New Legislation Ups the Ante on Building "Upta Code"

In the absence of an updated and common sense building code in the past, forward thinking builders and designers developed their own guidelines for an energy efficient, high quality and practical building standard, like this deep energy retrofit in Brunswick, completed by Emerald Builders in 2017. It followed the “Pretty Good House” approach, which seeks to find the sweet spot between performance and price. Photo courtesy of Michael Maines Residential Design.

By Tim King

In July, Governor Janet Mills signed several pieces of legislation that will help improve the energy efficiency of all new buildings – including homes and commercial buildings – constructed in Maine.

These three bills – which require all Maine builders to adhere to a more robust set of international building codes – were among nearly a dozen pieces of legislation signed by Governor Mills that clearly showed her administration’s intent to bring Maine back into the conversation about climate change. So, what does this mean for Maine homeowners and builders?

finally, building code uniformity

While the passing of LD 855, “An Act To Strengthen the Maine Uniform Building and Energy Code”, LD 1543, “An Act To Amend the Maine Uniform Building and Energy Code”, and LD 1509, “An Act To Amend the Laws Governing the Maine Uniform Building and Energy Code To Ensure It Is Consistent with Current Standards and Applies to Small Municipalities” may not have made the front page of any mass media outlets, the impact of these new laws on the Maine architecture, engineering and construction (AEC) industries will be significant.

For one thing, this will be the first time all builders will be required to follow the same set of building codes – no matter where they build the home.

Together, this legislation essentially puts Maine back on a green building path it had originally started down more than a decade ago.

“Integrating upgraded building and energy standards for all of Maine will create a consistent level of construction that will improve public safety, building performance and ultimately lower long-term energy costs for building owners and occupants,” says Paul Demers, long-time Code Enforcement Officer in Kennebunk and past president of the Maine Building Officials and Inspectors Association (MBOIA).

The Maine Building Officials and Inspectors Association board of directors unanimously supported the changes proposed by the legislation.

reestablishing MUBEC

“Back in the early 2000s there was a real effort to finally put some uniformity into the building codes used throughout the state,” recalls Christy Crocker, Executive Director of the Maine Indoor Air Quality Council. What resulted from these efforts was legislation enacted in 2008 to create the Technical Building Codes and Standards Board and establish statewide minimum requirements that all new home construction and renovation must satisfy – the Maine Uniform Building and Energy Code (MUBEC).

“When the MUBEC legislation was passed, the intent was to make the ICC’s (International Code Council) International Residential Code mandatory for every city and town throughout the state,” says Crocker.

Unfortunately, that didn’t happen.

Any hope of the MUBEC having its desired effect of changing (for the better) the vast majority of new building construction went out the window when the LePage administration added a parameter making compliance to the standard unenforceable in more than 80% of the cities and towns in Maine. By simply adding a stipulation that the new code would apply only to municipalities with over 4,000 residents, lawmakers were able to effectively exempt the vast majority of builders and remodelers from following these standards.

Since the original legislation did not specifically state that compliance with MUBEC was mandatory, legislators who were opposed to the bill were able to successfully amend its language, dramatically reducing its ability to force builders to change their construction methods.

As a result, many housing contractors continued to design and build “upta” whatever code they were either (a) capable of producing or (b) able to get homeowners to pay for. After all, in the eyes of Maine building code officials, as long as the building was structurally sound and provided adequate means of egress, it passed muster.

Building better buildings - no longer the exception?

Naturally, while a small-yet-growing number of forward- thinking residential home builders in Maine – many of which have been profiled in previous issues of G&HM Homes – have been voluntarily creating homes built to achieve much higher levels of energy efficiency, the majority of new home builders have not been compelled to do so and therefore have not.

Future proofing building code legislation

In order to avoid having future lawmakers find similar loopholes to exploit, the presenters of the building code legislation, Representative Deane Rykerson of Kittery and Senator Ben Chipman of Portland, along with representatives from Scarborough, Winterport, Biddeford, Gardiner, Arundel, South Portland and several other communities, decided against submitting an omnibus bill, opting instead to break the essential components into separate pieces of legislation.

It’s also worth noting that the legislators who brought these bills to the table are all involved (or previously engaged) in various activities associated with the building trades. This, no doubt, added to the validity of the language used to construct the bill, along with helping to reassure other members of the Maine House and Senate that this legislation was something that the building industry actually desired.

During the legislative hearings in Augusta, stakeholders from across the industry spoke in support of LD 1509 and 855. The ability to maintain a uniform building code across the entire state was something groups such as the Home Builders and Remodelers Association of Maine, Association of General Contractors – Maine, Professional Engineers and Architects and the Maine Municipal Association all viewed favorably.

Basic ventilation is now required as a component of the updated building codes. Sophisticated systems - like this energy recovery ventilation (ERV) system - deliver continuous fresh air into the house, while simultaneously exhausting stale air back outside. They recover the heat energy and a small amount of moisture from the outgoing air. Photo courtesy of RenewAire, RST Thermal

Breaking down the bills

The first order of business was to add language to the current MUBEC that required it to be continuously updated as new building standards were introduced.

More specifically, LD 1509 required the board that oversees Maine’s building codes to amend MUBEC to be consistent with the most recent edition of the ICC’s International Energy Conservation Code, which establishes a baseline for energy efficiency by setting performance standards around the components used to form the building envelope – separating mechanically heated/cooled air from outside, unconditioned air and the ICC’s International Mechanical Code regulating ventilation.

The rationale is that as buildings are built tighter to comply with more rigorous building codes, builders will also need to develop fresh air ventilation systems to ensure indoor air quality is maintained at healthy levels.

“Instituting ASHRAE Ventilation Standards and the ASTM Radon Standard as mandatory elements of the Building and Energy Code will go a long way toward our mission of creating healthy, productive and environmentally sustainable indoor environments in Maine,” says Crocker.

Another provision of LD 1509 prohibits a municipality from adopting or enforcing a building or energy code other than the MUBEC. This provision helps strengthen the bill’s reach by essentially negating the “under 4,000 residents” exemption that hamstrung any code enforcement efforts in the past, given the large number of small towns in Maine.

Funding the change

An aspect of some regulatory efforts that can sometimes be overlooked – often leading to its ultimate failure – is procuring a method of funding needed to carry out the activities described in the bill.

To this end, Maine legislators developed LD 855 as “An Act to Strengthen the Maine Uniform Building and Energy Code.” In particular, the bill will require the Commissioner of Public Safety to appoint a technical building codes coor- dinator, an administration/office specialist and a build- ing codes trainer who will be responsible for educating Maine’s architecture, engineering and construction com- munity about the effects these changes may have on their businesses. According to Mr. Demers, “LD 855 will have a significant impact to help the code enforcement officials (CEOs) and contractors as it brings back a staffed office of a building official to assist with the administration of the MUBEC and aid CEOs with answering questions and providing some direction.”

The office will provide training across the state and help both sides (code officials and builders) to develop a better understanding of the codes.

Funding will be made available to support these efforts from an additional $3.00 surcharge Maine municipalities will be required to collect on all building permit applications.

Interior of an efficient post and beam home, constructed by Burnham & Lobozzo Builders in Freeport. It was constructed using a continuous, air-tight, well-insulated exterior outer shell with R-35 walls and an R-65 roof. Photo by Tim Greenway.

Supporting the overachievers

Lastly, the new legislation also provides a roadmap for Mainers – either builders or municipalities – to follow if they are intent on going above and beyond the baseline building performance metrics specified in the code.

To accomplish this, LD 1543 “An Act to Amend the Maine Uniform Building and Energy Code” requires the Technical Building Codes and Standards Board to create and maintain additional resources – as an appendix to MUBEC – that identify more aggressive energy conservation and efficiency benchmarks for municipalities to voluntarily aspire toward.

Known as the “Stretch Code”, LD 1543 allows local building officials to provide builders with an even higher energy standard to follow during construction of new residential homes – above and beyond those currently outlined by MUBEC (2015 IECC).

Building the future of Maine

The move toward the adoption of current, uniform – and enforceable – building codes marks a turning point in policies coming out of Augusta, and reflects a willingness of elected officials to listen and learn from the scientific evidence being presented about climate change, and to do something about it through legislative action.

In a statement from Northeast Energy Efficiency Partnerships (NEEP) following the adjournment of the First Regular Session of the 129th Maine Legislature, the organization declared, “With over 10 bills signed into public law, Maine is sending a clear message that the state is joining the movement to mitigate climate change and doing its part to lessen and adapt to its impacts.”

Interestingly, around the same time changes to the Maine building codes were being discussed, a bipartisan group of U.S. senators (including Sen. Jeanne Shaheen of New Hampshire) also introduced new legislation to help strengthen building codes and make new homes, commercial, federal and municipal buildings throughout the country more energy efficient.

For homeowners, the new Maine regulations will provide a certain degree of confidence that the building they are having built will meet (at the very least) an established minimum building standard, no matter where in Maine it is constructed.

About the author: Tim King is a freelance writer and marketing communications consultant working with clients and programs focused on sustainability issues and energy efficiency. He lives in Scarborough.

This article first appeared in the Fall 2019/Winter 2020 edition of Green & Healthy Maine HOMES. Subscribe today!