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AGLO 1974 No. 45 - April 15, 1974
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Slade Gorton | 1969-1980 | Attorney General of Washington

COUNTY ‑- CITIES AND TOWNS ‑- BUILDING PERMITS ‑- FEES

(1) In providing for a state building code for cities and towns, chapter 96, Laws of 1974, 1st Ex. Sess., imposes a standard fee schedule in connection with the administration of such code in place of such local fee schedules in effect on January 1, 1975.
 
(2) Chapter 96, supra, does not permit local governments to treat the fees set forth in the state building code as a minimum schedule and to fix higher fees independently of further legislation.

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                                                                   April 15, 1974

Honorable Donald G. Garrett
State Representative, 14th District
Legislative Building
Olympia, Washington 98504                                                                                                              Cite as:  AGLO 1974 No. 45
 
 
Dear Sir:
 
            By your letter previously acknowledged, you have requested the opinion of this office on certain questions which we paraphrase as follows:
 
            (1) Does chapter 96, Laws of 1974, 1st Ex. Sess., in providing for a state building code for all cities, towns and counties, also impose a standard fee schedule in connection with the administration of such code in place of such local fee schedules as might otherwise be in effect on January 1, 1975?
 
            (2) If the answer to the above question is in the affirmative, does the act permit local governments to treat the fees set forth in the state building code as a minimum schedule and to fix higher fees independently of further legislation?
 
            For the reasons set forth in the analysis below, question (1) is answered in the affirmative and question (2) in the negative.
 
                                                                     ANALYSIS
 
            By its enactment of chapter 96, Laws of 1974, 1st Ex. Sess., the legislature adopted a "state building code" to be applicable as of January 1, 1975, to buildings and construction in all cities, towns and counties of the state ‑ except as provided by §§ 4 and 6, noted and discussed below.  This code, as defined in § 3 of the act, is not expressly set forth therein but, instead, is to
 
            ". . . consist of the following codes which are hereby adopted by reference:
 
            "(1) Uniform Building Code and Related Standards, 1973 edition, published by the International Conference of Building Officials;
 
            "(2) Uniform Mechanical Code, 1973 edition,  [[Orig. Op. Page 2]] including Chapter 22, Fuel Gas Piping, Appendix B, published by the International Conference of Building Officials and the International Association of Plumbing and Mechanical Officials;
 
            "(3) The Uniform Fire Code with appendices thereto, 1973 edition, published by the International Conference of Building Officials and the Western Fire Chiefs Association;
 
            "(4) The Uniform Plumbing Code, 1973 edition, published by the International Association of Plumbing and Mechanical Officials:  PROVIDED, That chapter 11 of such code is not adopted:  PROVIDED, That notwithstanding any wording in this code, nothing in this code shall apply to the installation of any gas piping, water heaters, or vents for water heaters; and (5) The American National Standard Specifications for Making Buildings and Facilities Accessible To, and Usable By, The Physically Handicapped, published by American National Standards Institute, Inc., Document ANSI A117.1-1961 (reaffirmed 1971)."
 
            Question (1):
 
            Included within some of the uniform codes thus adopted are certain fee schedules for such matters as the issuance of building permits and the installation of electrical plumbing and other mechanical equipment.1/
 
    [[Orig. Op. Page 3]]
            Your initial question is whether those fee schedules will supersede such local schedules as might otherwise be applicable when the state code goes into effect in the various cities, towns and counties of the state on January 1, 1975.  We conclude that they will.
 
            Legislative intent, of course, must be derived from the statutory text as a whole, interpreted in terms of the general object and purpose of an enactment.  Amburn v. Daly, 81 Wn.2d 241, 501 P.2d 178 (1972).  With certain express omissions, chapter 96 incorporates by reference the entire text of several recognized codes and other compilations.  In the analogous situation of statutory incorporation by reference of prior enactments of the legislature, our court has held that the "precepts and terms" to which the reference is made must be considered as if fully incorporated in the referring act and as if explicitly written therein.  Pacific Etc. Ass'n v. Pierce County, 27 Wn.2d 347, 178 P.2d 351 (1947).  While legislation must be construed to effectuate the objectives of the legislation and to avoid a strained or absurd result, the statute cannot be modified by construction.  King Cy. v. Seattle, 70 Wn.2d 988, 425 P.2d 887 (1967).  The question of whether the legislature intended to incorporate the fee schedules contained in the uniform codes which it adopted by reference in § 5, supra, is to be determined by a review of the entire act, taking into account the underlying purposes of the legislation.
 
            On its face, chapter 96, supra, reflects decisions to include or to exclude certain portions of the uniform codes.  Thus, in § 3(2) express reference is made to chapter 22, appendix B.  In subsection (4) of this same section the uniform plumbing code is adopted with the omission of chapter 11 and with the further qualification that any references in the plumbing code to the installation of any "gas piping, water heaters or vents for water heaters" are to be disregarded for purposes of the state building code.
 
            Beyond such particular references to provisions of the uniform codes, the act attempts to harmonize any internal conflicts within the codes or any other contradictions that might be created with existing legislation.  The final sentence of § 3 thus directs that
 
            "In case of conflict among the codes enumerated in subsections (1), (2), (3) and (4) of this section, the first named code shall govern over those following."
 
             [[Orig. Op. Page 4]]
            Likewise, § 8 of the act specifies several provisions of existing law which are not to be affected by the legislation; i.e., chapters 19.28, 43.22, 70.77, 70.79 and 70.87 RCW.
 
            Also to be noted are specific distinctions drawn by the legislature in the relationship of the act to chapter 70.92 RCW, which addresses itself to the problems of aged and handicapped persons in public buildings.  Section 3 directs that ". . .  This paragraph shall supplement . . . chapter 70.92 RCW with respect to public buildings," while § 4, infra, in dealing with subsequent amendments to the state building code which might be made by local jurisdictions for local operation, stipulates that its amendment authorization does not extend to modifications of the requirements of that chapter as they now stand.
 
            Reservations of broader areas for local action are found in §§ 6 and 9 of the act as follows:
 
            Section 6:
 
            ". . .
 
            "(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."
 
            Section 9:
 
            "Local land use and zoning requirements, building setbacks, side and rear-yard requirements, site development, property line requirements, subdivision requirements, and local fire zones are specifically reserved to local jurisdictions notwithstanding any other provision of this 1974 act."
 
             [[Orig. Op. Page 5]]
            The localities are thus empowered by § 6(3) to exclude specified classes or types of buildings or structures.  While exclusions may not be arbitrary, the determination may be measured by a very general standard.2/   Certain buildings exceeding three stories in height are automatically exempted from the operation of the state building code by § 6(4), while the provisions of § 9 clearly reveal an intention by the legislature to reserve for the local jurisdictions freedom of decision in areas generally identified by the zoning ordinances such as setbacks, side and rear yard requirements and subdivisions.3/
 
             Given this pattern of the incorporation by reference of existing legislation coupled with designated omissions and exclusions of areas of operation of the state building code, we must conclude that if the legislature had, in fact, intended to exclude the fee schedules contained in those uniform codes adopted by reference from the "state building code" itself, it would likewise have done so by express reference.  We note that in the legislative history of the act there is no reference to the matter of fees and  [[Orig. Op. Page 6]] charges in connection with building codes, either those already in existence at the local level or those which might be read into the state building code by reference.
 
            When the act is considered in its entirety, it is clear that a primary purpose of the legislation is the achievement of uniformity in construction materials and performance standards in the construction process itself.  At the same time the recitation of legislative purposes found in § 2 of the act makes reference to the objective of consolidation in administration and enforcement of building codes.  Administration, as the texts of the uniform codes reveal, comprehends the imposition of fees in addition to other matters.  To the extent that permit fees and other charges defray some of the costs of administration, the higher fee schedules promulgated in the state building code may bear a reasonable relation in some jurisdiction to the upgrading of building standards that the code seeks.
 
            It is, of course, also possible that the opposite may be true; that there may be jurisdictions whose present standards are equal or roughly equal to those proposed by the state building code but whose fees are considerably less than those contained in the uniform codes.
 
            Our conclusion, however, does not rest on the existence of a precise relationship between a given level of fees and applicable standards.  A finding that the state building code now incorporates a standard fee schedule is not in our mind a strained interpretation of the legislation, where there is no specific language justifying the exclusion of these standard schedules in the face of the broad provision for incorporation by reference.
 
            We are mindful of the observation in your letter that the existing fee schedules contained in the uniform codes in many cases represent a significant increase over local schedules and thus will serve to inflate current building costs.  As you are undoubtedly aware, however, a primary hope behind the enactment of uniform building codes, such as that represented in the instant legislation, is that standardization in materials and the construction process may significantly reduce the manufacturers' and contractors' hidden costs of compliance with a multiplicity of local regulations in the various jurisdictions.  See, 5 Harvard Journal on Legislation, 587 (1968).
 
             [[Orig. Op. Page 7]]
            Our final comment in response to your first question should note a possible ambiguity contained in the first subsection of § 6 of the act which provides that:
 
            "Except as permitted or provided otherwise under the provisions of section 4 of this 1974 act 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."
 
            This language might be interpreted to preserve in all respects, including the matter of fee schedules, an existing local code where its "performance standards and objectives" are demonstratively higher than those of the state building code itself.  It is our opinion, however, based in part on the reasons given in our answer to question (2) below, that the purpose of this particular subsection is limited to the preservation in the local codes of those standards for construction materials and the construction process itself which exceed those of the state code without requiring a formal reenactment (after January 1, 1975) of those portions of a city or county ordinance which are more stringent than the comparable provisions of the state building code.
 
            Question (2):
 
            Your second question assumes the foregoing affirmative answer to question (1) and asks whether chapter 96 permits local governments to treat the fees set forth in the state building code as a minimum schedule and to fix higher fees independently of further legislation.
 
            The key to this question, which we answer in the negative, is § 4 of the act (to which passing reference has been made earlier in this opinion), providing as follows:
 
            "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 section 2 of this 1974 act, including, the authority to adopt any subsequent revisions to the codes in section 3 subsections (1), (2), (3), (4) and (5) of this 1974 act.
 
             [[Orig. Op. Page 8]]
            "Nothing in this section shall authorize any modifications of the requirements of chapter 35, Laws of 1967, or chapter 70.92 RCW."
 
            Permission to amend the code "in all respects" is thus limited to those revisions that are "not less than the minimum performance standards and objectives enumerated in § 2."  The appropriate inquiry, therefore, is the scope of the phrase "minimum performance standards and objectives."
 
            If the terms "standards" and "objectives" are synonymous, then the meaning of that phrase is readily discernible when placed along side those objectives and standards which are recited in § 2 of the act, as follows:
 
            "The purpose of this chapter is to provide building codes throughout the state.  This chapter is designed to effectuate the following purposes, objectives and standards:
 
            "(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, services 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.
 
             [[Orig. Op. Page 9]]
            "(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."
 
            "Minimum performance standards" thus refer to requirements for construction and construction materials.  Section 2(2).  Another stated objective is the achievement of standards in terms of "performance and nationally accepted standards."  Section 2(3).  Reference to the uniform codes themselves clearly indicates that national standards relate to materials and the construction process once again.  Section 2(4) states that a purpose of the act is to encourage the use of "modern technical methods, devices and improvements."
 
            While § 2(5) does not speak expressly in terms of performance standards, its emphasis is also upon the technical considerations dealing with the construction process itself; i.e.,
 
            "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."
 
            Again, in § 2(6) it is the building process itself which is, of course, involved in the reference to construction methods for the benefit of the physically handicapped.  Since the initially stated objective in § 2(1) is the promotion of the health, safety and welfare of building occupants and users, one may reasonably conclude that in § 4, supra, the legislature intended to give local jurisdictions some flexibility of amendment only where revisions in the codes would further improve the construction process beyond what was otherwise provided in the state building code as originally enacted.
 
             [[Orig. Op. Page 10]]
            Any alternative connotation for the term "objectives" as found in § 4 must bear some relation to the remaining purposes of the legislation recited in § 2.  Meaning must then be attributed to that particular language of the section which permits the local jurisdiction to amend the state building code for its purposes in all respects not less than the "objectives" or perhaps the "minimum objectives" enumerated in § 2.  The only remaining stated purpose in § 2 which does not involve the technical matters of construction or of the building process itself is subsection (7) which speaks of consolidation in administration and enforcement.
 
            An examination of the uniform codes themselves, particularly the uniform building code, indicates that in their ordinance form the building codes set forth a process for administering their provisions, including appointment of officials and an enforcement mechanism.  The uniform codes, as previously noted, incorporate set fee schedules.
 
            While, arguably, matters of administration will include the imposition of fees necessary in the regulatory process, there is no evidence which can fairly be drawn from the language of the act itself that the legislature was concerned with the promotion of a floor for such minimum fee schedules because of some determination, for example, that existing fee schedules were unduly low and their continuance at such levels might in some way hamper the regulatory process.  It is particularly difficult to draw this objective from the language of § 2(7) which speaks in terms of consolidation of administration and enforcement.  It is more reasonable to conclude that this objective finds implementation in other provisions of the act such as § 5, not earlier noted, which permits jurisdictions without local building departments to contract with other units of government for the "administration and enforcement of the state building code."
 
            If, therefore, some independent meaning is to be given to the term "objectives" by reference to those stated purposes of the act which deal with administration and enforcement, we conclude that the intention of the legislature was to allow amendment with respect to a limited number of administrative areas, exclusive of fee schedules, where the result would tend to insure a greater efficiency in the administrative process.  Thus, for example, future amendments by local jurisdictions which would tend to hamper the administrative process through such measures as the elimination of the office of the building official  [[Orig. Op. Page 11]] provided for in the uniform codes would undoubtedly be improper by the standard for amendment which is set forth in § 4.
 
            Under either of these alternative readings of the language discussed above, however, it follows and is our opinion that local jurisdictions are not authorized to revise the fee schedules presently enacted by the state building code in the absence of other legislation.
 
            Consistent with this interpretation, we also conclude that the remaining language in § 4
 
            ". . . including, the authority to adopt any subsequent revisions to the codes in section 3 [uniform codes] . . ."
 
            does not constitute the necessary authority for the local jurisdictions to revise the fee schedules which are now imposed upon them.  This concluding clause in the first paragraph of § 4 is subordinate to the amendment standard set forth earlier in that section and merely describes the type of amendment which would satisfy the standard.
 
            It is our further opinion that with respect to those areas covered by the state building code there is no authority in the local jurisdictions independent of further legislation which will permit the revision of the fee schedules.
 
            Supervision of construction, maintenance and repair of buildings, the subject matter of building codes, is within the inherent police power of the state.  The authority of a county or municipality to enact ordinances promoting the public safety, morals, health, or welfare, is, of course, a delegation of the state's police power derived under Article XI, § 11 of the Washington Constitution.  It is well recognized that as an incident of the police power a local jurisdiction may impose such charges as may be incident to the regulatory process.  62 C.J.S., Municipal Corporations, § 127.
 
            By reason of the general delegation of police power to counties and municipalities, no further legislative sanction for the exercise of that power is necessary as long as the regulation is reasonable and consistent with the general laws of the state.  Within its borders the local jurisdiction may exercise these powers practically to the same extent as the state might itself.  Seattle v. Rogers, 6 Wn.2d 31, 106 P.2d 598 (1940); Spokane v. Coon, 3 Wn.2d 243, 100 P.2d 36 (1940).
 
             [[Orig. Op. Page 12]]
            Once, however, the state enacts a general law in the particular area of regulation, the state by such enactment may preempt or prohibit local action with respect to the same subject matter.  Unless there is room for concurrent exercise of jurisdiction, the action by the state must prevail.  A determination whether such concurrent jurisdiction exists will, of course, depend upon the analysis of the applicable statute.  Lenci v. Seattle, 63 Wn.2d 664, 388 P.2d 926 (1964).
 
            By reason of our conclusion that chapter 96, supra, has incorporated the fee schedules of the uniform codes for use by the local jurisdictions and our further conclusion that the state has not granted authority to such localities to revise these fee schedules, it is our opinion that the act will preempt as of January 1, 1975, any further local action in the determination of fee schedules with respect to those areas of construction, maintenance or repair of buildings subject to the operation of the "state building code."
 
            By recourse to essentially the same authority which we have cited, we would also conclude, however, that for those buildings and other construction matters which have been exempted from the operation of the state building code, the local jurisdictions may administer different fee schedules other than those set forth in the uniform codes.  An examination of the various schedules, as included in the appendix, does not reveal inherent problems related to the administration of such fees by which one might conclude the act has impliedly preempted the use of different fee schedules for such buildings as are exempt from coverage of the legislation.  The administrative burden, if any, of operating under more than one fee schedule within the local jurisdiction is, of course, a separate consideration, not relevant to this opinion.
 
            We trust that the foregoing will be of assistance to you.
 
Very truly yours,
 
SLADE GORTON
Attorney General
 
MALACHY R. MURPHY
Deputy Attorney General

                                                         ***   FOOTNOTES   ***
 
1/Uniform Building Code, 1973 edition, § 303; Uniform Mechanical Code, 1973 edition, § 304; Uniform Plumbing Code, 1970 edition, § 1.12.  The 1973 edition of the Uniform Plumbing Code, the edition incorporated by chapter 96, was not available for inspection, but based upon 1973 revisions to the other uniform codes, there is no reason to believe that fee schedules are omitted from the 1973 edition of the Uniform Plumbing Code.  Neither the Uniform Fire Code nor the American National Standard Institute specifications relating to construction for the aged and handicapped contain fee schedules.
 
2/In answer to a point of inquiry on the Senate Floor, January 29, 1974, Senator Clarke, one of the sponsors of chapter 96 (then SSB 2634) acknowledged the theoretically unlimited freedom which § 6(3) might give local jurisdictions to avoid coverage of the state building code, but observed that a fair reading of the provision would require there to be "logical basis and reason" for the exemption in coverage claimed.
 
3/Ordinarily, most of these matters are not within the purview of the usual building ordinance.  There may, however, be unanticipated conflicts in the uniform codes and the local codes dealing with these other matters.  For example, § 7011 of the uniform building code makes certain provisions for setbacks.  Presumably, local ordinances governing setbacks, by reason of § 9 of the act, will take precedence over any inconsistent provision in the uniform building code.

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