In Montana, prohibiting specific building materials is matter for building codes, not zoning ordinance

by Hannah Dankbar

City of Helena v Svee
(Montana Supreme Court, November 25, 2014)

In January 2009 the Helena, Montana City Commission amended its zoning ordinance to create a wildland-urban interface district (WUI district). The district overlays the City’s other zoning districts.  The WUI district, in part, provides:

A. Structures located within the wildland-urban interface district may not have exposed, wooden roofing materials, whether treated or untreated, and must have noncombustible or fire resistant roofing materials that are rated Class C or higher in accordance with ANSI/UL 790 or ASTM E 108 or any equivalent test.

B. Existing roofs that undergo renovation, alteration, or repairs that involve more than ten percent (10%) of the square footage of the affected roof plane must meet the requirements of this chapter. If the renovation, alteration, or repair involves more than fifty percent (50%) of the square footage of the area of the entire roof, then the entire roof must comply with the requirements of this chapter.

The Svees received notice that their homeowners insurance would be canceled because of the condition of their roof. Due to personal financial limits, the Svees repaired the part of the roof in most need of improvement. The project of replacing old wooden shingles with new ones began on August 12, 2011. On August 15, 2011 a city building official issued a stop work notice for the project, but the project was completed by the time the Svees received the notice. On September 8, 2011 the City filed criminal complaints against the Svees for re-roofing without a permit, these charges were later dismissed. On November 7, 2011 the City initiated a civil suit against the Svees in addition to the criminal charges. On December 6, 2011 the City filed a six-count complaint for failure to obtain a building permit; violation of the International Residential Code by failing to obtain a building permit; violation of the International Residential Code by installing new roof covering over an existing roof covering; violation of the International Residential code by using excess applications of roof covering; violation of Helena City Code by using illegal roofing materials; and creating a public nuisance. The Svees challenged the limitations the WUI district places on roofing materials, but not the creation of the WUI district itself.

Both parties moved for a summary judgement, and the City dropped all of the complaints except for the complaint citing a violation of the WUI Ordinance. The Svees claimed that the Ordinance was invalid on statutory and constitutional grounds. The District Court did not address the constitutional claim, but declared, “the Svees’ claims seeking a declaration that the City had no legal authority to adopt or enforce Helena City Code § 11-41-2 . . . are GRANTED.”  The City filed an appeal and the Svees filed a cross-appeal challenging the dismissal of their constitutional argument and the denial of attorney fees.

The first issue discussed was whether the District Court was wrong to judge § 11-41-2 as an impermissible building code, rather than a zoning ordinance. The Montana Legislature authorized cities and counties to adopt only building codes that had been created by the Department of Labor and Industry . Zoning ordinances are left to cities and counties. The District Court ruled that, “the creation of the WUI zoning district was nothing more than the adoption of  a building regulation under the guise of a zoning ordinance.” However, the Svees did not challenge the zoning district as a whole; they only challenged one section. District Court only overturned one section (§ 11-42-2). This Court found that this section of the WUI ordinance oversteps the bounds of zoning ordinances by defining which building materials can be used.

The third issue is whether the District Court erred in denying and dismissing the Svees’ constitutional arguments. The District Court ignored these claims because, the summary judgment,  “resolve[d] the case in the Svees’ favor on non-constitutional grounds.” Montana Supreme Court “has repeatedly recognized that courts should avoid constitutional issues whenever possible.” The Court agreed with the District Court on this issue.


**Didn’t include concurring opinion.

Warrenton (MO) city building code applies to Warren County building

by Gary Taylor

Arden Engelage and Commissioners of Warren County v. City of Warrenton
(Missouri Court of Appeals, Eastern District, September 18, 2012)

The city of Warrenton is located within Warren County, Missouri.  Warren County decided to build a new county administration building on property located within the city limits of Warrenton. In 2009, when the county learned of the city’s plan, the city notified the county that, pursuant to the city code, the county must obtain and pay for various building permits from the city before commencing construction of the new administrative building. The county objected, informing the city that it would not be applying for or obtaining a building permit because it was not legally required to do so. The parties then exchanged a series of communications. Without applying for or obtaining any permits, the county commenced construction by having its contractor mobilize its equipment at the site and begin to grade the building site. The city building inspector went to the site on October 15, 2010, and issued a stop-work order because the county had begun construction and grading in violation of the city’s building and safety code. Construction did not stop.  Another stop work order was issued.  The county applied for a building permit, but also sought a declaratory judgment holding that the city did not have the authority from the legislature to require a county to comply with the city’s building code.

The Missouri Court of Appeals stated that the dispute must be resolved by looking to the intent of the legislature.  The court must construe the provisions delegating power together and harmonize them if reasonably possible to do so, looking at the plain and ordinary meaning of the language used and to give effect to that intent, if possible.  The county relied on two sections of Chapter 49 of the Missouri Revised Statutes.  Section 49.270 states, in part, that the county commission “shall have control and management of the property, real and personal, belonging to the county….”  Section 49.470 provides, in part, that the county commission has the power “to build any county buildings….”  The county argues that the city may not interfere with or regulate the duly-authorized activities of the State or any of its other subdivisions unless the state constitution or a state statute specifically and expressly grants such power or authority.

The city, in contrast, relies on the police powers granted to municipalities by Section 79.110, which reads in part “The mayor and board of aldermen of each city … shall have power to enact and ordain any and all ordinances … as they shall deem expedient for the good government of the city, the preservation of peace and good order….”  It also relies on Section 79.450.4 which gives fourth-class cities (like Warrenton) the authority to  “regulate and control the construction of buildings…and may provide for the inspection of the same.”  Under these provisions the city enacted its building code.

The Court determined that these statutes gave the city the authority to regulate the county administration building through its building code.  It found that through Section 79.450.4 “the legislature has granted cities broad authority to regulate construction of buildings generally, without qualification as to whether the building or owner is ‘private’ or ‘public.'”  The provisions cited by the county, in contrast, are “merely a mechanism to ensure that a county building is built according to the contract and the approved plans. The authority here does not speak to protecting the public’s safety.”  The court found it important that Chapter 64 of Missouri Revised Statutes gives first and second class counties control of construction by county commissions “[fo]r the purpose of promoting the public safety, health and general welfare, to protect life and property and to prevent the construction of fire hazardous buildings….”  Warren county is a third class county, which has no such general power to regulate to protect public health and safety.

The court dismissed as inapplicable five prior cases cited by the county for the proposition that cities do not have the authority to regulate counties in matters such as these.  “[In these cases the] courts were not applying some broad over-arching proposition that a city may not regulate a county absent an express grant of such authority over a county entity. Instead, the courts carefully considered the legislature’s competing delegations of authority in order to determine the scope of power one political subdivision had to regulate another.”





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