Although I concur in that portion of the majority decision finding that R. C. 3781.14 in effect provides for an action in declaratory judgment rather than an appeal from the adoption of a rule, I cannot concur in the majority opinion with respect to the merits of the case.
As pointed out by the majority opinion, the Public Health Council is granted the following authority by R. C. 3733.02(A):
"The public health council, subject to sections 119.01 to119.13, inclusive, of the Revised Code, may make regulations of general application throughout the state governing the location, layout, construction, drainage, sanitation, safety, and operation of house trailer parks and travel trailer parks." (Emphasis added.)
However, the majority decision does not refer to the definition of house trailer park set forth in R. C. 3733.01(A), as follows:
"`House trailer park' means any site, lot, field, or tract of land upon which three or more house trailers used for habitation are parked, either free of charge or for revenue purposes, and includes any roadway, building, structure, vehicle, or enclosure used or intended for use as a part of the facilities of such park. A tract of land which is subdivided and the individual lots are leased or otherwise contracted for shall constitute a house trailer park if three or more house trailers are parked thereon."
Accordingly, the words "house trailer park" as used in R. C.3733.02(A), "includes any roadway, building, structure, vehicle, or enclosure used or intended for use as a part of the facilities of such park." The Public Health *Page 173 Council is therefore given authority to make regulations governing the location, layout, construction, and safety of buildings and structures used as a part of the facilities for any tract of land upon which three or more house trailers used for habitation are parked. R. C. 3733.06 provides, as follows:
"Upon a license being issued under sections 3733.03 to3733.05, inclusive, of the Revised Code, any park operator shallhave the right to rent or use each trailer lot or space for theparking of a house trailer or trailers to be used for humanhabitation without interruption * * *." (Emphasis added.)
Although other sections were originally contested, by stipulation in the trial court, the issues herein were limited to the validity of sections BB-77-11 through BB-77-11.07 of the Ohio Building Code. That these regulations pertain to matters within the regulatory authority of the Public Health Council, pursuant to R. C. 3733.02(A), there can be no question. The challenged regulations as set forth in the majority opinion so clearly demonstrate the attempted exercise of overlapping jurisdiction. BB-77-11 commences with the statement that "Foundations and piers for mobile homes shall be in accordance with the requirements of this section, section BB-77-05 OBC and ANSI A119.1." Assuming that the foundation constitutes a building or structure (which it must be for the Board of Building Standards to have jurisdiction), then R. C. 3733.02 confers upon the Public Health Council the authority to make regulations of general application regarding the construction and safety of the foundations and piers.
When approved and licensed as being in accordance with the regulations adopted by the Public Health Council, pursuant to R. C. 3733.06, the operator of a trailer park has the right to rent space for the parking of a house trailer. The attempted imposition of additional requirements upon the operator of a trailer park by the Board of Building Standards which would prevent such operator from exercising the right granted by R. C.3733.06, unless the operator also obtains some type of approval pursuant to *Page 174 regulations of the Board of Building Standards and complies with any additional requirements that Board may impose, is obviously in conflict with R. C. 3733.06.
The issue here is not whether trailer park foundations and piers will or should be properly constructed, but rather which agency has the authority to make that determination. R. C.3733.01, et seq., expressly confer that power upon the Public Health Council. Such power is specific and quite clear with respect to house trailer parks. The fact that the Board of Building Standards may not agree with the regulations adopted by the Public Health Council cannot confer jurisdiction upon such board to adopt more stringent or additional regulations. On the other hand, if the regulations of the Board of Building Standards are identical to those of the Public Health Council, then the imposition of additional regulations is a complete waste of everybody's time and energy and a waste of the taxpayer's money.
The Board of Building Standards has not expressly been granted authority to adopt regulations for trailer parks. It has attempted to "usurp" this power by implication from very broad general powers conferred upon it. The basic authority of the Board of Building Standards is set forth in R. C. 3781.10(A), as being to "formulate and adopt regulations governing the erection, construction, repair, alteration, and maintenance of all buildings or classes of buildings specified in section3781.06, of the Revised Code * * * the construction of industrialized units * * * and other requirements relating to the safety and sanitation of such buildings."
R. C. 3781.06 specifically excludes from the authority of the Board of Building Standards power to adopt regulations with respect to single-family, two-family, and three-family dwelling houses, except with respect to industrialized units or structures. It is quite clear that to the extent that the house trailers herein involved are "buildings" they are excluded from the authority of the Board of Building Standards to regulate, except to the extent that they constitute industrialized units as defined in R. C. 3781.10. *Page 175
The authority to regulate industrialized units is separate and apart from the authority to regulate buildings, although both are set forth in R. C. 3781.10. As to buildings, the power is to regulate "the erection, construction, repair, alteration and maintenance." However, as to industrialized units, the power to regulate is limited to "construction." Furthermore, R. C.3781.10(H) defines industrialized unit as "* * * an assembly of materials or products comprising all or part of a total structure which, when constructed, is self sufficient or substantially self-sufficient, and when installed constitutes the structure or part of a structure, except for preparations for its placement."
By special provision of law, the Public Health Council is given authority to regulate house trailer parks, including the construction of the foundations upon which the house trailer may be placed. Such law specifically provides that when the regulations are met and one is licensed to operate a trailer park, he is entitled to rent spaces to house trailers without further state regulation. On the other hand, the Board of Building Standards is given powdential buildings for three or fewer families, and induser by general provision to regulate buildings, except resitrialized units. The question is which agency has authority to regulate the construction of foundations and piers for mobile homes (the more current term) in a house trailer park — the Public Health Council or the Board of Building Standards. It is quite clear that such power is specifically conferred upon the Public Health Council by R. C.3733.02 (A), in light of the definition set forth in R. C.3733.01(A); whereas, the Board of Building Standards is given power to regulate buildings and industrialized units by general provision set forth in R. C. 3781.10. As the Supreme Court held in the first paragraph of the syllabus of State, ex rel. Myers, v. Chiaramonte (1976), 46 Ohio St.2d 230, unless there is a manifest legislative intent that a general provision govern, a special provision takes precedence over a general provision. Applying that rule to this case, as it must be, it is quite clear that only the Public Health Council can adopt regulations concerning the foundations and *Page 176 piers for mobile homes in a house trailer park. Accordingly, insofar as BB-77-11 through BB-77-11.07 attempt to regulate house trailer parks as defined in R. C. 3733.01(A), the regulations are beyond the authority of the Board of Building Standards to adopt.
However, this does not necessarily mean that the challenged regulations are entirely without vitality or application. By definition, in R. C. 3733.01(A), in order for an area to be a house trailer park, there must be parked in such place "three or more house trailers used for habitation." As to situations where there are only one or two house trailers used for habitation and parked upon the involved property, the regulations of the Public Health Council have no application. Accordingly, R. C. Chapter 3733, would not preclude the Board of Building Standards from adopting regulations with respect to property upon which only one or two house trailers used for habitation are parked.
There is absoultely no provision in either R. C. Chapter 3733 or Chapter 3781 indicating that house trailer parks are subject to the regulation of the Board of Building Standards as well as the Public Health Council. Which of the agencies should be given the power to adopt regulations for the construction of foundations and piers for house trailers contained in a house trailer park is a matter of legislative wisdom. The legislative intent is quite clear that this power is to be given to the Public Health Council. The Board of Building Standards has no authority to take such power upon itself which has not been conferred upon it by statute, but, instead, has been conferred upon another agency, whether or not the Board of Building Standards agrees with the regulations adopted by such other agency.
Accordingly, I would sustain the assignment of error, reverse the judgment of the Court of Common Pleas and remand this cause to that court for the entering of the appropriate judgment in accordance with this opinion. *Page 177