Legal Memorandum LG07: The Uniform Code and Local Authority

The Uniform Code and Local Authority

TOPICS COVERED

• Legislative Authority
• Authority to Enact or Adopt More Stringent Local Standards
• Local Regulations Other Than Building or Fire Codes
• Effect of Revisions of the Uniform Code on Local Standards

This Memorandum is intended to explain how the New York State Uniform Fire Prevention and Building Code (Uniform Code) interrelates with local laws, ordinances, and regulations and to clarify the circumstances when a local government may enact local legislation which addresses issues also covered by the Uniform Code.

Legislative Authority

The Uniform Code is a state-wide fire prevention and building code adopted pursuant to Article 18 of the Executive Law (§§ 370 through 383). The Uniform Code is applicable in all parts of the State except New York City (which has its own construction code).

Article 18 establishes the State Fire Prevention and Building Code Council (Code Council), directs the Code Council to promulgate and maintain the Uniform Code, and charges each local government (city, town, or village) in the State (with the exception of New Yok City) 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.”

Authority to Enact or Adopt More Stringent Local Standards

Executive Law § 379 provides that the legislative body of a local government may enact or adopt a local law or ordinance which imposes higher or more restrictive standards for construction than are applicable generally in the Uniform Code.[1]^{, [2]} However, within 30 days of the enactment or adoption of the local law or ordinance, the Chief Executive Officer of the local government must (1) notify the Code Council of the enactment or adoption and (2) petition the Code Council for a determination of whether the local standard is more stringent than the Uniform Code.[3] Further, the local law or ordinance will not be effective until and unless the Code Council approves (or “adopts”) the local standards imposed by the local law or ordinance.

In order for the Code Council to approve a local standard, the Code Council must find that such local standard (1) is more stringent than the Uniform Code,  (2) conforms with accepted engineering and fire prevention practices, (3) conforms with the purposes of Article 18 of the Executive Law, and (4) is reasonably necessary because of special conditions prevailing within the local government.

A form that can be used to give the required notice to the Code Council and to petition the Code Council for approval of a more restrictive local standard for construction is available at https://www.dos.ny.gov/DCEA/pdf/Notice_%20and_Petition_379.pdf.

NOTE: All local laws, including but not limited to local laws that impose more restrictive local standards for construction, must be filed with the Department of State pursuant to the Municipal Home Rule Law (MHRL). However, any local government that chooses to adopt a local law imposing a more restrictive local standard for construction should be aware that filing the local law pursuant to the MHRL does not constitute giving the required notice to the Code Council and does not constitute filing the required petition with the Code Council. Therefore, a local government that enacts a local law imposing a more restrictive local standard must (1) file that local law pursuant to the MHRL and (2) give the required notice to the Code Council and file the required petition with the Code Council.

Local Regulations Other Than Building or Fire Codes

As discussed above, 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.[4]

Furthermore, local laws, ordinances, or regulations enacted pursuant to other municipal powers (zoning, for example) may also have an effect on the construction and/or use of buildings. Local governments are free to enact or adopt local laws, ordinances, and regulations relating to their zoning and other similar municipal powers. However, subdivision 1 of § 383 provides that the provisions of Article 18 of the Executive Law and of the Uniform 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, ordinance, or regulation is superseded depends upon whether it is inconsistent with, or in conflict with, provisions of the Uniform Code. Article 18 of the Executive Law does not expressly define the terms “inconsistent with” or “in conflict with.” However, it seems unlikely that the State Legislature intended those terms to be read in such a way as to seriously impinge upon the ability of local governments to regulate buildings in connection with concerns other than those commonly contained in fire prevention and building codes. Zoning, historic preservation, wetlands protection, etc. are all matters which are recognized as legitimate areas for local government regulation.

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

• Local governments may enact or adopt local construction standards that are more stringent than the Uniform Code, provided that (1) the local government satisfies the notice and petition requirements set forth in Executive Law § 379 and (2) the Code Council makes the required findings and approves (or “adopts”) such more restrictive local standards.

• Local governments cannot enact local construction standards that are less stringent than the Uniform Code.

• Local governments may continue to regulate matters not addressed by the Uniform Code.

• Local governments may continue to enact or adopt local laws, ordinances, and regulations consistent with their authority relating to matters such as zoning, historic preservation, wetlands protection, and the like. However, any such local law, ordinance, or regulation that is inconsistent with 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 Uniform 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 or adopted 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 local government cannot enforce the local standard unless (1) the local government satisfies the notice and petition requirements of Executive Law § 379 and (2) the Code Council makes the required findings and approves (or “adopts”) the local standard.

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

3. Is the local standard inconsistent with 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.

Effect of Revisions of the Uniform Code on Local Standards

Executive Law § 377 authorizes the Code Council to amend the Uniform Code, in whole or in part, from time to time. The Code Council does “tweak” the Uniform Code from time to time by adding or amending individual provisions to comply with new legislation or address issues that come to the attention of the Code Council. In addition, the Code Council updates the entire Uniform Code from time to time. The most recent update of the entire Uniform Code was adopted in late 2019, and became effective on May 12, 2020.

As discussed above, a local standard enacted or adopted by a local government can be enforced by the local government if

• the local standard addresses a matter than is not covered by the Uniform Code; or

• the local standard addresses a matter that is covered by the Uniform Code, is more stringent than the Uniform Code, and has been approved (or “adopted”) by the Code Council; or

• the local standard addresses a matter covered by the Uniform Code, was enacted or adopted for purposes other than regulation of matters typically addressed by a building or fire code and pursuant to other authority (e.g. zoning, historic preservation, public health, etc.), and is not inconsistent with or in conflict with provisions of the Uniform Code.

A local government that has an enforceable local standard should be aware that the local standard can become unenforceable if the Uniform Code is subsequently amended. For example:

• If a local standard was enforceable because it addressed a matter that was not covered by the Uniform Code, the local standard could become unenforceable if the Uniform Code is amended and the amended version of the Uniform Code does address that matter.

• If a local standard addresses a matter covered by the Uniform Code but was enforceable because it was stricter than the Uniform Code and was approved by the Code Council, the local standard will become unenforceable if the Uniform Code is amended and the amended version of the Uniform Code is more stringent that the local standard.

• If a local standard addresses a matter covered by the Uniform Code but was enforceable because it (1) was enacted or adopted for purposes other than regulation of matters typically addressed by a building or fire code and pursuant to other authority (e.g. zoning, historic preservation, public health, etc.) and (2) was not inconsistent with or in conflict with provisions of the Uniform Code, the local standard will become unenforceable if the Uniform Code is amended and the local standard is inconsistent with or in conflict with provisions in the amended version of the Uniform Code.    

The Department of State posts information relating to amendments of the Uniform Code on the Department’s website, and disseminates that information to subscribers of the Department’s e-bulletin entitled Building New York. Local governments are encouraged to subscribe to the Building New York e-bulletin at https://www.dos.ny.gov/DCEA/code_list.html and otherwise to be alert to amendments of the Uniform Code. Each local government should review, in consultation with the local government’s attorney, each amendment of the Uniform Code for the potential impact such amendment may have on any local standards then in effect in the local government.

NYS Department of State

Office of General Counsel
99 Washington Avenue
Albany, New York 12231
(518) 474-6740 
www.dos.ny.gov

[1] Executive Law § 379 also authorizes Nassau County to enact or adopt local laws or ordinances imposing higher or more restrictive standards for construction within the jurisdiction of that county. No other county has such authority.

[2] No municipality has the power to supersede, void, or repeal any provision of the Uniform Code, or to enact or adopt a local standard that less restrictive than the Uniform Code. See Executive Law § 379 (3).

[3] If the local government does not have a chief executive officer, the chairperson of the legislative body of the local government must give the required notice and file the required petition.

[4] Executive Law § 379(3) states, in pertinent part, that nothing in Article 18 of the Executive Law “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 . . . ."