AUTHORITY OF COUNTY TO EXEMPT CERTAIN STRUCTURES FROM STATE BUILDING CODE

COUNTIES ‑- BUILDINGS ‑- STATE BUILDING CODE ‑- AUTHORITY OF COUNTY TO EXEMPT CERTAIN STRUCTURES FROM STATE BUILDING CODE

A board of county commissioners, under RCW 19.27.060(3), may not exempt a class of buildings from the operation of the entire state building code.

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                                                                    May 5, 1975

Honorable Michael C. Redman
Prosecuting Attorney
San Juan County
1st and Court Streets
Friday Harbor, Washington 98250                                                                                                               Cite as:  AGLO 1975 No. 47

Dear Sir:

            This is in response to your recent letter regarding the authority of a board of county commissioners under RCW 19.27.060(3) to modify the requirements of the state building code in their application to certain classes of buildings within a county.  Specifically, you are concerned with the board's authority to exempt altogether certain classes of structures from the code or to substitute other minimum requirements for those of the various uniform codes which make up the state building code.

            We answer your inquiry in the manner set forth in the analysis below.

                                                                     ANALYSIS

            As you are aware, the state building code enacted by chapter 96, Laws of 1974, 1st Ex. Sess.,1/ was made applicable to cities, towns and counties in the state as of January 1, 1975 ‑ replacing existing building regulations2/ except as noted in RCW 19.27.060, which provides as follows:

            "(1) Except as permitted or provided otherwise under the provisions of RCW 19.27.040 and subsections (3) and (4) of this section, the state building code supersedes all county, city or town building regulations containing less than the minimum performance standards and objectives contained in the state building code.

             [[Orig. Op. Page 2]] "(2) Except as permitted or provided otherwise under the provisions of RCW 19.27.040 and subsections (3) and (4) of this section, the state building code shall be applicable to all buildings and structures including those owned by the state or by any other governmental subdivision.

            "(3) The governing body of each city, town or county may limit the application of any rule or regulation or portion of the state building code to include or exclude specified classes or types of buildings or structures, according to use, occupancy, or such other distinctions as may make differentiation or separate classification or regulation necessary, proper, or desirable.

            "(4) The provisions of this chapter shall not apply to any building four or more stories high with an F occupancy as defined by the uniform building code, chapter 5, 1973 edition, and with a fire insurance classification rating of 1, 2, or 3 as defined by a recognized fire rating bureau or organization."

            RCW 19.27.040, to which reference is made in subsection (1) of this section, states that:

            "On and after January 1, 1975, the governing body of each city, town or county is authorized to amend the state building code as it applies within its jurisdiction in all such respects as shall be not less than the minimum performance standards and objectives enumerated in RCW 19.27.020, including, the authority to adopt any subsequent revisions to the codes in RCW 19.27.030(1), (2), (3), (4) and (5)."

            The first issue you have raised, basically, is whether subsection (3) of RCW 19.27.060 allows a city or county to grant a blanket exemption of a given class of buildings from the entire state building code.  In our view, the language of that provision does not on its face yield a clear answer to this question.  On the one hand, there is seemingly broad language in it which speaks in terms of the exclusion of classes or types of buildings from ". . . any rule or regulation. . ." of the state building code.  However, a more narrow reading of the provision might alternatively be said to be required since the authority given to local  [[Orig. Op. Page 3]] governing bodies is confined to limiting the application of a rule or regulation or some portion of the code.  Under such a reading of the statute the exclusion of a given class of buildings from a particular regulation or portion of the code would be permissible but the removal of such a class of structures from the application of the entire code would not.

            Nor is a clear resolution of the question to be found in any other section of the law, although we will make reference below to the stated purposes for enactment of the state building code as contained in § 2 thereof.  Accordingly, as is permitted where ambiguity in a statutory provision exists, we may look to the legislative history of the act in order to attempt to find an answer.  Ayers v. Tacoma, 6 Wn.2d 545, 108 P.2d 348 (1940).

            Chapter 96, Laws of 1974, 1st Ex. Sess., originated as Senate Bill No. 2634.  However, the original bill did not contain the section which is now RCW 19.27.060, suggesting that it may later have come into the bill as the result of concerns with the state‑wide imposition of a "uniform" code because of the experience and familiarity of local governments with existing building codes.  Of more immediate interest, however, is the following colloquy which occurred in the Senate debates on that version of the bill which was finally adopted:

            "Senator Woody:  'In section 6, subsection (3) on page 3, it permits the cities, towns or counties to include or exclude specified classes or types of buildings, structures, etc., according to use or occupancy.  Does this not really permit a vast exception possible to this act?'

            "Senator Clarke:  'Yes, Senator, I believe it does, but this was one of the necessary compromises, in reality, to gain the support of areas such as Seattle because they do have a more sophisticated problem.  It is true that the wording of the bill would seem to give them very wide authority as to using their discretion in making exemptions.  On the other hand, I certainly think the intent is that they must be able to set forth some logical basis and reason for such exemptions.  In short, I would rather agree with you that to an extent that emasculates the bill insofar as Seattle is concerned,  [[Orig. Op. Page 4]] and other cities of similar stature.  But bills of this nature, quite often we have to proceed in steps on a compromise basis rather than take the whole thing at once.  And in my opinion that is the reason for the inclusion of that wording.'"3/

            While this excerpt contains strong evidence of legislative recognition that certain purposes of the act might be subverted through the exercise of discretion by local governments under what later thus became RCW 19.27.060(3), the full extent to which that subsection in fact does permit local action to "emasculate" (to use Senator Clarke's term) the code is not altogether clarified by this discussion either.  One implication of the quoted exchange is that modification in the application of the state building code is justified only where local conditions logically and reasonably warrant.  Possibly, the mere existence of a prior local building code might serve as the basis for a modification, but the entire substitution of such a preexisting ordinance or regulation for the state building code would appear to conflict with the directive of RCW 19.27.060(1),supra, that in general the state building code is to supersede all other codes containing less than the minimum performance standards and objectives of the component uniform codes; in addition, such action would also be contrary to so much of RCW 19.27.040, supra, as permits only such local amendments ". . . as shall be not less than the minimum performance standards and objectives enumerated in RCW 19.27.020. . ."

            A statute must be construed in terms of the objects which the measure seeks to achieve.  Clark v. Housing Authority, Etc., 25 Wn.2d 419, 171 P.2d 217 (1946).  In this regard, certain stated purposes of the underlying act as found in § 2 (RCW 19.27.020) also appear to be significant.  These include both the general purpose of the statute ". . . to provide building codes throughout the state . . ." and the following general additional purposes:

            "(1) To promote the health, safety and welfare of the occupants or users of buildings and structures and the general public.

            "(2) To require minimum performance standards and requirements for construction and construction materials, consistent with accepted standards of engineering, fire and life safety.

             [[Orig. Op. Page 5]] "(3) To require standards and requirements in terms of performance and nationally accepted standards.

            "(4) To permit the use of modern technical methods, devices and improvements.

            "(5) To eliminate restrictive, obsolete, conflicting, duplicating and unnecessary regulations and requirements which could unnecessarily increase construction costs or retard the use of new materials and methods of installation or provide unwarranted preferential treatment to types or classes of materials or products or methods of construction.

            "(6) To provide for standards and specifications for making buildings and facilities accessible to and usable by physically handicapped persons.

            "(7) To consolidate within each authorized enforcement jurisdiction, the administration and enforcement of building codes."

            To remove a given class of buildings or structures from the entire operation of the state building code would effectively undermine the foregoing statutory objectives.  Yet where statutory language is susceptible of two constructions, one of which will carry out and the other defeat the manifest object of the statute, the former construction should be adopted.  Roza Irrigation Dist. v. State, 80 Wn.2d 633, 497 P.2d 166 (1972).  For this reason, and with due regard for the limited legislative history of the act that does exist,supra, we thus in the final analysis conclude that the authority granted local governments under RCW 19.27.060(3) does not go so far as to permit the exemption of a class of buildings or structures from the entire state building code.  Carried to its extreme such interpretation would allow removal of all classes of structures within a given local jurisdiction from building code requirements.

            With this, we turn to the second aspect of your question.  In essence, you have asked whether a total exception of a given class of buildings from the state building code in its entirety might be justified if such action were accompanied by an imposition of other minimum structural requirements or the like.

            We do not see how this would make any difference, legally speaking.  In effect, we have already rejected this approach by declining to accept ". . . the mere existence of a prior local building code . . ." as a valid basis for ". . . the  [[Orig. Op. Page 6]] entire substitution of such a preexisting ordinance or regulation for the state building code . . ."  Infra, p. 4.

            Repeated for ease of reference, RCW 19.27.060(3), supra, provides that:

            "The governing body of each city, town or county may limit the application of any rule or regulation or portion of the state building code to include or exclude specified classes or types of buildings or structures, according to use, occupancy, or such other distinctions as may make differentiation or separate classification or regulation necessary, proper, or desirable."

            As we have construed it above, this subsection, while allowing given classes of buildings to be exempted from portions of the state building code under certain circumstances, does not authorize an exemption of such classes of buildings from theentire code under any circumstances.

            Nor do we mean to imply even that the retention of some minimal requirements imposed by the state building code will in every case be sufficient to justify the exemption of a class of buildings from a substantial portion of the code requirements.  In some cases the continuation of some of the provisions of the state building code, whether or not supplemented by other regulations which modify its requirements, may represent a permissible variation but it should be remembered that RCW 19.27.060(3) only sanctions those adjustments which are "necessary, proper or desirable."

            As general as this language may appear, we believe it must be considered in the context of the statutory purposes behind the enactment of the state building code.  Modifications attempted under RCW 19.27.060(3) must be considered in light of those purposes with concern for the consequences which may attend a departure from the code requirements in excess of the authority granted by the statute.

            We must therefore conclude in overall answer to your question that an exemption by a board of county commissioners of any class of buildings from the operation of the entire state building code is not permissible.  Some portion of the regulations of the state code must be continued in force.  The degree of retention is not capable of precise determination, but it must accommodate the substance of the statutory objectives described in RCW 19.27.020; i.e., here repeated for emphasis and ease of reference:

             [[Orig. Op. Page 7]] "(1) To promote the health, safety and welfare of the occupants or users of buildings and structures and the general public.

            "(2) To require minimum performance standards and requirements for construction and construction materials, consistent with accepted standards of engineering, fire and life safety.

            "(3) To require standards and requirements in terms of performance and nationally accepted standards.

            "(4) To permit the use of modern technical methods, devices and improvements.

            "(5) To eliminate restrictive, obsolete, conflicting, duplicating and unnecessary regulations and requirements which could unnecessarily increase construction costs or retard the use of new materials and methods of installation or provide unwarranted preferential treatment to types or classes of materials or products or methods of construction.

            "(6) To provide for standards and specifications for making buildings and facilities accessible to and usable by physically handicapped persons.