The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)


STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

LOCAL HISTORIC DISTRICTS:

SCHOOLS AND SCHOOL DISTRICTS:

Construction and remodeling of school buildings in historical districts

A local school district is not required to obtain a permit under the Local Historic Districts Act before commencing work affecting the exterior appearance of a school building located within a local historic district.

The state, through enactment of the school building construction act and the Revised School Code, has exempted from local regulation the construction and remodeling of school buildings by local school districts.


Opinion No. 6957

September 30, 1997


Honorable Ed LaForge
State Representative
The Capitol
Lansing, MI


You have asked whether a local school district is required to obtain a permit under the Local Historic Districts Act before commencing work affecting the exterior appearance of a school building located within a local historic district. You wish to clarify whether a public school must first obtain a permit from a local historic district commission before erecting a large, illuminated sign in front of a school building located within a local historic district.

The Local Historic Districts Act, 1970 PA 169, MCL 399.201 et seq; MSA 5.3407(1) (the Act), empowers counties, cities, villages, and townships to establish local historic districts. The title of the Act establishes its scope:

AN ACT to provide for establishment of historic districts; to provide for the acquisition of certain resources for historic preservation purposes; to provide for preservation of historic and nonhistoric resources within historic districts; to provide for the establishment of historic district commissions; to provide for the maintenance of publicly owned resources by local units; to provide for certain assessments under certain circumstances; to provide for procedures; and to provide for remedies and penalties.

See, Vernor v Secretary of State, 179 Mich 157, 163; 146 NW 338 (1914).

The Act authorizes local units of government to establish, by ordinance, local historic districts within their respective boundaries. Section 3(1). A governmental agency, seeking to affect the exterior appearance of a resource within a historic district must first apply for and obtain a permit from the local historic district commission. Section 5(1). The term "resource" is defined in the Act to mean "publicly or privately owned historic or nonhistoric buildings, structures, sites, objects, features, or open spaces located within a historic district." Section 1a(r).

In response to a permit application, a local historic district commission acts by filing a certificate of appropriateness, notice to proceed, or denial of a work permit. Section 9(1). A person or governmental agency which violates the Act is subject to a fine of up to $5,000 and may be ordered to pay the costs of restoring a resource unlawfully constructed or affected. Section 15.

Nothing in the Act exempts school districts or school buildings from the building permit requirements imposed by section 5(1). However, since the instant question implicates school buildings, reference must be made to statutes specifically addressing the construction and remodeling of school buildings.

The school building construction act, 1937 PA 306, MCL 388.851 et seq; MSA 15.1961 et seq, regulates the construction and remodeling of school buildings. Section 1 of 1937 PA 306 requires that school building plans must be approved by the superintendent of public instruction:

No school building, public or private, or additions thereto, shall be erected, remodeled or reconstructed in the state except it be in conformity with the following provisions:

(a) All plans and specifications for buildings shall be prepared by, and the construction supervised by, an architect or engineer who is registered in the state of Michigan. Before the construction, reconstruction or remodeling of any school building or addition thereto is commenced, the written approval of the plans and specifications by the superintendent of public instruction or his authorized agent shall be obtained.

The scope of the school building construction act has been examined in prior opinions of this office which have concluded that under the provisions of that act the state has preempted the regulation of school construction by local boards of education and has delegated such regulation to the state superintendent of public instruction. In an opinion concerning the power of a township to require a permit to build a school building, it was concluded as follows:

Although it is clear that the legislature may delegate some control to local state agencies, there is absolutely no evidence that any such control has been delegated in the matter of school construction. In fact, the legislature by the terms of P.A. 1937, No. 306, has expressly pre-empted the entire field of regulation of school construction.

(emphasis added) (footnote omitted). OAG, 1955-1956, No 2792, p 687, 688 (November 21, 1956). See also, OAG, 1951-1952, No 1350, p 160 (January 10, 1951).

Moreover, OAG, 1975-1976, No 4914, p 237, 239 (January 13, 1976), concluded that the State Construction Code Act of 1972, 1972 PA 230, MCL 125.1501 et seq; MSA 5.2949(1) et seq, does not apply to the construction of school buildings under the control of a local board of education inasmuch as such regulation is preempted by 1937 PA 306, supra, which "remains the controlling legislation dealing with the regulation of the construction of public and nonpublic school buildings."

The Revised School Code, 1976 PA 451, MCL 380.1 et seq; MSA 15.4001 et seq ("Code"), is:

An act to provide a system of public instruction . . . to provide for the organization, regulation, and maintenance of schools [and] school districts.

Section 11a(3)(c) of the Code confers to local school districts the power of:

Acquiring, constructing, maintaining, repairing, renovating, disposing of, or conveying school property, facilities, equipment, technology, or furnishings.

Section 1263(3) of the Code, added by 1990 PA 159, while reaffirming that school building construction is governed by 1937 PA 306, supra, vests the superintendent of public instruction with exclusive jurisdiction over school construction and remodeling by a school district.

(3) The board of a school district shall not design or build a school building to be used for instructional or noninstructional school purposes or design and implement the design for a school site unless the design or construction is in compliance with Act No. 306 of the Public Acts of 1937, being sections 388.851 to 388.855a of the Michigan Compiled Laws. The superintendent of public instruction has sole and exclusive jurisdiction over the review and approval of plans and specifications for the construction, reconstruction, or remodeling of school buildings used for instructional or noninstructional school purposes and of site plans for those school buildings.

(Emphasis added.)

To determine the purpose of Code section 1263(3), we may examine the legislative history of HB 5451, which became 1990 PA 159. That legislative history discussed the content of the bill as follows:

Finally, the bill specifies that a school district board could not design or build a school building to be used for instructional or noninstructional school purposes or design and implement a design for a school site unless the design or construction complied with Public Act 306 of 1937. Under the bill, the superintendent of public instruction would have sole and exclusive jurisdiction over the review and approval of plans and specifications for construction-related work done on instructional or noninstructional school buildings as well as over site plans for the buildings.

(emphasis added). House Legislative Analysis, HB 5451, August 29, 1990.

OAG, 1995-1996, No 6924, p 226, 227 (December 4, 1996), discussed the meaning of the term "exclusive control" when used in a statute.

The commonly understood meaning of the term "exclusive" is excluding others from participation. Webster's Third New International Dictionary, Unabridged Edition (1964). It has been held that "exclusive control" in a statute relating to liquor licensing by an excise board of a city means control to the exclusion of the mayor and city council. Sanders v Nebraska, 34 Neb 872; 52 NW 721, 722-723 (1892). See also, Temple Independent School Dist v Proctor, 97 SW2d 1047, 1054 (Tex Civ App, 1936).

Legislative intent, where it can be discerned, is the test for determining whether a governmental unit is immune from the provisions of local zoning ordinances. Dearden v Detroit, 403 Mich 257, 264; 269 NW2d 139 (1978). The school building construction act, supra, requires that school construction and remodeling by a local school district be approved by the state superintendent of public instruction. The Revised School Code reaffirms that authority and vests the superintendent of public instruction with exclusive jurisdiction over school construction and remodeling. A reading of these statutes demonstrates that the state has delegated to the superintendent of public instruction the exclusive approval of local school district building construction plans and has exempted school building construction from local regulation.

It is my opinion, therefore, that a local school district is not required to obtain a permit under the Local Historic Districts Act before commencing work affecting the exterior appearance of a school building located within a local historic district.

It is further my opinion that the state, through enactment of the school building construction act and the Revised School Code has exempted from local regulation the construction and remodeling of school buildings by local school districts.



FRANK J. KELLEY
Attorney General