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
Appeals to State Construction Code Commission
The State Construction Code Act of 1972 does not authorize appeals to the State Construction Code Commission from the construction board of appeals of a municipality that has exempted itself from enforcing the state construction code.
Opinion No. 6994
August 27, 1998
Honorable Leon Stille
Lansing, MI 48909
Honorable Jon Jellema
Lansing, MI 48909
You have asked whether the State Construction Code Act of 1972 authorizes appeals to the State Construction Code Commission from the construction board of appeals of a municipality that has exempted itself from enforcing the state construction code.
The State Construction Code Act of 1972 (Act), 1972 PA 230, MCL 125.1501 et seq; MSA 5.2949(1) et seq, created the State Construction Code Commission. Section 3. 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 AC 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. Section 8(1) of the Act, which allows municipalities to exempt themselves from the Act and the Code by adopting a nationally recognized model building code in lieu of the state construction code, provides in part as follows:
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. It shall not be necessary for a governmental subdivision to elect to exempt itself from every part of the code promulgated by the commission in order to preserve its exemption election as to 1 or more nationally recognized model codes. A governmental subdivision may make this election by the passage of an ordinance adopting by reference or otherwise without amendment a nationally recognized model building code or other nationally recognized model codes.
When a municipality elects to adopt a building code other than the state construction code, it thereby exempts itself from those provisions of the Act which are not mandatorily applied to enforcing authorities. The Act, however, contains several provisions from which a municipality does not have the option of exempting itself. These non-exempt requirements are enumerated in sections 8(7) and 8(10) of the Act and must be complied with by all enforcing municipalities, regardless of whether they have elected to adopt another model building code. These sections provide in part, as follows:
A governmental subdivision may not exempt itself from the requirements of this section, section 9(8) or (10), or section 9a, 10, 13a, 13b, 13c, 14, 15, 20, 21a, 22(1), 23, or 23a.
Sections 10, 13a, 13b, 13c, 19, 21, 21a, and 23a, subsection (13), and other provisions of this act and code directly relating to the provisions of sections 10, 13a, 13b, 13c, 19, 21, 21a, and 23a, subsection (13), and provisions of the code relating to the requirements of barrier free design, energy conservation, and, except as provided in subsection (11), for plans submitted for approval after January 1, 1994 the type and number of plumbing fixtures for men and women required in an assembly building with an occupancy of more than 150 are effective throughout the state without local modifications notwithstanding the exception of subsections (1) to (9).
Of specific relevance to your question, section 14(1) of the Act, which creates a construction board of appeals for municipalities enforcing the state construction code, provides in part as follows:
A construction board of appeals for each governmental subdivision enforcing the code shall be created consisting of not less than 3 nor more than 7 members, as determined by the governing body of the governmental subdivision.
However, since the municipality involved in your question is not enforcing the code, section 14(1) is not applicable.
Section 16(1), which establishes a right of appeal to the State Construction Code Commission under specified circumstances, provides as follows:
An interested person, or the interested person's authorized agent, may appeal a decision of a board of appeals to the commission within 10 business days after filing of the decision with the enforcing agency or, in the case of an appeal because of failure of a board of appeals to act within the prescribed time, at any time before filing of the decision. The hearing of an appeal based on the denial of a request for a variance by a board of appeals is within the sole discretion of the commission.1
A municipality, however, that has exempted itself from the Act pursuant to section 8(1) remains bound only by those sections enumerated in sections 8(7) and 8(10). Since section 16(1), which provides appellate review, is not a section enumerated in either section 8(7) and 8(10), its provisions do not apply to a construction board of appeals of a municipality which has exempted itself from the Act. 2
It is my opinion, therefore, that the State Construction Code Act of 1972 does not authorize appeals to the State Construction Code Commission from the construction board of appeals of a municipality that has exempted itself from enforcing the state construction code.
FRANK J. KELLEY
STATE OF MICHIGAN
1 Even for those municipalities enforcing the code, there is no appeal as of right if the appeal concerns a denial of a request for a variance. Such appeals are available only at the discretion of the State Construction Code Commission. Section 16(1).
2 Appellate review is likewise unavailable under the Administrative Procedures Act of 1969, MCL 24.201 et seq; MSA 3.560(101) et seq, which applies only to an agency defined in that Act as being "a state department, bureau, division, section, board, commission, trustee, authority or officer, created by the constitution, statute, or agency action." Section 3(2). See, League General Insurance Co v Michigan Catastrophic Claims Ass'n, 435 Mich 338; 458 NW2d 632 (1990); Hanselman v Killeen, 419 Mich 168; 351 NW2d 544 (1984), and Schlega v Detroit Bd of Zoning Appeals, 147 Mich App 79; 382 NW2d 737 (1985). Appellate review is similarly unavailable under the Revised Judicature Act, MCL 600.601 et seq; MSA 27.601 et seq. See, Villa v Fraser Civil Service Comm, 57 Mich App 754; 226 NW2d 718 (1975).