The opinion
OPINIONS OF THE SUPREME COURT OF OHIO
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City of Middleburg Heights, Appellee, v. Ohio Board of
Building Standards, Appellant.
[Cite as Middleburg Hts. v. Ohio Bd. of Bldg. Standards
(1992), Ohio St.3d .]
Building standards -- Municipal building department certified
by Ohio Board of Building Standards may adopt additional
regulations not in conflict with state law.
A municipality whose building department has been certified by
the Ohio Board of Building Standards pursuant to R.C.
3781.10(E) to enforce state and local building codes
within its territorial jurisdiction may adopt additional
regulations not in conflict with state law. (Springdale v.
Ohio Bd. of Bldg. Standards [1991], 59 Ohio St.3d 56, 570
N.E.2d 268, construed and followed.)
(No. 91-1985 -- Submitted October 21, 1992 -- Decided
December 16, 1992.)
Appeal from the Court of Appeals for Franklin County, No.
90AP-1289.
Appellee, the Ohio Board of Building Standards ("board"),
was created by R.C. Chapter 3781. The board is charged with
duties including the adoption of rules governing the erection,
construction, repair, alteration, and maintenance of all
buildings (with certain exceptions) in Ohio. R.C. 3781.10(A).
Pursuant to this rulemaking authority, the board adopted the
Ohio Basic Building Code ("OBBC"). (See Ohio Adm.Code
4101:2-1-03.)
The board is also authorized to certify municipal,
township and county building departments to enforce the OBBC at
the local level. R.C. 3781.10(E). The board certified the
building department of the city of Middleburg Heights ("city")
for such purpose.
In 1989, the board issued an order revoking the city's
certification. The board determined that certain provisions of
Chapter 1351 of the Codified Ordinances of the City of
Middleburg Heights ("city code") were in conflict with the
OBBC. Specifically, the city code established structural and
fire safety construction standards exceeding the standards
adopted by OBBC.
Upon appeal, the Franklin County Court of Common Pleas
affirmed the order of the board revoking the city's
certification. The court of appeals reversed the trial court,
holding that the revocation of the city's certification was
improper because there is no conflict between the city code and
the OBBC.
This cause is now before the court pursuant to the
allowance of a motion to certify the record.
Calfee, Halter & Griswold, John E. Gotherman, John J.
Eklund and Mark S. Yacano; and Peter H. Hull, Law Director, for
appellee.
Lee I. Fisher, Attorney General, Raul Rosado, Jr. and
Kathleen M. O'Malley, Assistant Attorneys General, for
appellant.
Means, Bichimer, Burkholder & Baker Co., L.P.A., Craig D.
Leister and Richard W. Ross, urging reversal for amicus curiae,
Architects Society of Ohio.
Keith McNamara, urging reversal for amicus curiae,
Associated General Contractors of Ohio.
Diane G. Porter, urging reversal for amicus curiae,
Midwest Industrialized Unit Manufacturers Association.
Thompson, Hine & Flory, Jeffrey A. Appelbaum and Donald P.
Screen, urging reversal for amici curiae, Flair Corporation and
Ohio Consultative Council of the National Institute of Building
Sciences.
Benesch, Friedlander, Coplan & Aronoff, N. Victor Goodman
and Mark D. Tucker, urging reversal for amicus curiae, Ohio
State Building and Construction Trades Council.
Edward G. Kramer, urging reversal for amicus curiae, Ohio
Housing Coalition.
Spieth, Bell, McCurdy & Newell Co., L.P.A., and Timothy J.
Grendell, urging reversal for amici curiae, Ohio Home Builders
Association and Building Industry Association of Cleveland and
Suburban Counties.
Barry M. Byron, urging affirmance for amicus curiae, Ohio
Municipal League.
Ward & Associates, Alan E. Johnson and Leo R. Ward, urging
affirmance for amici curiae, North Eastern Ohio Fire Prevention
Association and Northeastern Ohio Fire Chiefs' Association.
Stewart Jaffy & Associates Co., L.P.A., Stewart R. Jaffy
and Marc J. Jaffy, urging affirmance for amicus curiae, Ohio
Association of Professional Fire Fighters.
Moyer, C.J. The city of Middleburg Heights has
challenged the Ohio Board of Building Standards' revocation of
its building department's certification. A finding that the
board had just cause for the revocation hinges on one issue:
whether provisions of the city's building ordinance relating to
fire protection requirements conflict with the Ohio Basic
Building Code. No question is raised in this appeal concerning
the city's constitutionally conferred home-rule authority. See
Springdale v. Ohio Bd. of Bldg. Standards (1991), 59 Ohio St.3d
56, 570 N.E.2d 268.
The standard for determining whether a municipal ordinance
conflicts with a general law of the state was first announced
in Struthers v. Sokol (1923), 108 Ohio St. 263, 140 N.E. 519,
and remains unchanged: "In determining whether an ordinance is
in 'conflict' with general laws, the test is whether the
ordinance permits or licenses that which the statute forbids or
prohibits, and vice versa." Id. at paragraph two of the
syllabus. See, also, Fondessy Enterprises, Inc. v. Oregon
(1986), 23 Ohio St.3d 213, 23 OBR 372, 492 N.E.2d 797; Lorain
v. Tomasic (1979), 59 Ohio St.2d 1, 13 O.O.3d 1, 391 N.E.2d 726.
Applied to the present dispute, the question is whether
the OBBC permits or licenses any construction in the state
meeting its standards, or whether the OBBC provides minimum
requirements, only forbidding or prohibiting construction not
complying with its standards. For the following reasons, we
hold that absent any specific statutes limiting local
regulation, the OBBC provides only minimum building
requirements within Ohio. Accordingly, a municipality whose
building department has been certified by the Ohio Board of
Building Standards pursuant to R.C. 3781.10(E) to enforce state
and local building codes within its territorial jurisdiction
may adopt additional regulations not in conflict with state law.
Pursuant to R.C. 3781.10, the board may adopt rules
governing construction in Ohio. An examination of additional
language in the chapter demonstrates that such rules
promulgated by the board are simply minimum requirements.
R.C. 3781.10(A) states: "* * * The rules shall be the
lawful minimum requirements specified for such buildings ***."
R.C. 3781.11(A)(1) states the rules shall "[p]rovide uniform
minimum standards and requirements for construction and
construction materials * * *."
The chapter also states that local authorities may adopt
their own standards that do not conflict with the state rules:
"Chapters 3781. and 3791. of the Revised Code do not prevent
the legislative authority of a municipal corporation from
making further and additional regulations, not in conflict with
such chapters or with the rules and regulations of the board of
building standards. * * *" R.C. 3781.01.
Appellant argues that the inclusion of the word "uniform"
in various sections of the chapter prior to the term "minimum
standards" prevents a locality from adopting any ordinance
pertaining to the same subject matter as the state rules.
There is no dispute that a locality may not adopt enforceable
standards less stringent than the OBBC regulations. But
appellant also urges that stricter standards may not be adopted
by a local government because uniformity would be lost.
This interpretation would make the state rules not only
minimum standards, but also maximum standards, because no local
requirements that are more stringent than the state standards
would be enforceable. The term "minimum" would therefore be
rendered meaningless.
Appellant asserts that to give effect to the word
"uniform," municipal building ordinances may only "address
their specific or local concerns in areas where the OBBC is
silent." Contrary to this argument, giving effect to the word
"uniform" does not require that all local regulations
pertaining to the same subject matter as the Ohio Basic
Building Code be found unenforceable. As written, the statute
requires no more than the minimum standards to be applied
uniformly throughout the state. To accept appellant's
interpretation, this court must read into the statute language
that does not exist, granting to the board exclusive regulatory
authority over construction in this state.
Appellant also relies on two decisions from this court to
support its view that a conflict between the city's ordinance
and the OBBC exists: Springdale, supra, and Eastlake v. Bd. of
Bldg. Stds. (1981), 66 Ohio St.2d 363, 20 O.O.3d 327, 422
N.E.2d 598.
In Springdale, the local building code authorized the
city's building official to require the submission of a
certificate from a registered architect or professional
engineer upon application for a building permit. We held that
decertification of Springdale's building department was
justified because the local ordinance conflicted with R.C.
3791.042, which provides:
"If a building department certified under division (E) of
section 3781.10 of the Revised Code does not have personnel in
its full-time employ as described in division (E)(1)(a) of
section 3781.10 of the Revised Code who are certified by the
board of building standards to do plan and specification
review, plans and specifications submitted to the building
department shall be examined by the approved building official
and shall be approved by him if the plans and specifications
are determined to conform with the Ohio building code and
Chapters 3781. and 3791. of the Revised Code, and if the plans
and specifications satisfy both of the following requirements:
"(A) The plans and specifications were prepared by an
architect who is certificated and registered pursuant to
Chapter 4703. of the Revised Code, or by a professional
engineer who is registered pursuant to Chapter 4733. of the
Revised Code.
"(B) The plans and specifications contain a written
certification by an architect or professional engineer, as
described in division (A) of this section, that indicates that
the plans and specifications conform to the requirements of the
Ohio building code and Chapters 3781. and 3791. of the Revised
Code."
The statute sets out two avenues for approval of building
plans and specifications. The proper method of approval, as
specified by the statute, must be followed, and depends upon
the personnel employed by a local building department. Because
the Springdale building department had full-time personnel
qualified to approve plans and specifications, the city's
requirement that there be additional certification conflicted
with the statute.
A similar conflict between state and local regulation was
presented in Eastlake, supra. Eastlake's building ordinance
prohibited construction using industrialized building units
unless the units were manufactured with a specified type of
wiring. The Ohio Board of Building Standards allowed
construction with industrialized units containing wiring
prohibited by Eastlake. The General Assembly expressly
provided that approval of industrialized units by the board
constituted "approval for their use anywhere in Ohio." R.C.
3781.12. Uniform standards for industrialized units are
necessary because the units are manufactured prior to shipment
to the local construction site. Accordingly, as this court
stated in Eastlake:
"* * * Standardization of industrialized units, as
described in R.C. Chapter 3781, necessarily precludes
imposition of local requirements which conflict with the
practices approved for statewide use. This is not the case
with public buildings not using factory produced modules as the
basic unit of construction. In those cases, the statutes do
provide minimum standards only, and local authorities may
impose higher standards consistent with local ordinances."
Eastlake at 367-368, 20 O.O.3d at 330, 422 N.E.2d at 601.
In both Springdale and Eastlake we held that the local
ordinances conflicted with state law. The Springdale ordinance
attempted to forbid approval of building plans that were
submitted without certification when R.C. 3791.042 specified
that no such certification be submitted with building plans for
approval. Similarly, in Eastlake, the local ordinance required
industrialized units to adhere to a stricter standard of
manufacture, in conflict with a statutory scheme that
guaranteed approval of the units for construction anywhere in
the state.
Local standards conflict with the state rules only when
the standards prohibit that which the state allows, as in
Eastlake, or require that which the state prohibits, as in
Springdale.
The state rules at issue provide minimum requirements for
fire safety. It is necessary for a builder to meet these
requirements in order to obtain a building permit, but nowhere
is there a statute or state rule providing that compliance with
the board's rules is sufficient to obtain a permit. Therefore,
Middleburg Heights' code does not conflict with the OBBC by
prohibiting that which the state allows.
For the foregoing reasons, the judgment of the court of
appeals is affirmed.
Judgment affirmed.
Holmes, Wright and H. Brown, JJ., concur.
Sweeney, Douglas and Resnick, JJ., dissent.