July 8, 1987

Mr. Jeffry L. Bloomberg 
Lawrence County State's Attorney
78-80 Sherman Street 
Deadwood, South Dakota 57732

OFFICIAL OPINION NO. 87-23 

Application or municipal building codes 

Dear Mr. Bloomberg:  

You have requested an official opinion from this Office based upon the following factual situation:  

FACTS:  

Lawrence County owns and operates an airport under the provisions of SDCL 50-7.  The airport is managed by a board pursuant to SDCL 50-7-13.  The airport proper is within three miles of the corporate limits of the city of Spearfish. 

The airport is within Lawrence County. 

The city of Spearfish has adopted the Uniform Building Code which contains provisions relating to the construction of airport hangars.  The airport board wishes to lease a portion of the airport proper to private individuals for the construction of airport hangars. 

Based upon these facts, you have asked the following question: 

QUESTION: 

Is the Uniform Building Code adopted by the city of Spearfish applicable to and enforceable on the county owned and operated airport? 

There is no doubt that the city of Spearfish has the power to prescribe the manner of constructing buildings and, for that purpose, has the right to adopt by ordinance a Uniform Building Code proposed by the International Conference of Building Officials.  Those powers are specifically granted by the Legislature at SDCL 9-33-4 and 9‑33‑4.1, as follows: 

9-33-4. Every municipality shall have power to prescribe the manner of constructing buildings, structures, and the walls thereof, and to require and regulate the construction of fire escapes on buildings. 

9-33-4.1. Municipalities are hereby authorized to adopt by ordinance those certain codes known as the Uniform Codes adopted and proposed by the International Conference of Building Officials and the whole thereof, except such portions as the municipality may delete, modify, or amend, and as so deleted, modified, or amended it shall be filed in the office of the city auditor, city finance officer or town clerk.  Additional deletions, modifications, and amendments may, from time to time, be made by the governing body, and shall be effective upon their adoption and filing with the city auditor, city finance officer or town clerk. 

Lawrence County is authorized to own and operate an airport within the limits of the county.  SDCL 50-7-2 provides in pertinent part: 

The board of county commissioners of any county in this state is hereby authorized to acquire, establish, construct, own, control, lease, equip, improve, maintain, operate, and regulate airports or landing fields for the use of airplanes and other aircraft within the limits of such counties, and may use for such purpose or purposes any property suitable therefor that is now or may at any time hereafter be owned or controlled by such county. . . . 

The territorial jurisdiction of municipalities is contained at SDCL 9-29-1, as follows:  

Every municipality shall have power to exercise jurisdiction for all authorized purposes over all territory within the corporate limits and over any public ground or park belonging to the municipality, whether within or without the corporate limits, and in and over all places, except within the corporate limits of another municipality, within one mile of the corporate limits or of any public ground or park belonging to the municipality outside the corporate limits, for the purpose of promoting the health, safety, morals, and general welfare of the community, and of enforcing its ordinances and resolutions relating thereto. 

Authority exists for the city of Spearfish and Lawrence County to enter into a joint powers agreement which would permit enforcement of the city building code beyond one mile of the city limits.  SDCL 1‑24‑2 provides as follows: 

Any power or powers, privileges or authority exercised or capable of exercise by a public agency of this state may be exercised and enjoyed jointly with any other public agency of this state and jointly with any public agency of any other state or of the United States to the extent that the laws of such other state of the United States permit such joint exercise or enjoyment. Any agency of South Dakota state government when acting jointly with any public agency may exercise and enjoy all of the powers, privileges, and authority conferred by §§ 1-24-2 to 1-24-9, inclusive, upon a public agency.  The provisions of this section do not apply to the power to tax. 

The regulation of building construction by municipalities is for fire protection and safety purposes, in contradistinction to zoning powers granted by SDCL 9-12-13, and SDCL Title 11, which permit regulation and restriction of size, height, number of stories, location and use of buildings for the purpose of promoting health, safety, morals or general welfare of the community.  See SDCL ch.11-4.  

It is my opinion that the territorial jurisdiction within which a municipality may exercise its right to enforce its building code is one mile, in the absence of a joint powers agreement with the county, pursuant to SDCL 1-24-2, which could provide for additional territorial jurisdiction.  

The answer to your question is "no." 

My predecessor, with whom I agree, reached a similar conclusion in Official Opinion 81-4. 

Sincerely,

Roger A. Tellinghuisen
ATTORNEY GENERAL