Legal Q and A: Local Administration of the State Building code
Prior to 2002, adoption and administration of a building code was purely a local option. In 2002 the New Hampshire legislature adopted the state building code, comprising various model codes. See RSA 155-A:1, IV. The state building code applies to all construction in New Hampshire (RSA 155-A:2; 674:51) and municipalities have the option to administer it. But after nearly a decade, there is a good deal of uncertainty in some communities about whether enforcement authority has actually been adopted; whether the code is being properly administered; and whether, in an era of tight budgets, it is prudent to accept the responsibility and invest the resources necessary for proper enforcement.
Q. What system was in place for administration of a local building code before 2002?
A. Pursuant to RSA 674:51 (as it read before 2002), the local legislative body of any city or town could adopt and amend a local building code to regulate construction, remodeling and maintenance of buildings and structures in the municipality. The procedure was the same used for adoption and amendment of zoning ordinances. RSA 675:2-:4. RSA 674:52 allowed adoption by reference of all of the Building Officials and Code Administrators (BOCA) National Building Code and other nationally recognized life safety, fire protection, electric, plumbing and mechanical codes, or portions of them. Any local building code had to establish the position of building inspector with the authority of RSA 676:11-:13 and a building code board of appeals. (The zoning board of adjustment filled the role if a separate board was not created.)
In some communities the building inspector administered both the building code and the zoning ordinance. Some municipalities had separate building inspectors and zoning enforcement officers. In some towns with a zoning ordinance but no building code, the zoning officer was, nevertheless, referred to as the building inspector and administered a system of building permits and certificates of occupancy to regulate dimensional and use standards of the zoning ordinance. In some towns with neither a building code nor a zoning ordinance, an official called a “building inspector” processed “notice of intent to build” applications, essentially to gather information for use in property tax assessment.
Q. What did enactment of the state building code do to local building codes?
A. The state building code did not repeal or supersede any preexisting local building code unless it was less stringent than the state building code. RSA 155-A:2, IX. RSA 674:52 was repealed, thus ending the authority to adopt the BOCA codes by reference. Moreover, the Building Officials and Code Administrators International, Inc., which drafted the BOCA codes and provided technical support, has been succeeded by the International Code Council, which is responsible for the codes that comprise the state building code.
Q. If a municipality does not enforce the state building code, how is it administered?
A. RSA 155-A:7, I provides that, in the absence of local enforcement authority, “the state fire marshal or the state fire marshal’s designee shall have the authority to enforce the provisions of the state building code….”
Q. Who can be the state fire marshal’s “designee”?
A. At this point, only certain personnel in the state fire marshal’s office are official “designees.” In some communities, local fire chiefs enforce some aspects of the state building code, but, as discussed below, partial enforcement can be problematic. The fire chief has authority under RSA 154:2 to enforce the state fire code, and the distinction between the two codes should be maintained.
Q. How does a municipality get authority to administer the state building code?
A. There are two ways, although neither procedure is entirely clear:
- The “local enforcement agency” is appointed pursuant to RSA 674:51. RSA 155-A:1, III; RSA 155-A:7. These statutes are a bit ambiguous. Some phrases imply that an ordinary town meeting warrant article would suffice, but it appears that a municipality wishing to create a new local enforcement procedure for the state building code must do so by an ordinance adopted under the procedures applicable to adoption or amendment of a zoning ordinance (RSA 675:2-:4), whether or not additional building regulations are also adopted.
- To “clarify” the issue, in 2003 the legislature amended RSA 674:51, I by adding the following: “Any local enforcement process adopted prior to the effective date of this paragraph shall remain in effect unless it conflicts with the state building code or is amended or repealed by the municipality.”
Q. What sort of preexisting “local enforcement process” does the statute refer to? If a municipality had only a zoning ordinance or “notice of intent to build” enforcement process before 2002, is that sufficient to now administer the state building code?
A. It seems likely that the legislature is referring to sophisticated preexisting enforcement processes for the BOCA codes, not merely a zoning administration process, much less a property tax assessment data gathering process.
Q. What if a municipality enforced the BOCA building code before 2002 but is not interested in administering the state building code now?
A. The statute says that those preexisting enforcement processes “shall remain in effect” unless repealed. It appears that a vote of the legislative body is required under the procedures of RSA 675:2-:4 to terminate responsibility for the state building code.
Q. If a municipality has adopted local administration and enforcement of the state building code, what recourse does an applicant have to appeal from the building inspector’s decision or to seek a waiver to some provision of the code?
A. The state building code review board website features Frequently Asked Questions, which provides the following response:
All appeals with regard to the enforcement of the State Building Code by a local enforcement agency must be brought before the Building Code Board of Appeals of the municipality. However, the State Building Review Board will hear appeals of decisions of the State Fire Marshal or his designee in enforcing provisions of the state building code.
This makes sense. RSA 155-A:11 provides for appeal of decisions of the state fire marshal or designee to the state building code review board. RSA 155-A is silent as to appeal of decisions of the “local enforcement agency,” but the local enforcement process under RSA 674:51 must include a building code board of appeals. (Presumably, an adequate preexisting appeals process would include a board of appeals.)
Q. What is the downside for any of the following possibilities? A municipality:
- has not properly adopted authority to enforce the state building code, but purports to enforce it.
- has an unrepealed preexisting enforcement process, but is choosing to ignore enforcement of the state building code.
- administers the state building code, but does not have a trained and experienced building inspector.
- enforces only certain provisions of the state building code.
- issues certificates of occupancy only to signify zoning compliance or simply to assure the owner that there are no local regulations to prevent construction and occupancy.
A. RSA 155-A:2, VIII provides a measure of immunity: “No municipality shall be held liable for any failure on the part of a contractor to comply with the provisions of the state building code.” In Island Shores Estates Condominium Ass’n v. Concord, 136 N.H. 300 (1992), the plaintiff filed suit because the City had inspected and granted certificates of occupancy for 269 units that had been built with numerous structural and other flaws that violated the BOCA code. The plaintiff sought damages for the cost of repairs to make the units safe. As the Court noted, the substandard construction was literally caused by the construction contractor, not by the City. The theory of liability was negligent misrepresentation: the unit owners claimed to have justifiably relied on the City’s determination that buildings were in conformance with the code. The Court held that there was no special relationship between the City and the unit owners and no duty of care that the owners could justifiably rely on. The Court made two important remarks in its analysis: (1) There is generally a greater scope of liability for intentional misrepresentation than for negligent misrepresentation. 136 N.H. at 306. (2) The Court reserved judgment as to whether recovery against the City would be possible for “physical injury sustained on the premises.” 136 N.H. at 307.
Other principles of municipal liability should also be kept in mind:
- Officials, including building inspectors, are immune when they act in good faith in the scope of their duties, but can be held liable for actions taken in bad faith. RSA 31:104; Marino v. Goss, 120 N.H. 511, 514 (1980).
- Municipalities enjoy “discretionary immunity” for decisions involving policy choices, but can be liable for negligent implementation of a policy. Tarbell Adm’r, Inc. v. Concord, 157 N.H. 678 (2008).
- Municipalities can be liable for negligent hiring, training and supervision of employees whose mistakes injure third parties. Cutter v. Farmington, 126 N.H. 836 (1985).
Thus, while there may not be liability for mere negligence in administration of a building code, it is not so clear that there would be municipal tort immunity for knowingly:
- giving the appearance of administering the code without authority to do so;
- refusing to administer the code despite a duty to do so;
- enforcing and not enforcing selected provisions of the code; or
- appointing and not providing training for a clearly unqualified building inspector.
Q. What should municipalities do if they are unclear about local administration of the state building code?
A. Depending on the circumstances in a given municipality, officials might consider, in consultation with their regular municipal attorney, any or all of the following:
- Determine, as a manner of policy, whether the municipality should accept the responsibility to administer the state building code and, if so, whether the citizens are willing to provide the
resources to do so.
- Examine the records of the town before 2003 to see if the town has a valid enforcement process that predates the state building code.
- Examine the records of the town to see if the town has validly adopted a local enforcement procedure since the 2002 amendments to RSA 155-A.
- Determine whether the procedures in place for administering the code are adequate and thorough.
- Determine whether the building inspector has the training and experience necessary to competently administer the code.
- Take appropriate action, as needed, either to adopt local enforcement authority or to repeal it if the municipality decides it does not wish to administer the state building code going forward.
- If the municipality is not enforcing the state building code, make sure that owners, contractors and lenders are not misled by the documents and procedures used to administer the zoning ordinance or other regulations.
Q. May a municipality contract out the building inspection function to a qualified contractor to administer the code?
A. House Bill 137 in the 2011 session of the legislature would have authorized municipalities without an enforcement mechanism to contract with “a qualified third party for these services.” The bill was retained for possible future action. In the absence of such express authority, it appears that a municipality cannot simply contract out its code enforcement duties. There must be a public official, the building inspector, who is ultimately responsible. Of course, if there is an appropriation for the purpose, the municipality may hire consultants to assist the building inspector.
Q. May the cost of administration be offset by fees?
A. Yes. RSA 674:51, III (d) provides that the legislative body may establish a schedule of fees for building permits, inspections and certificates of occupancy, or may delegate the authority to the governing body. See also RSA 41:9-a regarding the governing body’s authority to establish fees to offset regulatory, administrative and enforcement costs.
Q. May a municipality share a building inspector with one or more other municipalities?
A. Yes. RSA Chapter 53-A enables any two or more political subdivisions of the state to enter into agreements to exercise any authority that either could exercise individually. Where shared staff is involved, typically an RSA Chapter 53-A agreement will make one municipality the actual employer for purposes of federal and state employment law, and the other municipal parties to the agreement reimburse the employer municipality according to an agreed formula. For more details, see “Laws Governing Inter-Municipal Regional Cooperation,” New Hampshire Town and City, July/August 2010.
Local officials in NHMA-member municipalities may contact LGC’s legal services attorneys for more information on this and other topics of interest Monday through Friday, from 8:30 a.m. to 4:30 p.m., by calling 800.852.3358, ext. 384. School officials should contact the New Hampshire School Boards Association attorney at 800.272.0653.