Can a Maryland county impose its own fire-safety building requirements on state-certified modular and prefabricated buildings?

Plain-English summary

Maryland's Industrialized Building and Mobile Homes Act, enacted in 1971, set up a single statewide certification system for prefabricated and modular buildings. Once a unit bore the state insignia showing it met the state-adopted BOCA building code, every locality had to accept it as satisfying local safety requirements "without further investigation or inspection." The statute reserved certain matters to local governments, including land use, setbacks, zoning, and "uniform fire control regulations." Manufacturers complained to the Department of Housing and Community Development (DHCD) that counties were using that fire-control reservation to impose their own structural rules, for example requiring masonry exterior walls where state regulations allowed wood framing.

The Attorney General sided with the state scheme. Reading the reservation clause in context, the opinion concluded that "uniform fire control regulations" could not mean any local rule with a fire-safety rationale, because almost every building code provision has some fire-safety function and that reading would gut the Act. The other reserved categories all concern how a building is used and where it sits, not how it is built, so the fire-control reservation likewise covers only nonstructural matters: placement relative to fire hydrants, access for fire equipment, habitation density, portable fire extinguishers, and special uses. Local rules regulating the materials, structure, or design of a certified industrialized building were preempted, whatever their label. That reading matched DHCD's consistent administrative interpretation over the Act's 18 years. On enforcement, the opinion advised that a declaratory judgment action was available when a genuine controversy went "to the heart" of DHCD's statutory functions, but only after the Act's own review machinery (Advisory Commission assistance, notice to local officials, certification review hearings) had run its course.

Currency note

This opinion was issued in 1990. 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

Could a county require masonry walls on a state-certified modular building for fire safety?
No, under this 1990 opinion. A requirement dictating materials, structure, or design was preempted by the Act even if the county characterized it as a fire-control regulation. The state certification, based on the state-adopted BOCA Code, superseded conflicting local building code requirements.

What fire-safety rules could local governments still enforce?
Nonstructural ones: rules on a building's placement relative to fire hydrants, rights of way for fire equipment, overall habitation density, portable fire extinguishers, and special uses of a building. These do not require modifying the building itself.

Why did the opinion read "uniform fire control regulations" so narrowly?
Because nearly every structural building-code provision has some fire-safety rationale, so a broad reading would let localities re-regulate everything the Act centralized. The other categories reserved to localities (land use, setbacks, site development, zoning) all concern use and placement rather than construction, and the opinion read the fire-control phrase in that same context.

What could the state do if a county refused to accept a certified building?
First use the Act's own machinery: Advisory Commission assistance, notifying local officials of the Act's preemptive authority, and the certification review hearing. If the county still refused after that process, the controversy would be ripe and DHCD could bring an action under the Maryland Uniform Declaratory Judgments Act, which the Court of Appeals had said is especially appropriate when public agencies are at loggerheads.

Background and statutory framework

The Act, Subtitle 2 of Title 6 of Article 83B, responded to the growth of manufactured construction with a statewide regulatory system (§6-201). "Industrialized building" was defined in §6-202(d) as a building assembly manufactured wholly or substantially offsite, excluding mobile homes and open-frame construction inspectable onsite. Under §6-204(c)(2), a certified building was acceptable in all localities without further inspection, while §6-204(c)(4) reserved local land use, setback, side and rear yard, site development, property line, zoning, and uniform fire control requirements. The Act, at §6-203(a), required the state to adopt the BOCA basic code, which is in part a fire protection code, a further sign the legislature meant fire protection of the building itself to be governed by the uniform state code.

The construction analysis followed Kaczorowski v. City of Baltimore's context-driven approach to legislative purpose, along with Ad + Soil, Inc. v. County Comm'rs and Montgomery County v. Atlantic Guns, Inc. on express preemption, and gave weight to DHCD's consistent interpretation since enactment, citing Board of Education of Garrett County v. Lendo on administrative interpretation. On the declaratory judgment question, enforcement of the Act is vested exclusively in the Secretary (§6-206(a)), assisted by the Advisory Commission (§6-205). The Maryland Uniform Declaratory Judgments Act (CJ §§3-401 through 3-415) requires an actual controversy (CJ §3-409(a)) and ordinarily exhaustion of administrative remedies (Harbor Island Marina; Clark), but the Court of Appeals treats declaratory relief as especially apt where public agencies are at loggerheads over statutory powers (Prince George's County v. Maryland-National Capital Parks & Planning Comm'n; Liss v. Goodman).

Citations and references

Statutes and regulations:

• The Industrialized Building and Mobile Homes Act, Article 83B, §§6-201 through 6-208, especially §6-201 (findings), §6-202(d) (definition), §6-203(a) (BOCA Code adoption), §6-204(c)(2) (statewide acceptance of certified buildings), §6-204(c)(4) (matters reserved to local government), §6-205 (Advisory Commission), and §6-206(a) (exclusive enforcement by the Secretary); implementing rules at COMAR 05.02.04.01 through .18
• Maryland Uniform Declaratory Judgments Act, §§3-401 through 3-415 of the Courts and Judicial Proceedings Article, especially CJ §3-402 and CJ §3-409(a)

Cases:

• Preemption and statutory construction: Ad + Soil, Inc. v. County Comm'rs, 307 Md. 307 (1986); Montgomery County v. Atlantic Guns, Inc., 302 Md. 540 (1985); Kaczorowski v. City of Baltimore, 309 Md. 505 (1987); Potter v. Bethesda Fire Department, 309 Md. 347 (1987); Tucker v. Fireman's Fund Ins. Co., 308 Md. 69 (1986); Board of Education of Garrett County v. Lendo, 295 Md. 55 (1982)
• Declaratory relief and justiciability: Hatt v. Anderson, 297 Md. 42 (1983); Hamilton v. McAuliffe, 277 Md. 336 (1976); Prince George's County v. Maryland-National Capital Parks & Planning Comm'n, 269 Md. 202 (1972); Liss v. Goodman, 224 Md. 173 (1961); Patuxent Oil Co. v. County Comm'rs, 212 Md. 543 (1957); Harbor Island Marina v. Calvert County, 286 Md. 303 (1979); State Dep't. of Assess. & Tax. v. Clark, 281 Md. 385 (1977)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1990/Volume75_1990.pdf (this opinion appears at printed pages 308-318 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

Housing and Community Development — Industrialized Buildings — Preemption — Declaratory Judgments — Scope of Preemption of Local Ordinances — Availability of Declaratory Relief in Enforcement of Statute

April 4, 1990

The Honorable Jacqueline H. Rogers
Secretary of Housing and
Community Development

You have requested our opinion on two questions related to the Industrialized Building and Mobile Homes Act (the "Act"), which is administered and enforced by the Department of Housing and Community Development ("DHCD").1 Specifically, you ask:

  1. What is the scope of the Act's preemption of local ordinances relating to fire protection or other matters that regulate the materials, structure, or design of industrialized buildings?

 2. In the event of an actual controversy with a local jurisdiction over the existence or scope of preemption, would judicial resolution of the controversy under the Maryland Uniform Declaratory Judgments Act be available?

For the reasons stated below, we conclude as follows:

 1. The Act preempts any local ordinance relating to fire protection or other matters that seek to regulate the materials, structure, or design of industrialized buildings. The Act does not preempt ordinances relating to matters like land use, site placement, and certain aspects of fire safety that do not affect the structure or structural design of an industrialized building.

 2. In an actual controversy between DHCD and a local jurisdiction that goes to the heart of DHCD's ability to carry out the powers and functions granted to it by the Act, a declaratory judgment action would be available to DHCD.

I

Background

 The Act, Subtitle 2, Title 6 of Article 83B of the Maryland Code, establishes a program for statewide regulation and certification of industrialized buildings or parts of buildings that are to be used anywhere in the State.2

It was enacted in 1971 to fill the "need for a statewide building regulatory system" brought about by "the acceleration in development of new materials, processes and assemblies of building components, manufactured buildings, and subassemblies ...." §6-201. The General Assembly recognized that the new demand for industrial construction techniques "calls for more in depth performance evaluations [which] usually involve going beyond the boundaries of local units of government and require the assistance of the State." Id.

 The cornerstone of this statewide program is that a prefabricated unit must comply with only a single set of building regulations and is not to be subject to additional, diverse, or contradictory local building codes. To that end, §6-204(c)(2) provides:

           Any industrialized building bearing an insignia [certifying its compliance with State regulations] shall be acceptable in all localities as complying with the requirements of this subtitle and shall be acceptable as meeting the requirements of safety to life, health, and property imposed by any ordinance or law of any local governing body of this State without further investigation or inspection if the units are erected or installed in accordance with all conditions of the certification.

(Emphasis added.) Thus, the certification of an industrialized building by the State, indicating it has met the State standards for materials, structure, and design, is intended to supersede any conflicting local building code requirements.

 Although the Act preempts local building code requirements as to structural safety, §6-204(c)(4) provides that industrialized buildings remain subject to certain local ordinances and requirements:

          Notwithstanding any other provision of this subtitle, local land use requirements, building setback requirements, side and rear yard requirements, site development and property line requirements, zoning requirements and uniform fire control regulations, regardless of where requirements, ordinances, regulations or statutes are set forth, remain reserved to city and county government.

(Emphasis added.)

 During a recent public meeting, DHCD's Advisory Commission on Industrialized Buildings and Mobile Homes (the "Advisory Commission") heard complaints from manufacturers of industrialized buildings concerning ordinances adopted in jurisdictions throughout the State with requirements for the materials, structure, and design of industrialized buildings that are inconsistent with those adopted under the Act. For example, a local ordinance might require masonry exterior walls for certain industrialized buildings, while State regulations permit wood frame construction. These local requirements are most often characterized by local governments as uniform fire control regulations exempt from the Act.

 The manufacturers complained that the requirements undermine their ability to manufacture and market a uniform industrialized building within the State; circumvent the Act's underlying purpose to establish and enforce a statewide industrialized building regulatory system; are difficult and costly to comply with; and are applied in contradiction to the preemption provisions of the Act, as consistently interpreted by DHCD over the past 18 years. The manufacturers also voiced concern that the State, in particular the Secretary of DHCD as the Act's enforcing authority, has not initiated legal proceedings against local jurisdictions to clarify and enforce the preemption provisions of the Act.

II

Scope of Preemption

A. Statutory Construction and Legislative Intent

 "Pre-emption may be accomplished ... expressly by statutory language prohibiting local legislation ...." Ad + Soil, Inc. v. County Comm'rs, 307 Md. 307, 324, 513 A.2d 893 (1986). When a statute contains express preemptive language, local legislation is precluded concerning all matters within the scope of that language. Montgomery County v. Atlantic Guns, Inc., 302 Md. 540, 543, 489 A.2d 1114 (1985).

 In Kaczorowski v. City of Baltimore, 309 Md. 505, 525 A.2d 628 (1987), the Maryland Court of Appeals explained that the plain-meaning rule is not a rigid, all-sufficient rule for ascertaining legislative intention. Rather, the meaning of language is controlled by the context in which it appears:

          When we pursue the context of statutory language, we are not limited to the words of the statute as they are printed in the Annotated Code. We may and often must consider other "external manifestations" or "persuasive evidence," ... that fairly bears on the fundamental issue of legislative purpose or goal, which becomes the context within which we read the particular language before us in a given case.

309 Md. at 514-15.

  This approach avoids the fiction that legislative intent can be discerned by the rote application of canons of construction, which often "'obscure the factors actually at work in the construction of statutes.'" 309 Md. at 512 (quoting Sykes, A Modest Proposal for a Change in Maryland's Statutes Quo, 43 Md. L. Rev. 647, 666 (1984)). Thus, the Court of Appeals has made it quite clear that legislative purpose, not literal meaning, is critical; that the legislative purpose must be discerned in light of the statute's overall context; and that statutes are to be construed reasonably with reference to the purpose to be accomplished. See also Potter v. Bethesda Fire Department, 309 Md. 347, 353, 524 A.2d 61 (1987). Accord, Tucker v. Fireman's Fund Ins. Co., 308 Md. 69, 74-75, 517 A.2d 730 (1986) (broad definition of word is consistent with discerned legislative intent even though arguably contrary to the literal meaning of the word). In order to understand statutory language, then, "[t]he purpose, in short, determined in light of the statute's context, is the key." Kaczorowski, 309 Md. at 516.

B. "Uniform Fire Control Regulations"

The meaning of the phrase "uniform fire control regulations" has been a recurring source of disagreement between manufacturers and local governments throughout DHCD's application and enforcement of the Act. The phrase is not defined in the Act, and local jurisdictions have, from time to time, tried to impose various structural requirements on manufacturers in reliance on their interpretation that the phrase "uniform fire control regulations" means any local regulation, ordinance, or requirement that serves a fire prevention or fire suppression purpose. We believe that this interpretation of the phrase is overly broad and therefore incorrect, for several reasons.

The legislative findings and declarations set forth in §6-201, read in conjunction with the Act's substantive provisions, portray a comprehensive legislative scheme intended to achieve two goals: to make uniform the standards manufacturers of industrialized buildings or building parts must meet, thereby facilitating the production and marketing of those innovative methods of building construction; and to ensure that industrialized buildings have been adequately tested and examined for compliance with appropriate performance standards. Mandating that local governments accept State certification as sufficient to meet all local building codes serves both these goals.

  Without that requirement, a manufacturer might be required to conform each unit to any of 24 or more different sets of standards, according to the jurisdiction in which the unit is to be sold. Moreover, local officials may be unable to inspect these units at the manufacturing site, and inspection at the site of erection may not be possible without destroying or otherwise dismantling the unit, particularly with regard to internal parts like wiring or plumbing sealed in a wall.

  Most building code provisions related to design, structure, and materials have at least some minimal corresponding fire suppression or fire prevention function. Consequently, to allow a locality to enforce more stringent or diverse building code requirements than those adopted by the State whenever there is an underlying fire safety rationale for the local code would surely undermine the purposes and utility of the Act. The General Assembly could not have intended that the phrase "uniform fire control regulations" be so broadly interpreted.

In addition, the Act mandates State adoption of the Building Officials and Codes Administrators International, Inc., basic code (the "BOCA Code"), which is in part a fire protection code.3 This suggests that the General Assembly intended the BOCA Code fire protection requirements pertaining to the industrialized building itself to be part of the uniform State code for industrialized buildings that supersedes local requirements.

 Further, the other local ordinances and regulations reserved to the local governments in §6-204(c)(4) — land use requirements, building setback requirements, site development and property line requirements, and zoning requirements — do not affect the structure or the structural design of an industrialized building. All of these address only the use of the building and its placement on the site. Hence, they are peripheral and ancillary to the actual construction of industrialized buildings and would not require any modification of the basic industrialized building structure. These other exemptions from the preemptive authority of the Act provide the context within which the phrase "uniform fire control regulations" appears and must be interpreted. Thus, they indicate that "uniform fire control regulations" are also nonstructural regulations like habitation density restrictions and requirements for the provision of portable fire extinguishers, the placement of buildings in relation to fire hydrants, and rights of way for fire equipment.

This is the view of the Act's preemption provision that has been consistently taken by DHCD. Acting on the advice of its counsel, DHCD's Codes Administration has taken the position from the time of the Act's enactment that "uniform fire control regulations" are only those that relate to the location of buildings on a site, the relationship of the building to fire hydrants, access for fire-fighting equipment, the overall density of habitation, the provision of portable fire equipment, or the special uses of a building. In the Administration's view, the State-adopted BOCA Code supersedes any local regulations controlling construction, including design, materials, and methods, whether or not the regulations serve a fire control function. See Letter from Assistant Attorneys General Sandra J. Cohen and Kathleen E. Kunzer to David M. Hammerman, Director of Codes Administration (September 30, 1985). This consistent administrative interpretation of the Act since its inception is persuasive evidence of its meaning. See Board of Education of Garrett County v. Lendo, 295 Md. 55, 63, 453 A.2d 1185 (1982).4

 It is our conclusion, then, that the Act preempts any local ordinances or regulations relating to fire protection and other matters that regulate the materials, structure, or design of industrialized buildings. Local jurisdictions may only impose requirements that do not affect the structure or structural design of a State certified industrialized building, like site placement or land use requirements.

III

Enforcement and Declaratory Relief

 Enforcement of the Act and the rules and regulations adopted under it is vested exclusively in the Secretary of DHCD. §6-206(a).5 The Advisory Commission was created to assist the Secretary in carrying out the Secretary's duties under the Act. §6-205.6 The Advisory Commission must include, among others, representatives of local building code enforcement agencies and legislative bodies of local government. §6-205(a).

 The Act contemplates that problems may arise concerning the grant or denial of a certification for an industrialized building, both generally under the rules and regulations adopted under the Act and specifically in situations limited to a particular locality in the State. Two distinct remedies for these potential problems are provided by the Act. First, when a local jurisdiction deems that changes to the Act's rules and regulations are necessary or desirable, that local jurisdiction may seek an Advisory Commission recommendation that the Secretary implement those changes. Second, if local enforcement representatives determine that the Department should review the grounds upon which it has granted or denied a certification of an industrialized building for reasons limited to that particular locality, they are entitled to that review by a public hearing held, if practicable, in that locality.

 The Maryland Uniform Declaratory Judgments Act, §§3-401 through 3-415 of the Courts and Judicial Proceedings Article ("CJ" Article), empowers courts of record to enter declaratory judgments to "settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations." CJ §3-402.

 To invoke the jurisdiction of the courts for declaratory relief, however, a party must present a justiciable issue or actual controversy. CJ §3-409(a). In other words, courts will not decide purely theoretical questions or questions that may never arise. Hatt v. Anderson, 297 Md. 42, 46, 464 A.2d 1076 (1983). See also Hamilton v. McAuliffe, 277 Md. 336, 353 A.2d 634 (1976); Prince George's County v. Maryland-National Capital Parks & Planning Comm'n, 269 Md. 202, 306 A.2d 223 (1972), cert. denied, 414 U.S. 1068 (1973); Liss v. Goodman, 224 Md. 173, 167 A.2d 123 (1961); Patuxent Oil Co. v. County Comm'rs, 212 Md. 543, 129 A.2d 847 (1957). Moreover, except when someone challenges the constitutionality of an enactment as a whole, ordinarily a party must exhaust all available administrative remedies before resort may be had to a declaratory judgment action. See Harbor Island Marina v. Calvert County, 286 Md. 303, 306, 407 A.2d 738 (1979); State Dep't. of Assess. & Tax. v. Clark, 281 Md. 385, 404, 380 A.2d 28 (1977).

 The Court of Appeals has held that declaratory relief is especially appropriate "'where public agencies are at loggerheads.'" Prince George's County, 269 Md. at 209 (quoting Liss v. Goodman, 224 Md. at 178). In Prince George's County, the appropriateness of declaratory relief was indicated by the existence of controversies between the two public agencies that went to the heart of the ability of one of the agencies to carry out the powers and functions granted to it by statute. 269 Md. at 208. Id.

 We think that, under the Act, the ability of either the Secretary or a local jurisdiction to carry out their respective powers and functions granted by statute could not be said to be wholly frustrated until the Act's provisions for review, recommendation, and Advisory Commission assistance have been utilized to no avail. Thus, the Secretary and a local jurisdiction are not truly "at loggerheads" sufficient to give rise to a justiciable controversy ripe for declaratory relief unless and until the administrative mechanism set forth in the Act for identifying and resolving problems has run its course.

 In the event, then, that a local jurisdiction attempts to enforce more stringent or different building code requirements than the State-adopted BOCA Code for an industrialized building bearing the State certification insignia, we would advise you to seek the assistance of the Advisory Commission if practicable under the circumstances. Otherwise, you should promptly notify the appropriate local officials of the Act's preemptive authority and certification review procedures. If, after this notification, the local jurisdiction refuses to seek your review of the matter or, after any review hearing, the local jurisdiction refuses to permit the implementation of your final decision, so that the controversy goes to the heart of your ability to carry out your powers and functions under the Act, you may appropriately bring a declaratory judgment action.7

IV

Conclusion

In summary, it is our opinion that:

 1. The Act preempts any local ordinance relating to fire protection or other matters that seek to regulate the materials, structure, or design of industrialized buildings. The Act does not preempt ordinances relating to matters like land use, site placement, and certain aspects of fire safety that do not affect the structure or structural design of an industrialized building.

 2. In an actual controversy between DHCD and a local jurisdiction that goes to the heart of DHCD's ability to carry out the powers and functions granted to it by the Act, a declaratory judgment action would be available to DHCD.

                                            J. Joseph Curran, Jr.
                                            Attorney General

                                            Roger Lee Fink
                                            Assistant Attorney General

Jack Schwartz
Chief Counsel
Opinions and Advice

1
The Act is codified at Article 83B, §§6-201 through 6-208 of the Maryland Code. All further statutory references in this opinion will be to Article 83B, unless otherwise indicated.

2
Article 83B, §6-202(d) defines an industrialized building as follows:

      (1) "Industrialized building" means a building assembly or system of building subassemblies manufactured in its entirety, or in substantial part, offsite and transported to the point of use for installation or erection, with or without other specified components, as a finished building or as a part of a finished building comprising two or more industrialized building units. An industrialized building need not have electrical, plumbing, heating, ventilating, insulation or other service systems; but when such systems are installed at the offsite manufacture or assembly point they shall be deemed a part of such building assembly or system of building assemblies. Industrialized building does not include open frame construction which can be completely inspected onsite.
      (2) "Industrialized building" does not include a mobile home.

3
Article 83B, §6-203(a) provides:

      The Department shall adopt rules and regulations prescribing standards to which industrialized buildings must comply for protection against the hazards of industrialized buildings to safety, health and property and may adopt rules and regulations governing all aspects of the enforcement, inspection and certification programs authorized by this subtitle. With respect to industrialized buildings, the Department shall adopt the Building Officials Conference of America basic code with such exceptions or modifications which, after adequate public notice and public hearing, it deems appropriate to meet the needs and judgments of Maryland.

4
Kaczorowski does not abandon the canons of construction, but objects only to their use without "forthright explanations" for the result reached by their application. 309 Md. at 512.

5
The rules and regulations adopted by the Department under the Act are codified in COMAR 05.02.04.01 through .18.

6
Interestingly, the Act is the only code administered by the Department that does not vest enforcement responsibility in the local jurisdictions. See, e.g., §6-102(b) (Maryland Building Code for the Handicapped) and §6-103(c) (Minimum Livability Code).

7
This opinion, of course, does not discourage or prevent you from attempting to exhaust any additional non-judicial avenues that may be available to you to resolve the controversy prior to litigation.