AGLO 1974 No. 106 - Dec 30 1974
BUILDINGS ‑- STATE ‑- CODE ‑- APPLICABILITY OF STATE BUILDING CODE
(1) The state building code provided by chapter 96, Laws of 1974, Ex. Sess., is applicable to proposed state building projects not already under construction as of January 1, 1975.
(2) The provisions of § 9, chapter 96, Laws of 1974, Ex. Sess., do not subject the state to compliance with local zoning ordinances.
(3) If a state building project constitutes a major action significantly affecting the quality of the environment, the state will be required to prepare an environmental impact statement under RCW 43.21C.030(c) even though such a statement may also later have to be prepared by the city or county involved in connection with its issuance of a building permit; however, under the "lead agency" rule, a second environmental impact statement will not in all cases by required of such city or county.
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December 30, 1974
Honorable Keith A. Angier
Director, Department of General
218 General Administration Building
Olympia, Washington 98504 Cite as: AGLO 1974 No. 106
By letter previously acknowledged you have requested an opinion of this office with regard to the responsibilities of the state under or by reason of chapter 96, Laws of 1974, Ex. Sess. Your first question, regarding the effective date of this act, has previously been answered in our acknowledgment letter. Your other three questions, correspondingly renumbered, are as follows:
"At what stage of project development does the state become subject to compliance with the provisions of the act, specifically as regards to the following:
"Projects which have been appropriated, but which are not yet in design?
"Projects which have been appropriated and which are in design?
"Projects which are between the design and contract bidding phase?
"Projects which are in the bidding process?
"Projects for which contracts have been awarded but for which construction has not yet begun?
"Projects which are in the construction phase?"
"Is the state subject to compliance with all local zoning ordinances under the provision of Section 9 of this act?"
"Is it the state's responsibility, as building [[Orig. Op. Page 2]] owner, to prepare Environmental Impact statements, or does that responsibility rest with the local governmental unit involved?"
We answer questions (1) and (3) in the manner set forth in our analysis and question (2) in the negative.
By its enactment of chapter 96, Laws of 1974, 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 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, 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 [FURTHER], 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). . . ."
[[Orig. Op. Page 3]]
Section 4 then provides that:
"On and after January 1, 1975, the governing body of each city, town or county is authoeized [[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.
"Nothing in this section shall authorize any modifications of the requirements of chapter 35, Laws of 1967, or chapter 70.92 RCW."
Next, § 5 states that:
"The state building code provided for in this chapter shall be administered and enforced by the respective governmental authorities. Any governmental 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."
Section 6(1) then provides that:
"(1) 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."
The applicability of this code to the state is next expressly provided for in subsection (2) of this same section, as follows:
"(2) 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 shall be applicable to all buildings and structures including those owned by the state or by any other governmental subdivision." (Emphasis supplied.)
[[Orig. Op. Page 4]]
The remainder of this section, encompassing subsections (3) and (4), then reads as follows:
"(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."
Finally be to be noted before turning to your questions is § 9, which provides that:
"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."
Your first question involves the impact of this new legislation upon various categories of state building projects already underway as of January 1, 1975; i.e.,
Projects which have been appropriated, but which are not yet in design.
Projects which have been appropriated and which are in design.
Projects which are between the design and contract bidding phase.
Projects which are in the bidding process.
Projects for which contracts have been awarded but for which construction has not yet begun.
Projects which are in the construction phase.
[[Orig. Op. Page 5]]
In dealing with this question from the standpoint of state building projects, we are guided by a recent case involving private projects, Hull v. Hunt, 53 Wn.2d 125, 331 P.2d 856 (1958). The principle established by that case is that a property owner has a vested right to build in accordance with a building permit issued to him if, at the time of application for the permit, his proposed project is in compliance with the then applicable municipal building code. In other words, under those circumstances the property owner may proceed to complete construction of his building in accordance with the then existing terms of that code even though the code may be amended in some respect during the course of construction ‑ although, as explained in Hass v. Kirkland, 78 Wn.2d 929, 481 P.2d 9 (1971), he may be subject to certain general police power enactments, not a part of the building code as such, which may be enacted by the county or city involved during the course of construction. Accord, Seattle v. Hinkley, 40 Wash. 468, 82 Pac. 747 (1905); Wash. Const., Art. XI, § 11.
What this means, obviously, insofar as chapter 96, supra, is concerned is that such owners of nonstate building projects as have applied for building permits from the county or city in which the projects are situated prior to January 1, 1975, will have a qualified right to complete those projects after that date in accordance with the local building codes in effect when their applications were filed. While that right may be extinguished by an ordinance extrinsic to those codes, it will not be affected by the provisions of this new state law and the state building code which has been thereby established.
By the same token, in the case of state building projects underway as of January 1, 1975, this principle logically means that these projects also may be completed without regard to the requirements of this new law ‑ for we find no indication of legislative intent in the act to distinguish between state and nonstate projects in that regard. Nothing in § 6(2), supra, nor in any other provision of the act purports to make the provisions of the new state building code applicable retroactively, either to buildings already under construction as of its operative date under a validly issued building permit, in the case of nonstate projects, or to those under construction without the necessity for such a permit in the case of the state. If, therefore, the former are thus entitled to proceed without regard to its requirements, as was held in Hull v. Hunt, supra, the latter may logically do so as well.
[[Orig. Op. Page 6]]
By way of illustration, in those instances in which a building permit will henceforth be required under the state building code for state construction on and after January 1, 1975, no such permit will be required for those state projects which have proceeded beyond the permit application stage as of that date. But where, on the other hand, the focal point for obtaining such a required permit has not yet then been reached, the project will have to obtain that building permit and then proceed in accordance with the provisions of this new building code.
Thus, in summary, it follows that insofar as the six different project phases listed in your first question are concerned, only the last (projects which are in the construction phase as of January 1, 1975) will be unaffected by the act. All of the other five, on the other hand, will be subject to its requirements ‑ including those of the various uniform building codes listed in § 3, supra, and by reference incorporated therein.
Next you have asked:
"Is the state subject to compliance with all local zoning ordinances under the provision of Section 9 of this act?"
Section 9, here repeated for ease of reference, provides that:
"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 jurisdications notwithstanding any other provision of the 1974 act." (Emphasis supplied.)
The question of whether, and to what extent, the state is or is not subject to local building codes, zoning requirements and the like has been the subject of numerous prior opinions of this office. See, e.g., our opinions of August 30, 1913, to the state adjutant general; December 28, 1945 [[to Offo A. Case]], to the commissioner of public lands; and February 28, 1947 [[to Cliff Yelle]], to the state auditor, copies enclosed. The latter opinion sets forth much of the basic law and many of the important cases regarding the question.
Your immediate inquiry, as we understand it, is simply whether that law has been changed, statutorily, by the enactment of § 9, supra. In other words, assuming a [[Orig. Op. Page 7]] situation in which the state would not have been subject to a local zoning code (as distinguished from a building code) prior to the effective date of this new statute, you ask whether the converse is now true because of the language thereof.
In our opinion § 9 does not change the law as it previously existed on this point. The purpose of chapter 96, as set forth in § 2 of that act, is "to provide building codes throughout the state." (Emphasis supplied.) Section 6(2), supra, specifically makes state buildings subject to the state building code, but there is no language in the act specifically making the state subject to local land use zoning requirements, etc. In our opinion, therefore, the reasonable reading of § 9 is that it was simply intended to assure that no one could argue successfully that the enactment of chapter 96 meant that local government had lost any of the regulating powers referred to therein simply because of the adoption of a state‑wide [[statewide]]building code.
As we observed in our letter of February 28, 1947, to the state auditor, cited above,
". . . a general statute which tends to restrain or diminish rights and interests should not be construed to apply to the sovereign (state) government unless the same is comprised therein expressly by name or included by necessary implication."
In light of the fact that § 9 appears to be nothing more than an attempt on the part of the legislature to preserve the status quo with respect to zoning, etc., and since it does not specifically make the state subject to local zoning, etc., it is our opinion that the legislature should not be presumed, by that act, to have placed state government under the control of local governments with respect to the activities set forth therein. Therefore, we answer this question in the negative.
Your third question, unlike your first two, does not involve chapter 96, supra, per se. However, it nevertheless arises by reason of its enactment and the resulting possibility that in the future, the state as a builder will be required to obtain a building permit from the city or county in which the construction is to take place. In such a case you ask, with obvious reference to the requirements of the state environmental policy act (SEPA), chapter 43.21C RCW,
[[Orig. Op. Page 8]]
"Is it the state's responsibility, as building owner, to prepare Environmental Impact Statements, or does that reponsibility rest with the local governmental unit involved?"
The logical starting point from which to answer this question is RCW 43.21C.030(c), the section of SEPA which requires the filing of environmental impact statements. This section provides as follows:
"The legislature authorizes and directs that, to the fullest extent possible: (1) The policies, regulations, and the laws of the state of Washington shall be interpreted and administered in accorddance with the policies set forth in this chapter, and (2) all branches of government of this state, including state agencies, municipal and public corporations, and counties shall:
". . .
"(c) Include in every recommendation or report on proposals for legislation and other major actions significantly affecting the quality of the environment, a detailed statement by the responsible official on:
"(i) the environmental impact of the proposed action;
"(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented;
"(iii) alternatives to the proposed action;
"(iv) the relationships between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity; and
"(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented;
". . ."
[[Orig. Op. Page 9]]
Your question, concerning as it does state projects which are contingent in some respects upon action by municipal governments, involves consideration of the effect of SEPA upon major governmental actions requiring multiple approvals or the direct participation of several state agencies or subdivisions. While this question is primarily concerned with a circumstance involving two governmental entities (a state agency which seeks to construct some project and a county or city which is called upon to issue a building permit for the state project), our analysis is equally applicable to cases concerning projects which involve more than two governmental bodies.
Most certainly, there is nothing in SEPA which purports to excuse a given governmental agency from compliance with the environmental impact statement requirements of that act with respect to its own building projects simply because some other agency, later on down the line, may also have to prepare such a statement in connection with its licensing or permit issuing functions. Thus, our answer to the initial part of your final question is that if a state building project constitutes a "major action significantly affecting the quality of the environment," the state will continue, as before, to be required to prepare an environmental impact statement for that project even though, where construction is commenced after January 1, 1975, the county or city in which it is situated may also have to prepare one because it is called upon, under chapter 96, supra, to issue a building permit with respect thereto.
However, this is not to say that in every such case, a second impact statement will be required of the permit-issuing municipality. In fact, in many if not most instances a requirement that such a municipality must prepare a second statement could constitute the sort of "bureaucratic redundancy" which was rejected by the Washington supreme court in Loveless v. Yantis, 82 Wn.2d 754, 513 P.2d 1023 (1973), where the court stated:
"We emphasize, however, that not all discretionary actions trigger SEPA provisions. Not only must the action significantly affect the environment, but it must be nonduplicative. Therefore, if environmental issues have previously been considered or no new information or developments have intervened since the last 'major action', a new or revised impact statement is not necessary. SEPA does not mandate bureaucratic redundancy but only that the heretofore ignored environmental considerations become part of normal decision making on major actions." (pp. 764-65.)
[[Orig. Op. Page 10]]
That the avoidance of wasteful redundancy in multiple‑agency construction projects is consistent with the requirements of SEPA is shown further by a recent amendment to SEPA, chapter 179, Laws of 1974, Ex. Sess. In the statement of purpose of this act, the legislature declared that:
"The purpose of this 1974 amendatory act is to establish methods and means of providing for full implementation of chapter 43.21C RCW (the state environmental policy act of 1971) in a manner which reduces duplicative and wasteful practices, establishes effective and uniform procedures, encourages public involvement, and promotes certainty with respect to the requirements of the act." Section 1, chapter 179, Laws of 1974, Ex. Sess.
Moreover, we also note that the very question which you have raised was within the contemplation of the legislature, as indicated by its mandate to the newly-established council on environmental policy, by § 6(1)(g) of the act, to promulgate SEPA guidelines which will include, inter alia,
"Guidelines for determining the obligations and powers under . . . [SEPA] of two or more branches of government involved in the same project significantly affecting the quality of the environment."
Until such time as that agency clarifies or otherwise determines this issue, we believe that the so-called "lead-agency" concept for multiple agency projects is consistent with SEPA. Under this concept, originally developed at the federal level pursuant to the National Environmental Policy Act (42 U.S.C. § 4321, et seq.) in guidelines promulgated by the federal Council on Environmental Quality (36 Fed. Reg. 7724-29 [Apr. 23, 1971] ELR 46049), one of the governmental agencies involved in a project with significant environmental effects functions as the "lead-agency" and files the basic environmental impact statement with any necessary supplementary information being filed by succeeding governmental units involved. In fact, this precise compliance model was recommended by the state department of ecology in its "Guidelines for Implementation of the State Environmental Policy Act of 1971) issued in December, 1972; see, "Guidelines," supra, pp. 5-6.
With these considerations in mind, our answer to your question is that in the normal situation, the proper [[Orig. Op. Page 11]] entity to take the lead on SEPA compliance by filing an environmental impact statement should be the project-originating state agency, and that a second environmental impact statement need not be filed by the building-permit granting municipality unless either the project for which the permit is sought has changed significantly in nature or scope from the time the state agency filed its environmental impact statement or there is new and significant information about the environmental impact of the project not previously considered in the environmental impact statement filed by the state agency.1/ By application of this rule, wasteful or duplicative "bureaucratic redundancy" is avoided, while full and complete consideration of the environmental impact of a particular state project still occurs.
We trust that the foregoing will be of some assistance to you.
Very truly yours,
RICHARD A. HEATH
Assistant Attorney General
RICHARD H. HOLMQUIST
Assistant Attorney General
*** FOOTNOTES ***
1/We would observe again that this answer will be subject to possible modification or clarification in the guidelines to be promulgated by the council on environmental policy as above described, when they are completed.