Retroactive Regulation of Buildings; Energy Efficient Appliances

Subject:

Requested By: Lee Hauser

Secretary, N. C. State Building Code Council

Question:

Is the Building Code Council empowered by law to adopt a regulation that only energy efficient models can be used to replace defunct appliances in buildings meeting Code requirements when originally constructed?

Conclusion: No, unless the building is being altered, reconstructed or its use changed.

At the March 13, 1984 regularly scheduled meeting of the Building Code Council in Raleigh, Mr. Robert P. Gruber, Executive Director of the Public Staff of the North Carolina Utilities Commission requested the Council to amend various sections of the N.C. State Building Code to require that all replacement water heaters and boilers be energy efficient models. The Council requested an opinion from the Attorney General as to whether it had the statutory authority to adopt such a regulation with respect to buildings originally constructed in compliance with the Building Code.

G.S. 143-139.2 provides:

"§ 143-139.2.Enforcement of insulation requirements; certificate for occupancy; no electric service without compliance.

(a)

In addition to other enforcement provisions set forth in this Chapter, no single family or multi-unit residential building on which construction is begun in North Carolina on or after January 1, 1978, shall be occupied until it has been certified as being in compliance with the minimum insulation standards for residential construction, as prescribed in the North Carolina State Building Code or as approved by the Building Code Council as provided in G.S. 143138(e). It shall be the duty of each county government and each municipality to provide for a building inspection program for certification of compliance with this section, either through a person in the county, city or joint inspection department who is responsible for enforcement of the insulation and energy utilization standards of the State Building Code or in any county or city which does not have an inspection department, through a person designated as the energy insulation inspector.

(b)

No public supplier of electric service, including regulated public utilities, municipal electric

service and electric membership corporations, shall connect for electric service to an occupant any residential building on which construction is begun on or after January 1, 1978, unless said building complies with the insulation requirements of the North Carolina State Building Code or of local building codes approved by the Building Codes Council as provided in G.S. 143-138(e), and has been certified for occupancy in compliance with the minimum insulation standards of the North Carolina State Building Code or of any local modification approved as provided in G.S. 143-138(e), by a person designated as an inspector pursuant to subsection (a) of this section."

The powers granted to the Building Code Council with respect to the establishments of a State Building Code are set forth in G.S. 143-138.

In Carolinas Virginias Ass’n of Building Owners & Managers v. Ingram, 39 NC App 688, 251 SE 2d 910, cert. den. 297 NC 299, 254 SE 2d 925 (1979), the Court of Appeals construed this grant of power. The Court held "that the Building Code which it authorized the Council to adopt should regulate only new construction or buildings being reconstructed or altered in purpose." The Court could find nothing in the wording of the statute evidencing a legislative intent that the "drastic" power to impose new and more stringent requirements upon existing buildings should be implied. As to its application to building "on which construction is begun . . . on or after January 1, 1978." The maxim "expressio unius est exclusio alterius is applicable." See Howell v. Indemnity Company, 237 NC 227, 74 SE 2d 160 (1953).

In our opinion, the Council is not authorized to require energy efficient appliances in buildings that meet Code requirements when originally constructed unless altered, reconstructed or its use changed (See Section 101.6, Ch. 1 of Vol. 1 of the N. C. State Building Code.)

RUFUS L. EDMISTEN Attorney General

Isham B. Hudson, Jr. Special Deputy Attorney General