval, such other personnel as may be required in the performance of the board's duties. The executive director shall be responsible for the administrative operation of the board, including development of an annual appropriation request for the operation of the board, and shall perform such other tasks as the board shall determine. Employees of the board shall not be subject to the provisions of chapter thirty-one.
The board shall make and from time to time alter, amend, and repeal, in accordance with the provisions of chapter thirty A, rules and regulations designed to make public buildings accessible to, functional for, and safe for use by physically handicapped persons. The board shall also make rules and regulations requiring that any person who has lawful control of improved or enclosed private property used as off-street parking areas for businesses, auditoriums, sporting or recreational facilities, or cultural centers where the public has a right of access as invitees or licensees, shall reserve parking spaces in said off-street parking areas for vehicles of handicapped persons or for vehicles used to transport such handicapped persons if the number of parking spaces in any such area is fifteen or more. The parking spaces reserved for vehicles of such handicapped persons shall be clearly marked as such. The rules and regulations of the board shall also establish standards and procedures designed to make adaptable for physically handicapped persons (1) all dwelling units in multiple dwellings equipped with an elevator and (2) all ground floor dwelling units in multiple dwellings not equipped with an elevator; provided, however, that the dwelling is constructed for first occupancy after March thirteenth, nineteen hundred and ninety-one. Said rules and regulations shall include, but not be limited to, detailed architectural standards further defining adaptable dwelling units, and such other provisions necessary to provide rights and remedies substantially equivalent to the rights and remedies provided by the federal Fair Housing Act and regulations thereunder as they pertain to such multiple dwellings.
The provisions of this section and all rules and regulations made hereunder shall be enforced by the inspector of buildings, building commissioner, local inspector and inspector, as defined in chapter one hundred and forty-three, as to buildings under their respective jurisdictions. Said rules and regulations shall be deemed to be a specialized code as referred to in section ninety-six of chapter one hundred and forty-three, the violation of which shall constitute gross negligence for the purposes of clause (d) of section sixty G of chapter one hundred and twelve.
The board shall have the power of local and state inspectors in the enforcement of its rules and regulations, including but not limited to, the right to enter all public buildings as defined by this section. The board shall use all reasonable methods to cause the dissemination of the provisions of this section and all rules and regulations made hereunder to architects, engineers, contractors, state and local building inspectors, local building commissioners, state and local public works officials, the chief executive of each city and town, handicapped persons, and any other person requesting such information. The board shall take such other actions as may be necessary and appropriate to encourage and assist all state and local building inspectors to enforce the provisions of this section, all rules and regulations made hereunder and decisions of the board, including but not limited to, providing training and technical assistance to said inspectors. The board shall also provide technical assistance and training to professional groups, public officials and state agencies. All public newspaper solicitation for bids on projects regulated by this section shall state the requirement of conformity to rules and regulations of the board.
There shall be no construction, reconstruction, alteration or remodeling of a public building except in conformity with said rules and regulations, nor shall the use of any building be changed to a use in which the building is open to and used by the public as defined in this section until such building so conforms, and a copy of the plans and specifications have been approved as provided in this section and in section three W of chapter one hundred and forty-three, showing compliance with said rules and regulations; provided, however, that if the board determines that compliance with said rules and regulations is not feasible technologically, or would result in excessive and unreasonable costs without any substantial benefit to physically handicapped persons in a particular case, it may provide for modification of, or substitution for, such rule or regulation. In all petitions for variance, the burden of proof shall be on the party requesting a variance to justify its allowance.
Unless otherwise specified, five percent of the units in lodging or residential facilities for hire, rent or lease, containing twenty or more units, shall be fully adaptable and safe for physically handicapped persons; provided, however, that said adaptable units shall allow five feet of turning radius for a wheelchair in the kitchens and bathrooms. In the event that the board determines that the need, in certain areas of the commonwealth, for such units either exceeds or does not require said five percent, the board may require that, in said areas a percentage of units less than five percent or not greater than ten percent be fully adaptable and safe for physically handicapped persons; provided, however, that said adaptable units shall allow five feet of turning radius for a wheelchair in the kitchens and bathrooms. The board may make such determination only if there is sufficient factual basis, using data from the central registry of the Massachusetts Rehabilitation Commission and other sources, to establish with a reasonable degree of certainty the present and future needs for said adaptable units in certain areas of the commonwealth. A percentage of less than five percent shall not be established unless such adaptable units, which are not needed by physically handicapped persons, cannot be readily hired, rented, or leased to other persons.
The board shall receive complaints of noncompliance with this section or any rule or regulation promulgated hereunder from any person or may receive complaints initiated by its own staff. If the board finds, after notice and opportunity for a hearing, that any person is not in compliance with this section or with any rule or regulation promulgated hereunder, it may issue an order to compel such compliance. Such order may specify the date and the manner by which such person shall cure the noncompliance found by the board, and may require that pending the cure of such noncompliance a performance bond be furnished, payable to the commonwealth, in such penal sum as the board finds reasonable. The board shall have the authority to issue subpoenas.
In the event that a person fails to cure such noncompliance by the date specified in the board's order, the board shall be empowered, after further hearing, to impose a fine payable to the commonwealth not to exceed one thousand dollars per day for each violation for each day of noncompliance as to which the board finds that such noncompliance was without justification. The board shall also have the power, if it determines that such failure to cure noncompliance is willful and deliberate, to bring a complaint before any appropriate licensing or permit granting authority against the license or permit of such person. The board shall maintain a record of all state and local building inspectors who issued a building permit for a building later found by the board to be in violation of this section or any rule or regulation promulgated thereunder.
The board may, when necessary, seek to enforce its order by filing an action in superior court. In any such proceedings, the board or any member thereof may appear pro se or be represented by the attorney general or by counsel employed or designated by it for such purpose. The board shall not be required to pay any entry fee in connection with the institution of any such proceedings.
Any decision the board makes pursuant to this section shall be subject to review in superior court upon petition of any aggrieved person within thirty days after the decision for which review is sought. The court shall enter an order enforcing, modifying, or setting aside the order of the board, or it may remand the proceeding to the board for such further action as the court may direct.
Prior to the board's resolution of any complaint, request for a variance or other matter involving the accessibility of a building or site, the board shall conduct an on-site inspection unless said inspection is waived by the board. The board shall conduct said inspection either itself or through an agent of the board. Said inspection shall, however, be conducted by an architect at any time deemed necessary by a majority of the board.
The following words, as used in this section, shall have the following meanings:--
''Accessible'', the state of a site, building, facility or portion thereof that complies with this section and any rules or regulations promulgated hereunder and that can be approached, entered and used by physically handicapped persons.
''Adaptable'', can readily be made accessible to, functional for, and safe for use by physically handicapped persons without structural change and without imposing an undue hardship on the owner or other person having the right of ownership pursuant to subsection seven A of section four of chapter one hundred and fifty-one B. With respect to dwelling units, an adaptable kitchen or bathroom need not include additional floor space to meet otherwise applicable accessibility standards, so long as there is sufficient clear floor space so that all elements of the kitchen and bathroom are functional and safe for use by physically handicapped persons.
''Alteration'', external or internal rehabilitation or renovation for which a building permit is needed or for which the cost of such rehabilitation or renovation equals or exceeds five per cent of the full and fair cash value of the building, or any work determined to be alteration by a state or local building inspector.
''Board'', the architectural access board established by this section.
''Construction'', work for which a building permit is required, work determined to be construction by a state or local building inspector, or work for which a certificate of occupancy is necessary upon completion.
''Multiple dwelling'', a lodging or residential facility for hire, rent, lease or sale, containing three or more dwelling units.
''Physically handicapped person'', any person who has a disability that substantially limits one or more major life activities, including, but not limited to, such functions as performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working. Physically handicapped persons shall include, but not be limited to, persons who have the inability to walk, difficulty walking, hearing disabilities, lack of coordination, reaching and manipulation disabilities, lack of stamina, difficulty interpreting and reacting to sensory information and extremes in physical size.
''Public building'', buildings constructed by the commonwealth or any political subdivision thereof with public funds and open to public use, including, but not limited to, those constructed by public housing authorities, the Massachusetts Port Authority, the Massachusetts Parking Authority, the Massachusetts Department of Transportation, the Massachusetts Bay Transportation Authority, or building authorities of any public educational institution, or their successors; and privately financed buildings that are open to and used by the public.
Buildings that are open to and used by the public shall include, but not be limited to, the following buildings: transportation terminals, institutional buildings, commercial buildings, buildings having places of assembly with a capacity of more than one hundred and fifty persons, hotels, motels, dormitories, public parking garages or lots with a capacity of fifteen or more automobiles, public sidewalks and ways, public areas of apartment buildings and condominiums containing twelve or more units and of funeral homes, and rest rooms and public areas of shopping centers and restaurants.
''Reconstruction'', the tearing down, removal, demolition or replacement of a public building or part of a public building.
''Remodeling'', modification beyond an interior decoration or involving any structural change, or the refurbishing, updating or redecorating of a public building for which the cost of such refurbishing, updating or redecorating equals or exceeds five per cent of the full and fair cash value of the building.