Opn. No. ( 1979 )

Hon. Kenneth P. Helisek Village Attorney, Johnson City

This is in response to your letter requesting an opinion of the Attorney General as to whether a municipality's plumbing code prevails over the conflicting State Building Construction Code, if the municipality has not adopted the State Code.

Article 18 of the Executive Law of the State of New York contains the State Building Code which created and established the State Building Code Council.

Executive Law, Article 18, § 386, deals with local building regulations. Executive Law, § 386 (1), provides:

"1. Nothing in this article shall be construed as prohibiting any municipality from adopting or enacting any building regulations relating to any building within its limits, but no municipality in which the state building construction code has been accepted and is applicable shall have the power to supersede, void, or repeal or make more restrictive any of the provisions of this article or of the rules and regulations adopted by the council hereunder."

The "regulations adopted by the council" contain the State Building Construction Code.

Pursuant to Article 18, each municipality in the State is given the option of accepting the applicability of the State Building Construction Code and upon acceptance the Code becomes effective.

It is, therefore, clear that a municipality which has not adopted the State Building Construction Code is not bound to follow the regulations contained therein.

In light of the foregoing, we accordingly conclude that a municipality's construction code prevails over the conflicting State Building Construction Code, where the municipality has not adopted the State Building Construction Code.