Can a North Carolina county require carbon monoxide alarms in new homes if the State Building Code does not, or does state law preempt that?

Plain-English summary

Grover Sawyer, a Deputy Commissioner at the NC Department of Insurance, asked the AG to evaluate Mecklenburg County's recently adopted carbon monoxide alarm ordinance. The ordinance required CO alarms in new and existing residential dwelling units and other structures. Sawyer wanted to know whether the new-construction part of the ordinance was an unenforceable local modification of the State Building Code.

Senior Deputy AG Reginald Watkins and Assistant AG Diane Miller answered: yes, the ordinance is probably unenforceable for new construction, but it is valid as applied to existing buildings.

The North Carolina Building Code is statewide and uniform. N.C. Gen. Stat. § 143-138(a) empowers the North Carolina Building Code Council to prepare and adopt the State Building Code. Under § 143-138(e), the Code applies throughout the State with the full force and effect of law. Lutz Industries v. Dixie Home Stores (1955) confirmed the Code's full legal force.

Local building-code modifications are tightly limited. The North Carolina Supreme Court's Green v. City of Winston-Salem (1975) is the controlling precedent. Winston-Salem had adopted an ordinance requiring sprinkler systems in certain instances where the State Code did not require them, without Building Code Council approval. The Supreme Court invalidated the ordinance, finding "a legislative intent to provide a complete and integrated regulatory scheme . . . in all buildings and structures, wherever situated in North Carolina, except as expressly exempted by statute." Letting Winston-Salem amend the State Code through a local fire-prevention ordinance, the Court said, "would elevate nomenclature above substance."

The 1997 amendment narrowed local authority further. When Green was decided in 1975, § 143-138(e) had allowed any political subdivision to adopt a local "building code or building rules and regulations" with Building Code Council approval (1957 N.C. Sess. Laws Ch. 1138). The General Assembly deleted that language in 1997 (1997 N.C. Sess. Laws Ch. 26). The deletion limited local exceptions to those expressly authorized by the General Assembly and strengthened the Council's authority to maintain a single uniform Code.

The two-question test. The AG framed the inquiry: (1) has the General Assembly given the Building Code Council authority to regulate carbon monoxide detectors? (2) If so, has the General Assembly nevertheless specifically authorized cities and counties to regulate in that area?

Question 1: Yes, the Council has broad authority that likely reaches CO detectors. Section 143-138(b) gives the Building Code Council very broad authority. It includes rules on classifications, ventilation, heating appliances, "and other facilities connected with the buildings and structures . . . and such other reasonable rules pertaining to the installation of particular facilities therein as may be found reasonably necessary for the protection of the occupants of the building or structure." The statute specifically vests authority over battery-operated and electrical smoke detectors and water heaters. Carbon monoxide detectors fit comfortably within this broad authority. While arguments could be made that they fall outside the Council's powers, the AG doubted those arguments would succeed in court, especially given Green.

Question 2: No, counties have not been specifically authorized to regulate CO detectors. Mecklenburg County had relied on §§ 153A-77 and 130A-39(a), which give counties general public-health regulatory authority. The AG said this general authority is not specific enough. The General Assembly knows how to give counties specific authority within building-code subjects, and in § 130A-39(b) it expressly gave counties power to adopt health rules more stringent than rules adopted by the Commission for Health Services or the Environmental Management Commission. The General Assembly did not give counties that same kind of specific power with respect to the Building Code Council. The omission was meaningful.

The new construction conclusion. As to new construction (including existing buildings being altered or changed in use), the Mecklenburg ordinance was likely contrary to § 143-138(e) and unenforceable. Counties cannot regulate Building Code subjects without specific statutory authority, and they did not have that authority for CO detectors.

The existing-buildings carve-out. The AG offered Mecklenburg a path forward. The Building Code Council's authority does not generally extend to existing buildings not undergoing alteration. Carolinas-Virginias Assoc. v. Ingram (1979) had so held. So a county ordinance requiring CO alarms in existing buildings (not new construction or alterations) is valid and enforceable under the county's general public-health authority. The AG suggested Mecklenburg amend its ordinance to limit application to existing buildings; that would preserve most of the County's public-protection purpose without conflicting with the State Building Code.

The practical takeaway in 2001: Mecklenburg County's CO alarm mandate had to be split into two pieces. The existing-buildings piece was enforceable. The new-construction piece was probably not, and would have to come from a statewide Building Code amendment or from specific local-act authorization by the General Assembly.

Currency note

This opinion was issued in 2001. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. The State Building Code has been amended many times since 2001 and now contains specific carbon monoxide alarm requirements for various building types. The General Assembly has also adjusted local-government authority within the building-code framework. Anyone evaluating current CO alarm requirements or local building-code variances should consult current Building Code provisions, current § 143-138, and current local-government statutes.

Background and statutory framework

Why uniform building codes matter. A statewide uniform Code lets builders, manufacturers, and inspectors work to a single standard across North Carolina. Locally varying codes would multiply compliance costs and create regulatory uncertainty. The General Assembly chose uniformity as the default and reserves local variation for circumstances it has expressly approved.

The Green case as a doctrinal cornerstone. Green v. City of Winston-Salem did more than invalidate a single sprinkler ordinance. It established the principle that local governments cannot circumvent the State Code by labeling a regulation something other than a building-code provision (a fire-prevention code, in Green; a health ordinance, in Mecklenburg's 2001 attempt). The Court's "elevate nomenclature above substance" language warns against form-over-substance evasions.

The 1997 amendment as a doctrinal hardening. When the General Assembly removed the 1957 language permitting local building codes (with Council approval), it sent a clear signal that the era of locally varying building codes was over. The deletion was a legislative response to the perceived problem of regulatory fragmentation. After 1997, a local government wanting to vary from the State Code needs an express statutory permission, not just Building Code Council approval.

The breadth of Building Code Council authority. Section 143-138(b)'s grant of authority is unusually broad. The "and such other reasonable rules pertaining to the installation of particular facilities therein as may be found reasonably necessary for the protection of the occupants" language is designed to give the Council flexibility to address new building-safety issues without waiting for specific legislative authorization. Smoke detectors were specifically vested in the Council; CO detectors were not specifically named but fit the same pattern.

Why general public-health authority is not enough. Counties have broad general public-health authority. But the AG read that authority as not specific enough to override the uniformity principle in § 143-138(e). The legislative choice to give counties specific authority in § 130A-39(b) (to be more stringent than CHS and EMC) is the contrast. Where the General Assembly wanted to permit local variation, it said so specifically. The absence of equivalent specific language for Building Code subjects means the general public-health authority does not reach into the Building Code domain.

The existing-buildings line. Carolinas-Virginias Assoc. v. Ingram (1979) held that the Building Code Council's authority does not generally extend to existing buildings not undergoing alteration. This creates a doctrinal space where the Code does not reach and where general local government authority can operate. The AG used this space to preserve most of Mecklenburg's regulatory ambition: counties can still require CO alarms in existing homes, even if they cannot mandate them in new ones.

The political-process workaround. A county or city wanting CO alarms in new construction has two paths: (a) lobby the Building Code Council to adopt a statewide rule, or (b) ask the General Assembly for a local act giving the county specific authority on this subject. Either path requires going outside the county's ordinance-making powers.

The legislative-history relevance. The General Assembly's 1957 grant of local-modification authority, and its 1997 repeal of that authority, are not just historical curiosities. They show a legislative judgment that the costs of local variation exceeded the benefits. Counties seeking to depart from the State Code are working against that legislative judgment.

Common questions

Q: Did the AG say the Mecklenburg ordinance was definitely invalid for new construction?

A: The AG used the qualifier "likely contrary to § 143-138(e)" and "doubt that the ordinance . . . is consistent." The conclusion is not absolute. A court could in theory disagree, but the AG's analysis points strongly toward invalidity for new construction.

Q: What can a county do to require CO alarms in new homes despite this opinion?

A: Two options: (a) work with the Building Code Council to amend the State Building Code to require CO alarms statewide, or (b) ask the General Assembly for a local act giving the county specific authority. Either path produces a legally sound result; the county ordinance path does not.

Q: Does this opinion apply to commercial construction too?

A: Yes. The State Building Code covers commercial as well as residential construction, and the same preemption analysis applies. A county ordinance imposing CO alarm requirements on new commercial buildings would face the same § 143-138(e) problem.

Q: Could a city avoid the preemption by framing the rule as a rental-housing licensing standard?

A: The opinion does not directly address rental-licensing schemes. Green's "elevate nomenclature above substance" warning suggests that re-labeling a building-code rule as a rental-housing rule would not avoid preemption. But the analysis would turn on the specific authorizing statute for the rental-licensing scheme.

Citations from the opinion

• N.C. Gen. Stat. § 130A-39
• N.C. Gen. Stat. § 130A-39(a), (b)
• N.C. Gen. Stat. § 143-138
• N.C. Gen. Stat. § 143-138(a), (b), (e)
• N.C. Gen. Stat. § 153A-77
• 1957 N.C. Sess. Laws Ch. 1138
• 1997 N.C. Sess. Laws Ch. 26
• Lutz Industries, Inc. v. Dixie Home Stores, 242 N.C. 332, 88 S.E.2d 333 (1955)
• Green v. City of Winston-Salem, 287 N.C. 66, 213 S.E.2d 231 (1975)
• Carolinas-Virginias Assoc. v. Ingram, Comr. of Insurance, 39 N.C. App. 688, 699, 251 S.E.2d 910, 917, cert. denied, 297 N.C. 299, 254 S.E.2d 925 (1979)

Source

• Landing page: https://ncdoj.gov/opinions/state-building-code-county-regulations-requiring-installation-of-carbon-monoxide-alarms/

Original opinion text

Reply to: DIANE G. MILLER INSURANCE SECTION

(919) 716-6610 FAX: (919) 716-6757

February 5, 2001

Grover L. Sawyer, P.E. Deputy Commissioner Department of Insurance

P.O. Box 26387 Raleigh, N.C. 27611

Re: Advisory Opinion; N.C.G.S. § 143-138(e); State Building Code; County Regulations Requiring Installation of Carbon Monoxide Alarms

Dear Mr. Sawyer:

This letter is in response to your correspondence regarding the above-referenced matter. Mecklenburg County has recently adopted regulations requiring that carbon monoxide alarms be installed in new and existing residential dwelling units, as well as other structures. You have asked whether these regulations, as they pertain to new construction or existing buildings that are being altered or changed in use (hereinafter "new construction"), constitute an unenforceable local modification of the North Carolina Building Code (hereinafter "Code"). After carefully reviewing the regulations, applicable provisions of the Code and relevant case law, we conclude that the regulations, as presently written, are likely contrary to N.C.G.S. § 143-138(e) and unenforceable to the extent they apply to new construction. We also conclude, however, that regulations requiring carbon monoxide alarms in existing buildings are valid and enforceable.

The North Carolina Building Code Council has been empowered to prepare and adopt the Code. N.C.G.S. § 143-138(a). The Code applies throughout the State and has the full force and effect of law. Lutz Industries, Inc. v. Dixie Home Stores, 242 N.C. 332, 88 S.E.2d 333 (1955); N.C.G.S. § 143-138(e). In Green v. City of Winston-Salem, 287 N.C. 66, 213 S.E.2d 231 (1975), the North Carolina Supreme Court recognized the importance and necessity of maintaining a single, comprehensive, state-wide Code. In that case, the Court considered the validity of a local ordinance, adopted by Winston-Salem, which amended its fire prevention code to require that sprinkler systems be installed in certain instances not required by the Code. Winston-Salem neither sought nor obtained the approval of the Council for its ordinance. The Supreme Court found "that the statutes [N.C.G.S. ch. 143, art. 9] clearly show a legislative intent to provide a complete and integrated regulatory scheme, including regulations as to the installation of sprinkler systems, in all buildings and structures, wherever situated in North Carolina, except as expressly exempted by statute" and it determined that to give effect to this local ordinance "would, in effect, permit the City to amend the North Carolina Building Code by the simple expedient of codifying the contested ordinance as a part of its Fire Prevention Code and thereby to evade the clear requirements of G.S. § 143-138(e)." In the Court's view, "this result would elevate nomenclature above substance." Green, 287 N.C. at 75-76, 312 S.E.2d at 237.

Actions by the General Assembly since Green was decided have served to cement the principle that the Code applies uniformly across the State, free from local modifications. When Green was decided in 1975, N.C.G.S. § 143-138(e) permitted any political subdivision, with the approval of the Building Code Council, to adopt a local "building code or building rules and regulations." 1957 N.C. Sess. Laws Ch. 1138. However, that language was recently deleted by the General Assembly. 1997 N.C. Sess. Laws Ch. 26. Deletion of this language limited the local exceptions to the Code expressly authorized by the General Assembly and strengthened the Building Code Council's authority to promulgate and enforce a single, integrated means of regulating buildings and structures.

In short, Green and Article 9 of Chapter 143 of the General Statutes, particularly N.C.G.S. § 143-138(e), establish that counties and cities do not have authority to adopt ordinances regulating matters within the authority of the Building Code Council except as specifically authorized by statute. Thus, to resolve your inquiry we must answer two questions: (1) Has the General Assembly conferred authority on the Building Code Council to regulate carbon monoxide detectors? (2) If so, has the General Assembly nevertheless specifically authorized cities and counties also to regulate in that area?

The General Assembly has conferred very broad authority on the Building Code Council with respect to the scope of the Code. Matters within the authority of the Building Code Council include the power to adopt rules regarding the "reasonable and suitable classifications of buildings and structures, both as to use and occupancy . . . rules for the . . . ventilation of buildings . . . rules governing . . . heating appliances . . . and other facilities connected with the buildings and structures . . . and such other reasonable rules pertaining to the installation of particular facilities therein as may be found reasonably necessary for the protection of the occupants of the building or structure." The breadth of this general authority is illustrated by the specific matters the General Assembly has vested within the authority of the Building Code Council. These include "battery-operated or electrical smoke detectors" and "water heaters." N.C.G.S. § 143-138(b). While arguments can be made that the regulation of carbon monoxide detectors is not within the scope of these broad powers, we doubt that such arguments would be accepted by the courts, especially in light of the Green decision.

Mecklenburg County's carbon monoxide ordinance was adopted pursuant to the authority of N.C.G.S. §§ 153A-77 and 130A-39(a) "to protect and promote the public health." This power, broad as it is, does not expressly include the power to regulate in areas subject to the authority of the Building Code Council. In our opinion, that level of legislative specificity is required before a county or city may regulate in an area within the authority of the Building Code Council. In this connection it is noteworthy that in N.C.G.S. § 130A-39(b) the General Assembly gave express power to counties to adopt health rules more stringent than rules adopted by either the Commission for Health Services or the Environmental Management Commission, but did not give counties that power with respect to the Building Code Council.

For the foregoing reasons, we doubt that the Mecklenburg County ordinance as drafted is consistent with N.C.G.S. § 143-138(e) to the extent it regulates new construction. It would appear, however, that this defect can be cured without compromising the County's purpose in adopting the ordinance. The authority of the Building Code Council does not generally extend to the regulation of existing buildings not undergoing alteration. See Carolinas-Virginias Assoc. v. Ingram, Comr. of Insurance, 39 N.C. App. 688, 699, 251 S.E.2d 910, 917, cert. denied, 297 N.C. 299, 254 S.E.2d 925 (1979) (holding that the authority of the Building Code Council does not extend to existing buildings). Thus, amending the present ordinance to limit its application to existing buildings would remove the conflict with N.C.G.S. § 143-138(e) and place the ordinance within the authority of Mecklenburg County.

We trust this is responsive to your concerns. If you have additional questions, please feel free to contact us.

Sincerely yours,

Reginald L. Watkins Senior Deputy Attorney General

Diane G. Miller Assistant Attorney General