Code of Massachusetts Regulations
105 CMR - DEPARTMENT OF PUBLIC HEALTH
Title 105 CMR 410.000 - Minimum Standards of Fitness for Human Habitation, State Sanitary Code, Chapter II
Section 410.700 - Variances

Universal Citation: 105 MA Code of Regs 105.410

Current through Register 1531, September 27, 2024

(A) The board of health shall not vary the following provisions of 105 CMR 410.000:

(1) Conditions Deemed to Endanger or Materially Impair Health or Safety, required by 105 CMR 410.630(A), except as authorized in 105 CMR 410.710;

(2) Alternative Housing requirements specified in 105 CMR 410.710;

(3) Enforcement Procedures required by 105 CMR 410.600 through 105 CMR 410.930;

(4) Submetering of Water and Sewer, required by 105 CMR 410.130(C), (D) and (E);

(5) Any regulatory provision that is governed by the authority of another regulatory agency; or

(6) Any regulatory provision that is required by law.

(B) The board of health may vary the application of any provision of 105 CMR 410.000, except those conditions listed in 105 CMR 410.700(A), when:

(1) The enforcement thereof would do manifest injustice;

(2) The applicant has proved the same degree of protection required under 105 CMR 410.000 can be achieved without strict application of the particular provision(s);

(3) When insurance is utilized, the applicant has provided written confirmation from the insurance carrier confirming the continuation of full coverage(s) if the minimum health and safety provision(s) are varied;

(4) The decision of the board of health does not conflict with the spirit of these minimum standards or any other applicable statute, code, or regulation;

(5) All affected persons have been notified in writing of the date, time, and place of a hearing to consider the variance;

(6) All affected persons have been given the opportunity to be heard to show why the variance should or should not be granted; and

(7) The petitioner is notified within three calendar days of the board's decision to grant the variance.

(C) Any variance granted by the board of health shall be in writing and shall include:

(1) The factors determining that the enforcement of this provision in 105 CMR 410.000 would be a manifest injustice;

(2) The measures the petitioner will incorporate to ensure equal or greater protection of the health and safety of the occupants as provided by 105 CMR 410.000; and

(3) The date of expiration of the variance.

(D) The variance shall be:

(1) Made available to the Director of the Community Sanitation Program at the Department by request;

(2) Made available to the public at all reasonable hours in the office of the clerk of the city or town, or in the office of the board of health;

(3) Provided to all affected persons by the owner and attached to the rental agreement for new tenancies created while the variance is in effect; and

(4) Filed by the owner in the registry of deeds for the county or appropriate district thereof, in which the residence is located.

(E) Any variance or other modification authorized to be made by 105 CMR 410.000 may be subject to such qualification, revocation, suspension or expiration as the board of health expresses in its approval.

(F) A variance or other modification authorized to be made by 105 CMR 410.000 may otherwise be revoked, modified, or suspended in whole or in part, only after the owners and affected persons have been notified in writing and have been given an opportunity to be heard, in accordance with the requirements of 105 CMR 410.800 through 105 CMR 410.860.

(G) A variance from 105 CMR 410.270 may be granted only in writing by the Massachusetts State Building Code Commissioner when in their opinion, other security measures are in force which adequately protect the occupants(s) of such residence. (M.G.L. c. 143, § 3R.)

(H) A variance granted by the board of health shall be in effect only upon meeting the requirements established in 105 CMR 410.700(A) through (D).

(I) An owner may request that the variance be renewed by submitting to the board of health, at least 30 calendar days prior to expiration, a written request that contains a statement of any relevant changes to the conditions of the residence since the original variance request or most recent renewal. The board of health may conduct an inspection of the residence prior to issuing its decision. If the board of health finds that the health and safety of the occupants and general public will not be compromised, it may renew the variance in writing. The notification requirements of 105 CMR 410.700(D) shall be followed for each variance renewal.

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