Legal Memorandum LG07


The Uniform Code and Local Authority

The Uniform Code and Local Authority

Comprehensive revisions of the New York State Uniform Fire Prevention and Building Code (“Uniform Code”) took effect on January 1, 2003. Many code enforcement officers and other local officials have inquired as to the impact that these changes to the Uniform Code will have on local property maintenance laws and other local laws pertaining to subjects addressed by the Uniform Code. This advisory is intended to explain how the Uniform Code interrelates with local laws and regulation and to clarify the circumstances when a local government may enact local legislation which addresses issues also covered by the Uniform Code.

Legislative Authority

While the text of the Uniform Code has been revised, the statute authorizing the code and providing for its administration and enforcement has not changed. Article 18 of the Executive Law (§§ 370 through 383) establishes the State Fire Prevention and Building Code Council, directs the Code Council to promulgate and maintain the Uniform Code, and charges each city, town, and village in the State (with the exception of the City of New York) with the duty of administering and enforcing the Uniform Code within its municipal boundaries. Article 18 clearly establishes that by providing for a comprehensive consolidated code with statewide applicability the State Legislature intended to greatly limit the authority of local government in the area of building codes and fire codes. However, the legislature did not totally abolish local government authority in connection with such matters. The extent of local government authority with regard to building and fire codes is set out in Executive Law § 379 entitled Incorporation of higher standards by council upon recommendation of local government; local building regulations.

Retention of Earlier Codes

Local building standards divide into two distinct categories: 1) provisions enacted prior to January 1, 1984 when the Uniform Code took effect, and 2) provisions adopted subsequent to January 1, 1984. The Uniform Code is a comprehensive statewide building and fire code designed to replace the multiplicity of codes existing prior to 1981 (see Executive Law § 371(1)(b)). However, subdivision 4 of Executive Law § 379 provided the cities, towns and villages of the State with a limited opportunity in 1984 to retain local building and/or fire codes applicable within the municipality prior to adoption of the Uniform Code. Within 120 days of January 1, 1984, a city, town or village could petition the Code Council for a determination as to whether an existing building and/or fire code in force within the local government was more stringent than the Uniform Code. If a local building or fire code (excluding codes of the City of New York) was not the subject of a petition submitted to the Code Council prior to April 30, 1984, it is no longer in effect nor enforceable. Subdivision 4 of Executive Law § 379 was the sole mechanism for retaining a local building or fire code enforced prior to January 1, 1984.

Between December 1983 and April 1984, many municipalities submitted petitions to the Code Council for retention of a pre-existing building and/or fire code. Where the Code Council determined that the local code was not less stringent than the Uniform Code, the city, town or village was allowed to continue enforcing its local code until such time as the council, upon its own initiative, again reviews the local code and determines that it no longer is more stringent than the Uniform Code. If, upon subsequent review, the council determines that the local code is no longer more stringent, such local code no longer may be enforced.

Authority to Enact More Stringent Standards

Beginning January 1, 1984, cities, towns, villages and Nassau County may enact local standards which differ from those set forth in the Uniform Code but only to the limited extent authorized by Executive Law § 379. The legislative body of a city, town, village or Nassau County may adopt a local law or ordinance which imposes higher or more restrictive standards for construction than are applicable generally in the Uniform Code. The municipality, however, must petition the Code Council within 30 days of the adoption of the local law or ordinance for a determination of whether the local standard is more stringent than the standard applicable generally in the Uniform Code. In order for the Code Council to approve a local standard, it must find not only that such standard is more stringent than the Uniform Code but that it conforms with accepted engineering and fire prevention practices and the adoption of the local standard is necessary because of special conditions prevailing within the municipality.

Local Regulations Other Than Building or Fire Codes

Article 18 of the Executive Law restricts the authority of local governments to adopt local building or fire code provisions which differ from the standards of the Uniform Code. However, subdivision 3 of Executive Law § 379 expressly states that municipalities are not prohibited from adopting or enacting building regulations pertaining to matters not addressed by the Uniform Code.¹ Furthermore, laws, ordinances or regulations enacted pursuant to other municipal powers, for example zoning, may also regulate the construction and/or use of buildings. The interaction of the Uniform Code with other laws and regulations is addressed by Executive Law § 383. Subdivision 1 of § 383 provides:

The provisions of (Article 18 of the Executive Law) and of the uniform fire prevention and building code shall supersede any other provision of a general, special or local law, ordinance, administrative code, rule or regulation inconsistent or in conflict therewith ... (with exceptions for actions taken or required prior to the effective date of the Uniform Code and for cities over one million in population).

Whether a particular local law or regulation is superseded depends upon whether it is inconsistent or in conflict with provisions of the Uniform Code. Article 18 of the Executive Law does not expressly define those terms, however. It seems unlikely however, that the State Legislature intended those terms to be read in such a way as to seriously impinge upon the ability of local government to regulate buildings in connection with concerns other than those commonly contained in building and fire prevention codes. Zoning, historic preservation, wetlands protection, etc. are all matters which are recognized as legitimate areas for government regulation.

Effect of the 2003 Revision of the Uniform Code on Local Regulations

In accordance with Executive Law § 383, any local law, ordinance, administrative code, rule or regulation which was enacted prior to January 1, 2003, and which is inconsistent or in conflict with the provisions of the new Uniform Code that took effect on January 1, 2003, was superseded by the new Uniform Code text when it took effect, and is no longer enforceable. This is true even if the local ordinance, administrative code, rule or regulation in question was a more restrictive local standard which was previously approved by the Code Council pursuant to Executive Law § 379; if such previously approved local standard is now inconsistent or in conflict with the new text of the Uniform Code, such local standard has been superseded pursuant to Executive Law § 383, and is no longer enforceable. In addition, any local law, ordinance, administrative code, rule or regulation which was enacted subsequent to January 1, 2003, and which is inconsistent or in conflict with provisions of the new Uniform Code, is superseded by the new Uniform Code, and is unenforceable.

In light of the comprehensive revision of the Uniform Code text which became effective in 2003, the Code Council undertook a review of all local standards approved between 1984 and 2003 to determine whether such standards are more stringent than the new provisions of the Uniform Code. The Code Council has completed that review. At this time, the only more restrictive local standards which have been approved by the Code Council and which may continue to be enforced are those listed on the Department of State’s website at http://www.dos.ny.gov/code/mrls.htm.

Summary

To summarize, the Uniform Code interrelates with local laws and regulations as follows:

  • Local governments may enact construction standards more stringent than the Uniform Code with the approval of the Code Council. Local governments cannot enact standards less stringent than the Code under any circumstances.
  • Local government may continue to regulate matters not addressed by the Uniform Code.
  • Local law or regulation which is inconsistent or in conflict with the provisions of the Uniform Code is automatically superseded by the Uniform Code.

Local government officials considering how a local standard may interrelate with Article 18 of the Executive Law and provisions of the New York State Uniform Fire Prevention and Building Code may want to ask themselves the following set of questions:

  1. Is the subject matter of the local standard regulated by the Uniform Code?

    • If no, the local standard may be enacted without further regard to Article 18 of the Executive Law.

    • If yes, proceed to question 2.

  2. What authority was used or will be used to enact the local standard?

    • If the purpose of the local standard is to regulate construction, fire prevention or other matters typically addressed by a building or fire code, such standard is subject to the provisions of Executive Law § 379. The standard must be reviewed and approved by the Code Council.

    • If the local standard is or will be enacted for other purposes and pursuant to other authority (eg. zoning, historic preservation, public health, etc.), proceed to question 3.

  3. Is the local standard inconsistent or in conflict with provisions of the Uniform Code?

    • If yes, then the local standard is superseded by the Uniform Code in accordance with Executive Law § 383.

    • If no, then the local standard is not affected by Article 18 of the Executive Law or the provisions of the Uniform Code.

Endnotes

Executive Law § 379(3) states "Nothing in this article shall be construed to prohibit any municipality from adopting or enacting any building regulations relating to any matter as to which the uniform fire prevention and building code does not provide, but no municipality shall have the power to supersede, void, repeal or make more or less restrictive any provisions of this article or of rules or regulations made pursuant hereto."

 

NYS Department of State
41 State Street
Albany, New York 12231
(518) 473-3355
(800) 367-8488
www.dos.ny.gov

July 2007