Current through Vol. 24-16, September 15, 2024
Rule 14.
(1) All
final board decisions on exception requests shall be based on the record and on
a finding of fact and conclusion of law that the applicant proves or fails to
prove compelling need to warrant an exception from any or all barrier free
design requirements. The applicant has the burden of proving that an exception
should be granted. An exception is in effect a special license to deviate from
rules which have uniform applicability to all facilities. Compelling need may
involve exceptional circumstances, such as site limitations, structural
limitations, jurisdictional conflicts, or severe economic difficulty.
Compelling need may be present if the literal application of a specific barrier
free design requirement would result in exceptional, practical difficulty to
the applicant. Evidence admitted to prove or refute compelling need shall be
governed by rules applicable to a nonjury civil case in circuit court and
evidence relied on by a reasonably prudent person in the conduct of his or her
affairs.
(2) In addition to section
5a(2) of the act, factors which may be considered in determining whether
compelling need has been demonstrated include the following, if applicable:
(a) Circumstances which required compliance,
such as any of the following:
(i) Use group
change.
(ii) New
construction.
(iii) Occupancy load
change.
(iv) Alteration other than
ordinary maintenance.
(v)
Addition.
(b) The total
project cost, including all of the following:
(i) The total construction or remodeling
cost.
(ii) Land acquisition
cost.
(iii) Cost for
furnishings.
(iv) Purchase price of
the structure.
(c)
Nature of the business or facility.
(d) Anticipated public traffic.
(e) Hours and days of operation.
(f) Financial position of the business or
agency.
(g) Age of the
business.
(h) Lease provisions, if
the applicant is a lessee of the facility; and the name and address of the
owner, if the owner refuses to allow compliance with the barrier free design
requirements.
(i) Tax abatements,
tax credits, and tax deductions for which the project qualifies.
(j) Age of existing building.
(k) Size of all levels and areas of the
project and the size of the area or areas proposed to be
inaccessible.
(l) Use of the area
proposed to be inaccessible.
(m)
Aspects of the project that do comply with the barrier free design
requirements.
(n) Number of
employees who will be using the area or facility.
(o) Description of the job duties of the
employees.
(p) Vertical distance
from grade to entrance level.
(q)
Vertical distance or distances between floor levels.
(r) Width and layout of existing
stairways.
(s) Cost of compliance
in relation to the total project cost, the size of the area proposed to be
inaccessible, and the use of the area proposed to be inaccessible.
(t) Existing structural
limitations.
(u) Site restrictions,
such as any of the following:
(i) Size of
site.
(ii) Greenbelt or set-back
requirements.
(iii) Off-street
parking requirements.
(iv) Unusual
soil or site conditions.
(v) Spatial and financial feasibility of
alternatives to compliance, such as any of the following:
(i) Ramp with slightly steeper
slope.
(ii) Alternative lifting
devices such as a special elevating device or wheelchair lifting
device.
(iii) Accessible entrance
other than the nearest entrance.
(iv) Unisex barrier free bathroom.
(w) Feasibility of an exception
for a stated period of time after which compliance with the requirements would
be achieved and the plan or proposal for compliance.
(x) Duplication of facilities
available.
(y) Historic designation
and character of the facility, as determined by the Michigan bureau of history,
department of state, or the United States department of the interior as
specified in
R
408.30428.
(z) Similar projects previously reviewed by
the board.
(aa) Whether the
applicant complied with the requirements contained in section 10 of Act No. 230
of the Public Acts of 1972, as amended, being S125.1501 et seq. of the Michigan
Compiled Laws, known as the construction code act.
(bb) Whether the project was started or
constructed, or both, pursuant to a permit based on plans or specifications
that complied with the barrier free design requirements, in accordance with
section 11 of Act No. 230 of the Public Acts of 1972, as amended, being
S125.1511 of the Michigan Compiled Laws, known as the construction code
act.
(cc) Any other factual
information related to the project which the applicant believes should be
considered by the board.
