Attorney General: Honorable Bernard R. Sullivan, Department of Public Safety, 1990-035 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

November 5, 1990

Honorable Bernard R. Sullivan
Commissioner
Department of Public Safety
100 Washington Street
Hartford, Connecticut 06106

Dear Commissioner Sullivan:

In a letter dated May 29, 1990, you request our advice on the effect of 1989 Conn. Pub. Acts No. 89-255 e4(c) on the plan review application and permit procedures and issuance of certificates of occupancy sections of the Connecticut State Building Code. Your questions appear to be directed primarily at the scope of the independent engineering consultant review required by 1989 Conn. Pub. Acts No. 89-255. Your specific questions are as follows:

1. If an application for a building permit was made and a permit for that building issued before June 16, 1989, do the provisions of C.G.S. Section 29-276b control the scope of the review or do the provisions of Public Act 89-255 control the scope of review?

2. If an application for a building permit for a threshold building was made before June l6, l989 but the permit was not issued until after June 16, l989, do the provisions of C.G.S. Section 29-276b control the scope of the review or do the provisions of Public Act 89-255 control the scope of review?

It is our opinion that the provisions of 1989 Conn. Pub. Acts No. 89-255 control the scope of the review in both of the circumstances you describe in your questions.

In l988, the legislature enacted 1988 Conn. Pub. Acts No. 88-359, now codified in Conn. Gen. Stat. e 29-276b. This public act was in response to the collapse of the L'Ambiance Plaza on April 23, 1987. Conn. Gen. Stat. e 29-276b required the local building official to hire an independent engineering consultant to review the plans and specifications for certain proposed buildings which would exceed a stated threshold limit. A member of your staff has advised us that the independent engineering consultant review is a continuing process which may take place both prior to and subsequent to issuance of the building permit.

Conn. Gen. Stat. e 29-276b(c) provided in relevant parts as follows:

If a proposed building will exceed the threshold limit ..., the local building official of the municipality in which the building shall be located shall hire an independent engineering consultant to review the plans and specifications of the building to be constructed to determine their compliance with the requirements of the state building code and to conduct such field inspections as he deems necessary....

Several questions arose concerning the interpretation of Conn. Gen. Stat. e 29-276b, as a result of which our office prepared an advisory opinion, at your request, to respond to those questions. See, 88 Conn. Op. Atty. Gen. 290 (1988). One of those questions dealt with the scope of the independent engineerng consultant review. Although the legislative history of l988 Public Acts No. 88-359 (CGS e 29-276b) did not specify the intent of the legislature with respect to the scope of the review to be performed by the independent engineering consultant, it was our opinion that the independent engineering consultant was required to review the plans and specifications for compliance with all aspects of the state building code, including electrical, mechanical, environmental, etc., not only structural. Id.

In l989 the legislature enacted 1989 Conn. Pub. Acts No. 89-255, which became effective on June 16, 1989. 1989 Conn. Pub. Acts No. 89-255 e4, deals with the review of plans and specifications for certain structures and additions which exceed a specified threshold limit. Subsection (c) of section 4 of Public Acts No. 89-255 states in part as follows:

If a proposed structure or addition will exceed the threshold limit as provided in this section, the building official of the municipality in which the structure or addition will be located shall require that an independent structural engineering consultant review the structural plans and specifications of the structure or addition to be constructed to determine their compliance with the requirements of the state building code to the extent necessary to assure the stability and integrity of the primary structural support systems of such structure or addition.... (Emphasis added).

The effect of 1989 Conn. Pub. Acts No. 89-255 was to limit the scope of the engineering consultant review to only the structural plans and specifications. Thus, it eliminated the requirement that the independent engineering consultant review all the plans and specifications for compliance with the state building code.

Although not phrased in those terms, your questions to us appear to be concerned with whether 1989 Conn. Pub. Acts No. 89-255 e4, should be given retroactive application. It is generally presumed that statutory changes are intended to modify existing law and are to be applied prospectively. Aetna Casualty & Surety Co. v. Lightly, 3 Conn. App. 697, 703, 491 A.2d ll8 (1985). Whether a statute should be given retroactive application, however, presents a question of legislative intent, and where the legislature makes no specific provision for retroactive application, it becomes a matter of presumed intent. Jones Destruction, Inc. v. Upjohn, 161 Conn. l91, l95, 286 A.2d 308 (1971).

The legislative history of l989 Conn. Pub. Acts No. 89-255 clearly sets forth the intent of the legislature. Representative Anastasia, speaking on behalf of passage of the bill, stated: "[T]he bill clarifies that buildings meeting or exceeding threshold limits must be reviewed independently for structural purposes only, and the cost of such a review shall be born [sic] by the owner and not the municipality." 32 H.R. Proc. pt. 23, 1989 Sess. 8105 (May 23, 1989). The intent to clarify the original legislation was also expressed by Senator Herbst. She indicated that the bill clarifies various provisions of Conn. Gen. Stat. e 29-276b, including the review of plans and specifications for buildings and structures exceeding the threshold limits. 32 S. Proc., pt. 7, l989 Sess. 2301-07 (May 18, 1989). "Where an amendment is intended to clarify the original intent of an earlier statute, it necessarily has retroactive effect." State v. Magnano, 204 Conn. 259, 284, 528 A.2d 760 (1987). Thus, a clarifying act, which contrues and clarifies a prior statute, must be accepted as the legislative declaration of the meaning of the original act. State v Blasko, 202 Conn. 541, 557, 522 A.2d 753 (1987).

It is clear from the legislative history of 1989 Conn. Pub. Acts No. 89-255 e4, that the intent was to clarify the provisions of Conn. Gen. Stat. e 29-276b relative to the scope of the independent consultant's review. Given the facts that Conn. Gen. Stat.e29-276b did not specify the scope of the independent engineering review and that 1989 Conn. Pub. Acts No. 89-255 is a clarifying act, we must conclude that 1989 Conn. Pub. Acts No. 89-255 controls the scope of review for those structures and additions meeting the threshold limits, for which a building permit application was made and a permit issued before June 16, 1989. Similarly, it controls the scope of review with respect to those structures and additions for which an application for a building permit was made before June 16, 1989, but was issued a permit after June 16, 1989. Thus, the controlling date for purposes of the scope of the review is the date the review takes place, not the date the building permit is issued.

We note, of course, that the less stringent requirements of 1989 Conn. Pub. Acts No. 89-255 e 4 would only apply to the extent that the review had not already been performed. If the review had already been done, further review would not be necessary.

Very truly yours,

CLARINE NARDI RIDDLE
ATTORNEY GENERAL

Henri Alexandre
Assistant Attorney General

CNR/HA/ec


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