Can a city like Boise require the State of Idaho to pull a city building permit, or pay city plumbing and electrical inspection fees, before constructing or remodeling a state building inside city limits?

Plain-English summary

The Department of Labor and Industrial Services asked whether the City of Boise could require the State of Idaho to pull a city building permit when constructing or remodeling state buildings inside city limits, and whether two specific statutes (Idaho Code § 54-1001B for electrical inspections and § 54-2620 for plumbing inspections) had the effect of letting the city demand state compliance with city code.

The AG concluded no on both counts. Two reasons.

First, the legislature had already fully occupied the field of state building construction. Idaho Code § 67-5711 placed planning, contracting, supervising, and constructing state buildings under the Department of Administration (with permanent building fund council approval), and Idaho Code §§ 39-4104, 44-103, 44-2303, 54-1005, and 54-2607 placed inspection and enforcement of statewide building and safety codes under the Department of Labor and Industrial Services. The Idaho Supreme Court had already applied the preemption doctrine in this exact context in Caesar v. State, 101 Idaho 158 (1980), holding that the area of state-owned buildings was "completely covered by the general law" and could not be subjected to a purely local ordinance.

Second, even setting preemption aside, the statutes the City of Boise pointed to (§§ 54-1001B and 54-2620) did not contain the language needed to make a state surrender of sovereignty work. Statutes in derogation of state sovereignty are strictly construed in favor of the state. Idaho Code § 54-1001B says state inspection of electrical work "shall not apply within the corporate limits of incorporated cities and villages" that have adopted ordinances using the National Electrical Code as the minimum standard. The AG read that as an arrangement for non-state buildings, not as a transfer of authority over state-owned ones. The Kentucky Supreme Court had reached the same conclusion in City of Bowling Green v. T & E Electrical Contractors, 602 S.W.2d 434 (Ky. 1980), holding that a city's authority over "all private and public buildings" did not by its terms reach state buildings.

The practical upshot for state projects in 1990: state agencies and their contractors did not have to apply for city building, electrical, or plumbing permits, did not pay city inspection fees, and were instead inspected and enforced against by the Department of Labor and Industrial Services using statewide uniform codes.

Currency note

This opinion was issued in 1990. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule mentioned here. The Idaho Department of Labor and Industrial Services has since been reorganized, and Idaho Code § 67-5711 and the building/electrical/plumbing code statutes have been amended multiple times since 1990.

Background and statutory framework

Idaho's building-code architecture has long had a state/local split. Statewide uniform codes set the technical floor, and the legislature has periodically allowed cities to take over inspection and enforcement of those codes within city limits when they pass conforming ordinances. The 1990 question was whether that local enforcement authority swept in state-owned buildings as well.

Two earlier AG opinions (Op. Nos. 75-77 and 77-37) had already concluded the state did not need local building permits. Caesar v. State then made the rule judicial, addressing a Boise State University football stadium that the City of Boise wanted to inspect. The court applied the preemption test under art. XII, § 2 of the Idaho Constitution: a city cannot act in an area "so completely covered by general law as to indicate that it is a matter of state concern" or where its action conflicts with state law. The court held the area of state-owned buildings was completely covered.

Idaho Code § 67-5711, enacted in 1974 in place of the older § 67-2304 that Caesar relied on, restated the same allocation: the Director of the Department of Administration "is authorized and empowered, subject to the approval of the permanent building fund council, to provide or secure all plans and specifications for, to let all contracts for, and to have charge of and supervision of the construction, alteration, equipping and furnishing and repair of any and all buildings, improvements of public works of the state of Idaho." That language by itself is broad enough to displace any city's claim to inspect state buildings.

The state-sovereignty canon (statutes that surrender state powers must be expressly clear) reinforced the preemption analysis when the City of Boise pointed to specific statutes about local inspection. Idaho Code § 54-1001B and § 54-2620 each carve out incorporated cities with conforming ordinances from state inspection. They do not name state buildings. The Kentucky Supreme Court in Bowling Green had read parallel Kentucky statutes the same way, refusing to stretch "all private and public buildings" to include state buildings.

Common questions

Did the state still have to comply with the technical codes, just not city inspection?
Yes. The AG noted the legislature had passed uniform statewide building, electrical, and plumbing codes (Idaho Code §§ 39-4101 to 4129; § 54-1001; § 54-2601; § 44-2301 et seq.), and Executive Order 87-18 directed that "state buildings being constructed or remodeled shall conform to all existing state codes." So the state was bound by the substantive standards. The dispute was about who enforces them, not whether they apply.

Could the State have voluntarily paid for and obtained a city permit?
The AG did not address that directly. The legal point was that the city could not compel a state permit; the state could of course choose to coordinate with city inspectors as a matter of comity, but it could not be required to pay city inspection fees the way private builders are.

Did this also cover state-owned buildings on Boise State University land?
Yes. Caesar v. State itself was a Boise State football-stadium case. State universities and their physical plants are state agencies for purposes of this preemption analysis.

What kind of "express" language would the legislature need to use to flip this?
The AG quoted City of Bowling Green: "all private and public buildings, including those owned by the Commonwealth or its subdivisions" was the kind of express language the Kentucky Supreme Court would expect. Idaho Code §§ 54-1001B and 54-2620 had no comparable language reaching state-owned property.

Citations

Idaho Constitution: art. XII, § 2 (municipal police power, with state-preemption limits).

Idaho statutes: §§ 39-4101 through 39-4129 (uniform building code provisions); § 44-103; § 44-2301 (uniform plumbing); § 44-2303 (state-level enforcement); § 54-1001 (electrical contractor licensing); § 54-1001B (state inspection carve-out for cities adopting NEC ordinances); § 54-1005 (DLIS electrical enforcement); § 54-2601 (plumbing licensing); § 54-2607 (DLIS plumbing enforcement); § 54-2620 (city plumbing-permit carve-out); § 67-5711 (Department of Administration authority over state building construction).

Session laws: 1974 Idaho Sess. Laws, ch. 34, at 988 (replacing former § 67-2304 with § 67-5711).

Cases: Caesar v. State, 101 Idaho 158, 610 P.2d 517 (Idaho 1980) (Idaho Supreme Court; state-owned buildings preempt city building code); Sandpoint Water and Light Co. v. City of Sandpoint, 31 Idaho 498, 173 P. 972 (1918) (Idaho Supreme Court; municipalities are creatures of state with limited delegated powers); State v. Steunenberg, 5 Idaho 1, 45 P. 462 (1896) (Idaho Supreme Court; legislature has absolute power to alter municipal authority); Envirosafe Services of Idaho, Inc. v. County of Owyhee, 112 Idaho 687, 735 P.2d 998 (1987) (Idaho Supreme Court; preemption doctrine applies); United Tavern Owners of Philadelphia v. School Dist. of Philadelphia, 441 Pa. 274, 272 A.2d 868 (1971); Boyle v. Campbell, 450 S.W.2d 265 (Ky. 1970); City of Bowling Green v. T & E Electrical Contractors, 602 S.W.2d 434 (Ky. 1980) (Kentucky Supreme Court; state-sovereignty canon for building inspection); City of Jackson v. Mississippi State Building Commission, 350 So. 2d 63 (Miss. 1977) (Mississippi Supreme Court); Kentucky Institution for Education of the Blind v. City of Louisville, 123 Ky. 767, 97 S.W. 402 (1906).

Other authorities: Att'y Gen. Op. Nos. 75-77, 76-3, 77-37; 82 C.J.S. Statutes § 391; 6A McQuillin, Municipal Corporations § 24.35 (3rd Ed.); 7A McQuillin, Municipal Corporations § 24.505 (3rd Ed.); Moore, "Powers and Authority in Idaho Cities: Home Rule or Legislative Control?" 14 Idaho Law Review 143 (1977); Executive Order No. 87-18.

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/OP90-06.pdf

Original opinion text

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STATE OF IDAHO
OFFICE OF THE ATTORNEY GENERAL

BOISE 83720

JIM JONES
ATTORNEY GENERAL

ATTORNEY GENERAL OPINION NO.

TO:

TELEPHONE
(208) 334-2400

90-6

Gary H. Gould
Director of the Department
of Labor and Industrial Services
277 North 6th
Boise, ID 83720

Per Request for Attorney General's Opinion

QUESTION PRESENTED:

Does the City of Boise have the authority to require the State of Idaho to obtain building permits when building or remodeling state buildings within the city?

Specifically, do the provisions of Idaho Code §§ 54-1001B (authorizing cities to assume primary responsibility for enforcement of the National Electrical Code within municipal limits) and 54-2620 (providing similar authority to cities to enforce the Uniform Plumbing Code) empower the city to require the state or its contractors to obtain electrical and plumbing permits?

CONCLUSION:

The statutory authority over state building projects granted to the Idaho Department of Administration and the Idaho Department of Labor and Industrial Services fully occupies the field of planning and construction of state buildings and thus preempts all municipal authority over state buildings. Any other interpretation would conflict with the provisions of Idaho Code § 67-5711. Furthermore, the statutes relied upon by the City of Boise do not expressly indicate that the State of Idaho has ceded its sovereignty to municipalities in regard to state buildings. Without such a clear expression of legislative intent, the City of Boise cannot expand its authority to include inspection and enforcement of plumbing and electrical codes to state buildings.

ANALYSIS:

1. Municipal corporations have the general authority to enact building and safety codes and to enforce these codes on buildings within city limits. However, the state has preempted municipal authority over a state-owned building.

The well-established rule in Idaho is that municipal corporations are creatures of the state and possess no inherent powers other than those powers expressly or impliedly granted. Caesar v. State, 101 Idaho 158, 610 P.2d 517 (1980); Sandpoint Water and Light Company v. City of Sandpoint, 31 Idaho 498, 173 P. 972 (1918); 6A McQuillin, Municipal Corporations § 24.35 (3rd Ed.). All authority granted to a municipal corporation must be conferred either by the state constitution or by the legislature and the legislature has absolute power to change, modify or destroy those powers at its discretion. State v. Steunenberg, 5 Idaho 1, 45 P. 462 (1896). The extent of a municipal corporation's authority in relation to the State of Idaho's sovereign power was previously analyzed in Att'y Gen. Op. No. 76-3, and in Moore, "Powers and Authority in Idaho Cities: Home Rule or Legislative Control?" 14 Idaho Law Review 143 (1977).

The authority for a municipal corporation to enact and enforce building and safety codes is derived from the police power granted to municipalities in the Idaho Constitution, art. 12, § 2. See Caesar v. State, supra; 7A McQuillin, Municipal Corporations § 24.505 (3rd Ed.). Given this authority, the issue is whether the state is subject to the legitimate exercise of a municipal corporation's police power.

Two previous attorney general opinions concluded that the State of Idaho is not required to obtain building permits from local authorities prior to the construction of state projects. Att'y Gen. Op. Nos. 75-77 and 77-37. Copies of these opinions are attached. Since these opinions were issued, the Idaho Supreme Court has specifically addressed the applicability of municipal building and safety codes to state projects. Caesar v. State, supra. The controversy in Caesar arose after the construction of a football stadium at Boise State University. The central issue before the court was whether the state was obligated to construct the facility in compliance with Boise City's building codes. At the outset, the supreme court discussed the limitations of the police powers granted to cities by art. 12, § 2, of the Idaho Constitution:

Municipal corporations which enjoy a direct grant of power from the Idaho Constitution are, however, limited in certain respects. The city cannot act in an area which is so completely covered by general law as to indicate that it is a matter of state concern. Nor may it act in an area where, to do so, would conflict with the state's general laws. (Citations omitted.)

101 Idaho at 161.

In light of these limitations, the court determined that the construction of the stadium was specifically controlled by Idaho statute and beyond the scope of the city's authority:

Taken as a whole, these statutes indicate that the area of state-owned buildings is completely covered by the general law and may not be subjected to an ordinance which is purely local in nature. ID. CONST. art. 12 § 2. To recognize the authority placed in the Boise City building inspector would conflict with the authority vested in the Idaho Industrial Commission and the Department of Labor by I.C. § 67-2312 and is thus impermissible. ID. CONST. art. 12, § 2; State v. Musser, supra; United Tavern Owners of Philadelphia v. School Dist. of Philadelphia, supra; Boyle v. Campbell, supra. As a result, the Boise City Building Code cannot apply to state-owned buildings.

Id. at 162.

The statute upon which the court based its decision, I.C. § 67-2304, was repealed in 1974. The legislature enacted I.C. § 67-5711 in its place. 1974 Idaho Sess. Laws, Ch. 34 at 988. The state's exclusive authority over construction and maintenance of its buildings remains unchanged and the legal principles set forth in Caesar continue to be the binding authority on the issue. Envirosafe Services of Idaho, Inc. v. County of Owyhee, 112 Idaho 687, 735 P.2d 998 (1987).

Applying the Caesar principles to the facts of this case, we note that the Idaho State Legislature has passed legislation establishing uniform building standards throughout the state. I.C. §§ 39-4101 to 4129; I.C. § 54-1001; I.C. § 54-2601; I.C. § 44-2301 et seq. The state has not been exempted from compliance with these standards. On the contrary, Executive Order No. 87-18 directs that "state buildings being constructed or remodeled shall conform to all existing state codes . . . ."

The Idaho Department of Administration is given the authority by statute to carry out this directive:

The director of the department of administration, or his designee, of the state of Idaho, is authorized and empowered, subject to the approval of the permanent building fund council, to provide or secure all plans and specifications for, to let all contracts for, and to have charge of and supervision of the construction, alteration, equipping and furnishing and repair of any and all buildings, improvements of public works of the state of Idaho . . . .

I.C. § 67-5711.

The Idaho Department of Labor and Industrial Services is charged with the duty of state-wide inspection and enforcement of all uniform building and safety codes. I.C. § 39-4104; I.C. § 44-103; I.C. § 44-2303; I.C. § 54-1005; I.C. § 54-2607. In light of the promulgation of uniform building and safety codes by the legislature, the authority granted to the department of administration and the department of labor and industrial services, and the directive by the governor that such codes will apply to state projects, the state's authority over its projects is complete. There is simply no basis for local infringement.

Where it can be inferred from a state statute that the state has intended to fully occupy or preempt a particular area, to the exclusion of municipalities, a municipal ordinance in that area will be held to be in conflict with the state law, even if the state law does not so specifically state. United Tavern Owners of Philadelphia v. School Dist. of Philadelphia, 441 Pa. 274, 272 A.2d 868, 870 (1971); see Boyle v. Campbell, 450 S.W.2d 265, 267 (Ky. 1970).

Caesar v. State, 101 Idaho at 161.

2. The state has not ceded its sovereignty to municipalities in regard to the enforcement and inspection of electrical and plumbing standards.

The City of Boise argues that the language of I.C. §§ 54-1001B and 54-2620 grants municipal corporations exclusive authority over the enforcement of electrical and plumbing work performed within the respective cities. The city argues further that since the state has delegated its authority to its cities, the preemption analysis enunciated above is not applicable.

I.C. § 54-1001B provides:

The provisions of this act relating to state inspection, except as provided in section 54-1001C, shall not apply within the corporate limits of incorporated cities and villages which, by ordinance or building code, prescribe the manner in which wires or equipment to convey current and apparatus to be operated by such current shall be installed, provided that the provisions of the National Electrical Code are used as the minimum standard in the preparation of such ordinances or building codes and provided that actual inspections are made.

Idaho Code § 54-2620 similarly provides:

It shall be unlawful for any person, firm, copartnership, association or corporation to do, or cause or permit to be done, after the adoption of this act, whether acting as principal, agent or employee, any construction, installation, improvement, extension or alteration of any plumbing system in any building, residence or structure, or service lines thereto, in the state of Idaho without first procuring a permit from the department of labor and industrial services authorizing such work to be done, except:

(a) within the boundaries of incorporated cities, including those specially chartered, where such work is regulated and enforced by an ordinance or code equivalent to this act; ...

At first glance, the city's argument appears to have merit. However, when the appropriate principles of statutory construction are applied it becomes clear that the state's sovereignty over its buildings has not been delegated to its municipalities.

The often cited rule of statutory construction against derogation of sovereignty is set forth in 82 C.J.S. Statutes § 391:

Statutes in derogation of sovereignty should be strictly construed in favor of the state, so that its sovereignty may be upheld and not narrowed or destroyed, and should not be permitted to divest the state or its government of any of its prerogatives, rights, or remedies, unless the intention of the legislature to effect this object is clearly expressed.

See also City of Jackson v. Mississippi State Building Commission, 350 So.2d 63 (Miss. 1977). A review of Idaho Code §§ 54-1001B and 54-2620 indicates that there is simply no expression of legislative intent delegating the state's sovereign control over state building projects to local municipal authorities.

The Supreme Court of Kentucky addressed a nearly identical issue in City of Bowling Green v. T & E Electrical Contractors, 602 S.W.2d 434 (Ky. 1980). In that case, the City of Bowling Green claimed the authority to inspect electrical work being performed upon state buildings. The city also demanded inspection fees of $2,895.00 for one state project. The statute on which the city of Bowling Green was relying directed the city to "provide for safe construction, inspection and repair of all private and public buildings in the city." KRS 84.240(2) (emphasis added). The City of Bowling Green argued that all public buildings included state buildings within its municipal limits.

The Kentucky Supreme Court rejected this argument and interpreted "public buildings" to mean buildings in which the general public congregated such as theaters, churches, etc. The court would not stretch the term to include state-owned buildings. After quoting the general rule found in Corpus Juris Secundum the court stated:

If the legislature desired to cede its power to regulate buildings owned by the Commonwealth, it would have said so expressly in words such as "all private and public buildings, including those owned by the Commonwealth or its subdivisions." It did not choose to do so. Consequently, the City of Bowling Green as a city of the second class has not been granted the power to inspect this building for electrical code compliance and it, certainly, can not require the state to pay for an inspection made gratuitously. See Board of Regents v. City of Tempe, 88 Ariz. 299, 356 P.2d 399 (1960); Paulus v. City of St. Louis, Mo., 446 S.W.2d 144 (1969); 7 McQuillin, Municipal Corporations sec. 24.519; 13 Am.Jur.2d Buildings sec. 7.

602 S.W.2d at 436, see also City of Jackson v. Mississippi State Building Commission, supra; Kentucky Institution for Education of the Blind v. City of Louisville, 123 Ky. 767 97 S.W. 402 (1906).

The principles enunciated by the Kentucky Supreme Court are applicable to the present matter. The statutes relied upon by the City of Boise should not be construed so as to delegate the state's sovereign authority over its buildings to municipalities when no such legislative intent has been expressed. The doctrine of preemption does apply this instance. Therefore, the City of Boise has no authority over the electrical and plumbing work being performed upon state buildings within the Boise city limits.

AUTHORITIES CONSIDERED:

1. Constitutions
   Idaho Constitution art. 12, § 2.

2. Statutes
   Idaho Code §§ 39-4101 through 39-4129.
   Idaho Code § 44-103.
   Idaho Code § 44-2301.
   Idaho Code § 44-2303.
   Idaho Code § 54-1001.
   Idaho Code § 54-1001B.
   Idaho Code § 54-1005.
   Idaho Code § 54-2601.
   Idaho Code § 54-2607.
   Idaho Code § 54-2620.
   Idaho Code § 67-5711.
   1974 Idaho Sess. Laws, Ch. 34 at 988.

3. Cases
   Caesar v. State, 101 Idaho 158, 610 P.2d 517 (1980).
   City of Bowling Green v. T & E Electrical Contractors, 602 S.W.2d 434 (Ky. 1980).
   City of Jackson v. Mississippi State Building Commission, 350 So.2d 63 (Miss. 1977).
   Envirosafe Services of Idaho, Inc. v. County of Owyhee, 112 Idaho 687, 735 P.2d 998 (1987).
   Kentucky Institution for Education of the Blind v. City of Louisville, 123 Ky. 767 97 S.W. 402 (1906).
   Sandpoint Water and Light Company v. City of Sandpoint, 31 Idaho 498, 173 P. 972 (1918).
   State v. Steunenberg, 5 Idaho 1, 45 P. 462 (1896).

4. Other
   Attorney General Opinion 75-77.
   Attorney General Opinion 76-3.
   Attorney General Opinion 77-37.
   82 C.J.S. Statutes § 391.
   6A McQuillin, Municipal Corporations § 24.35 (3rd Ed.).
   7A McQuillin, Municipal Corporations § 24.505 (3rd Ed.).
   Moore, "Powers and Authority in Idaho Cities: Home Rule or Legislative Control?" 14 Law Review 143 (1977).

DATED this 18th day of August, 1990.

JIM JONES
Attorney General
State of Idaho

Analysis By:
FRANCIS P. WALKER
Deputy Attorney General