§ 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 V.S.A. 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. The Commissioner of Public Service shall amend and update
the CBES by means of administrative rules adopted in accordance with 3 V.S.A. chapter 25. The Commissioner may direct the timely and appropriate revision of the CBES 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 V.S.A. 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 V.S.A. 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. The person 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; 2023, No. 85 (Adj. Sess.), § 350, eff. July 1, 2024; 2023, No. 151 (Adj. Sess.), § 4, eff. June 3, 2024.)