Can a Mississippi city create a revitalization district where buildings are exempt from some or all of the city's building code?

Plain-English summary

Southaven set up a "West End District" with economic development incentives to revitalize an aging part of the city. Some of the buildings in the District were not economically viable to renovate because of the cost of bringing them up to current building code. The City's idea: pass an ordinance saying buildings in the District are exempt from certain elements of the City's building code, treating everyone in the District class equally.

The AG said this approach is not allowed.

Mississippi Code § 17-2-4(1) requires every county and municipality in Mississippi to adopt one of the last three editions of the International Building Code, International Residential Code, or specified other codes as the State Uniform Construction Code. The word "shall" in the statute is mandatory, not discretionary, per Pitalo v. GPCH-GP, Inc., 933 So. 2d 927 (Miss. 2006).

There was a one-time exit ramp. § 17-2-4(3) gave municipalities 120 days from August 1, 2014, to opt out of the requirement. After that 120-day window closed (around early December 2014), there is no further opt-out. If Southaven did not opt out before then, it is locked into the State Uniform Construction Code.

The AG noted one limited path forward: the code Southaven actually adopted may itself include exemptions for historical or other properties. The IBC, IRC, and similar codes have special provisions for historic structures, existing buildings, and certain renovation scenarios. So if a particular building in the West End District qualifies as historical or fits some other code-defined exemption, those exemptions apply by the code's own terms.

But that is a code-by-code, building-by-building analysis. The AG cannot issue an opinion deciding which Southaven buildings qualify; that is a factual question to be decided by the City's building official, subject to the adopted code's standards. The AG also cannot interpret municipal ordinances by official opinion.

So Southaven's options are: (1) work within the adopted code's existing exemption provisions for historical or other special-status properties, or (2) seek state legislation to expand municipal authority. A blanket district-wide ordinance carving out exemptions is not on the menu.

What this means for you

City and county attorneys

The opinion holds that § 17-2-4(1) "mandates certain minimum building codes for counties or municipalities," and that "if the City did not opt out of Section 17-2-4(1)'s mandate within 120 days of August 1, 2014, as set forth in Section 17-2-4(3), the City may not now set forth specific conditions under which certain elements of the City building code do not apply." It treats "shall" in § 17-2-4(1) as mandatory, citing Pitalo.

City councils and mayors

On the District proposal, the opinion holds that "state law does not provide for exemptions from these mandatory minimum building codes" for a city that did not timely opt out. A blanket District ordinance carving out elements of the building code is the specific approach the opinion rejects.

Building officials and property owners

The opinion adds one qualifier: "the City's requisite adopted code may exempt certain historical or other properties from the code requirements." It does not catalog those exemptions or decide them, stating that "such determination is outside the scope of our authority, and this office may not issue an official opinion regarding determinations of fact."

Common questions

Q: Can a Mississippi city exempt a revitalization district from its building code?
A: The opinion says no for a city that did not opt out in time: "if the City did not opt out of Section 17-2-4(1)'s mandate within 120 days of August 1, 2014... the City may not now set forth specific conditions under which certain elements of the City building code do not apply."

Q: Why is the code mandatory?
A: The opinion reads § 17-2-4(1)'s "shall adopt and amend as minimum codes" as mandatory, citing Pitalo v. GPCH-GP, Inc.: "'shall' is mandatory, while 'may' is discretionary."

Q: Was there ever a way out?
A: Yes, but it has closed. The opinion describes § 17-2-4(3) as having given counties and municipalities "a period of 120 days from the provision's effective date, August 1, 2014, to 'opt out' of Section 17-2-4(1)'s mandate."

Q: Are there any exemptions left?
A: The opinion notes "the City's requisite adopted code may exempt certain historical or other properties from the code requirements," but says whether a specific property qualifies "is outside the scope of our authority" because it is a factual determination.

Q: Can the AG decide whether a specific building is "historic"?
A: No. The opinion states the office "may not issue an official opinion regarding determinations of fact," citing Barton, and that it "cannot interpret municipal ordinances by official opinion," citing Tullos.

Background and statutory framework

The opinion turns on § 17-2-4, which it describes as mandating "certain minimum building codes for counties or municipalities."

The structure of § 17-2-4(1):

Except as provided in Section 17-2-1(1) and subsection (3) of this section, a county board of supervisors or municipal governing authority shall adopt and amend as minimum codes one (1) of the following as the State Uniform Construction Code:

(a) One (1) of the last three (3) adopted editions of the International Building Code (IBC) and any specific appendix or appendices as adopted and amended by the Mississippi Building Codes Council;
(b) One (1) of the last three (3) adopted editions of the International Residential Code (IRC), and any specific appendix or appendices as adopted and amended by the Mississippi Building Codes Council, with the exception of those provisions that require the installation of a multipurpose residential fire protection sprinkler system or any other fire sprinkler protection system in a new or existing one- or two-family dwelling;
(c) Other codes addressing matters such as electrical, plumbing, mechanical, fire and fuel gas, and any specific appendix or appendices as adopted and amended by the Mississippi Building Codes Council.

The use of "shall" makes this mandatory. Pitalo v. GPCH-GP, Inc., 933 So. 2d 927, 929 (Miss. 2006), holds that "shall" is mandatory while "may" is discretionary in Mississippi statutory construction.

The opinion describes the only applicable exception as § 17-2-4(3), which "provided counties or municipalities a period of 120 days from the provision's effective date, August 1, 2014, to 'opt out' of Section 17-2-4(1)'s mandate." A city that did not opt out in that window is, on the opinion's reading, bound by the mandate going forward.

The opinion also confirms two limits on its own authority: it "may not issue an official opinion regarding determinations of fact" (citing MS AG Op., Barton, May 17, 2021), so whether a particular building is "historical" within an adopted code is not something it decides; and "our office cannot interpret municipal ordinances by official opinion" (citing MS AG Op., Tullos, Aug. 27, 2018).

Citations and references

Statutes:

• Miss. Code Ann. § 17-2-1(1) (cross-reference exception)
• Miss. Code Ann. § 17-2-4(1) (mandatory adoption of State Uniform Construction Code)
• Miss. Code Ann. § 17-2-4(3) (120-day opt-out window starting August 1, 2014)

Cases:

• Pitalo v. GPCH-GP, Inc., 933 So. 2d 927 (Miss. 2006) (use of "shall" indicates mandatory requirement, "may" is discretionary)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2024/01/N.Manley-January-9-2024-Citys-Ability-to-Exempt-Areas-from-Certain-Building-Code-Requirements.pdf

Original opinion text

January 9, 2024

Nick Manley, Esq.
Attorney, City of Southaven
8710 Northwest Drive
Southaven, Mississippi 38671

Re: City's Ability to Exempt Areas from Certain Building Code Requirements

Dear Mr. Manley:

The Office of the Attorney General has received your request for an official opinion.

Background

According to your request, the city of Southaven ("City") previously established a West End District ("District"), which provides economic incentives to assist with revitalization. As part of the City's efforts to revitalize the area, the City has been informed that certain buildings within the District are not a sound investment due to the costs associated with ensuring compliance with the current city building code. The City administration would thus like to explore incentives, other than economic based, to assist with revitalization within the District.

Question Presented

Assuming the City sets forth the specific conditions under which certain elements of the City Building Code do not apply and ensures that all persons or entities within a particular class and District are being treated equally and not in an arbitrary and capricious manner, may the City, via a properly drawn ordinance, exempt buildings located within the District from various building code requirements?

Brief Response

Mississippi Code Annotated Section 17-2-4(1) mandates certain minimum building codes for counties or municipalities. If the City did not opt out of Section 17-2-4(1)'s application within 120 days of its effective date of August 1, 2014, as provided by Section 17-2-4(3), state law does not provide for exemptions from these mandatory minimum building codes. This said, the City's requisite adopted code may exempt certain historical or other properties from the code requirements, but such determination is outside the scope of our authority.

Applicable Law and Discussion

Mississippi law mandates certain minimum building codes for counties or municipalities. As set forth in Section 17-2-4(1):

Except as provided in Section 17-2-1(1) and subsection (3) of this section, a county board of supervisors or municipal governing authority shall adopt and amend as minimum codes one (1) of the following as the State Uniform Construction Code:

(a) One (1) of the last three (3) adopted editions of the International Building Code (IBC) and any specific appendix or appendices as adopted and amended by the Mississippi Building Codes Council;

(b) One (1) of the last three (3) adopted editions of the International Residential Code (IRC), and any specific appendix or appendices as adopted and amended by the Mississippi Building Codes Council, with the exception of those provisions that require the installation of a multipurpose residential fire protection sprinkler system or any other fire sprinkler protection system in a new or existing one- or two-family dwelling;

(c) Other codes addressing matters such as electrical, plumbing, mechanical, fire and fuel gas, and any specific appendix or appendices as adopted and amended by the Mississippi Building Codes Council.

(emphasis added). The term "shall" as used in Section 17-2-4(1) indicates a mandatory, rather than discretionary, requirement. See Pitalo v. GPCH-GP, Inc., 933 So. 2d 927, 929 (Miss. 2006) ("Simply stated, 'shall' is mandatory, while 'may' is discretionary.").

The only exception from Section 17-2-4(1) applicable to your situation is Section 17-2-4(3), which provided counties or municipalities a period of 120 days from the provision's effective date — August 1, 2014 — to "opt out" of Section 17-2-4(1)'s mandate. Miss. Code Ann. § 17-2-4(3). It is thus the opinion of this office that if the City did not opt out of Section 17-2-4(1)'s mandate within 120 days of August 1, 2014, as set forth in Section 17-2-4(3), the City may not now set forth specific conditions under which certain elements of the City building code do not apply. This said, the City's requisite adopted code may exempt certain historical or other properties from the code requirements. However, such determination is outside the scope of our authority, and this office may not issue an official opinion regarding determinations of fact. See MS AG Op., Barton at 1 n.2 (May 17, 2021) (identifying questions of fact and mixed questions of fact and law as two of various kinds of questions that cannot be addressed by official opinion); see also MS AG Op., Tullos at 3 (Aug. 27, 2018) ("[O]ur office cannot interpret municipal ordinances by official opinion . . . .").

If this office may be of any further assistance to you, please do not hesitate to contact us.

Sincerely,

LYNN FITCH, ATTORNEY GENERAL

By: /s/ Maggie Kate Bobo
Maggie Kate Bobo
Special Assistant Attorney General