Legal Authority for Code Compliance

Appendix D: Legal Authority for Code Compliance

In the United States, model codes are developed through a consensus process and are typically used as a basis for local or state adoption. These model regulations include building codes, fire codes, electrical codes, plumbing codes, and a myriad of other codes intended for adoption. The two primary model code organizations are the International Code Council® and the National Fire Protection Association®. These organizations utilize volunteer experts to develop rational, cost-effective regulations to ensure a reasonable level of safety in the built environment. However, none of these model codes can be enforced without government action. The responsible governmental jurisdiction (municipality, county, state or agency) must go through the legislative and rulemaking process before they become enforceable. The benefits of using model codes as the basis for regulations include a level of consistency for designers, engineers, and builders, and a contribution to economy of scale for the production of building materials and equipment. In addition, the use of model codes provides an opportunity for uniform training programs for regulators at all levels. So how do these model regulations become enforceable, and what is the legal basis for your authority?

State laws tell us who is authorized to enforce code compliance. The state governments are constitutionally the ultimate authorities having jurisdiction. The legal basis originates in the Tenth Amendment to the United States Constitution: "The powers not delegated to the United States by the Constitution, nor prohibited by it to states, are reserved to the states exclusively, or to the people." The Tenth Amendment made no mention of the constitutional standing of cities or counties - because they have no constitutional standing. Powers of local governments are only those powers delegated by the states. State constitutions and statutes define the relationship among the state, counties, and municipalities through their respective constitutions and statutes.

Typically, a state will provide for one of three types of regulatory systems:

Statewide adoption of minimum code requirements. In these states, no local government may adopt regulations that are less restrictive than the state minimum; however, they are authorized to adopt more restrictive regulations based upon the community's needs.
Statewide adoption of code requirements and a prohibition of any local amendments. In these states, there is no authority for any local jurisdiction to amend the state regulations in any way. These states are often referred to as "mini-maxi" states. Another form of this type of system is one where local jurisdictions can petition the state for permission to amend the code based upon specific attributes of the community.
Home Rule states, whereby the state doesn't adopt any codes, but permits local jurisdictions to adopt regulations appropriate for their community. In some states this authority is given to municipalities but not counties; in others counties may adopt regulations for unincorporated areas; in still others, the counties' authority may supersede the municipalities. In one state, fire districts are given overriding authority to adopt and enforce building and fire regulations, superseding the authority of municipalities and counties.

The adopting jurisdiction (state, county, fire district/authority or municipality) will provide for administrative authority to the code official who will manage compliance. In the International Residential Code this authority resides in Chapter 1 Administration; Section R104 Duties and Powers of the Building Official. The Administration chapter also will provide for the establishment of a building safety department and specifically identifies some of the functions that will need to occur as a process of business, such as appointment of a building official and staff deputized to perform the duties described in the code. Model codes such as NFPA 1 and the International Fire Code provide similar authorities in their Administration Chapter. The administrative chapters of the model codes are the most amended sections, as different states have different methodologies relating to the granting of authority to carry out regulatory activities.

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