December 22, 1987

W.H. Siefert 
State Engineer 
Joe Foss Building 
Pierre, South Dakota 57501

Official Opinion No. 87-43

State responsibilities concerning local building permits

Dear Mr. Siefert:

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

FACTS: 

The state engineer has an oversight responsibility in the construction of state-owned facilities.  Though requested to do so in the past, it has been the policy of the Office of the State Engineer to refuse to obtain municipal or county building permits for construction of state facilities. Construction, renovation, and maintenance of state-owned facilities is done in conformance to state codes and regulations and is inspected by state personnel.  Recently, you were informed by the Rapid City Department of Public Works that Rapid City will require building permits for state-owned facilities constructed within its jurisdiction in the future. 

Though municipalities and counties have requested that the State obtain permits before, none have required such action.  The South Dakota Codified Laws are essentially silent on the subject. 

Based on those facts, you have asked the following question:

QUESTION: 

Can a municipality or county require the state to obtain a local building permit in order to construct state-owned facilities?

Units of local government may be created only under the dictates of state law  and are subject completely to state law.  Thus, local governments are creatures of the state and fully dependent upon state law.  It then follows that state government, being predominant to local government, cannot be subjected involuntarily to the dictates of a servient governing body.

A state's freedom from local control applies to municipalities.  As stated in Corpus Juris Secundum, "Generally speaking, the state is not subject to legislative enactments of a municipal corporation, and the property of the state and its agencies is free from municipal power to regulate."  Municipal Corporations, 62 C.J.S. § 157.

Within its position of superior power, a state government may subject itself to municipal regulation in those circumstances it deems proper.  "Property of the state is exempt from municipal regulation in the absence of waiver on the part of the state of its right to regulate its own property;  and such waiver will not be presumed."  Id.

Municipal building codes are an example of local legislation that, absent a state's consent, may not be applied to the senior government.  Like our statutes, South Dakota case law is silent on the issue.  A classic extra-jurisdictional case on point is City of Houston v. Houston Independent School District, 436 S.W.2d 568 (1969).  The Texas Court of Civil Appeals stated:  "Properties of the State are excluded as a matter of law from the application of City building regulations."  Id. at 572.  That principle has  been followed in other jurisdictions.  See Newton v. City of Atlanta, 189 Ga. 441, 6 S.E.2d 61 (1939);  Board of Councilmen of City of Frankfort v. Commonwealth, 243 Ky. 633, 49 S.W.2d 548 (1932).

As noted above, municipalities hold only that power granted them by a state governing body.  "The powers which our municipal corporations possess are only those which have been conferred upon them by the Legislature."  City of Rapid City v. Rensch, 77 S.D. 242, 246, 90 N.W.2d 380, 383 (1958).  This restriction on municipal power includes the power of taxation (collection of building permit fees.)  "It must be remembered that the Legislature has plenary control over all municipalities.  Municipalities have only such powers of taxation as are specifically granted by the Legislature."  Consumers Public Power District v. City of Lincoln, 168 Neb. 183, 95 N.W.2d 357, 360 (1959).

Municipal power to regulate a state, through taxation or otherwise, is granted only under limited circumstances.  "A governing body of a municipality possesses only such authority as is conferred upon it by law, together with such powers as are necessary to carry into effect those granted."  Sioux Falls Municipal Employees Association, Inc. v. City of Sioux Falls, 89 S.D. 298, 304, 233 N.W.2d 306, 309 (1975).  The circumstances must be definite, with a clear grant of power or an implied grant of power by necessity.  A neighboring state's supreme court has taken the rule of restrictions on municipalities one notch further.  "Municipalities have only those powers  granted them or which arise from fair implication and those necessary to carry out powers expressly or impliedly conferred, and such grants of power are strictly construed against the authority claimed."  Cedar Rapids Community School District v. City of Cedar Rapids, 106 N.W.2d 655 (Iowa 1960).  In order for Rapid City to apply its building permit ordinances and fees to the state, it may do so only through an express or clearly implied consent of the South Dakota Legislature.

Examination of state law shows neither a direct nor an implied intention on the part of the Legislature to subject the State to municipal building permits or codes.  Conversely, an in-depth survey of state statutes shows that the Legislature reserves authority over construction of State buildings to the state entity constructing the facility.  SDCL 5-12-12 states: 

The board of regents of the state of South Dakota and the board of charities and corrections shall prepare plans and specifications for and have supervision over any project to be undertaken by the building authority for their use.  Plans and specifications for other agencies shall be approved by the lessee provided for under §  5-12-13, except as indicated above. 

SDCL 5-12-12. 

The "lessee provided for under §  5-12-13" is ... any officer, department, board, commission or other agency of the state of South Dakota, or the commissioner of administration when the commissioner is requested to, by and  on behalf of, or for the use of, any officer, department, board, commission or other agency of the state of South Dakota....

SDCL 5-12-13.

The above statutes apply to those facilities under the South Dakota Building Authority.  Other state public property statutes agree. 

The construction of all capital improvements projects as defined in §  5-14-1 of state agencies, boards, commissions and institutions shall be under the general charge and supervision of the bureau of administration as provided in this chapter....

SDCL 5-14-2.

The statute following SDCL 5-14-2 reads, in part: 

The bureau of administration under the direction of the committee as hereinafter provided shall have general charge and supervision of the design and construction of all state buildings, power and heating plants, heating, cooling, and air-conditioning systems, water supply, fire protection, sewerage and sewage disposal systems, electrical generation and distribution, and all major repairs, rebuilding or alterations thereof....

SDCL 5-14-3.

Obviously, the State Legislature intended that state agencies shall be the controlling entities in construction of state facilities.

As municipalities are creatures of the state, so are counties.  The South  Dakota Supreme Court has said, "The power of the legislature over counties in the absence of limitations placed upon it by the constitution is plenary and supreme."  Williams v. Book, 75 S.D. 173, 177, 61 N.W.2d 290, 292 (1953). As with municipalities, counties may exercise against the state only those powers which the state has specifically granted to them. 

A county, 'being a mere instrumentality of the state for the convenient administration of government, is at all times, both as to its powers and its rights, subject to legislative control....'  ... The state has invested the Legislature with complete sovereign power, except so far as restricted by constitutional limitations.  The question of the extent of legislative power is determined alone by these limitations.

City of Grand Island v. County of Hall, 196 Neb. 282, 242 N.W.2d 858, 862 (1976).  A county's power to enforce its own building permits and ordinances against the state may be exercised only when the state chooses to allow it.

Local building permit laws are usually similar to--and often a part of--local planning and zoning laws.  A predecessor of mine examined application of planning and zoning laws or land use restrictions to state government by local government.  He found in the negative.  "It is the general rule that zoning regulations or land use restrictions do not apply against state owned property absent a clear manifestation of a contrary legislative intent."  South Dakota Report of the Attorney General 1977-78, Official Opinion No. 77-13.

The answer to your question is "no."  Municipalities or counties may not subject the State to their respective building codes and building permit systems, absent a showing of legislative intent to the contrary.

Respectfully submitted,

Roger A. Tellinghuisen
Attorney General