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

MIKE COX, ATTORNEY GENERAL

ARCHITECTS:

ENGINEERS:

SINGLE STATE CONSTRUCTION CODE ACT:

OCCUPATIONAL CODE:

MICHIGAN BUILDING CODE:

Definition of "calculated floor area" under the Occupational Code

Basements are not included in the definition of "calculated floor area" under section 2012(1)(d) of the Occupational Code, MCL 339.2012(1)(d), irrespective of whether they are finished or unfinished. Unless the plans were prepared by a licensed architect or engineer, the seal requirements for architects or engineers set forth in Article 20 of the Occupational Code, MCL 339.2001 – MCL 339.2014, do not apply to plans prepared for a one- or two-family residence not exceeding 3,500 square feet in calculated floor area as defined in that act.

Opinion No. 7208

October 3, 2007

Honorable Wayne Kuipers
State Senator
The Capitol
Lansing, MI

You have requested my opinion on a question involving architect and engineer seal requirements under Article 20 of the Occupational Code, 1980 PA 299, MCL 339.2001 et seq. Plans for a detached one- or two-family residence not exceeding 3,500 square feet in "calculated floor area" under section 2012 of the Occupational Code, MCL 339.2012, are not required to be prepared and sealed by a licensed engineer or architect. Your question is whether a basement, finished or unfinished, is included in the "calculated floor area."

The requirements for obtaining a building permit to build a residence are set out in the Stille-DeRossett-Hale Single State Construction Code Act (Act), 1972 PA 230, MCL 125.1501 et seq. Section 10(1) of the Act, MCL 125.1510(1), provides the process for applying for a building permit, stating, in relevant part:

Except as otherwise provided in the code, before construction of a building or structure, the owner, or the owner's builder, architect, engineer, or agent, shall submit an application in writing to the appropriate enforcing agency for a building permit.

The code referred to in MCL 125.1510(1) is the State Construction Code, which consists of a number of different codes addressing specialized areas, including the Michigan Building Code. See MCL 125.1504(1) and Executive Reorganization Order Nos. 1996-2 and 2003-1 (providing that the Director of the Department of Labor and Economic Growth shall prepare and promulgate the State Construction Code). Section 106.1 of the 2003 Michigan Building Code, 2001 MR 8, R 408.30405, specifies the documents that shall be submitted with each building permit application, incorporating the requirements of Article 20 of the Occupational Code:

106.1. Submittal documents. Construction documents, special inspection and structural programs and other data shall be submitted in 1 or more sets with each application for a permit. The construction documents shall be prepared by, or under the direct supervision of, a registered design professional when required by article 20 of 1980 PA 299 [the Occupational Code1].

Under section 11 of the Act, MCL 125.1511, the enforcing agency examines the application and, upon approval, issues a permit if the application complies with all applicable laws. Construction may not commence until the building permit has been approved by the appropriate agency.

Regulation of the practices of architecture and engineering is provided for in Article 20 of the Occupational Code. Under section 2007 of the Occupational Code, MCL 339.2007, an architect or engineer, "upon being licensed, shall obtain a seal . . . bearing the licensee's name and the legend indicating either 'licensed architect' . . . [or] 'licensed professional engineer.'" Section 2007 of the Occupational Code also provides that: "A plan, specification, plat, or report issued by a licensee shall be sealed when filed with a public authority."

Similarly, section 2008(1) of the Occupational Code, MCL 339.2008(1), requires that plans prepared by a licensee and required to be submitted to a government agency for approval or record be sealed:

A plan, plat, drawing, map, and the title sheet of specifications, an addendum, bulletin, or report or, if a bound copy is submitted, the index sheets of a plan, specification, or report, if prepared by a licensee and required to be submitted to a governmental agency for approval or record, shall carry the embossed or printed seal of the person in responsible charge. [Emphasis added.]

The seal certifies that the plan was prepared under the "responsible charge" of a licensed person, i.e., the person named on the seal. Typically, the licensee's signature is placed next to the seal, which may be either embossed or stamped.

But not all building plans filed with a governmental agency have to be prepared by a licensed architect or engineer. Section 2012(1)(d) of the Occupational Code, MCL 339.2012(1)(d), provides:

(1) The following persons are exempt from the requirements of this article:

* * *

(d) A person not licensed under this article who is planning, designing, or directing the construction of a detached 1- and 2-family residence building not exceeding 3,500 square feet in calculated floor area. [Emphasis added.]

Therefore, if the residence will not exceed "3,500 square feet in calculated floor area," the plans need not be prepared by a licensee. If plans falling within the exemption are not prepared by a licensee, sections 2007 and 2008(1) of the Act do not require that they be sealed.

The term "calculated floor area" is defined in section 2012(2)(a) of the Occupational Code, MCL 339.2012(2)(a), to mean "that portion of the total gross area measured to the outside surfaces of exterior walls intended to be habitable space." "Habitable space" is defined in section 2012(2)(b) of the Occupational Code:

"Habitable space" means space in a building used for living, sleeping, eating, or cooking. Habitable space does not include a heater or utility room, a crawl space, a basement, an attic, a garage, an open porch, a balcony, a terrace, a court, a deck, a bathroom, a toilet room, a closet, a hallway, a storage space, and other similar spaces not used for living, sleeping, eating, or cooking. [MCL 339.2012(2)(b); emphasis added.]

Thus, plans for a residence bearing the seal of an architect or engineer are required for structures exceeding 3,500 square feet in calculated floor area. Your concern is whether this exclusion for "basements" allows a finished basement to nevertheless be included in the definition of "habitable space." Your letter indicates that the Department of Labor and Economic Growth's Bureau of Construction Codes Technical Bulletin No. 3 distinguishes between finished and unfinished basements and concludes that finished basements are included in the definition of "habitable space." While the construction of a statute by a state agency charged with administering it is entitled to deference, a court will not abide by the agency's interpretation when it is wrong.2  Attorney General v Michigan Public Service Comm, 227 Mich App 148, 154; 575 NW2d 302 (1997).

The rules of statutory construction are well-known:

Giving effect to the intent of the Legislature is a fundamental task. We are required to examine the plain language of the involved statutes. In re MCI Telecommunications, 460 Mich 396, 411; 596 NW2d 164 (1999). Where the statutory language is unambiguous, the plain meaning reflects the Legislature's intent and the statute must be applied as written. Tryc v Michigan Veterans’ Facility, 451 Mich 129, 135; 545 NW2d 642 (1996). No further construction is necessary or allowed to expand what the Legislature clearly intended to cover. In re MCI, supra at 411. [Danse Corp v City of Madison Heights, 466 Mich 175, 181-182; 644 NW2d 721 (2002).]

Similarly, in Miller v Mercy Memorial Hosp, 466 Mich 196, 201; 644 NW2d 730 (2002), the Michigan Supreme Court stated that, if the language of a statute is clear, no further analysis is warranted:

We first review the language of the statute itself. If it is clear, no further analysis is necessary or allowed to expand what the Legislature clearly intended to cover. In re MCI Telecommunications, 460 Mich 396, 411; 596 NW2d 164 (1999).

MCL 339.2012(2)(b) clearly excludes "a basement" from the definition of "habitable space," and, therefore, from the "calculated floor area."

Section 2012(2) of the Occupational Code was amended by 2002 PA 495. Prior to that amendment, section 2012, in part, stated:

(d) A person not licensed under this article who is planning, designing, or directing the construction of a residence building not exceeding 3,500 square feet in calculated floor area. As used in this subdivision and section 2014(e), "calculated floor area" means that portion of the total gross area, measured to the outside surfaces of exterior walls intended to be habitable, including a heater or utility room, but not including a crawl space; an unfinished and nonhabitable portion of a basement or attic; or a garage, open porch, balcony, terrace, or court. [Emphasis added.]

By eliminating the words qualifying "a basement," i.e., by eliminating "an unfinished and nonhabitable portion," the Legislature expanded the exemption to any "basement."3  It is presumed that the change in the statutory language of section 2012(2) reflects a change in meaning that was intended by the Legislature. Michigan Millers Mutual Ins Co v West Detroit Bldg Co, Inc, 196 Mich App 367, 373; 494 NW2d 1 (1992). Under the Occupational Code, basements are not included in determining whether a residence exceeds 3,500 square feet in calculated floor area.

It is my opinion, therefore, that basements are not included in the definition of "calculated floor area" under section 2012(1)(d) of the Occupational Code, MCL 339.2012(1)(d), irrespective of whether they are finished or unfinished. Unless the plans were prepared by a licensed architect or engineer, the seal requirements for architects or engineers set forth in Article 20 of the Occupational Code, MCL 339.2001 – MCL 339.2014, do not apply to plans prepared for a one- or two-family residence not exceeding 3,500 square feet in calculated floor area as defined in that act.

MIKE COX
Attorney General

1Article 20 of the Occupational Code is found at MCL 339.2001 et seq.

2Technical Bulletin No. 3 may have limited the exemption to unfinished and uninhabitable basements because of erroneous reliance on the language of the Code before it was amended by 2002 PA 495. The bulletin states, for example, "PA 299 does not provide guidance on the term 'habitable.'" In fact, 2002 PA 495 added a definition of "habitable space." The bulletin further states: "PA 299 of 1980, as amended, provides that unfinished and uninhabitable portions of basements should not be included in the calculation." In fact, prior to its amendment, section 2012 of the Code referred to "an unfinished and nonhabitable portion of a basement" as falling outside of "calculated floor area," while the Code as amended by 2002 PA 495, describes that part of the exemption with just two words, "a basement."

3The Occupational Code does not provide a definition of the term "basement." Whether an area of a residence constitutes a "basement" or the "lower level" of a home is not addressed in this opinion. For a discussion of the difference, see Yager v Wright, 135 Mich App 729; 355 NW2d 667 (1984). See also, MCL 125.402(12)(a).