City of Eastlake v. Ohio Board of Building Standards

Clifford F. Brown, J.

The issue to be decided is whether approval of the use of an industrialized unit1 by the board pur*365suant to R. C. Chapter 3781 precludes local authorities from imposing higher standards of construction on these units. After careful examination of the provisions of R. C. Chapters 3781 and 3791, we conclude that the General Assembly intended approval by the board of a particular industrialized unit to authorize use of the units throughout Ohio. To the extent the approved industrialized unit conflicts with local building ordinances, those ordinances are superseded and are invalid.

The relationship between local building ordinances and the state building code is explained in R. C. 3781.01 as follows:

“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 budding standards. Such chapters or the rules and regulations of the board of budding standards do not modify or repeal any portion of any budding code adopted by a municipal corporation and in force on September 13,1911, which is not in direct conflict with such chapters or with such rules and regulations.” (Emphasis added.)

The principle that local ordinances may not conflict with the state budding code or rides of the board is repeated in R. C. 3781.11 as follows:

“The rules and regulations of the board of budding standards shall:
a * * *
“(D) Encourage, so far as may be practicable, the standardization of construction practices, methods, equipment, material, and techniques, including methods employed to produce industrialized units.
“The rules and regulations of the board of budding standards shall supersede and govern any order, standard, rule or regulation of* * * [other state authorities] and of counties and townships, in all cases where such orders, standards, rules or regulations are in conflict with the rules and regulations of the board of budding standards. [Emphasis added.]
“The construction, alteration, erection, and repair of buddings including industrialized units, and the materials and devices of any kind used in connection therewith and the heating and ventilating thereof and the plumbing and electric *366wiring therein shall conform to the statutes of this state or the rules and regulations adopted and promulgated by the board of building standards, and to provisions of local ordinances not inconsistent therewith.***” (Emphasis added.)

The procedure that builders of industrialized units must follow to gain local approval for construction is delineated in R. C. 3791.04 as follows:

“Before entering into contract for or beginning the construction, erection, or manufacture of any building to which section 3781.06 of the Revised Code is applicable, including all industrialized units, the owner shall, in addition to any other submission of plans or drawings, specifications, and data required by law, submit the plans or drawings, specifications, and data prepared for the***[particular industrialized unit] which***shall indicate thereon the portions that have been approved pursuant to section 3781.12 of the Revised Code, for which no further approval shall be required, to the municipal* * * building department having jurisdiction if such department has been certified as provided in division (E) of section 3781.10 of the Revised Code***.”

Cardinal petitioned and obtained approval of the use of this particular industrialized unit from the board, pursuant to R. C. 3781.12, which in part provides:

“***The issuance of the authorization for the use of the materials or assemblages described in the petition shall constitute approval for their use anywhere in Ohio.”

Upon compliance with the procedure outlined in R. C. 3791.04, Cardinal was entitled to approval of the use of this industrialized unit in Eastlake. Failure of the building commissioner for Eastlake to approve this use gave Cardinal standing as a “person affected” pursuant to R. C. 3781.10(E)(6)2 to petition the board for revocation of certification of Eastlake as local enforcement authority of the state building code. At hear*367ings conducted August 18 and September 29, 1978, Eastlake had an opportunity to present evidence showing why it should not be decertified. Although the final order decertifying Eastlake took the form of a rule, the procedure followed by the board was an adjudicatory hearing conforming to R. C. Chapter 119, and authorized in R. C. 3781.101.3

Eastlake contends that the state building code provides minimum building standards for industrialized units, and does not preclude local authorities from imposing higher standards of construction. Although R. C. Chapter 3781 in several sections provides that the standards therein are the lawful minimum for public buildings and industrialized units, the thrust of these sections dealing with industrialized units is to encourage their use throughout the state. To that end, the relevant statutes, in R. C. Chapters 3781 and 3791, establish a one-step approval process for industrialized units, through the board, which constitutes “approval for their use anywhere in Ohio.” See R. C. 3781.12. To allow local authorities to impose higher or different standards on these units would defeat the avowed purpose of the state building code to encourage standardization of construction “methods employed to produce industrialized units.” SeeR. C. 3781.11(D). 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 *368provide minimum standards only, and local authorities may impose higher standards consistent with local ordinances. With industrialized units, however, a standard of construction is necessary to effectuate the legislative intent to encourage use of this type of construction throughout Ohio.

Eastlake’s action in imposing more restrictive standards of construction on the industrialized units by ordinance than those mandated by the Ohio Building Code is in conflict with the general laws, and gave the board just cause for revoking its certification as local enforcement authority of the state code.

The conclusion we reach is consistent with application of the home rule powers of municipalities expressed in Section 3, Article XVIII of the Ohio Constitution, which provides:

“Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations as are not in conflict with general laws.” (Emphasis added.)

R. C. Chapters 3781 and 3791 are general laws of the state and constitute police regulations. Bogen v. Clemmer (1932), 125 Ohio St. 186; Niehaus v. State, ex rel. Bd. of Edn. (1924), 111 Ohio St. 47. A statute which sets forth police, sanitary and similar regulations uniformly statewide is a general law for purposes of Section 3, Article XVIII of the Ohio Constitution. West Jefferson v. Robinson (1965), 1 Ohio St. 2d 113, paragraph three of the syllabus. The next question is whether there is a “conflict” between general laws (R. C. Chapters 3781 and 3791) and the Eastlake building ordinances. Under the following well accepted legal principles and precedents we hold that there is such a “conflict.”

In determining whether an ordinance is in “conflict” with general laws, the test is whether the ordinance permits or licenses that which the statute prohibits and vice versa. A city ordinance cannot forbid and prohibit what a statute permits and licenses. State, ex rel. Cities Service, v. Orteca (1980), 63 Ohio St. 2d 295, 299; Lorain v. Tomasic (1979), 59 Ohio St. 2d 1, 4; Anderson v. Brown (1968), 13 Ohio St. 2d 53, 58; Auxter v. Toledo (1962), 173 Ohio St. 444, 447; State, ex rel. McElroy, v. Akron (1962), 173 Ohio St. 189; Struthers v. Sokol (1923), 108 Ohio St. 263, paragraph two of the syllabus.

*369As expressed in R. C. Chapters 3781 and 3791, the state has manifested a statewide concern for uniformity in building industrialized units. When the state by comprehensive statutory plan has imposed regulations statewide where there is a genuine statewide concern for uniformity in building industrialized units, any ordinance which differs from the statutes by imposing more restrictive requirements is in “conflict” therewith and is ipso facto invalid. State, ex rel. Klapp, v. Dayton P. & L. Co. (1967), 10 Ohio St. 2d 14; State, ex rel. Arey, v. Sherrill (1944), 142 Ohio St. 574; Cleveland Tel. Co. v. Cleveland (1918), 98 Ohio St. 358.

Accordingly, the judgment of the Court of Appeals is affirmed.

Judgment affirmed.

Celebrezze, C. J., P. Brown and Sweeney, JJ., concur. Holmes, J., concurs in the judgment. W. Brown and Locher, JJ., dissent.

The last paragraph of R. C. 3781.10 provides:

“As used in sections 3781.10 to 3781.18 and 3791.04 to 3791.07 of the Revised Code, ‘industrialized unit’ means 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.”

R. C. 3781.10(E)(6) provides:

“Such certification may be revoked or suspended with respect to any or all of the budding occupancies to which it relates on petition to the board of building standards by any person affected by such enforcement or approval of plans, or by said board on its own motion. Hearings shall be held and appeals permitted on any such proceedings for certification or for revocation or suspension of certification in the same manner as provided in section 3781.101 of the Revised Code for other proceedings of the board of building standards.”

R. C. 3781.101, in part, provides:

“The provisions of sections 119.03 and 119.11 of the Revised Code in particular, and the applicable provisions of Chapter 119. of the Revised Code in general, shall govern the proceedings of the board of building standards in adopting, amending, or rescinding rules and regulations pursuant to section 3781.10 of the Revised Code, and the proceedings under sections 3781.12, 3781.13 and 3781.14 of the Revised Code, in addition to the procedural provisions of such sections.
“Notwithstanding the provisions of section 119.11 of the Revised Code, in any proceedings commenced under section[s] 3781.10, 3781.12, 3781.13 and 3781.14 of the Revised Code, the jurisdiction of the court of common pleas of Franklin county shall not be confined to the record as certified to it by the board, but shall receive such additional evidence as it shall permit any party to offer; and the court shall not affirm the order or rule of the board unless the preponderance of the evidence before it supports the reasonableness and lawfulness of such order or rule.”