HomeMy WebLinkAbout760561.tiff r., ^1 p „ do—,
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m moRAnDurri. Carl
Willie To Chairman Billings, Date October 1, 1976
Board of County Commissioners
COLORADO From R. Russell Anson, Assistant County Attorney
subject. Requirement of Building Permits and Fees on a Federal
Agency.
QUESTION: As I understand your question, it is, "Can the Weld County
Building Department require an agency of the Federal Govern-
ment to obtain a building permit and pay the required fees?"
ANSWER: There is no definitive law on this specific question. I
have been unable to find any specific statute to cover the
matter, and the case law is scant.
DISCUSSION: The National Oceanic and Atmospheric Administration has
taken the position that a building permit and fee cannot
be required of a Federal Governmental Agency. In a recent
telephone conversation I had with N. W. Stiewig of that
office, I was informed by Mr. Stiewig that he had been
advised pursuant to an opinion by the Comptroller General,
that an agency of the Federal Government is not liable for
the payment of a building permit fee. I asked Mr. Stiewig
for a copy of that opinion, and I received a copy a few
days later. The two separate opinions involved were dated
1947 and 1950. Nearly all the cases cited in that opinion
were dated in the early 1940 ' s. Several of the cases in-
volved the Federal Lanham Act for Emergency Construction of
Public Housing, and the Act expressly provided, "That
where land is acquired under the Act by contract or other-
wise, no regard is to be had for any Federal, State or
Municipal law, ordinance, rule or regulation. "
In attempting to find some case law specifically covering
the point of issuance of building permits, I was unable to
find anything substantial either for or against the require-
ment that a Federal agency obtain a building permit and pay
the required fee.
There are two cases, however, that I was able to find that
seemed very relevant. The first case, Public Housing
Administration v. Bristol Township, 146 Fed.Sup. 859 (E.D.
PA. 1956) involved the reconditioning of a Federal Housing
project erected under the Lanham Act in October of 1940.
The Public Housing Administration contracted with a local
electrical contractor to provide electrical work on the
project. The electrical contractor failed to secure any
building permits prior to doingelectrical work under the
contract. The building officer of Bristol Township issued
760561
Glenn Billings
October 1, 1976
Page 2
a stop work order to the contractor. The Public Housing
Administration brought this action to seek to enjoin
Bristol Township from enforcing the stop work order. The
Federal District Court denied the injunction stating:
The United States Supreme Court has con-
sistently held that Congress , in enacting
legislation within its constitutional
authority, will not be deemed to have
intended to invalidate state or local rules
for protection of the public safety unless
its purpose to do so is clearly stated.
Another case, DeKalb County, Georgia v. Henry C. Beck Co. ,
382 Fed. 2d 92 (5th Circuit 1967) involved an action by a
Georgia County against a contractor engaged in construction
of a governmental hospital for a building permit fee. In
the lower court, the contractor made a motion for summary
judgment. The motion was granted, but no reasons for the
granting of the motion were given. The Court of Appeals
indicated that summary judgments should not have been
granted and reversed and remanded the case to the lower
court to receive additional facts. The Court of Appeals
stated that there was not sufficient information made
available to the court in order to balance the interest
and policies of the Federal Government with those of the
local government. Also no information was presented in
regard to Federal policy as to building standards, nor any
information as to what, if anything, the court has done
in the case except try to collect money for the treasury.
In summary, there does not seem to be any definitive law on
the exact point as to whether or not a local governmental
body can require a Federal agency to pay a building permit
fee.
Since there is no specific law on this point, the presump-
tion could be made that a building permit and fee is re-
quired. If the Federal agency refuses to pay the fee, and
construction is begun on the project, a stop order could
be given to the contractor and the contractor could be re-
quired to pay the fee. Section 301 (a) of the Building Code
states :
No person, firm or corporation shall erect,
construct, . . .without first obtaining a sep-
arate building permit for each such building
or structure from the Building Official.
It appears that this section could require either the
owner or lessee of the property or the contractor to
obtain the permit.
•
Glenn Billings
October 1, 1976
Page 3
R. Russell Anson, Assistant
County Attorney
APPROVED:
CIM71.60)-neni- C:7
County Attorney
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cc: J. E. Jarvis
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