Can a Mississippi city create a revitalization district where buildings are exempt from some or all of the city's building code?

Plain-English summary

Southaven set up a "West End District" with economic development incentives to revitalize an aging part of the city. Some of the buildings in the District were not economically viable to renovate because of the cost of bringing them up to current building code. The City's idea: pass an ordinance saying buildings in the District are exempt from certain elements of the City's building code, treating everyone in the District class equally.

The AG said this approach is not allowed.

Mississippi Code § 17-2-4(1) requires every county and municipality in Mississippi to adopt one of the last three editions of the International Building Code, International Residential Code, or specified other codes as the State Uniform Construction Code. The word "shall" in the statute is mandatory, not discretionary, per Pitalo v. GPCH-GP, Inc., 933 So. 2d 927 (Miss. 2006).

There was a one-time exit ramp. § 17-2-4(3) gave municipalities 120 days from August 1, 2014, to opt out of the requirement. After that 120-day window closed (around early December 2014), there is no further opt-out. If Southaven did not opt out before then, it is locked into the State Uniform Construction Code.

The AG noted one limited path forward: the code Southaven actually adopted may itself include exemptions for historical or other properties. The IBC, IRC, and similar codes have special provisions for historic structures, existing buildings, and certain renovation scenarios. So if a particular building in the West End District qualifies as historical or fits some other code-defined exemption, those exemptions apply by the code's own terms.

But that is a code-by-code, building-by-building analysis. The AG cannot issue an opinion deciding which Southaven buildings qualify; that is a factual question to be decided by the City's building official, subject to the adopted code's standards. The AG also cannot interpret municipal ordinances by official opinion.

So Southaven's options are: (1) work within the adopted code's existing exemption provisions for historical or other special-status properties, or (2) seek state legislation to expand municipal authority. A blanket district-wide ordinance carving out exemptions is not on the menu.

What this means for you

If you are a Mississippi city or county attorney

You almost certainly cannot ordinance your way out of the State Uniform Construction Code. The 120-day opt-out window in 2014 was the one chance, and it has closed. If you are confronting renovation cost barriers in older parts of your city, look first at the existing exemptions in the IBC and related codes (historic structures, existing buildings, alternative compliance methods), not at a custom local ordinance.

If you are a developer or property owner in an older Mississippi neighborhood

Don't expect the city to grant a blanket exemption from the building code. You may be able to qualify under existing IBC/IRC provisions for historic structures, change-of-occupancy rules, or alternative compliance methods. Talk to a knowledgeable architect or code consultant before assuming a full code upgrade is required.

If you sit on a city council or are a mayor

You cannot create a "code-light" district by ordinance. Your tools are limited to:
- Working within the existing exemptions baked into your adopted code.
- Offering economic incentives (tax abatement, grants, low-interest loans) that defray code-compliance costs without changing the code itself.
- Asking your legislators to expand municipal authority statewide; that requires state legislation.

If you are a building official or code enforcement officer

This opinion confirms that you must apply the State Uniform Construction Code uniformly. Special districts cannot override your authority to require code compliance. When applying the historic-structure exemptions in your adopted code, document the analysis in writing for each property.

If you live in a Mississippi neighborhood undergoing revitalization

The buildings around you are subject to the same code that applies citywide. Older buildings may qualify for historic-structure provisions in the code, which can substantially reduce upgrade requirements. A property owner who wants the exemption should petition the building official with documentation of the property's historical status.

Common questions

Q: What is the State Uniform Construction Code?
A: It's a Mississippi Building Codes Council adoption of one of the last three editions of either the International Building Code (IBC), the International Residential Code (IRC), or other specified codes. Miss. Code Ann. § 17-2-4(1) makes adoption mandatory for cities and counties that did not opt out by December 2014.

Q: When did the opt-out window close?
A: 120 days after August 1, 2014. So roughly the end of November or early December 2014. After that, no further opt-out is available.

Q: Can a city opt out today?
A: No. The Legislature did not provide a recurring opt-out provision; it provided a one-time 120-day window that has expired.

Q: What about cities that did opt out in 2014?
A: The opinion does not address them. Cities that timely opted out are not subject to § 17-2-4(1)'s mandate, but they may still adopt local building codes. Ask local counsel.

Q: What kind of exemptions does the IBC actually have?
A: The IBC has provisions for existing buildings (Chapter 34 in older editions, the IEBC in newer ones), historic structures, change of occupancy, alternative materials and methods, and equivalent levels of safety. The IRC has parallel provisions. These can substantially reduce upgrade obligations for older buildings without bypassing the code.

Q: Can a city create incentive programs for revitalization without changing the code?
A: Yes. Cities can offer tax abatements, façade grants, infrastructure improvements, and similar incentives that don't conflict with state or federal law. The code itself just can't be waived by local ordinance.

Q: Can the AG decide whether a specific building is "historic" and thus exempt?
A: No. Whether a property qualifies under an exemption in the adopted code is a factual question for the building official, subject to judicial review. The AG cannot opine on factual questions or interpret municipal ordinances by official opinion.

Q: What about safety code differences between the IBC and IRC?
A: § 17-2-4(1) requires adoption of one of the listed codes "as the State Uniform Construction Code," and the city's adopted version governs. The Mississippi Building Codes Council selects which appendices apply. Local building officials enforce based on the version adopted.

Background and statutory framework

Before 2014, Mississippi was a patchwork: different municipalities adopted different building codes, and many smaller jurisdictions had no formal building code at all. The Legislature responded with § 17-2-4, mandating that counties and municipalities adopt one of the listed codes as the State Uniform Construction Code.

The structure of § 17-2-4(1):

Except as provided in Section 17-2-1(1) and subsection (3) of this section, a county board of supervisors or municipal governing authority shall adopt and amend as minimum codes one (1) of the following as the State Uniform Construction Code:

(a) One (1) of the last three (3) adopted editions of the International Building Code (IBC) and any specific appendix or appendices as adopted and amended by the Mississippi Building Codes Council;
(b) One (1) of the last three (3) adopted editions of the International Residential Code (IRC), and any specific appendix or appendices as adopted and amended by the Mississippi Building Codes Council, with the exception of those provisions that require the installation of a multipurpose residential fire protection sprinkler system or any other fire sprinkler protection system in a new or existing one- or two-family dwelling;
(c) Other codes addressing matters such as electrical, plumbing, mechanical, fire and fuel gas, and any specific appendix or appendices as adopted and amended by the Mississippi Building Codes Council.

The use of "shall" makes this mandatory. Pitalo v. GPCH-GP, Inc., 933 So. 2d 927, 929 (Miss. 2006), holds that "shall" is mandatory while "may" is discretionary in Mississippi statutory construction.

The single relief valve was § 17-2-4(3), a 120-day opt-out window starting August 1, 2014. Cities that did not affirmatively opt out by early December 2014 are bound by the mandate going forward.

The AG opinion is also notable for two doctrinal limits it confirms:

• The AG cannot make factual determinations. Whether a particular building is "historical" within the meaning of an adopted code is a fact, not pure law.
• The AG cannot interpret municipal ordinances by official opinion (citing prior MS AG Op., Tullos, Aug. 27, 2018).

Both limits reflect § 7-5-25's restriction of AG opinions to prospective questions of state law. Local ordinance interpretation and factual building classifications fall outside that scope.

Citations and references

Statutes:
- Miss. Code Ann. § 17-2-1(1) (cross-reference exception)
- Miss. Code Ann. § 17-2-4(1) (mandatory adoption of State Uniform Construction Code)
- Miss. Code Ann. § 17-2-4(3) (120-day opt-out window starting August 1, 2014)

Cases:
- Pitalo v. GPCH-GP, Inc., 933 So. 2d 927 (Miss. 2006) (use of "shall" indicates mandatory requirement, "may" is discretionary)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2024/01/N.Manley-January-9-2024-Citys-Ability-to-Exempt-Areas-from-Certain-Building-Code-Requirements.pdf

Original opinion text

January 9, 2024

Nick Manley, Esq.
Attorney, City of Southaven
8710 Northwest Drive
Southaven, Mississippi 38671

Re: City's Ability to Exempt Areas from Certain Building Code Requirements

Dear Mr. Manley:

The Office of the Attorney General has received your request for an official opinion.

Background

According to your request, the city of Southaven ("City") previously established a West End District ("District"), which provides economic incentives to assist with revitalization. As part of the City's efforts to revitalize the area, the City has been informed that certain buildings within the District are not a sound investment due to the costs associated with ensuring compliance with the current city building code. The City administration would thus like to explore incentives, other than economic based, to assist with revitalization within the District.

Question Presented

Assuming the City sets forth the specific conditions under which certain elements of the City Building Code do not apply and ensures that all persons or entities within a particular class and District are being treated equally and not in an arbitrary and capricious manner, may the City, via a properly drawn ordinance, exempt buildings located within the District from various building code requirements?

Brief Response

Mississippi Code Annotated Section 17-2-4(1) mandates certain minimum building codes for counties or municipalities. If the City did not opt out of Section 17-2-4(1)'s application within 120 days of its effective date of August 1, 2014, as provided by Section 17-2-4(3), state law does not provide for exemptions from these mandatory minimum building codes. This said, the City's requisite adopted code may exempt certain historical or other properties from the code requirements, but such determination is outside the scope of our authority.

Applicable Law and Discussion

Mississippi law mandates certain minimum building codes for counties or municipalities. As set forth in Section 17-2-4(1):

Except as provided in Section 17-2-1(1) and subsection (3) of this section, a county board of supervisors or municipal governing authority shall adopt and amend as minimum codes one (1) of the following as the State Uniform Construction Code:

(a) One (1) of the last three (3) adopted editions of the International Building Code (IBC) and any specific appendix or appendices as adopted and amended by the Mississippi Building Codes Council;

(b) One (1) of the last three (3) adopted editions of the International Residential Code (IRC), and any specific appendix or appendices as adopted and amended by the Mississippi Building Codes Council, with the exception of those provisions that require the installation of a multipurpose residential fire protection sprinkler system or any other fire sprinkler protection system in a new or existing one- or two-family dwelling;

(c) Other codes addressing matters such as electrical, plumbing, mechanical, fire and fuel gas, and any specific appendix or appendices as adopted and amended by the Mississippi Building Codes Council.

(emphasis added). The term "shall" as used in Section 17-2-4(1) indicates a mandatory, rather than discretionary, requirement. See Pitalo v. GPCH-GP, Inc., 933 So. 2d 927, 929 (Miss. 2006) ("Simply stated, 'shall' is mandatory, while 'may' is discretionary.").

The only exception from Section 17-2-4(1) applicable to your situation is Section 17-2-4(3), which provided counties or municipalities a period of 120 days from the provision's effective date — August 1, 2014 — to "opt out" of Section 17-2-4(1)'s mandate. Miss. Code Ann. § 17-2-4(3). It is thus the opinion of this office that if the City did not opt out of Section 17-2-4(1)'s mandate within 120 days of August 1, 2014, as set forth in Section 17-2-4(3), the City may not now set forth specific conditions under which certain elements of the City building code do not apply. This said, the City's requisite adopted code may exempt certain historical or other properties from the code requirements. However, such determination is outside the scope of our authority, and this office may not issue an official opinion regarding determinations of fact. See MS AG Op., Barton at 1 n.2 (May 17, 2021) (identifying questions of fact and mixed questions of fact and law as two of various kinds of questions that cannot be addressed by official opinion); see also MS AG Op., Tullos at 3 (Aug. 27, 2018) ("[O]ur office cannot interpret municipal ordinances by official opinion . . . .").

If this office may be of any further assistance to you, please do not hesitate to contact us.

Sincerely,

LYNN FITCH, ATTORNEY GENERAL

By: /s/ Maggie Kate Bobo
Maggie Kate Bobo
Special Assistant Attorney General