G. C. Strobel, Director-State
Nebraska Attorney General Opinions
State of Nebraska office of the Attorney General
April 18, 1990
Date April 10, 1990
Assistant Attorney General Gary R. Welch, Robert G. Avey, John E. Brown, William J. Orester, Jeffery T. Schroeder, K. Osi Onyekwuluje
A. Eugene Crump Deputy Attorney General.
Warren D. Lichty Assistant Attorney General Chief, Roads Section
REQUESTED BY: G. C. Strobel, Director-State Engineer Nebraska Department of Roads
WRITTEN BY: Robert M. Spire, Attorney General Jeffery T. Schroeder, Assistant Attorney General.
QUESTION: Is the State Department of Roads subject to the requirements of local building codes?
You have asked us whether the State of Nebraska, Department of Roads, must design and construct its buildings in accordance with the requirements of local building codes, including permit, inspection and licensing requirements. We believe that the Department is not subject to the requirements of local building codes.
This office has previously concluded that certain governmental buildings are exempt from local building regulations. In 1967-1968 Report of Attorney General, No. 32, Page 44, the Attorney General concluded that school districts are not required to obtain building permits or pay permit fees to a county. In 1965-1966 Report of Attorney General, page 108, the Attorney General concluded that State fairground buildings would not be subject to the City of Lincoln building codes if the fairgrounds were annexed into the City.
The general rule cited in support of these conclusions is found in 62 C.J.S., Municipal Corporations §157, pp. 319-320, and is stated as follows:
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.
101A C.J.S., Zoning and Land Planning §108, pp. 388-391; 82 C.J.S. Statutes, §317, pp. 554-558, 2 Anderson, American Law of Zoning §12.06 p. 493 (1976).
The above rule requires the legislature to expressly waive the State's right to regulate its own buildings before the State is subject to local building codes. We have examined all pertinent legislation, and with the exception of the State Building Code, we find no express waiver of the State's right to regulate the design and construction of its own buildings.
The legislature has given each county, city and village the power to enact ordinances adopting a building code, an electrical code, a plumbing code, and a fire prevention code, Neb.Rev. Stat. §23-172 (Reissue...