§ 53. Commercial building energy standards

(a) Definitions. In this subchapter, “commercial buildings” means all buildings that are not residential buildings as defined in subdivision 51(a)(2) of this title or farm structures as defined in 24 V.S.A. § 4413.

(1) The following commercial buildings, or portions of those buildings, separated from the remainder of the building by thermal envelope assemblies complying with this section shall be exempt from the building thermal envelope provisions of the standards:

(A) those that do not contain conditioned space; and

(B) those with a peak design rate of energy usage less than an amount specified in the commercial building energy standards (CBES) adopted under subsection (b) of this section.

(2) These standards shall not apply to equipment or portions of building energy systems that use energy primarily to provide for industrial or manufacturing processes.

(3) With respect to a structure that is a mixed-use building that shares residential and commercial users:

(A) if the structure is three stories or fewer in height, the term “commercial building” shall include all commercial uses within the structure and all common areas and facilities that serve both residential and commercial uses; and

(B) if the structure is four stories or more in height, the term “commercial building” shall include all uses and areas within the structure.

(b) Adoption of commercial building energy standards. Commercial building construction with respect to which any local building permit application or application for construction plan approval by the Commissioner of Public Safety pursuant to 20 Vt. Stat. Ann. chapter 173 has been submitted on or after January 1, 2007 shall be designed and constructed in substantial compliance with the standards contained in the 2005 Vermont Guidelines for Energy Efficient Commercial Construction, as those standards may be amended by administrative rule adopted by the Commissioner of Public Service.

(c) Revision and interpretation of energy standards. On or before January 1, 2011, the Commissioner shall complete rulemaking to amend the commercial building energy standards to ensure that commercial building construction must be designed and constructed in a manner that complies with ANSI/ASHRAE/IESNA standard 90.1-2007 or the 2009 edition of the IECC, whichever provides the greatest level of energy savings. At least every three years after January 1, 2011, the Commissioner of Public Service shall amend and update the CBES by means of administrative rules adopted in accordance with 3 Vt. Stat. Ann. chapter 25. The Commissioner shall ensure that appropriate revisions are made promptly after the issuance of updated standards for commercial construction under the IECC or ASHRAE/ANSI/IESNA standard 90.1, whichever provides the greatest level of energy savings. Prior to final adoption of each required revision of the CBES, the Department of Public Service shall convene an Advisory Committee to include one or more mortgage lenders; builders; building designers; architects; civil, mechanical, and electrical engineers; utility representatives; and other persons with experience and expertise, such as consumer advocates and energy conservation experts. The Advisory Committee may provide the Commissioner of Public Service with additional recommendations for revision of the CBES.

(1) Any amendments to the CBES shall be:

(A) consistent with duly adopted State energy policy, as specified in 30 V.S.A. § 202a; and

(B) evaluated relative to their technical applicability and reliability.

(2) Each time the CBES are amended by the Commissioner of Public Service, the amended CBES shall become effective upon a date specified in the adopted rule, a date that shall not be less than three months after the date of adoption. Persons submitting an application for any local permit authorizing commercial construction, or an application for construction plan approval by the Commissioner of Public Safety pursuant to 20 Vt. Stat. Ann. chapter 173, before the effective date of the amended CBES shall have the option of complying with the applicable provisions of the earlier or the amended CBES. After the effective date of the original or the amended CBES, any person submitting such an application for commercial construction in an area subject to the CBES shall comply with the most recent version of the CBES.

(3) The Advisory Committee convened under this subsection, in preparing for the CBES updates, shall advise the Department of Public Service with respect to the coordination of the CBES amendments with existing and proposed demand-side management programs offered in the State.

(4) The Commissioner of Public Service is authorized to adopt rules interpreting and implementing the CBES.

(5) The Commissioner of Public Service may grant written variances or exemptions from the CBES or rules adopted under this section where strict compliance would entail practical difficulty or unnecessary hardship, or is otherwise found unwarranted, provided that:

(A) Any such variance or exemption shall be consistent with State energy policy, as specified in section 202a of this title.

(B) Any petitioner for such a variance or exemption can demonstrate that the methods, means, or practices proposed to be taken in lieu of compliance with the rule or rules provide, in the opinion of the Commissioner, equal energy efficiency to that attained by compliance with the rule or rules.

(C) A copy of any such variance or exemption shall be recorded by the petitioner in the land records of the city or town in which the building is located.

(D) A record of each variance or exemption shall be maintained by the Commissioner, together with the certifications received by the Commissioner.

(d) Certification requirement.

(1) The design of commercial buildings shall be certified by the primary designer as compliant with CBES in accordance with this subsection, except as compliance is excused by a variance or exemption issued under subdivision (c)(5) of this section. If applicable law requires that the primary designer be a licensed professional engineer, licensed architect, or other licensed professional, a member of a pertinent licensed profession shall issue this certification. If one or more licensed professional engineers or licensed architects is involved in the design of the project, one of these licensees shall issue this certificate. If a licensed professional engineer or a licensed architect is not involved in designing the project, certification shall be issued by the builder. Any certification shall be accompanied by an affidavit and shall certify that the designer acted in accordance with the designer’s professional duty of care in designing the building, and that the commercial building was designed in substantial compliance with the requirements of the CBES. The Department of Public Service will develop and make available to the public a certificate that lists key requirements of the CBES, sets forth certifying language in accordance with this subdivision, and requires disclosure of persons relied upon by the primary designer who have contracted to indemnify the primary designer for damages arising out of that reliance. Any person certifying under this subdivision shall use this certificate or one substantially like it to satisfy these certification obligations. Certification shall be issued by completing and signing a certificate and permanently affixing it to the outside of the heating or cooling equipment, to the electrical service panel located inside the building, or in a visible location in the vicinity of one of these three areas. In certifying under this subsection, the certifying person may reasonably rely on one or more supporting affidavits received from other persons that contributed to the design affirming that the portions of the design produced by them were properly certifiable under this subsection. The certifying person may contract for indemnification from those on which the person relies pursuant to this subdivision (1) against damages arising out of that reliance. This indemnification shall not limit any rights of action of an aggrieved party.

(2) The construction of a commercial building shall be certified as compliant with CBES in accordance with this subsection, except as compliance is excused by a variance or exemption issued under subdivision (c)(5) of this section. This certification shall be issued by the general contractor, construction manager, or other party having primary responsibility for coordinating the construction of the subject building, or in the absence of such a person, by the owner of the building. Any certification shall be accompanied by an affidavit and shall certify that the subject commercial building was constructed in accordance with the ordinary standard of care applicable to the participating construction trades, and that the subject commercial building was constructed substantially in accordance with the construction documents including the plans and specifications certified under subdivision (1) of this subsection for that building. The Department of Public Service will develop and make available to the public a certificate that sets forth certifying language in accordance with this subdivision, and that requires disclosure of persons who have been relied upon by the person with primary responsibility for coordinating the construction of the building and who have contracted to indemnify that person for damages arising out of that reliance. The person certifying under this subdivision shall use that certificate or one substantially like it to satisfy these certification obligations. Certification shall be issued by completing and signing a certificate and permanently affixing it to the outside of the heating or cooling equipment, to the electrical service panel located inside the building, or in a visible location in the vicinity of one of these three areas. In certifying under this subdivision, the certifying person may reasonably rely on one or more supporting affidavits received from subcontractors or others engaged in the construction of the subject commercial building affirming that the portions of the building constructed by them were properly certifiable under this subdivision (2). The certifying person may contract for indemnification from those on which the person relies pursuant to this subdivision (2) against damages arising out of that reliance. This indemnification shall not limit any rights of action of an aggrieved party.

(3) Any person certifying under this subsection shall provide a copy of the person’s certificate and any accompanying affidavit to the Department of Public Service.

(4) Provision of a certificate as required by subdivision (1) of this subsection and of a certificate as required by subdivision (2) of this subsection shall be conditions precedent to:

(A) issuance by the Commissioner of Public Safety (or a municipal official acting under 20 V.S.A. § 2736) of any final occupancy permit required by the rules of the Commissioner of Public Safety for use or occupancy of a commercial building that is also a public building as defined in 20 V.S.A. § 2730(a); and

(B) issuance by a municipality of a certificate of occupancy for commercial construction commencing on or after July 1, 2013, if the municipality requires such a certificate under 24 Vt. Stat. Ann. chapter 117.

(e) Private right of action for damages against a certifier.

(1) Except as otherwise provided in this subsection, a person aggrieved by another person’s breach of that other person’s representations contained in a certification or supporting affidavit issued or received as provided under subsection (d) of this section, within 10 years after the earlier of completion of construction or occupancy of the affected commercial building or portion of that building, may bring a civil action in Superior Court against a person who has an obligation of certifying compliance under subsection (d) of this section alleging breach of the representations contained in that person’s certification. This action may seek injunctive relief, damages arising from the aggrieved party’s reliance on the accuracy of those representations, court costs, and reasonable attorney’s fees in an amount to be determined by the court. As used in this subdivision, “damages” includes costs incidental to increased energy consumption.

(2) A person’s failure to affix the certification as required by this section shall not be an affirmative defense in such an action against the person.

(3) The rights and remedies created by this section shall not be construed to limit any rights and remedies otherwise provided by law.

(4) The right of action established in this subsection may not be waived by contract or other agreement.

(5) It shall be a defense to an action under this subsection that either at the time of completion or at any time thereafter, the commercial building or portion of building covered by a certificate under subsection (d) of this section, as actually constructed, met or exceeded the overall performance standards established in the CBES in effect on the date construction was commenced.

(f) State or local enforcement. Any person who knowingly makes a false certification under subsection (d) of this section, or any party who fails to certify under subsection (d) of this section when required to do so, shall be subject to a civil penalty of not more than $250.00 per day, up to $10,000.00 for each year the violation continues.

(g) Title validity not affected. A defect in marketable title shall not be created by a failure to record a variance or exemption pursuant to subdivision (c)(5) of this section, by a failure to issue certification or a certificate, as required under subsection (d) of this section, or by a failure under that subsection to affix a certificate or provide a copy of a certificate to the Department of Public Service. (Added 2005, No. 208 (Adj. Sess.), § 8; amended 2007, No. 92 (Adj. Sess.), § 9; 2009, No. 45, § 12, eff. May 27, 2009; 2011, No. 47, § 20u, eff. May 25, 2011; 2013, No. 89, §§ 7, 11; 2015, No. 23, § 150; 2017, No. 74, § 122.)