Authority of Municipality to exclude Architects from Preparing Plans

Subject:

Requested By: Michael B. Brough Carrboro Town Attorney

Question: Can the Town of Carrboro, under its Land Use Ordinance, require that all construction drawings submitted for approval be prepared and sealed by a licensed professional engineer, to the exclusion of licensed professional architects?

Conclusion: No.

Article IV, Part III of the Carrboro Land Use Ordinance contains the following provision:

1. "All construction drawings submitted shall be signed by and carry the seal of the professional engineer responsible for their preparation, who shall be licensed to practice in the State of North Carolina."

The Town has interpreted this provision to exclude the submission of drawings by anyone other than a professional engineer licensed in North Carolina, including licensed professional architects.

The question presented is whether Article IV, Part III of the Carrboro Land Use Ordinance, as interpreted by the Town of Carrboro, is a valid ordinance if applied in a manner which requires that all construction drawings submitted for approval be prepared and sealed by a licensed professional engineer, to the exclusion of licensed professional architects. It is our opinion that the ordinance, if interpreted and applied in this manner, constitutes the establishment by the Town of a distinction between the practices of Engineering, Architecture and Landscape Architecture, which is outside the scope of the authority granted to the Town by the North Carolina General Statutes.

The practice and licensing of Engineers is governed by Chapter 89C of the General Statutes. The practice and licensing of Architects is governed by Chapter 83A of the General Statutes, and the practice and licensing of Landscape Architects is governed by Chapter 89A of the General Statutes. Within these statutory provisions, the Legislature has set forth the services which may be legally performed by professionals practicing under each license. Additionally, these statutory provisions, as well as the majority of courts which have addressed the subject, recognize the existence of an overlap between the practices of Architecture and Engineering. For instance,

N.C.G.S. § 89C-25 specifically states:

"This Chapter shall not be construed to prevent or affect…The practice of architecture,

landscape architecture or contracting or any other legally recognized profession or

trade…."

Conversely, N.C.G.S. § 83A-12 states:

"Nothing in this Chapter shall be construed to prevent the practice of general contracting

under the provisions of Article 1 of Chapter 87, or the practice by any person who is

qualified under law as a "Registered Professional Engineer" of such architectural work as

is incidental to Engineering projects or utilities, or the practice of any other profession

under the applicable licensure provision of the General Statutes."

Because of the overlapping between the two professions, the courts in the majority of jurisdictions considering the issue have generally concluded that where either a licensed architect or a licensed engineer performs services which could properly be regarded as falling within the statute licensing his profession, as well as within the statute licensing the other profession, he performs the services under the statute under which he is licensed. See 82 ALR 2d, Architect or Engineer-License, Section 4, page 1026. As such, the critical inquiry is whether the service performed falls within the scope of the license held by the person performing the service. As defined under individual licensing provisions, certain architectural functions cannot be performed by engineers, and vice versa.

It is our assumption that the land use ordinance was adopted by the Town pursuant to the powers granted by Chapter 160A of the General Statutes. Under Chapter 160A the Town has been granted the power to adopt reasonable land use ordinances for the purpose of promoting the health, safety, and general welfare of the community. We find nothing in Chapter 160A which permits a town to administratively encroach upon the authority of the Legislature to define and regulate the respective practices of engineering and architecture. Nor are we aware of any provision in the General Statutes, other than the specific licensing provisions referred to above, that recognizes or approves the distinction made in the Carrboro Land Use Ordinance. It therefore appears that the restriction imposed by Section 15-87(a) of the ordinance is not a reasonable restriction and is in excess of the powers granted to the Town.

Lacy H. Thornburg Attorney General

Grayson G. Kelley Assistant Attorney General