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
BUILDING AUTHORITY ACT:
CITIES:
CONSTRUCTION CODE ACT:
COUNTIES:
ZONING AND PLANNING:
Application of State Construction Code Act to county building authorities
Application of city and village zoning ordinances to county building authority
Application of State Construction Code Act to county building authorities
Application of State Construction Code Act to county building authorities
Application of city and village zoning ordinances to county building authorities
A county building authority incorporated under the building authority act is subject to local zoning ordinances enacted under the city and village zoning act.
A county building authority incorporated under the building authority act is subject to the building permit and occupancy certificate requirements of the State Construction Code Act of 1972.
Opinion No. 6982
May 12, 1998
Honorable Howard Wetters
State Representative
The Capitol
Lansing, MI
You have asked two questions concerning whether a county building authority is subject to local zoning ordinances and to the State Construction Code Act of 1972.
Your first question asks whether a county building authority incorporated under the building authority act is subject to local zoning ordinances enacted under the city and village zoning act.
The building authority act, 1948 (1st Ex Sess) PA 31, MCL 123.951 et seq; MSA 5.301(1) et seq, provides for the incorporation of authorities to acquire and operate public buildings and other facilities. A county or municipality, or any combination thereof, may incorporate one or more authorities to acquire and operate facilities "for use for any legitimate public purpose of the incorporating units." Section 2. The acquisition of building or other facility by any authority "constitutes a benefit to and a legitimate public purpose of the authority and the incorporating unit or units." Section 8. A county building authority incorporated under the building authority act, although limited in its scope of activity, nevertheless constitutes a county municipal corporation. Rude v Muskegon County Building Authority, 338 Mich 363, 366; 61 NW2d 88 (1953). Nothing in the building authority act evidences a legislative intent to exempt building authorities from city and village zoning ordinances.
The city and village zoning act, 1921 PA 207, MCL 125.581 et seq; MSA 5.2931 et seq, authorizes cities and villages to regulate the use of land and structures. The legislative body of cities and villages may, by ordinance, regulate and restrict the use of land and structures. Section 1(l). The regulations shall be uniform for each class of buildings throughout each district, but the regulations in one district may differ from those in other districts. Section 2.
As originally enacted, the city and village zoning act contained no express exemptions from city and village zoning powers. In 1976, the Legislature, through 1976 PA 396, amended the act to, inter alia, add section 3b which expressly exempts from city and village zoning authority "state licensed adult foster care facilities housing six or less persons." The act contains no other express exemptions, including anything which exempts building authorities from city and village zoning ordinances.
In DeGaynor v Dickinson County Memorial Hospital, 363 Mich 428, 434; 109 NW2d 777 (1961), the court considered the application of the city and village zoning act to a county hospital proposed to be established in the city of Iron Mountain. In a two-prong analysis, the court concluded that the act contained no exemption for county hospitals. Nor could such an exemption be found in section 4 of the county hospital act, 1913 PA 350, MCL 331.154; MSA 14.1134. On the contrary, that act provided that a hospital was to be conducted in accordance with "the ordinances of the city or town wherein such public hospital is located." DeGaynor, 363 Mich at 433.
DeGaynor, supra, was cited and followed in Dearden v City of Detroit, 403 Mich 257, 265; 269 NW2d 139 (1978), where the court found an exception to the city and village zoning act regarding the location of a state penal institution, relying upon the "exclusive jurisdiction over . . . penal institutions" conferred by the Legislature upon the Department of Corrections in MCL 791.402; MSA 28.2274, as creating an exception to a city's authority to zone property for use as a state penal institution. Thus, an exception was found in another statute which served to exempt the Department of Corrections from the provisions of city and village zoning act.
Applying these authorities, it must be concluded that since neither the building authority act nor the city and village zoning act evidence a legislative intent to exempt building authorities from local zoning ordinances, a county building authority is subject to such zoning ordinances.
It is my opinion, therefore, in answer to your first question, that a county building authority incorporated under the building authority act is subject to local ordinances enacted under the city and village zoning act.
Your second question asks whether a county building authority incorporated under the building authority act is subject to the building permit and occupancy certificate requirements of the State Construction Code Act of 1972.
The State Construction Code Act of 1972 (Act), 1972 PA 230, MCL 125.1501 et seq; MSA 5.2949(1) et seq, generally regulates building construction in this state. In 1974, the State Construction Code Commission promulgated the state construction code. 1979 AC, R 408.30101 et seq.
Section 8(1) of the Act expressly provides that both the Act and the state construction code apply throughout the state:
This act and the code apply throughout the state, except that a governmental subdivision may elect to exempt itself from certain parts of this act and the code by adopting and enforcing a nationally recognized model building code or other nationally recognized model codes.
In addition, section 9(1)of the Act authorizes governmental units to assume responsibility for administration of the Act and the state construction code within their political boundaries:
Except as otherwise provided in this section, the executive director is responsible for administration and enforcement of this act and the code. A governmental subdivision may by ordinance assume responsibility for administration and enforcement of this act within its political boundary.
Application for, and issuance of, building permits and occupancy certificates are governed by the Act. Before construction of a building, its owner or agent must submit a permit application to the appropriate enforcing agency. Section 10(1). The enforcing agency must examine the application and issue a building permit "[i]f the application conforms to the act, the code and the requirements of other applicable laws and ordinances . . . ." Section 11. Use and occupancy of a building must await the issuance of a certificate of occupancy confirming that the building has been completed in accordance with the building permit, the state construction code, and applicable laws and ordinances. Section 13.
A review of the State Construction Code Act and the building authority act discloses nothing which exempts county building authorities from the building permit and occupancy certificate requirements of the Act. OAG, 1997-1998, No 6969, slip op. at 6 (January 28, 1998), concluded that "[r]esearch 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 the county-owned properties are located."
Because the Legislature has not exempted building authorities from the application of the State Construction Code Act of 1972, a county building authority is required to apply for and obtain building permits and certificates of occupancy for buildings owned, improved, enlarged and maintained by the authority.
It is my opinion, therefore, in answer to your second question, that a county building authority incorporated under the building authority act is subject to the building permit and occupancy certificate requirements of the State Construction Code Act of 1972.
FRANK J. KELLEY
Attorney General