Did Washington’s 1985 building-code approval rule invalidate local residential code amendments adopted earlier?

Plain-English summary

In 1985, Island County's prosecutor asked whether a new state law made a preexisting county amendment to the residential building code invalid unless the State Building Code Council approved it. The Attorney General said no. Section 10 of chapter 360, Laws of 1985 changed RCW 19.27.060 so that future county and city code amendments affecting single-family or multifamily homes needed Council approval before taking effect. The AG read that requirement as prospective and found no clear legislative intent to undo local amendments validly adopted before the new law.

The opinion noted that treating the provision retrospectively could affect buildings and permits already issued under earlier local codes. Its conclusion addressed the lack of approval under this 1985 amendment; it did not certify every feature of an older ordinance as valid for all purposes.

“We therefore conclude, in response to your question, that § 10, chapter 360,supra, is a prospective statute applicable only to county or city building code amendments adopted in the future.” (Official opinion)

Currency note

This opinion was issued in 1985. 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

Q: Did an earlier county residential code amendment need retroactive Council approval?
A: The AG said no. The 1985 approval requirement applied to amendments adopted after the law took effect.

Q: Did the new rule cover later city amendments too?
A: Yes. The opinion described the prospective approval requirement for county and city amendments affecting single-family or multifamily residential buildings.

Q: Did the AG hold that every older local code provision was valid?
A: No. It answered whether lack of approval under the new state provision invalidated a preexisting local ordinance.

Background and statutory framework

Chapter 360, Laws of 1985 amended RCW 19.27.060 to require State Building Code Council approval for local residential-code changes. The AG applied the presumption that a new law operates prospectively absent clear contrary intent and considered the effect on buildings and permits under prior local amendments.

Citations and references

The opinion discussed RCW 19.27.060 and RCW 19.27.020.

Source

• Landing page: https://www.atg.wa.gov/ago-opinions/validity-amendments-state-building-code

Original opinion text

Attorney General Ken Eikenberry

COUNTIES ‑- CITIES AND TOWNS ‑- BUILDINGS ‑- VALIDITY OF AMENDMENTS TO STATE BUILDING CODE

The amendment to RCW 19.27.060 in § 10(1), chapter 360, Laws of 1985 applies prospectively to county or city amendments to the State Building Code involving single or multi-family residential housing and does not, therefore invalidate prior county or city amendments to the state code until and unless approved by the building code council.

July 29, 1985

Honorable David F. Thiele
Island County Prosecuting Attorney
Courthouse
Coupeville, Washington 98239

Cite as: AGO 1985 No. 11

Dear Sir:

By recent letter you requested an attorney general's opinion in response to the following question:

Does the amendment of RCW 19.27.060 contained in chapter 360, section 10(1), Laws of 1985, render invalid a preexisting county ordinance amending the State Uniform Building Code as it relates to single‑family residential buildings, unless the preexisting county amendments are approved by the 'Building Code Council?'"

In addition, noting that chapter 360, Laws of 1985 was to take effect on July 28, 1985, you asked for as prompt a response as possible. We believe it possible, in this instance, to comply with that request. For the reasons set forth below we answer your question in the negative.

ANALYSIS

Chapter 360, Laws of 1985 relates to the State Building Code as set forth in chapter 19.27 RCW. Section 10(1) thereof amends RCW 19.27.060(1) as follows:

"(1) ((Except as permitted or provided otherwise under the provisions of RCW 19.27.040 and subsections (3), (4), [[Orig. Op. Page 2]] (5), and (6) of this section, the state building code supersedes all county, city or town building regulations containing)) The governing bodies of counties and cities may amend the codes enumerated in section 5 of this 1985 act as they apply within their respective jurisdictions, but the amendments shall not result in a code that is less than the minimum performance standards and objectives contained in the state building code. No amendment to a code enumerated in section 5 of this 1985 act that affects single family or multifamily residential buildings shall be effective unless the amendment is approved by the building code council under section 2(1)(b) of this 1985 act. Any county or city amendment to a code enumerated in section 5 of this 1985 act which is approved under section 2(1)(b) of this 1985 act shall continue to be effective after any action is taken under section 2(1)(a) of this 1985 act without necessity of reapproval under section 2(1)(b) of this 1985 act unless the amendment is declared null and void by the council at the time any action is taken under section 2(1)(a) of this 1985 act because such action in any way altered the impact of the amendment."

Section 2, in turn, adds a new section to chapter 19.27 RCW which reads, in pertinent part, as follows:

"(1) The state building code council shall:

"(a) Maintain the codes to which reference is made in section 5 of this act in a status which is consistent with the state's interest as set forth in RCW 19.27.020. In maintaining these codes, the council shall regularly review updated versions of the codes referred to in section 5 of this act and other pertinent information and shall amend the codes as deemed appropriate by the council;

"(b) Approve or deny all county or city amendments to any code referred to in section 5 of this act to the degree the amendments apply to single family or multifamily residential buildings;

". . ."

[[Orig. Op. Page 3]]

Also to be noted is § 5 (likewise a new section) which lists the various uniform codes that constitute the State Building Code and are to be in effect in all counties and cities unless amended (to the extent permitted by the law) by local legislative authorities.

As indicated in your letter your county, like many others, has previously adopted amendments to the State Building Code in accordance with the authorization language contained in chapter 19.27 RCW at the time those amendments were adopted. Your question is whether those prior amendments remain valid, insofar as they involve single family or multi-family residential buildings, notwithstanding the enactment of § 10, chapter 360, supra;i.e., without review and approval by the State Building Code Council under § 2(1)(b) of the 1985 act, supra. In other words, you have asked whether § 10, supra, was intended by the legislature to operate retrospectively or, instead, only to apply prospectively to county or city building code amendments adopted after the 1985 act's effective date‑-again, July 28, 1985.

The Washington Supreme Court, like the courts in other states, has uniformly and consistently held that a statute operates prospectively only unless it is remedial in nature or the legislature indicates that it is to operate retrospectively. Accord,Johnston v. Beneficial Management, 85 Wn.2d 637, 538 P.2d 510 (1975) quoting fromEarle v. Froedtert Grain & Malting Co., 197 Wash. 341, 344, 85 P.2d 264 (1938) as follows:

"It is a fundamental rule of statutory construction that a statute is presumed to operate prospectively and ought not to be construed to operate retrospectively in the absence of language clearly indicating such a legislative intent."

The court in theJohnston case also said that under the foregoing rule a statute is deemed to be remedial, and thus have a retroactive application, only when it relates to practice, procedure or remedies and does not affect a substantive or vested right. Accord,Tellier v. Edwards, 56 Wn.2d 652, 354 P.2d 925 (1960).

In the instant case there is no indication of legislative intent, in chapter 360,supra, that § 10 thereof is to be applied retrospectively so as to invalidate preexisting county or city building code amendments until and unless those prior amendments [[Orig. Op. Page 4]] are reviewed and approved by the building code council.1/ Moreover, to the extent that buildings have been constructed and/or building permits issued in accordance with those prior amendments, there are clearly vested rights involved. SeeEastlake Community Council v. Roanoke Associates, Inc., 82 Wn.2d 475, 513 P.2d 36 (1973) and cases cited therein.

We therefore conclude, in response to your question, that § 10, chapter 360,supra, is a prospective statute applicable only to county or city building code amendments adopted in the future. Accordingly, the statutory amendment to RCW 19.27.060 which is contained therein does not, in our opinion, render invalid a preexisting county (or city) ordinance ". . . amending the State Uniform Building Code as it relates to single family residential buildings, unless the preexisting county amendments are approved by the 'Building Code Council . . .'" We thus answer your question, as above stated, in the negative.

We trust that the foregoing will be of assistance to you.

Very truly yours,
KENNETH O. EIKENBERRY
Attorney General

PHILIP H. AUSTIN
Senior Deputy Attorney General

*** FOOTNOTES ***

1/Because § 5, supra, provides that thestate building code is to be in effect in all counties and cities "except as otherwise provided in this chapter" it has been suggested to us that previously adopted local amendments are thus invalid unless so reviewed and approved. The phrase "this chapter," however, refers to chapter 19.27 RCW which permitted those prior local amendments when they were enacted. Therefore, we do not find in § 5 a basis for concluding that the legislature intended § 10(1),supra, to operate retrospectively.