William H. Intemann, Jr., Esq. Village Attorney, Speculator
You have asked whether the State Building Conservation and Fire Prevention Code applies to existing buildings and whether your village may enact its own building conservation and fire prevention code, and provide that it does not apply to existing buildings.
Article 18-A of the Executive Law authorizes the promulgation of a State Building Conservation and Fire Prevention Code and establishes a procedure for acceptance of its applicability by a municipality (Executive Law, § 393). A review of the rules promulgated under Article 18-A as the State Fire Prevention Code reveals that generally they deal with fire safety practices to safeguard life and property from the hazards of fire, explosion, or release of toxic gases arising from the storage, handling, or use of hazardous substances, materials or devices (19 NYCRR, Part 1150, § 1150.2). It is necessary to review each provision of the Fire Prevention Code to determine its applicability, but it is clear that many provisions regulate conduct and practices in existing buildings (see, e.g., 19 NYCRR, §§ 1150.6, 1151.2 through 1151.5). No municipality in which the State Building Conservation and Fire Prevention Code has been adopted and is applicable, has the power to supersede or make less restrictive any of its provisions (Executive Law, § 397). The State Building Code Council ("Council"), upon the recommendation of the legislative body of a municipality where the Code applies, may adopt regulations imposing more restrictive standards in the municipality than those provided in the Code (id., § 394). We have enclosed for your information our Informal Opinion No. 81-18, which concludes that a municipality may not adopt a part of the State Building Conservation and Fire Prevention Code.
You also ask whether your village may adopt its own building conservation and fire protection code. Section 397 of the Executive Law provides that nothing in Article 18-A is to be construed as prohibiting a local government from continuing or adopting rules relating to persons or property therein. A village by local law may adopt its own code (Municipal Home Rule Law, § 10[1][ii][a][12]). The question of whether the code applies to existing buildings would be one for the village board of trustees based upon local conditions.
We note that with the adoption of chapter 707 of the Laws of 1981, the Legislature has imposed on local governments new requirements that will soon take effect. Chapter 707 established the New York State Uniform Fire Prevention and Building Code Act as Article 18 of the Executive Law. The legislative purpose is to provide for the promulgation of a uniform code addressing building construction and fire prevention to insure a minimum level of protection to all people of the State from the hazards of fire and inadequate building construction (L 1981, ch 707, § 1 — Executive Law, Art 18, § 371[2][b]). Local governments are required to administer and enforce the Uniform Fire Prevention and Building Code on and after January 1, 1984 (L 1981, ch 707, § 1 — Executive Law, Art 18, § 381[2]). To provide interim standards, it is further provided that the State Building Construction Code and the State Building Conservation and Fire Prevention Code will be applicable on March 1, 1982, in each local government that does not on that date have in effect its own building or fire prevention code (L 1981, ch 707, § 1 — Executive Law, Art 18, § 373). In any local government that on March 1, 1982, has its own building or fire prevention code, the State Building Construction Code and State Building Conservation and Fire Prevention Code becomes applicable if the local government prior to January 1, 1984 repeals its local code (ibid.). It appears that the legislative purpose is to insure that rules exist to promote building and fire safety until the Uniform Fire Prevention and Building Code takes effect in 1984.
We note that chapter 707 also establishes a new Article 18-AA of the Executive Law to provide for Fire Safety In Areas of Public Assembly (L 1981, ch 707, § 2). The legislative purpose is to reduce the risk posed by fire to users and patrons of both new and existing areas of public assembly (L 1981, ch 707, § 2 — Executive Law, Art 18-AA, § 399-a). Areas of public assembly are defined as any building or part of a building used for gathering 50 or more persons for specified purposes (L 1981, ch 707, § 2 — Executive Law, Art 18-AA, § 399-b[2]). The provisions of Article 18-AA apply to areas of public assembly, the construction or renovation of which begins on or after April 1, 1982 (L 1981, ch 707, § 2 — Executive Law, Art 18-AA, § 399-c[2]). Areas of public assembly, the construction or renovation of which began prior to April 1, 1982, are required to comply with the fire safety rules on or before January 1, 1985 (L 1981, ch 707, § 2 — Executive Law, Art 18-AA, § 399-c[3]).
Chapter 707, effective January 1, 1984, repeals several articles in the Executive Law, including Article 18-A (L 1981, ch 707, §§ 12 and 20).
We conclude that many provisions of the State Fire Prevention Code regulate fire safety practices in existing buildings. A municipality that does not accept the application of the State code, may adopt its own building conservation and fire prevention code.
The Attorney General renders formal opinions only to officers and departments of the State government. This perforce is an informal and unofficial expression of views of this office.