State v. San Juan County

Dore, J.

(dissenting) — Three sections of the State Building Code Act, RCW 19.27, address the extent of a local governing body's authority to regulate local building standards. RCW 19.27.040 provides in part:

*323On and after January 1, 1975, the governing body of each city, town or county is authorized to amend the state building code as it applies within its jurisdiction in all such respects as shall be not less than the minimum performance standards and objectives enumerated in RCW 19.27.020, . . .

(Italics mine.) The minimum performance standards and objectives recited in RCW 19.27.020 include:

(1) To promote the health, safety and welfare of the occupants or users of buildings and structures and the general public.
(2) To require minimum performance standards and requirements for construction and construction materials, consistent with accepted standards of engineering, fire and life safety.
(3) To require standards and requirements in terms of performance and nationally accepted standards.
(4) To permit the use of modern technical methods, devices and improvements.
(5) To eliminate restrictive, obsolete, conflicting, duplicating and unnecessary regulations and requirements which could unnecessarily increase construction costs or retard the use of new materials and methods of installation or provide unwarranted preferential treatment to types or classes of materials or products or methods of construction.
(6) To provide for standards and specifications for making buildings and facilities accessible to and usable by physically handicapped persons.
(7) To consolidate within each authorized enforcement jurisdiction, the administration and enforcement of building codes.

Finally, subsections (1) and (3) of RCW 19.27.060 provide as follows:

(1) Except as permitted or provided otherwise under the provisions of RCW 19.27.040 and subsections (3) [and] (4), ... of this section, the state building code supersedes all county, city or town building regulations containing less than the minimum performance standards and objectives contained in the state building code.
(3) The governing body of each city, town or county may limit the application of any rule or regulation or *324portion of the state building code to include or exclude specified classes or types of buildings or structures, according to use, occupancy, or such other distinctions as may make differentiation or separate classification or regulation necessary, proper, or desirable . . .

(Italics mine.)

The majority cites subsection (3) of RCW 19.27.060 as the statutory authority to adopt the scheme of owner-builder permits which is the subject of this action. Certainly there is no other provision of RCW 19.27 which could be read to permit a county to establish different standards for owner-built residences than for other buildings. And even though subsection (3) of RCW 19.27.060, read in isolation, seems to authorize counties to classify buildings and exclude classes of buildings from the State Building Code Act, a reading of that subsection in the context of the whole statute shows that the Legislature did not grant such broad authority.

Limited Authority

The authority given to local governing bodies is confined to limiting the application of a rule or regulation or some portion of the State Building Code Act. The removal of a given class of structures from the application of the entire Code is not permissible. Additionally, modification in application of the Code is justified only where local conditions logically and reasonably warrant. An entire abrogation of the State Building Code Act, as occurred here, is in conflict with the directive of RCW 19.27.060(1) that, in general, the State Building Code Act is to supersede all other codes containing less than the minimum performance standards and objectives of the component uniform codes. In addition, such action is also contrary to so much of RCW 19.27-.040, as permits only such local amendments "as shall be not less than the minimum performance standards and objectives enumerated in RCW 19.27.020, ..."

The San Juan County Code excludes a class of buildings — residences built by their owners — from all of those portions of the State Building Code Act which relate to *325standards of building construction. Under the County's scheme, any person is free to build a home without reference to any standard of construction whatsoever and, without inspection, to occupy it indefinitely and, after a 5-year period, even to convey it to others. The authority granted in the State Building Code Act for counties to limit the application of a rule, regulation or portion of the Building Code to specified classes of buildings must be read in light of the entire State Building Code Act, and the evident primary intent of the Code was to provide uniform minimum statewide standards of health and safety in the construction of buildings. Even if RCW 19.27.060(3) is read in isolation, the exemption of a class of family residences from the entire building codes is more than a limitation of "the application of any rule or regulation or portion of the state building code to include or exclude specified classes or types of buildings or structures ..." (Italics mine.)

To remove a given class of buildings or structures from the entire operation of the State Building Code Act effectively undermines the foregoing statutory objectives. Yet where statutory language is susceptible of two constructions, one of which will carry out and the other defeat the manifest object of the statute, the former construction should be adopted. Roza Irrig. Dist. v. State, 80 Wn.2d 633, 497 P.2d 166 (1972). For this reason, I would hold that the authority granted local governments under RCW 19.27-.060(3) does not go so far as to permit the exemption of a class of buildings or structures from the entire State Building Code Act. Carried to its extreme, such interpretation would allow removal of all classes of structures within a given local jurisdiction from Building Code requirements.

Use Classification

Since the challenged county code provisions do not attempt to prohibit the conveyance of owner-built residences, a classification of "owner-built residences" is not truly based upon either use or occupancy. The classification, rather, is purely based upon the identity of the *326builder. As far as the county code is concerned, anyone in San Juan County may build himself a home every 5 years, to whatever standards he likes, and sell it to others. Given the well known mobility of the American public, it is safe to assume that, in a couple of decades, most of the owner-built residences now standing in San Juan County will be occupied by persons other than the owner-builders. There will be no easy way for potential occupants, fire and safety officials, or anyone else to distinguish those residences from those in the county built to the State's minimum performance standards.

Conclusion

The broad policy of the State Building Code Act is to provide uniform standards to protect the health, safety and welfare of the public. Any exception to the statute should be strictly construed, so that the goals of the statute will not be defeated. Accordingly, a local governing body's amendments under RCW 19.27.060(3) are valid only if they are consistent with and promote these standards and goals. San Juan County's blanket repeal of the entire State Building Code Act is impermissible. Additionally, the classification created by San Juan County is not based on use or occupancy, but is purely based on identity of the builder. This is an impermissible classification and, hence, void.

I would affirm the trial court's holding that the San Juan County owner-built residence exemption is void as contrary to the provisions of the State Building Code Act.

Rosellini, J., concurs with Dore, J.