§ 38 — Compliance with local building regulations and restrictive covenants

§ 38. Compliance with local building regulations and restrictive\ncovenants. 1. As used in this section:\n "Department" shall mean the department, bureau, division, agency or\nperson, including any joint agency, of a county, city, town or village,\ncharged with the enforcement of the applicable building code, multiple\ndwelling law, multiple residence law or other law, as defined in section\nthree of this act, relating to the construction, maintenance and use of\nbuildings, structures or other real property and to the control of land\nuses in such county, city, town or village.\n "Owner" shall mean the owner or owners of the freehold of the premises\nor any lesser estate therein, a mortgagee or vendee in possession, an\nassignee of rents, a receiver, executor, trustee, lessee, agent or other\nperson, firm or corporation directly or indirectly in control of a\nbuilding, structure or other real property.\n 2. Notwithstanding any inconsistent provision of law, as defined in\nsection three of this act, any shelter constructed or installed or\nproposed to be constructed or installed in accordance with the plan,\nregulations or orders of the commission pertaining to shelters shall be\ndeemed to comply with all provisions of law relating to the\nconstruction, maintenance and use of buildings, structures, or other\nreal property and to the control of land uses, and the owner shall be\nentitled to apply for and obtain, and the department shall issue, upon a\nshowing of compliance with such plan, regulations or orders of the\ncommission and upon payment of the appropriate fees, if any, any permit,\nlicense, certificate, authorization or other document for such\nconstruction, maintenance or use required by such provisions of law;\nprovided, however, that no such shelter constructed or installed or\nproposed to be constructed or installed in accordance with the plan,\nregulations or orders of the commission pertaining to shelters shall be\ndeemed to comply with such provisions of law nor shall any such permit,\nlicense, certificate, authorization or other document be issued if the\ndepartment shall determine that such shelter will, because of its\nstructural arrangement, location design or other factor, substantially\ndeviate from the reasonable requirements of such provisions of law and\nthat such substantial deviation is unnecessary, at approximately the\nsame cost to the owner, to effectuate the purposes of this act with\nrespect to the provision of shelter protection.\n 3. Each county, city, town or village shall have power to adopt local\nlaws, and each department shall have power, in the manner provided by\nlaw, to adopt rules and regulations, not inconsistent with this act and\nthe plan, regulations or orders of the commission promulgated\nthereunder, necessary to execute and implement the powers granted and\nthe duties imposed by this section.\n No provision of this subdivision shall be construed or interpreted as\naffecting the validity of any ordinance enacted prior to July first,\nnineteen hundred sixty-six, or actions taken thereunder by the\ngovernment of any county, city, town or village.\n 4. (a) The failure to grant an application for such permit, license,\ncertificate, authorization or document within sixty days after\nsubmission thereof, may be reviewed by an owner in the manner provided\nby law for appeals from determinations of the department made in\nenforcing the multiple dwelling law, the multiple residence law, the\nstate building construction code or any other provision of law relating\nto the construction, maintenance or use of buildings, structures or\nother real property or to the control of land uses.\n (b) On any such appeal wherein a party relies for ground of relief or\ndefense or raises issue or brings into question the construction or\nvalidity of any of the provisions of this act or the plan, regulations\nor orders of the commission promulgated thereunder relating to shelters,\nthe court or agency having jurisdiction of the appeal, action or\nproceeding may at any stage certify such fact to the commission. The\ncommission may intervene in any such appeal, action or proceeding.\n 5. The construction, installation or maintenance of a shelter in\naccordance with the plan, regulations or orders of the commission\npertaining to shelters shall not be deemed a breach of a restriction on\nthe use of land heretofore or hereafter created by a covenant, promise,\nnegative easement, special limitation or condition subsequent and no\nreverter shall occur, no possessory estate shall result and no right of\nentry shall accrue by reason of such construction. No action or\nproceeding may be commenced in any court in the state where such action\nor proceeding is based on a claim or allegation that such construction,\ninstallation or maintenance (a) constitutes a breach of such\nrestriction, (b) causes such a reverter, or (c) results in the creation\nof such a possessory estate or the accrual of such a right of entry.\n