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
CONSTRUCTION CODE ACT:
COUNTIES:
County enforcement of construction codes within city having code enforcement authority
The State Construction Code Act of 1972, 1972 PA 230, does not authorize a county to unilaterally assume construction code administration and enforcement responsibilities on county property located within a city which has previously undertaken and continues to exercise exclusive responsibility for building code administration and enforcement within its political boundary.
Opinion No. 6969
January 28, 1998
Honorable Loren N. Bennett
State Senator
The Capitol
Lansing, MI 48913
You have asked whether the State Construction Code Act of 1972 authorizes a county to unilaterally assume construction code administration and enforcement responsibilities on county property located within a city which has previously undertaken and continues to exercise exclusive responsibility for building code administration and enforcement within its political boundary.
The State Construction Code Act of 1972, 1972 PA 230, MCL 125.1501 et seq; MSA 5.2949(1) et seq, created the State Construction Code Commission. Section 4 of the Act assigned to the Commission the responsibility of adopting and implementing a state construction code. In 1974, the Commission promulgated its initial state construction code (Code). 1954 ACS 79, p 91, 1974 AACS R 408.30101 et seq. Consistent with section 8(2), the Code went into effect on November 6, 1974, six months after its promulgation. By virtue of section 8(1), the Act and the Code were made applicable:
[T]hroughout the state except that a city, village or township may elect to exempt itself from this act and code by adopting and enforcing a nationally recognized model building code and other nationally recognized model codes.
Section 8(2), which allowed municipalities to exempt themselves from the Act and the Code, provided in pertinent part as follows:
A city, village, or township which elects to exempt itself from this act and the code may do so within 6 months of the promulgation of the code in the manner provided in subsection 1.
On October 8, 1974, exercising the option available under section 8(1) of the Act, the Romulus City Council passed resolution 74-743, adopting a nationally recognized model building code. Romulus City Ordinances, Chapter 6, art 1.3 (Building Code).
Section 9(1) of the Act, as initially enacted, and until its amendment in 1980, provided for county administration of the Act and the Code as follows:
Except as otherwise provided in the section, a county is responsible for administration and enforcement of this act and the code throughout the county.
The City of Romulus, however, elected to adopt and enforce its own codes as authorized by section 8 of the Act. Accordingly, neither the Act nor the Code applied within the political boundaries of the City. Wayne County, in which Romulus is entirely situated, was, therefore, not responsible for administration and enforcement of the Act or the Code within the political boundaries of Romulus. Indeed, Wayne County has no responsibility for assuring that Romulus properly administered its own municipally-adopted codes. OAG, 1977-1978, No 5130, p 95 (April 15, 1997), which addressed the question of whether the State Construction Code Commission might delegate to a county the Commission's responsibility to monitor the enforcement and administration of municipally-adopted codes, concluded as follows:
[A]lthough the Act provides that a county is responsible for the administration and enforcement of the Act and the code throughout the county, except where a municipality elects to administer and enforce the Act and code, there is no legislative provision imposing upon the county the duty to monitor administration and enforcement of municipally-adopted codes.
It is, therefore, my opinion that, in the absence of express statutory authority, the commission may not promulgate a rule imposing this responsibility upon a county. Therefore, the commission, not the county, has authority and the duty to monitor and compel enforcement of local construction codes adopted by municipalities which have exempted themselves from the Act.
Subsequently, the Legislature, through 1980 PA 371, amended sections 8 and 9 of the Act. Section 9(1) was amended to provide that the Executive Director of the State Bureau of Construction Codes, rather than counties, is responsible for administration and enforcement of the Act and the Code. Sections 8 and 9 were also amended to permit a city, village or township to:
(a) continue to administer and enforce its own municipally-adopted construction code (exempting themselves from the Act and state Code);
(b) assume responsibility for enforcement of the Act, and certain parts of the state code, while continuing to be responsible for enforcement of a municipally-adopted nationally recognized model code covering those parts of the Code from which it elected to continue to exempt itself, or
(c) assume responsibility for administration and enforcement of the Act and the entire state Code, within its political boundaries.
Consistent with sections 8(2) and 9(4) of the Act, as amended by 1980 PA 371, Romulus gave its "Notice of Intent to Continue Construction Code Operations." The notice was dated January 21, 1981, was signed by the chief elected official of the City (its mayor), and was received by the Michigan Department of Labor on January 23, 1981. The notice evidences the City's intent to:
(a) continue to enforce municipally adopted codes governing building services and electrical services [the Act, Section 8(2)]; and
Despite this declaration by Romulus and its continued, uninterrupted role as the official enforcing authority pursuant to the Act, Wayne County filed with the State Bureau of Construction Codes its application for authority to administer and enforce construction codes within its political boundary. The application was granted, thereby giving Wayne County the authority to enforce construction codes in those areas of Wayne County that have no program to enforce the state Code. Wayne County, under sections 8 and 9 of the Act, has the authority to adopt its own construction codes, i.e., nationally recognized codes, or to elect to enforce the state Code or codes adopted by the State Construction Code Commission, in those areas of Wayne County which have no program to enforce the state Code.
(b) continue to enforce the parts of the state code governing mechanical services and plumbing services [the Act, Section 9(4)].
Wayne County now seeks to administer and enforce construction codes as to construction activities at an airport on county property located entirely within the political boundary of the City of Romulus. Wayne County did not seek permission from Romulus to administer and enforce construction codes within the City. Likewise, Romulus has not relinquished its construction code administration and enforcement authority, as provided in sections 8(8) and 9(8) of the Act. Further, there is no agreement between Romulus and Wayne County for joint administration and enforcement of construction codes under sections 8(2) and 9(2) of the Act. Under sections 8 and 9 of the Act, Romulus has authority by ordinance to assume responsibility for enforcement of construction codes within its political boundaries. It has exercised that option.
If a city has properly elected to administer and enforce construction codes, the county in which the city is located has no enforcement authority within the city's political boundaries, unless (a) the city, by ordinance, rescinds its enforcement authority and the county has submitted a notice of intent to continue to administer and enforce the Code (sections 8(8) and 9(7) of the Act), or (b) the city and county execute an agreement for joint enforcement of the relevant codes. Sections 8(2) and 9(2). In the instant case, Romulus has not rescinded its resolution indicating its intent to enforce its own municipally adopted construction code or codes promulgated by the State Construction Code Commission; nor has it entered into an agreement with Wayne County for joint enforcement of the codes.
A county may, pursuant to options available under sections 8 or 9 of the Act, assume responsibility for enforcement of the Act and the Code or county-adopted codes only in areas of the county, i.e., political subdivisions, which have not opted under sections 8 and/or 9 to be responsible for code enforcement. The legislative analysis of House Bill 5685, which became 1980 PA 371, demonstrates the Legislature's intent that counties be given construction code enforcement authority only within those governmental subdivisions that have not elected to assume construction code enforcement responsibilities.
Counties would be responsible for enforcing whatever code they had adopted in all governmental subdivisions within the county which had not given notice of their intent to enforce one code or another.
House Legislative Analysis, House Bill 5685, January 23, 1981 (emphasis added).
Therefore, when a city elects to assume responsibility for administration and enforcement of construction codes within its political boundary, the Act provides no authority for the county to unilaterally preempt that prerogative.
The Act establishes the procedure for determining whether a municipality which has elected to administer and enforce construction codes is failing to perform its duties under the Act. When failure to perform is determined, the Executive Director of the Bureau of Construction Codes shall assume responsibility for administration and enforcement of construction codes "unless the county within which that governmental subdivision is located has submitted a notice of intent to continue to administer and enforce this act in the code." Section 9a(3). In the instant case, the Bureau has advised that Romulus is properly enforcing the Act on Wayne County property within Romulus and that there has been no notice of intent to withdraw Romulus' enforcement responsibility. Romulus' exclusive code administration and enforcement authority therefore remains in full force and effect.
Research discloses no authority exempting county-owned properties, be they airports or other facilities, from building or construction codes adopted by, or enforced by, a city, township or village within which such county-owned properties are located. Further, section 9(8) of the Act makes the Executive Director of the Bureau of Construction Codes responsible for the administration and enforcement of the Act and the Code "for buildings and structures that are not under responsibility of an enforcing agency in those governmental subdivisions that elect to administer and enforce this act and the code or other nationally recognized model code." Section 9(8) provides, indeed, requires, that with respect to buildings or structures owned by the state that the same are not to be erected, remodeled or reconstructed in the state after December 30, 1980, excepting school buildings or facilities or institutions of higher learning, without written approval of the plans and specifications by the Bureau of Construction Codes.
Section 9(8) of the Act is a clear recognition that state agencies, including the State of Michigan, are not subject to police power provisions unless they are so subjected by statute. To assure the proper design and construction of state-owned facilities, the Legislature has made express provision for appropriate oversight in those instances in which no other state agency has been assigned such responsibility. Had the Legislature intended that county-owned property would be exempt from the Act, the Code, and/or municipally adopted ordinances, the Legislature would have made a similar provision for appropriate review of a county's construction activities. It did not. Accordingly, county-owned property is not exempt from locally adopted or enforced ordinances.
In the situation presented, Wayne County cannot assume construction code administration and enforcement responsibilities on county-owned property within the City of Romulus so long as Romulus continues to exercise exclusive responsibility for construction code administration and enforcement unless either (a) Romulus agrees with Wayne County to joint administration of Romulus' adopted codes, or (b) Romulus' status as the enforcing agency is withdrawn by the State Construction Code Commission for failure to properly perform its enforcement duties. If such a withdrawal were to occur, Wayne County could then file a notice of intent seeking enforcement authority.
It is my opinion, therefore, that the State Construction Code Act of 1972, 1972 PA 230, does not authorize a county to unilaterally assume construction code administration and enforcement responsibilities on county property located within a city which has previously undertaken and continues to exercise exclusive responsibility for building code administration and enforcement within its political boundary.
FRANK J. KELLEY
Attorney General