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AGO 1978 No. 6 - March 07, 1978
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Slade Gorton | 1969-1980 | Attorney General of Washington

BUILDINGS ‑- STATE BUILDING CODE ‑- APPLICABILITY TO FEDERAL AGENCIES

The state building code, as set forth in chapter 19.27 RCW, does not apply to the construction of buildings in Adams County by the Bonneville Power Administration, a federal agency.

                                                              - - - - - - - - - - - - -

                                                                   March 7, 1978

Honorable Richard W. Miller
Prosecuting Attorney
Adams County
210 West Main
Ritzville, Washington 99169

                                                                                                                   Cite as:  AGO 1978 No. 6

Dear Sir:

            By letter previously acknowledged you requested our opinion on a question which we paraphrase as follows:

            Does the state building code, as set forth in chapter 19.27 RCW, apply to the construction of buildings in Adams County by the Bonneville Power Administration, a federal agency?

            We answer this question in the negative for the reasons set forth in our analysis.

                                                                     ANALYSIS

            The state building code, now codified as chapter 19.27 RCW, originated several years ago as chapter 96, Laws of 1974, 1st Ex.Sess.  Its basic purpose, as set forth in RCW 19.27.020, is to insure the existence of building codes throughout the state and in furtherance of this purpose, RCW 19.27.030 provides that:

             [[Orig. Op. Page 2]]

            "There shall be in effect in all cities, towns and counties of the state a state building code which shall 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, including Chapter 22, Fuel Gas Piping, Appendix B, published by the International Conference of Building Officals 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;

            "(5) The rules and regulations adopted by the council establishing standards for making buildings and facilities accessible to and usable by the physically handicapped or elderly persons as provided for in RCW 70.92.100 through 70.92.160; and

            "(6) The thermal performance and design standards for dwellings as set forth in RCW 19.27.210 through 19.27.290.  This subsection shall be of no further force and effect when RCW 19.27.200 through 19.27.290 expire as provided in RCW 19.27.300.

             [[Orig. Op. Page 3]]

            "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."

            However, RCW 19.27.040 then permits the governing body of each city, town or county 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), . . ."

            Thus, while what we here are referring to as the state building code is in effect throughout the entire state (i.e., in all cities, towns and counties of this state) its precise terms may vary from one such local jurisdiction to another.

            Your question, which must be considered in the light of the foregoing provisions of the law, is whether the state building code is applicable to the construction of buildings by an agency of the federal government.  That question, according to your letter, has particularly arisen in your mind because of RCW 19.27.060(2) which expressly states, in pertinent part, that

            ". . . the state building code shall be applicable to all buildings and structures including those owned by the state or by any othergovernmental subdivision."  (Emphasis supplied)

            Of course, it is entirely possible in a given case that a local building code would not be applicable to particular buildings being constructed by a federal governmental agency because of some specific provision to that effect in the federal statutes governing that agency.  See,e.g.,United States v. City of Philadelphia, 56 F.Supp. 862 (1944);United States v. City of Chester, 51 F.Supp. 573 (1943); State v. Stonybrook, Inc., 149 Conn. 492 181 A.2d 601 (1962);Tim v. City of Long Branch, 135 N.J.L. 549, 53 A.2d 164 (1947); andCurtis v. Toledo Metropolitan Housing Authority (Ohio Com. Pl.), 78 N.E.2d 676 (1947); c.f.,Thanet Corp. v. Board of Adjust. of Tp. of Princeton, 104 N.J. 180, 249 A.2d 32 (1969).  But even in the  [[Orig. Op. Page 4]] absence of such an express federal statutory provision, the effect of which would be to supersede any conflicting state statute in accordance with the supremacy clause of the United States Constitution, the courts have generally been inclined to give the benefit of the doubt, so to speak, to the federal agency.  See,e.g.,Thanet Corp. v. Board of Adjust. of Tp. of Princeton,supra, where, at pp. 32-34 the New Jersey supreme court cited and quoted with approval from two of its own earlier cases as follows:

            "As was said in Thornton v. Village of Ridgewood, 17 N.J. 499, 111 A.2d 899 (1955):

            "'The need of a public building in a certain location ought to be determined by thefederal, state or municipal authority, and its determination on the question of necessary or desirable location cannot be interfered with by a local zoning ordinance.'  (at p. 513, at p. 906 of 111 A.2d; emphasis added)

            "In Aviation Services v. Board of Adjustment, Hanover Township, 20 N.J. 275, 119 A.2d 761 (1956), the court stated:

            "' * * * where the immunity from local zoning regulation is claimed by any agency or authority which occupies a superior position in the governmental hierarchy,the presumption is that such immunity was intended in the absence of express statutory language to the contrary.  (at p. 282, at p. 765 of 119 A.2d; emphasis added)"

            In the instant case, noting particularly the fact that the critical term "governmental subdivision" as used in RCW 19.27.060(2), supra, is also used in the immediately preceding section of the state act, it is our opinion that the Washington legislature didnot intend by that term to encompass agencies of the federal government.  We have reference to RCW  [[Orig. Op. Page 5]] 19.25.050 which provides for the administration and enforcement of the state building code (including any local variations) as follows:

            "The state building code provided for in this chapter shall be administered and enforced by the respective governmental authorities.  Anygovernmental subdivision not having a local building department may contract with another governmental subdivision or inspection agency approved by the local governmental body for administration and enforcement of the state building code within its jurisdictional boundaries in accordance with chapter 39.34 RCW.  (Emphasis supplied)

            Thus clearly, as it is used in this section of the law, the term "governmental subdivision" denotes only a local governmental unit of the state itself ‑ and not a federal agency.  Bearing that in mind we do not believe it proper (particularly in view of the above‑cited cases) to attribute to the legislature an intent to use that same term in a significantly different sense in RCW 19.27.060(2),supra.  Perhaps the legislature did not feel that it could effectively reach and regulate buildings being constructed by the federal government even if it desired to do so ‑ or perhaps that simply was not its desire.  But in either event, our answer must be the same; i.e., (in direct response to your question as above paraphrased), that the state building code, although expressly made applicable to buildings being constructed by the state or any governmental subdivisions thereof, does not by its own terms cover such buildings as those currently being constructed in Adams County by the Bonneville Power Administration, a federal agency.1/

             [[Orig. Op. Page 6]]

            We trust that the foregoing will be of some assistance to you.

Very truly yours,

SLADE GORTON
Attorney General


THOMAS F. CARR
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/In so concluding we should, however, add one caveat.  Just as the federal congress has, in certain instances above noted, expressly barred the application of a state or local building code to certain federal building projects, it is also conceivable that the Congress could, in a given case, itself require such compliance.  Therefore, while any detailed consideration of this possibility would be beyond the proper scope of an opinion of this office, you might yourself want to make further direct inquiry of the agency here involved or, perhaps, contact your local United States attorney's office for the purpose of ascertaining whether, in this case, there is in effect any such federal statutory requirement.

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