Judges: WRITTEN BY: Robert M. Spire, Attorney General Jeffery T. Schroeder, Assistant Attorney General
Filed Date: 4/10/1990
Status: Precedential
Modified Date: 7/5/2016
REQUESTED BY: G. C. Strobel, Director — State Engineer Nebraska Department of Roads Is the State Department of Roads subject to the requirements of local building codes?
No.
You have asked us whether the State of Nebraska, Department of Roads, must design and construct its buildings in accordance with the requirements of local building codes, including permit, inspection and licensing requirements. We believe that the Department is not subject to the requirements of local building codes.
This office has previously concluded that certain governmental buildings are exempt from local building regulations. In 1967-1968 Report of Attorney General, No. 32, Page 44, the Attorney General concluded that school districts are not required to obtain building permits or pay permit fees to a county. In 1965-1966 Report of Attorney General, page 108, the Attorney General concluded that State fairground buildings would not be subject to the City of Lincoln building codes if the fairgrounds were annexed into the City.
The general rule cited in support of these conclusions is found in 62 C.J.S., Municipal Corporations § 157, pp. 319-320, and is stated as follows: Property of the State is exempt from municipal regulation in the absence of waiver on the part of the State of its right to regulate its own property; and such waiver will not be presumed.
See, also, 101A C.J.S., Zoning and Land Planning § 108, pp. 388-391; 82 C.J.S. Statutes, § 317, pp. 554-558, 2 Anderson, American Law of Zoning § 12.06 p. 493 (1976).
The above rule requires the legislature to expressly waive the State's right to regulate its own buildings before the State is subject to local building codes. We have examined all pertinent legislation, and with the exception of the State Building Code, we find no express waiver of the State's right to regulate the design and construction of its own buildings.
The legislature has given each county, city and village the power to enact ordinances adopting a building code, an electrical code, a plumbing code, and a fire prevention code, Neb.Rev.Stat. §
The State Building Code, however, does not include requirements concerning plumbing, electrical, and fire prevention standards. A question therefore remains regarding whether the legislature expressly waived the State's right to regulate these aspects of building design and construction. The legislature has enacted the State Electrical Act which is applied by the State Electrical Division, Neb.Rev.Stat. §
adopt and revise rules and regulations necessary to enable it to carry into effect the provisions of the State Electrical Act and, in adopting such rules and regulations, the board shall be governed by the minimum standards set forth in the National Electrical Code. . . .
Neb.Rev.Stat. §
The legislature has also provided for local plumbing inspection in Neb.Rev.Stat. §
The legislature has not expressly provided that State buildings are subject to the requirements of local building codes. Therefore, according to the Corpus Juris Secundum citation set out at the beginning of this opinion, the State is immune from local building codes. In arriving at this conclusion, we have also examined Nebraska case law.
There are no cases in Nebraska that discuss the specific question of the applicability of local building codes to State buildings. There have been, however, three cases that involved the applicability of local zoning regulations to governmental projects. First, in Seward County Board of Commissioners v. City of Seward,
It has frequently been stated that the power of eminent domain is inherently superior to the exercise of the zoning power, and that the grant of eminent domain power to a governmental unit renders the unit immune from zoning regulation.
Seward County,
Second, in Witzel v. Village of Brainard,
Witzel,
Third, in County of Knox v. City of Creighton,
The county's petition does not on its face establish that the city has the power to condemn the land and erect thereon the structure in question. It cannot be said, therefore, that it fails to state a cause of action under the rule applied in Witzel and Seward County, supra. County of Knox, 214 Neb. 198,
County of Knox,
The Nebraska Supreme Court has, in these three cases, recognized a governmental immunity from zoning ordinances. Building codes, like zoning regulations, are an exercise of the police power. 1 Anderson, American Law of Zoning § 3.06, p. 83 (1976). The State of Nebraska, Department of Roads, is empowered to acquire property by eminent domain for highway purposes. Neb.Rev.Stat. §
This conclusion is consistent with the holding of the Michigan Court of Appeals in County of Marquette v. Board of Control of Northern Michigan University,
There seems to be little question but that the State Construction Code was enacted under the state's police power. It is equally clear that even if a law is enacted under the state's police power it does not apply to the state unless it is very clear that the Legislature intended it to apply to the state and its agencies. Citations omitted. Nor can there be any dispute that for purposes of statutory construction state universities are agencies of the state. Citations omitted.
The court stated that the legislature empowered the University Board of Control with authority to acquire land, and erect and maintain buildings, with legislative approval. County of Marquette,
If one act establishes a state agency's exclusive jurisdiction over certain subject matter and a second act of general application does not state whether it applies to the agency in question, the second act does not apply to that agency.
County of Marquette,
For the reasons cited above, we believe that the Nebraska Department of Roads is immune from the requirements of local building codes.
Sincerely,
ROBERT M. SPIRE Attorney General
Jeffery T. Schroeder Assistant Attorney General
Marquette County v. Board of Control of Northern Michigan ... , 111 Mich. App. 521 ( 1981 )
Seward County Board of Commissioners v. City of Seward , 196 Neb. 266 ( 1976 )
County of Knox v. City of Creighton , 214 Neb. 196 ( 1983 )