VALIDITY OF AMENDMENTS TO STATE BUILDING CODE

COUNTIES ‑- CITIES AND TOWNS ‑- BUILDINGS ‑- VALIDITY OF AMENDMENTS TO STATE BUILDING CODE 

The amendment to RCW 19.27.060 in § 10(1), chapter 360, Laws of 1985 applies prospectively to county or city amendments to the State Building Code involving single or multi-family residential housing and does not, therefore invalidate prior county or city amendments to the state code until and unless approved by the building code council.

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                                                                    July 29, 1985

Honorable David F. Thiele
Island County Prosecuting Attorney
Courthouse
Coupeville, Washington 98239

 Cite as:  AGO 1985 No. 11                                                                                                                

 Dear Sir:

             By recent letter you requested an attorney general's opinion in response to the following question:

             Does the amendment of RCW 19.27.060 contained in chapter 360, section 10(1), Laws of 1985, render invalid a preexisting county ordinance amending the State Uniform Building Code as it relates to single‑family residential buildings, unless the preexisting county amendments are approved by the 'Building Code Council?'"

             In addition, noting that chapter 360, Laws of 1985 was to take effect on July 28, 1985, you asked for as prompt a response as possible.  We believe it possible, in this instance, to comply with that request.  For the reasons set forth below we answer your question in the negative.

                                                                      ANALYSIS

            Chapter 360, Laws of 1985 relates to the State Building Code as set forth in chapter 19.27 RCW.  Section 10(1) thereof amends RCW 19.27.060(1) as follows:

             "(1) ((Except as permitted or provided otherwise under the provisions of RCW 19.27.040 and subsections (3), (4),  [[Orig. Op. Page 2]] (5), and (6) of this section, the state building code supersedes all county, city or town building regulations containing)) The governing bodies of counties and cities may amend the codes enumerated in section 5 of this 1985 act as they apply within their respective jurisdictions, but the amendments shall not result in a code that is less than the minimum performance standards and objectives contained in the state building code.  No amendment to a code enumerated in section 5 of this 1985 act that affects single family or multifamily residential buildings shall be effective unless the amendment is approved by the building code council under section 2(1)(b) of this 1985 act.  Any county or city amendment to a code enumerated in section 5 of this 1985 act which is approved under section 2(1)(b) of this 1985 act shall continue to be effective after any action is taken under section 2(1)(a) of this 1985 act without necessity of reapproval under section 2(1)(b) of this 1985 act unless the amendment is declared null and void by the council at the time any action is taken under section 2(1)(a) of this 1985 act because such action in any way altered the impact of the amendment."

             Section 2, in turn, adds a new section to chapter 19.27 RCW which reads, in pertinent part, as follows:

             "(1) The state building code council shall:

             "(a) Maintain the codes to which reference is made in section 5 of this act in a status which is consistent with the state's interest as set forth in RCW 19.27.020.  In maintaining these codes, the council shall regularly review updated versions of the codes referred to in section 5 of this act and other pertinent information and shall amend the codes as deemed appropriate by the council;

             "(b) Approve or deny all county or city amendments to any code referred to in section 5 of this act to the degree the amendments apply to single family or multifamily residential buildings;

             ". . ."

             [[Orig. Op. Page 3]]

            Also to be noted is § 5 (likewise a new section) which lists the various uniform codes that constitute the State Building Code and are to be in effect in all counties and cities unless amended (to the extent permitted by the law) by local legislative authorities.

             As indicated in your letter your county, like many others, has previously adopted amendments to the State Building Code in accordance with the authorization language contained in chapter 19.27 RCW at the time those amendments were adopted.  Your question is whether those prior amendments remain valid, insofar as they involve single family or multi-family residential buildings, notwithstanding the enactment of § 10, chapter 360, supra;i.e., without review and approval by the State Building Code Council under § 2(1)(b) of the 1985 act, supra.  In other words, you have asked whether § 10, supra, was intended by the legislature to operate retrospectively or, instead, only to apply prospectively to county or city building code amendments adopted after the 1985 act's effective date‑-again, July 28, 1985.

             The Washington Supreme Court, like the courts in other states, has uniformly and consistently held that a statute operates prospectively only unless it is remedial in nature or the legislature indicates that it is to operate retrospectively.  Accord,Johnston v. Beneficial Management, 85 Wn.2d 637, 538 P.2d 510 (1975) quoting fromEarle v. Froedtert Grain & Malting Co., 197 Wash. 341, 344, 85 P.2d 264 (1938) as follows:

             "It is a fundamental rule of statutory construction that a statute is presumed to operate prospectively and ought not to be construed to operate retrospectively in the absence of language clearly indicating such a legislative intent."

             The court in theJohnston case also said that under the foregoing rule a statute is deemed to be remedial, and thus have a retroactive application, only when it relates to practice, procedure or remedies and does not affect a substantive or vested right.  Accord,Tellier v. Edwards, 56 Wn.2d 652, 354 P.2d 925 (1960).

             In the instant case there is no indication of legislative intent, in chapter 360,supra, that § 10 thereof is to be applied retrospectively so as to invalidate preexisting county or city building code amendments until and unless those prior amendments  [[Orig. Op. Page 4]] are reviewed and approved by the building code council.1/ Moreover, to the extent that buildings have been constructed and/or building permits issued in accordance with those prior amendments, there are clearly vested rights involved.  SeeEastlake Community Council v. Roanoke Associates, Inc., 82 Wn.2d 475, 513 P.2d 36 (1973) and cases cited therein.

             We therefore conclude, in response to your question, that § 10, chapter 360,supra, is a prospective statute applicable only to county or city building code amendments adopted in the future.  Accordingly, the statutory amendment to RCW 19.27.060 which is contained therein does not, in our opinion, render invalid a preexisting county (or city) ordinance ". . . amending the State Uniform Building Code as it relates to single family residential buildings, unless the preexisting county amendments are approved by the 'Building Code Council . . .'"  We thus answer your question, as above stated, in the negative.

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

 Very truly yours,
KENNETH O. EIKENBERRY
Attorney General 

PHILIP H. AUSTIN
Senior Deputy Attorney General