Construction projects in Massachusetts and throughout the United States do not simply begin when the owner decides to build. Federal law and regulations have created a carefully choreographed process all parties must follow both before and during the construction process.
These rules have different requirements, depending on the nature of the project. A residential project will have different standards than a commercial project. Lender regulations also exist. In certain cases, there are limits on land use. You need a residential construction regulation attorney familiar with Boston, Massachusetts, regulations to advise you on these differences.
The requirements for beginning a residential or commercial construction project can seem complex. Companies must follow laws and regulations to ensure they comply with building and lending standards. Deviating from these laws can cause construction delays, endanger workers’ safety, or even shut down a project.
Having an experienced construction and real estate lawyer who can consult with you on code regulations, building standards, and other issues will make the process run smoothly.
The Massachusetts construction lawyers at Calabrese Law Associates in Boston and Burlington help their clients manage the complex web of regulations that affect Massachusetts construction projects and contractors. Our commercial construction regulation lawyers can give you the information you need to ensure your project stays within the right guidelines.
Table of Contents
- Construction Regulations
- Government Contracts
- Safety Compliance
- Boston Laws Governing Residential and Commercial Construction
- Types of Construction
- Lender Regulations
- Land Use Limits
- Residential vs. Commercial Construction Regulations
- How Calabrese Law Associates Can Help
Construction Regulations
Title 29, Part 1926 of the Code of Federal Regulations lays out the “Safety and Health Regulations for Construction.” These regulations fall under the purview of the Occupational Safety and Health Administration (OSHA), a division of the Department of Labor created pursuant to the Williams-Steiger Occupational Safety and Health Act of 1970 (29 U.S.C. § 651 et seq.) (“the Act”). Under the Act, the Secretary of Labor (the “Secretary”) may promulgate standards for occupational safety. See 29 U.S.C. § 655(b).
Variances from such standards are available upon application to the Secretary, who is authorized to grant the requested variance if he determines on the record, after opportunity for an inspection where appropriate and a hearing, that the proponent of the variance has demonstrated by a preponderance of the evidence that the conditions, practices, means, methods, operations, or processes used or proposed to be used by an employer will provide employment and places of employment to his employees which are as safe and healthful as those which would prevail if he complied with the standard.
29 U.S.C. § 655(d). The Secretary may stipulate conditions that must be obtained in order to enjoy the variance. Id. The variance can be revoked at any time after six months have passed since its granting. Id. Variances related to construction are also deemed to be variances under the Contract Work Hours and Safety Standards Act (the “CWHSSA”). See 29 C.F.R. § 1926.2(b); 40 U.S.C. §§ 3701 et seq. The OSHA regulations have separate requirements for coverage under Sections 103 and 107 of the CWHSSA. See 29 C.F.R. § 1926.11.
UNIVERSAL LAWS & REGULATIONS – OSHA standards apply to all construction activity, regardless of the project’s intended use.
Government Contracts
In the construction industry, the CWHSSA applies to “[e]ach contract in an amount greater than $100,000 that is entered into under legislation subject to Reorganization Plan Numbered 14 of 1950 (eff. May 24, 1950, 64 Stat. 1267) and is for construction, alteration, and repair, including painting and decorating[.]” 40 U.S.C. § 3704(a). Contracts of this nature must comply with OSHA regulations. Id. The Secretary is empowered to hold hearings, make inspections, and take other actions deemed necessary to ensure compliance. 40 U.S.C. § 3704(b)(1). In the event of noncompliance, a government agency who has contracted for work is permitted to cancel the contract and seek new contracts to complete the work; if the agency is providing financial assistance of some kind, that aid may be withheld. 40 U.S.C. § 3704(b)(2). If a contractor or subcontractor commits repeated willful or gross violations of the CWHSSA, the organization will receive a three-year ban from being awarded further contracts. See 40 U.S.C. § 3704(c).
In promulgating Reorganization Plan No. 14 of 1950, President Truman authorized the Secretary to “coordinate the administration of legislation relating to wages and hours on federally financed or assisted projects by prescribing standards, regulations, and procedures to govern the enforcement activities of the various Federal agencies and by making such investigations as he deems desirable to assure consistent enforcement.” 64 Stat. 1267 (1950). The Secretary’s new power covered two primary categories of administration: “(1) agencies which contract for Federal public works or construction; and (2) agencies which lend or grant Federal funds, or Act as guarantors of mortgages, to aid in the construction of projects to be built by State or local public agencies or private individuals and groups.” Id.; see also 29 C.F.R. § 1926.12.
Safety Compliance
Employers are responsible for ensuring compliance with all applicable safety regulations. 29 C.F.R. § 1926.20(b)(1). This obligation includes the creation and maintenance of programs necessary to comply, including the regular inspection of job sites, the use of compliant equipment and the identification of noncompliant equipment, and allowing only qualified employees to work at the job site. 29 C.F.R. § 1926.20(b). The duties of compliance further apply to employees, who must be properly trained and be issued personal protective equipment where necessary. 29 C.F.R. § 1926.20(f); see also 29 C.F.R. § 1926.21. The failure to provide personal protective equipment is a violation for every employee who is not issued the required equipment. 29 C.F.R. § 1926.20(f)(1).
OSHA has promulgated regulations that govern a wide variety of construction activities. Part 1926 contains 28 subparts ranging from scaffolding to stairways and ladders. These rules are designed to ensure the safety of employees, as several kinds of work, including construction, can lead to serious injury or death if something goes wrong. Contractors must also take care to abide by the Massachusetts Building Code, which is based on the 2015 edition of the codes set forth by the International Code Council (ICC), including the International Building Code (IBC). Massachusetts has instituted its own requirements in some areas, so it is critical to check both the base code and the Massachusetts supplement. See, generally, 780 CMR 1.00.
Many of the existing requirements change depending on the intended use of the building, but the IBC has created standards that take effect when a building is designed for mixed uses. In those situations, the building must comply with the standards for each area’s use. For instance, a building with commercial operations on the first floor and residential space above the streets will have its requirements split. The first floor will have to meet the requirements for commercial construction, and the residential areas will have to comply with those standards.
Boston, MA, Laws Governing Residential and Commercial Construction
While federal law governs the entire country, Massachusetts has also enacted some regulations of its own, separate from federal law but just as crucial for construction companies to follow. Understanding what type of construction you are building is critical to following the right rules.
Types of Construction
The structural elements of a building must be rated to various levels of fire resistance. See IBC, Table 601. The required rating varies depending on the type of construction. The IBC has divided construction projects into five types. Types I and II use noncombustible building elements, except for certain items listed in §603 of the IBC. IBC, § 602.2. In Type III construction, the exterior elements are made of noncombustible materials, and interior elements may be made of any permitted materials; wood that has been treated with fire retardant may be used for exterior walls with a 2-hour rating or less. Id., § 602.3; see also § 603.
Type IV construction uses heavy timber. Like Type III, Type IV has noncombustible exterior walls, but the interior elements are “solid or laminated wood without concealed spaces.” Id., § 602.4. Type IV construction must also comply with § 2304.11. Id.
Type V is construction using any approved material in all parts of the building. IBC, § 602.5.
Commercial Construction
Commercial buildings are defined under the IBC as those, either in whole or in part, which are used “for office, professional or service-type transactions, including storage records and accounts.” IBC § 304.1. These buildings fall under “Business Group B” (“Group B”) and have purposes that include but are not limited to:
- Air traffic control towers
- Ambulatory care facilities
- Banks
- Civil administration buildings
- Motor vehicle showrooms
- Outpatient clinics
- Post offices
Id. As part of the general construction rules, the IBC has set limitations on the maximum height of buildings. These limits vary depending on the occupancy group, the type of construction, and whether the building has a sprinkler system. See IBC, Table 503.3, Table 503.4. There are also limits on a building’s square footage. See IBC, §§ 506-507.
Exceptions exist for malls and high-rise buildings. See IBC, §§ 402-403.
Residential Construction
The International Residential Code (IRC) applies to the construction of “one- and two-family dwellings and townhouses.” IRC, Preface. Massachusetts uses the IRC as a baseline for its residential construction requirements and has made a supplement that adds its own elements. See, generally, 780 CMR 51.00. The IBC has a “Residential Group R” (“Group R”) that is subdivided into four subgroups for buildings that are used “for sleeping purposes when not classified as an Institutional Group I or when not regulated by the International Residential Code.” Group R-1 consists of sleeping units for primarily transient occupants, such as:
- Boarding houses (transient) with more than 10 occupants
- Congregate living facilities (transient) with more than 10 occupants
- Hotels (transient)
- Motels (transient)
IBC, § 310.3. Group R-2 contains sleeping units or at least two dwelling units for primarily permanent occupants, such as:
- Apartment houses
- Dormitories
- Fraternity and sorority houses
- Vacation timeshare properties
Id., § 310.4. Group R-3 is defined as primarily permanent occupancies that do not fit any other residential subgroup. See 780 CMR § 310.5. Group R-4 covers buildings for people who live there on a 24-hour basis and receive custodial care. See IBC, § 310.6.
Lender Regulations
If you are a private loan lender who provides short-term residential and commercial construction loans, you must follow important regulations. Federal and Massachusetts laws govern many aspects of the lending industry, so familiarizing yourself with those in effect can help you provide construction companies with the finances they need.
Insured state nonmember banks that offer real estate lending should follow Federal Deposit Insurance Corporation (FDIC) standards, such as:
- Creating and maintaining written policies for credit limits and standards borrowers must follow
- Using safe banking practices
- Establishing loan portfolio diversification standards
- Providing clear and measurable underwriting standards
- Monitoring local real estate market conditions to ensure appropriate lending policies for the current market
When creating policies for how real estate loans are made, serviced, and collected, consider the following factors:
- Geographic area
- Portfolio diversification
- Underwriting standards, including the borrower’s ability to repay the loan, the property value, and the maximum loan size
- Loan-to-value ratio
Construction loans, in particular, are “extension[s] of credit for the purpose of erecting or rehabilitating buildings or other structures, including any infrastructure necessary for development.” 12 C.F.R. 160.101, Appx. The FDIC requires real estate lending policies to establish standards and limits for different types of loans, depending on the size of the project and the type of property.
Land Use Limits
When embarking on commercial or residential construction projects in Massachusetts, be aware of state laws regarding how the land or buildings can legally be used that may affect your work.
For instance, to build or reconstruct structures without permit restrictions or prohibitions on land used for commercial agriculture, the owner must sell a certain percentage of their crops during harvest season. Land or structures used, built, or expanded for use as child care facilities are also exempt from prohibitory permits and zoning laws.
Massachusetts land use laws prohibit discrimination against people with disabilities. All land-use requirements for constructing living arrangements for people with disabilities must also be followed for constructing other living arrangements, or the excessive requirements for the former will constitute discrimination. Similarly, for private residential properties, no dimensional lot requirements are needed to install access ramps, as long as the ramps are used solely for the purpose of helping people with mobility issues.
Depending on the nature and scope of a specific construction project, other land use limits may apply.
Residential vs. Commercial Construction Regulations
Construction safety is governed by Title 29, Part 1926 of the Code of Federal Regulations, and oversight falls under OSHA. The safety standards are carefully constructed to encourage compliance and protect workers. Companies can apply for variances, which depend on meeting certain conditions at the worksite.
Failure to comply with safety standards can lead to serious injuries or death on a construction site. Whether a company is working on a residential or commercial project, it must keep workers safe. This encompasses:
- Providing proper personal protective equipment
- Offering appropriate training to use the equipment on the site
- Inspecting job sites regularly
- Getting rid of construction equipment that no longer functions
The International Building Code includes regulations related to different types of uses. A mixed-use building, such as a property with a doctor’s office on the first floor and apartments upstairs, will have split requirements for commercial and residential construction.
The height or square footage of a building, for instance, is governed in part by whether it is residential or commercial. Other factors also impact height requirements, such as the presence of sprinklers on the property and occupancy levels.
How Can Calabrese Law Associates Help?
Construction regulations require great attention to detail and an understanding of the legal terminology and goals of standards posted at the commonwealth and national levels. Companies that lack experience with these laws may violate compliance. Keep in mind, not knowing about a rule is not an excuse for not following it.
If you need additional help with ensuring your company follows residential and commercial construction regulations while working on projects, we can assist you. Our attorneys understand construction law, and we have aided many businesses just like yours during the construction process, which can last years. Having informed legal counsel during this period can save you a lot of headaches.
We pursue out-of-court solutions so that you can keep your construction site running. Our lawyers in the Greater Boston Area deliver effective, efficient counsel on laws and regulations governing your project.
Contact Our Residential Construction Regulation Lawyers
Do you need a commercial construction regulation attorney to help walk you through these regulations? Get in touch with one of our offices, located in Burlington and Boston, Massachusetts, to get the assistance you need. Call 617-340-6623 or contact us online today.
This publication and its contents are not to be construed as legal advice nor a recommendation to you as to how to proceed. Please consult with a local licensed attorney directly before taking any action that could have legal consequences. This publication and its content do not create an attorney-client relationship and are being provided for general informational purposes only.
Attorney Advertising. Prior results do not guarantee a similar outcome.