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Opinion No. 5280

March 23, 1978


Adoption of housing-property maintenance code by reference


Adoption by home rule city of housing-property maintenance code by reference

Although a home rule city may adopt a housing-property maintenance code pursuant to its general police powers, it may not adopt such a code by reference without publishing it in full.

Honorable George H. Edwards

State Representative

The Capitol

Lansing, Michigan

You have requested my opinion, in effect, on the following question:

'May the City of Highland Park adopt a housing-property maintenance code even though such a code is not specifically mentioned in Section 3(k) of the Home Rule Cities Act, 1909 PA 279; MCLA 117.1 et seq; MSA 5.2071 et seq.'

Section 3(k) of the home rule act, supra, reads in part as follows:

'. . . Each city shall have power, whether so provided in its charter or not, to adopt any law, code, or rules which have been promulgated and adopted by a duly authorized agency of the state pertaining to fire, fire hazards, fire prevention, or fire waste, and any fire prevention code, plumbing code, heating code, electrical code, building code, refrigeration machinery code, piping code, boiler code, boiler operation code or elevator machinery code, or codes pertaining to flammable liquids and gases, as well as to hazardous chemicals, which have been promulgated by the state or by a department, board, or other agency thereof, or by an organization or association which is organized and conducted for the purpose of developing the code or codes, by reference thereto in an adopting ordinance and without publishing the code in full.'

It is my understanding that the City of Highland Park wishes to adopt the 'BOCA Basic Housing-Property Maintenance Code' (hereinafter called the Code) published by Building Officials and Code Administrators International, Inc., an organization which is organized and conducted for the purpose of developing such codes as are mentioned in 1909 PA 279, Sec. 3(k), supra. The purpose of the Code is stated to be: (1)

'Establishing minimum standards for basic equipment and facilities for light, ventilation, space heating and sanitation; for safety from fire for space use and location; and for safe and sanitary maintenance; for cooking equipment in all structures now in existence.'

The Code also states that it applies:

'To all structures and premises which are now or may become in the future substandard with respect to: structure, premises, protection against fire hazards, equipment or maintenance, inadequate provisions for light and their lack of proper heating, unsanitary conditions, overcrowding or other conditions which may be deemed to constitute a menace to safety, health or welfare of their occupant.'

An examination of the purpose and application of the Code reveals that it is not intended to be and is not in fact one of the various codes specifically mentioned in Sec. 3(k) of the home rule act.

1909 PA 279, Sec. 3(k), supra, grants to home rule cities the authority to adopt by reference certain specific codes without publishing them in full. Since there is no general language permitting the adoption of codes by reference other than those set forth, it is my opinion that 1909 PA 279, Sec. 3(k), supra does not authorize the adoption of a housing-property maintenance code by reference.

However, although Sec. 3(k) does not authorize the adoption of such a code by reference, it does not prohibit such adoption if other sufficient authority exists. Pursuant to 1909 PA 279, supra, Sec. 4(j)(3), a home rule city may provide in its charter 'for any act to advance the interests of the city, the good government and prosperity of the municipality and its inhabitants and through its regularly constituted authority to pass all laws and ordinances relating to its municipal concerns subject to the constitution and general laws of this state.'

Section 3(1) of the Charter of the City of Highland Park implements the authority granted by 1909 PA 279, Sec. 4(j), supra, permitting the city to exercise substantially broad police powers.

In Cady v City of Detroit, 289 Mich 499; 286 NW 805 (1939), the Michigan Supreme Court stated:

'Ordinances having for their purpose regulated municipal development, the security of home life, the preservation of a favorable environment in which to rear children, the protection of morals and health, the safeguarding of the economic structure upon which the public good depends, the stabilization of the use and value of property, the attraction of a desirable citizenship and fostering its permanency are within the proper ambit of the police power.' p. 514

The police power of a home rule city is of the same general scope and nature as the police power of the state, except as limited by the constitution or by statute. People v Sell, 310 Mich 305; 17 NW2d 193 (1945); Tally v Detroit, 54 Mich App 328; 220 NW2d 778 (1934).

In answering your question, no attempt has been made to analyze the BOCA Housing-Property Maintenance Code to determine whether it conflicts, in whole or in part, with the Michigan Construction Code Act, 1972 PA 230; MCLA 125.1501 et seq; MSA 5.2949(1) et seq, or with the State Construction Code. In that connection, it is suggested that the City of Highland Park consult with the State Construction Code Commission.

Assuming that there is no conflict, it is my opinion that the City of Highland Park may adopt a housing-property maintenance code pursuant to its general police powers authorized by Sec. 4(j), supra, despite the fact that 1909 PA 279, Sec. 3(k), supra, neither authorizes nor prohibits such adoption by reference.

Frank J. Kelley

Attorney General

(1) 1975 BOCA Basic Housing-Property Maintenance Code, 3rd ed.