Can a NY county refuse to enforce the building code on industrial development agency property while still enforcing it everywhere else?

Subject

County may not selectively opt out of code enforcement on IDA property

Plain-English summary

Sullivan County asked whether the county was responsible for enforcing the New York State Uniform Fire Prevention and Building Code on property held by the county industrial development agency (IDA). The follow-up question was whether the county could opt out of that responsibility just for IDA property while keeping enforcement responsibility for everything else.

The AG concluded the county was responsible for IDA property (as a "special purpose unit of local government created by or for the benefit of" the county under 19 NYCRR § 441.2), and that the county could not opt out selectively.

The opt-out mechanism in Executive Law § 381 is structured as all-or-nothing on the county level. The default is that every local government enforces the code. A local government (city, town, village) can opt out by enacting a local law before July 1 of any year, and then the county takes over enforcement within that local government starting January 1 of the next year. If the county itself wants out, it can also opt out by local law, in which case the Secretary of State steps in to enforce. Counties can also enter agreements with local governments to allocate enforcement responsibility (under Article 5-G of the General Municipal Law).

What the statute does not authorize is a partial opt-out, where the county keeps enforcement responsibility for some county-owned property but drops it for other county-owned property like IDA holdings. The AG read the statute and regulations to require a clean choice: enforce everywhere (with possible allocation by inter-governmental agreement), or opt out entirely (with the Secretary of State taking over).

The IDA, being a separate but county-affiliated entity, falls under 19 NYCRR § 441.2(b)'s rule that a county is accountable for code enforcement on property held by special-purpose units created by or for the benefit of the county. The AG cited 1989 Op Atty Gen (Inf) 62 for the principle.

Currency note

This opinion was issued in 1995. 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, deadline, or remedy mentioned here.

Common questions

What is an industrial development agency, and why is its property the county's responsibility?

A county IDA is a public benefit corporation that promotes economic development by acquiring property, issuing bonds, and providing tax and financial incentives to businesses. It is a separate legal entity from the county. But the AG's reading of 19 NYCRR § 441.2(b) treats the IDA as a "special purpose unit of local government created by or for the benefit of" the county, so the county is responsible for code enforcement on IDA-held property.

Why can't the county just agree with a town to handle IDA enforcement?

It can, but the agreement has to follow the statutory route. Under Article 5-G of the General Municipal Law, local governments can enter inter-municipal agreements to share or allocate enforcement responsibility. So a county could agree with a town that the town would enforce the code on IDA property within the town's borders. What the county cannot do unilaterally is declare that IDA property is no longer its problem.

What happens if the county opts out entirely?

Under Executive Law § 381, the Secretary of State takes over enforcement, either directly or by contract. The Secretary may also delegate to other entities under the regulations. This is the statutory backstop that ensures every property in the state is covered by some enforcement authority.

Could a town opt out and leave the IDA property uncovered?

No. If a town opts out, the county takes over enforcement within that town. The county can then handle it directly or contract with another entity. There is no scenario in the statutory framework where IDA property ends up without a designated enforcement authority.

What if the IDA holds property in multiple municipalities?

The general rule under the regulation is that the county (or whichever entity has enforcement responsibility under the chain) handles it. If the county has not opted out and no inter-municipal agreement reassigns enforcement, the county is responsible for all IDA property across its jurisdiction.

Statutory framework

Executive Law § 381 establishes the basic structure of code enforcement under the Uniform Fire Prevention and Building Code:

• Local governments (cities, towns, villages) enforce by default.
• A local government may opt out by local law before July 1, effective the next January 1.
• If a local government opts out, the county handles enforcement within that local government.
• The county may also opt out by local law, in which case the Secretary of State takes over.
• Inter-municipal agreements under Article 5-G can allocate enforcement responsibility.

19 NYCRR § 441.2 makes a city, village, town, or county accountable for code enforcement on its own property and on the property of any special-purpose unit of local government created by or for its benefit. That is the regulation that brings IDA property under county responsibility.

19 NYCRR § 441.3 confirms the option to decline enforcement under § 381 and the resulting transfer of power (to the secretary if the county opts out).

The AG's reading of the package is that opt-out is binary at the county level. Selective opt-out for some county-affiliated entities is not authorized.

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_95-15_pw.pdf

Original opinion text

EXECUTIVE LAW § 381; 19 NYCRR §§ 441.2, 441.3. The county may not "opt out" of code enforcement with respect to IDA property. The county may "opt out" of enforcement with respect to all county property or may make agreements with local governments allocating enforcement responsibility.

March 3, 1995

Stephen L. Oppenheim, Esq.
County Attorney
County of Sullivan
P. O. Box 5012
Monticello, NY 12701

Informal Opinion
No. 95-15

Dear Mr. Oppenheim:
You have asked whether the county is responsible for enforcing the New York State Uniform Fire Prevention and Building Code with respect to property of the county industrial development agency (hereafter "IDA"). Code enforcement is governed by Executive Law § 381, which provides in part:

2. Except as may be provided in regulations of the secretary
   pursuant to subdivision one of this section, every local government shall administer and enforce the uniform fire prevention and building code on and after the first day of January, nineteen hundred eighty-four, provided, however, that a local government may enact a local law prior to the first day of July in any year providing that it will not enforce the uniform code on and after the first day of January next succeeding. In such event the county in which said local government is situated shall administer and enforce the uniform code within such local government from and after the first day of January next succeeding the effective date of such local law, in accordance with the provisions of paragraph b of subdivision five of this section unless the county shall have enacted a local law providing that it will not enforce the uniform code within that county. In such event the secretary in the place and stead of the local government shall, directly or by contract, administer and enforce the uniform code. A local government or a county may repeal a local law which provides that it will not enforce the uniform code and shall thereafter administer and enforce the uniform code as provided above. Local governments may provide for joint administration and enforcement by agreement pursuant to article five-G of the general municipal law. Any local government may enter into agreement with the county in which such local government is situated to administer and enforce the

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uniform code within such local government. Local governments or counties may charge fees to defray the costs of administration and enforcement.

The Department of State has promulgated regulations concerning local government enforcement of the code. Those regulations provide in pertinent part: 441.2 Governmental buildings and activities. (a) A city, village, town or county will be accountable for administration and enforcement of the Uniform Code with respect to buildings, premises and equipment in the custody of, or activities related thereto undertaken by, the respective city, village, town or county. (b) A city, village, town or county shall be accountable for administration and enforcement of the Uniform Code with respect to buildings, premises and equipment in the custody of, or activities related thereto undertaken by, any special purpose unit of local government created by or for the benefit of the respective city, village, town or county. 441.3 Local government option. Executive Law, section 381(2), accords a city, town, village or county the option to decline to enforce the Uniform Code. If a city, town or village exercises that option, any power conferred by this Part shall pass in the same manner as any general power under that section. If a county exercises that option, any power conferred by this Part shall pass to the Secretary of State.

Thus, under the governing statute and regulations, the county is accountable for enforcement of the code with respect to county property and to property of the IDA, a special purpose unit of the county government created by or for the benefit of the county. See also, 1989 Op Atty Gen (Inf) 62. The statute and regulations provide that the county may choose not to enforce the code at all. They do not, however, authorize the county to decline to enforce the code with respect to property of one county entity while retaining responsibility for enforcement with respect to other county properties. Nor is there any express authority for the county to designate a town or village to carry out the enforcement obligation in the absence of an agreement with the town or village. To the contrary, the statute provides that when a county elects not to enforce the code the secretary shall, directly or by contract, administer and enforce the code. We conclude that the county may not "opt out" of code enforcement with respect to IDA property while retaining responsibility for other property. The county may "opt out" of code enforcement with respect to all county property or may make agreements with local governments allocating enforcement responsibility.

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The Attorney General renders formal opinions only to officers and departments of State government. This perforce is an informal and unofficial expression of the views of this office. Very truly yours,

SIOBHAN S. CRARY
Assistant Attorney General