Can Westchester County require public school districts to comply with the county's air quality permit rules for school boilers, or does the state Commissioner of Education's authority preempt the county?

Plain-English summary

Westchester County's Sanitary Code (Article XIII) treats school heating boilers as "air contamination sources." Construction requires plans submission and a county permit, and operation requires a county-issued certificate based on engineer-certified compliance. The Scarsdale Union Free School District resisted, arguing that its school construction was not subject to the County's local regulations. Westchester argued that Environmental Conservation Law § 19-0709 expressly preserves municipal air-quality regulation that is not inconsistent with the State scheme.

The AG sided with the School District. Westchester's air-quality rules do not reach school construction. Three layers of analysis.

State preemption over school construction in general. Education Law §§ 408 and 409 give the Commissioner of Education comprehensive authority over school building plans, specifications, construction, and operation, with explicit attention to heating, ventilation, lighting, sanitation, drainage, and health, fire, and accident protection (§ 408(2)). For projects over $100,000, the Commissioner reviews and must approve plans before bidding (§ 408(1)). Existing school buildings must also comply with the Commissioner's health-and-safety regulations (§ 409(1)).

This authority is broad enough that the AG had previously held that localities cannot regulate school construction through their building codes (Op Atty Gen (Inf) No. 98-1; 83-34). Matter of Board of Education v City of Buffalo, 32 AD2d 98 (4th Dept 1969), is the controlling appellate decision: the Constitution and the Education Law "unqualifiedly have reserved to the State the power over the construction of school buildings," and a school district is "immune from" attempted local regulation. The State has delegated some of its sovereign authority to local school districts, subject to Commissioner regulation, but local governments outside the school structure (cities, counties, towns) are excluded.

The Commissioner's regulations. 8 NYCRR § 155.2 implements the Commissioner's authority. Under § 155.2(a)(4), plans must be certified to conform with the Uniform Fire Prevention and Building Code and State Energy Conservation Construction Code. § 155.2(a)(2) is the pivotal provision: "[p]lans and specifications for portions of facilities which require approval by other departments of the State shall be approved by the appropriate agencies having jurisdiction as a condition of commissioner's approval of plans and specifications." The Commissioner's approval is conditioned on approval by State agencies, not on local government approval.

Applying § 155.2(a)(2) to air quality. The State Department of Environmental Conservation (DEC) has authority over air quality under the State Air Pollution Control Act, contained in Article 19 of the Environmental Conservation Law (§ 19-0301). The Commissioner of Education's regulation makes DEC approval of school building air-pollution sources a condition of the Commissioner's approval of the school plans. That is the State-State integration that the Commissioner's rule contemplates.

Westchester argued that Environmental Conservation Law § 19-0709 preserves municipal air-quality regulation, since the section says local laws "not inconsistent with this article or with any code, rule or regulation . . . promulgated pursuant to this article" are not superseded. The County's view was that as long as its sanitary code complies with at least the minimum State requirements, it should still apply to school construction.

The AG rejected this reading for several reasons. First, § 155.2(a)(2) literally requires approval by "departments of the State" with jurisdiction, not by local governments. Second, the Commissioner's regulation includes narrow, specifically drafted exceptions where local approval is required (§ 155.2(b), (c)); none applied here. Third, applying local air-quality regulations would subject school buildings to different standards throughout the State, in tension with the State Uniform Fire Prevention and Building Code framework that Education Commissioner regulations adopted. Fourth, the practical problems would be significant: school districts often straddle municipal boundaries, so different air-quality standards could apply to different facilities in the same district; the Commissioner could be put in the position of having to determine whether local rules met State minimums, and no statutory mechanism exists for that determination.

The DEC told the AG that it would apply only its own statutory and regulatory standards in reviewing school plans, not local standards. That eliminated the practical possibility of DEC carrying Westchester's rules forward through its review.

Bottom line. Plans and specifications for school building heating equipment and facilities are subject to review by DEC under Article 19 of the Environmental Conservation Law, as a condition of Education Commissioner approval. Westchester County's air quality regulations are not applicable to school construction.

Currency note

This opinion was issued in 1999. 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

Does this opinion mean counties cannot regulate any aspect of school construction or operation?

It means counties cannot regulate school construction through general municipal codes or sanitary codes. Specific, statutorily-authorized local roles exist (some sanitation, food service, occupancy permits in narrow contexts), but the broad presumption is that the Education Commissioner and the State agencies with jurisdiction set the rules. The 1998 and 1983 opinions discussed in this opinion (Op Atty Gen (Inf) Nos. 98-1; 83-34) similarly excluded local building-code authority.

Why is school construction so heavily centralized at the State level?

The constitutional and statutory framework reserves school matters to the State, with the State delegating implementation to local school districts. Matter of Board of Education v City of Buffalo articulated the rationale: schools are State institutions, and the State has chosen to manage them uniformly rather than subject them to a patchwork of local rules.

What about § 19-0709's preservation of local air-quality regulation?

§ 19-0709 generally preserves local air-quality regulation, but it does not override the more specific Education Commissioner regulation under § 155.2(a)(2). The AG read § 155.2(a)(2) literally: only State departments have approval authority over the school's air-pollution-source elements.

What if a county's air-quality rule is stricter than DEC's?

The AG noted that DEC would apply only its own standards and would not incorporate more stringent local standards. So a county's stricter rule has no effect on school construction even if it could survive § 19-0709 scrutiny in other contexts.

Could a school district voluntarily comply with county rules?

The opinion doesn't address that. A school district could in principle adopt building practices that exceed State minimums, including those that match a stricter local standard, but the County could not enforce its rules against the school district through its sanitary code.

Background and statutory framework

Education Law §§ 408 and 409 are the core of State school-construction authority. § 408 covers new construction and major projects, requiring Commissioner approval of plans and specifications and explicit attention to multiple safety dimensions. § 409 covers existing buildings, requiring compliance with Commissioner regulations.

The Commissioner's regulations at 8 NYCRR Part 155 implement those statutes. § 155.2 covers plans approval. The interlocking structure with other State agencies (through § 155.2(a)(2)) channels regulatory authority across State departments, deliberately bypassing local-government review.

Article 19 of the Environmental Conservation Law (the State Air Pollution Control Act) gives DEC authority over air quality, with § 19-0709 generally preserving local air-quality regulation that is consistent with State standards. The opinion harmonizes Article 19 with the school-construction framework: local air-quality rules apply generally, but not to schools.

Matter of Board of Education v City of Buffalo, 32 AD2d 98 (4th Dept 1969), is the leading appellate decision on State preemption of local school-construction regulation. The decision predated the Uniform Fire Prevention and Building Code, but the AG read its preemption analysis as still controlling.

Citations

• Education Law § 408 (Commissioner of Education review and approval of school construction plans).
• Education Law § 408(1) (plans submission for projects over $100,000).
• Education Law § 408(2) (approval contingent on adequate heating, ventilation, lighting, sanitation, drainage, and health, fire, and accident protection).
• Education Law § 409 (existing school building compliance).
• Education Law § 409(1) (Commissioner's regulations governing existing schools).
• Environmental Conservation Law § 19-0301 (DEC authority over air quality).
• Environmental Conservation Law § 19-0709 (preservation of consistent local air-quality regulation).
• Executive Law § 379; § 379(2) (Uniform Fire Prevention and Building Code).
• 8 NYCRR § 155.2 (Commissioner of Education regulations on school construction plans).
• 8 NYCRR § 155.2(a)(2) (approval by other State departments with jurisdiction as condition of Commissioner approval).
• 8 NYCRR § 155.2(a)(4) (UFPBC and Energy Code certification requirement).
• 8 NYCRR § 155.2(a)(5), (6) (building permit, supervision, post-construction certification).
• 8 NYCRR § 155.2(b), (c) (narrow exceptions allowing local jurisdiction).
• Westchester County Sanitary Code § 873.1301(4) (definition of "air contamination source").
• Westchester County Sanitary Code § 873.1303(1) (construction permit requirement).
• Westchester County Sanitary Code § 873.1306 (operating certificate requirement).
• Matter of Board of Education v City of Buffalo, 32 AD2d 98 (4th Dept 1969) (State preemption of local school construction regulation).
• Op Atty Gen (Inf) No. 98-1 (City of Niagara Falls cannot enforce local building code on school construction).
• Op Atty Gen (Inf) No. 83-34 (earlier preemption holding for school construction).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_99-5_pw.pdf

Original opinion text

EDUCATION LAW §§ 408, 409; ENVIRONMENTAL CONSERVATION LAW,
ART 19, §§ 19-0301, 19-0709; EXECUTIVE LAW § 379(2); 8 NYCRR
§ 155.2; WESTCHESTER COUNTY SANITARY CODE §§ 873.1301(4),
873.1303(1), 873.1306.
Plans and specifications for school building heating
equipment and facilities are subject to review by the Department
of Environmental Conservation in accordance with its jurisdiction
under article 19 of the Environmental Conservation Law.
Westchester County's air quality regulations are not applicable.

February 5, 1999

Alan D. Scheinkman, Esq.
County Attorney
County of Westchester
Michaelian Office Bldg., Room 600
148 Martine Avenue
White Plains, NY 10601

Informal Opinion
No. 99-5

Dear Mr. Scheinkman:
You have asked whether Westchester County may require public
schools to comply with certain requirements of the Westchester
County Sanitary Code ("Code") when they construct, modify or
operate boilers to heat school buildings. The provisions in
issue concern the protection of air quality within the County.
You assert that school buildings are subject to the Code and that
the boilers were not approved and operated under permits as
required by the County's regulations. The Scarsdale Union Free
School District contends that its schools are not subject to the
local regulations.
You have provided us with relevant provisions of the Code.
The Code defines "air contamination source" to include any
apparatus capable of causing emission of contaminants to the
outdoor atmosphere. Westchester County Sanitary Code, Art XIII,
§ 873.1301(4). This definition encompasses boilers used to heat
buildings. The Code further provides that no person may
construct an air contamination source without first submitting
plans and specifications to the County and then receiving a
permit. Id., § 873.1303(1). A certificate to operate the air
contamination source is also required. Id., § 873.1306(1). An
application for a certificate must include a written statement
from a professional engineer certifying that the air
contamination source has been constructed in accordance with the

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approved permit and the plans and specifications submitted with
the permit application. Id., § 873.1306(2)(a). A certificate is
issued for a period of time specified in regulations promulgated
by the County Commissioner of Health and may be renewed
periodically. Id., § 873.1306(3).
In prior opinions, we have concluded that the provisions of
the Education Law leave localities without authority to regulate
school construction. Op Atty Gen (Inf) No. 98-1; 83-34. In our
1983 opinion, we reasoned that the Education Law reserves to the
State power over the construction of school buildings and that
the State's power has been delegated to local school boards
subject to regulation by the Commissioner of Education.
Op Atty Gen (Inf) No. 83-34. We noted that school construction
is rigidly controlled by safety standards mandated by the State.
Id.
Our opinion relied on Matter of Board of Education v City of
Buffalo, 32 AD2d 98, 100 (4th Dept 1969) where the court held
that the City had no authority to exercise control over school
construction through its building code. It stated:
Of certainty, the city possesses the
general power to adopt ordinances regulating
the construction of buildings so long as any
such regulation bears a reasonable
relationship to public health, safety and the
general welfare . . ., but the exercise of
the police power to locally legislate such
enactments is limited by constitutional
provisions and the general laws of the State.
. . . Of compelling concern to a
determination of these rights and limitations
are those provisions of the Constitution
. . . and the Education Law . . . which
unqualifiedly have reserved to the State the
power over the construction of school
buildings . . .. 32 AD2d at 100 (citations
omitted).
In our 1998 opinion, we used the same analysis to find that
the State was responsible for enforcing the State Uniform Fire
Prevention and Building Code ("Uniform Code") with respect to
school buildings. We found that the City of Niagara Falls could
not enforce a local building code regarding construction of a
school building to be owned by a private developer and leased to

3
a school district. We also concluded that the City was without
authority to inspect the construction of the proposed school
facility. Op Atty Gen (Inf) No. 98-1.
The provisions of the Education Law relied on in our prior
opinions are expansive. Education Law § 408(1) provides that no
school building may be built, purchased, repaired, enlarged or
remodeled at an expense of more than $100,000 and that no
advertisement for bids for the execution of plans and
specifications for such work may be placed, until the plans and
specifications have been submitted to, and approved by, the
Commissioner of Education. This section also requires that the
plans and specifications show in detail the ventilation, heating
and lighting of such buildings.1 The Commissioner "shall not
approve the plans . . . unless the same shall provide for
heating, ventilation, lighting, sanitation, storm drainage and
health, fire and accident protection adequate to maintain
healthful, safe and comfortable conditions therein . . . ." Id.,
§ 408(2). Existing school buildings must comply with health and
safety regulations adopted by the Commissioner. Significantly,
all school buildings, except those in city school districts of
cities having 125,000 or more inhabitants, must comply with
regulations adopted by the Commissioner "for the purpose of
insuring the health and safety of pupils in relation to proper
heating, lighting, ventilation, sanitation and health, fire and
accident protection. Id., § 409(1).
The Commissioner's regulations regarding school building
construction are published at 8 NYCRR part 155. They provide
that an architect or licensed engineer must certify that plans
and specifications submitted to the Commissioner for review
conform with the Uniform Code and the State Energy Conservation
Construction Code. 8 NYCRR § 155.2(a)(4). Pivotal to the
inquiry at hand is the regulation providing that "[p]lans and
specifications for portions of facilities which require approval
by other departments of the State shall be approved by the
appropriate agencies having jurisdiction as a condition of
commissioner's approval of plans and specifications. . . ."

1

In a school district with 70,000 or more inhabitants, the
Commissioner may waive the requirement for submission of plans
and specifications and may review an outline. Education Law
§ 408(1). The Commissioner may, in his discretion, review plans
and specifications for projects estimated at an expense of less
than $100,000. Id.

4
(Emphasis supplied) id., § 155.2(a)(2). Upon approval of the
plans, the Commissioner will issue a building permit, subject to
the requirement that the project is properly supervised by a
licensed architect or engineer during construction. Id.,
§ 155.2(a)(5). When the project is complete, the architect or
engineer must certify to the Commissioner that the project was
constructed in accord with the Uniform Code, the Commissioner's
regulations and the approved plans and specifications. Id.,
§ 155.2(a)(6).
Thus, as highlighted above, approval of plans and
specifications by the Commissioner is contingent upon approval by
any "departments of the State" with jurisdiction. The State Air
Pollution Control Act, which is contained in article 19 of the
Environmental Conservation Law, vests the Department of
Environmental Conservation with authority to regulate air
quality. Environmental Conservation Law § 19-0301. The school
district advances the argument that under the Commissioner's
regulations, which make the Commissioner's approval subject to
approval by other departments with jurisdiction, only the State
has jurisdiction to regulate a potential air pollution source in
a school building. But the County's view is that article 19 of
the Environmental Conservation Law specifically preserves
municipal regulation of air quality, including Westchester
County's air quality regulations. The Environmental Conservation
Law states that
[a]ny local laws, ordinances or regulations
of any governing body of a county, city, town
or village which are not inconsistent with
this article or with any code, rule or
regulation which shall be promulgated
pursuant to this article shall not be
superseded by it, and nothing in this article
or in any code, rule or regulation which
shall be promulgated pursuant to this article
shall preclude the right of any governing
body of a county, city, town or village to
adopt local laws, ordinances or regulations
which are not inconsistent with this article
. . ..
Any local laws, ordinances or
regulations of a county, city, town or
village which comply with at least the
minimum applicable requirements set forth in
any code, rule or regulation promulgated

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pursuant to this article shall be deemed
consistent with this article or with any such
code, rule or regulation. Id., § 19-0709.
The County believes that as long as the County code provisions
regarding air quality are not inconsistent with State
regulations, they will govern.
Therefore, the question presented is whether a local air
quality law, which is consistent with the provisions of article
19 of the Environmental Conservation Law, applies to school
buildings, equipment and facilities. As quoted above, the
Commissioner of Education's regulations provide that parts of a
school building, which require approval by other State
departments, must be approved by those departments as a condition
of the Commissioner's approval of the plans and specifications
for the building. 8 NYCRR § 155.2(a)(2). We believe the intent
of this provision, with respect to air quality, is to subject
facilities and equipment in school buildings that are potential
air contamination sources to review only by any State agency with
jurisdiction and not by municipalities. Thus, in the case of a
school boiler, as a condition of approval of plans and
specifications by the Commissioner of Education, the State
Department of Environmental Conservation would exercise any
applicable powers of review and approval under article 19 of the
Environmental Conservation Law.2
We base this conclusion on several factors. Jurisdiction to
review design and construction of school buildings and facilities
is specifically granted to local authorities in some cases. See,
8 NYCRR § 155.2(b), (c). These are narrow and specifically
drafted exceptions to the broad review powers of the Commissioner
of Education, which are described above. No such exception
applies in this case. The regulation under review specifically
grants approval power to "departments of the State . . . having
jurisdiction." 8 NYCRR § 155.2(a)(2). Consistent with the
regulatory scheme, this provision should be applied literally and
should not be read to incorporate other provisions of State law
that preserve local authority, like the Air Pollution Control
Act. The regulation means what it says - if any State department

2

We have been advised by the Department of Environmental
Conservation that it would apply only its own statutory and
regulatory standards and would not apply or incorporate more
stringent local standards in its review.

6
has jurisdiction over school buildings and facilities, the
Education Commissioner's approval is conditioned upon that
department's approval.
Also, application of local air quality regulations would
subject school buildings to different standards of review
throughout the State. This would contrast sharply with the
Commissioner's regulations subjecting school design and
construction to review under the Uniform Fire Prevention and
Building Code rather than local building and fire codes that
otherwise would apply in many municipalities throughout the
State. Executive Law § 379. We see no basis for a departure
from the general regulatory scheme governing design and
construction of school buildings and facilities.
The interpretation asserted by the County also would cause
practical problems. The Commissioner of Education could be placed
in the difficult position of having to determine whether local air
pollution regulations apply. The Commissioner could be faced with
competing claims as to whether local regulations comply with minimum
requirements of State law and, therefore, are not inconsistent with
State requirements (Environmental Conservation Law § 19-0709).
State law, however, provides no mechanism for making this
determination. We also note that the boundaries of some school
districts overlap municipal boundaries. If local regulations were
to apply, different air quality standards could apply to different
facilities in the same school district. Facility planning by local
school districts would be difficult under these circumstances.
In Matter of Board of Education v City of Buffalo, 32 AD2d at
100, the court described the allocation of authority over school
construction in the context of a claim of jurisdiction by a local
government. While State law governing building and fire codes and
school construction have been revised since the time of this
decision, the court's opinion, in our view, continues to describe
accurately the allocation of authority to regulate school matters.
"[T]he Constitution . . . and the Education Law . . . unqualifiedly
have reserved to the State the power over the construction of school
buildings . . .. Since the State has reserved unto itself the
control over and the authority to regulate all school matters . . .
[and has specifically surrendered a portion of its sovereign power
to school districts], it follows that a school district should be
and is immune from" attempted local regulation.
For these reasons, the Education Department's regulation,
requiring approval of plans and specifications by the appropriate
State agencies with jurisdiction as a condition of approval by the
Commissioner, should be construed according to its plain terms.
Thus, plans and specifications for heating equipment and facilities

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are subject to review by the Department of Environmental
Conservation in accordance with its jurisdiction under article 19 of
the Environmental Conservation Law. Westchester County's air
quality regulations are not applicable.
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,

JAMES D. COLE
Assistant Attorney General
In Charge of Opinions