Building Industry Ass'n v. City of Livermore (45 Cal. App. 4th 719, 1996)

Opinion

PARRILLI, J.

This case presents a single straightforward issue: can California cities require builders to install residential fire sprinkler systems in new or substantially remodeled single-family dwellings? The simple answer to this question is “yes.” Unfortunately, because the Legislature has not spoken clearly concerning this issue, the analysis which leads to this conclusion is neither straightforward nor simple.

I

Facts

In 1992 the City of Livermore (City) updated its building code by enacting ordinance No. 1389. Ordinance No. 1389 adopted the 1991 version of the Uniform Building Code, with certain amendments. In particular, the City amended section 3802 of the 1991 Uniform Building Code, which, in its original version, required automatic fire-extinguishing systems in most buildings except single-family dwellings and duplexes. Ordinance No. 1389 effectively removed this exception and required automatic fire-extinguishing systems in all new construction, including single-family dwellings. (City of Livermore Ord. No. 1389, § 2, p. 8.) To support this amendment, the Livermore City Council made detailed findings that the more stringent requirements for automatic fire-extinguishing systems were reasonably necessary due to local climatic, geological and topographical conditions. (Health & Saf. Code, §§ 17958.5, 17958.7.)

The City codified the new requirement for automatic fire-extinguishing systems in section 15.04.180 of the Livermore Municipal Code (hereafter municipal code section 15.04.180). Section 15.04.180 requires builders to install automatic fire-extinguishing systems in all new residential dwellings, including single-family residences.

In 1995 the Building Industry Association of Northern California (Building Association) filed a complaint for declaratory and injunctive relief to prevent the City from enforcing municipal code section 15.04.180. The complaint alleged that state law fully occupied and regulated the field of residential construction and fire safety standards, and the City therefore lacked authority to enact local building standards that differ from state standards. In particular, the Building Association alleged the City had no authority to require builders to install automatic fire sprinkler systems in newly constructed single-family dwellings, as this was not required by state law.

The trial court sustained the City’s demurrer to the complaint. The court stated that state law did not preempt the challenged ordinance. The court found that sections 17958.5 and 17958.7 granted the City authority to enact an ordinance requiring fire sprinklers in all new single-family residences based on local climatic, topographical, and geological conditions. The Building Association then filed a petition for writ of mandate in this court which this division summarily denied. The trial court entered judgment dismissing the complaint and the Building Association filed this timely appeal.

II

Discussion

As we explain in more detail below, our state Legislature has clearly expressed its intent to fully occupy the field of building standards. Consequently, a local government is precluded from enacting building standards that differ from state standards unless a state statute specifically authorizes the local government to do so. In this case, the City contends sections 17958, 17958.5, and 17958.7 authorized it to adopt more stringent residential fire sprinkler standards based on local climatic, geological and topographical conditions. We agree with the City’s position.

A. State Law Preempts the Field of Housing Building Standards

Article XI, section 7 of the California Constitution provides that municipalities may enact and enforce ordinances “not in conflict with general laws.” An ordinance that conflicts with state law is void. (Cedar Shake & Shingle Bur. v. City of Los Angeles (9th Cir. 1993) 997 F.2d 620, 623 (Cedar Shake); Bruce v. City of Alameda (1985) 166 Cal.App.3d 18 [212 Cal.Rptr. 304].) “Conflicts exist if the ordinance duplicates [citations], contradicts [citation], or enters an area fully occupied by general law, either expressly or by legislative implication [citations]. If the subject matter or field of the legislation has been fully occupied by the state, there is no room for supplementary or complementary local legislation, even if the subject [was] otherwise one properly characterized as a ‘municipal affair.’ [Citations.]” (Lancaster v. Municipal Court (1972) 6 Cal.3d 805, 807-808 [100 Cal.Rptr. 609, 494 P.2d 681], quoted in Cohen v. Board of Supervisors (1985) 40 Cal.3d 277, 290-291 [219 Cal.Rptr. 467, 707 P.2d 840].)

It is clear municipal code section 15.04.180 does not directly contradict state law. A builder can comply with both by complying with the more stringent City requirements for fire sprinklers. (Cedar Shake, supra, 997 F.2d at p. 623.) However, the Legislature has expressed an intent to fully occupy the field of building standards relating to housing.

In Briseno v. City of Santa Ana (1992) 6 Cal.App.4th 1378 [8 Cal.Rptr.2d 486] (Briseno), the Fourth District concluded that the state has generally preempted the field of housing construction standards. As the Briseno court observed, “[o]ne need only track the history of the state’s housing laws to appreciate the Legislature’s desire to preempt local regulation generally.” (Id. at p. 1382.) The State Housing Law (§§ 17910-17995.5) requires the state to adopt statewide building standards for residential housing. (§§ 17920, subd. (e), 17921, 17950; Cedar Shake, supra, 997 F.2d at p. 624, fn. 3.) Before 1970, the State Housing Law expressly permitted counties and municipalities to “ ‘enact ordinances or regulations imposing restrictions equal to or greater than those imposed’ ” by the State Housing Law. (Former § 17951, subd. (a), quoted in Briseno, supra, at p. 1382.) “Thus, prior to 1970, state building and housing requirements did not preempt the field.” (Briseno, supra, at p. 1382; see City of Bakersfield v. Miller (1966) 64 Cal.2d 93, 100-101 [48 Cal.Rptr. 889, 410 P.2d 393].)

However, “ ‘[i]n 1970, the Legislature amended section 17951 by deleting the provision authorizing local agencies to adopt ordinances imposing standards “equal to or greater” than those promulgated by the state, . . . and made other substantial revisions in the State Housing Law. [Citation.] The revisions directed [the state] to adopt rules and regulations imposing “the same requirements” as are contained in the various uniform building codes . . . and required every city and county to adopt ordinances or regulations imposing the same requirements . . . .’ (Baum Electric Co. v. City of Huntington Beach (1973) 33 Cal.App.3d 573, 577 [109 Cal.Rptr. 260].) It is clear that the 1970 amendments to the state housing laws evidence a legislative intent to generally preempt local regulation in the field.” (Briseno, supra, 6 Cal.App.4th at p. 1382, fn. omitted; see also Danville Fire Protection Dist. v. Duffel Financial & Constr. Co. (1976) 58 Cal.App.3d 241, 247-248 [129 Cal.Rptr. 882] [concluding that previous, less comprehensive scheme occupied the field]; accord, Cedar Shake, supra, 997 F.2d at p. 623; ABS Institute v. City of Lancaster (1994) 24 Cal.App.4th 285, 288-289 [29 Cal.Rptr.2d 224] .)

As the Briseno court further reasoned, we may also infer the Legislature intended to occupy the field because it “has prescribed the manner in which local authorities can adopt ordinances which vary from the uniform codes.” (6 Cal.App.4th at p. 1382.) For example, section 17958.5, subdivision (a) allows local governments to amend the uniform codes by enacting more restrictive ordinances if they are justified by local climatic, geological, or topographical conditions. “[I]t makes little sense to prescribe a narrow set of circumstances in which local entities can override state law if those entities are already free to [do so] with impunity.” (6 Cal.App.4th at p. 1383.)

We find Briseno's reasoning persuasive, and therefore join the other courts which have unanimously concluded that our state has generally preempted the field of residential building standards. (ABS Institute v. City of Lancaster, supra, 24 Cal.App.4th at pp. 288-289; Cedar Shake, supra, 997 F.2d at p. 623; Briseno, supra, 6 Cal.App.4th at pp. 1382-1383; Danville Fire Protection Dist. v. Duffel Financial & Constr. Co., supra, 58 Cal.App.3d at pp. 247-248.)

The City’s argument to the contrary evidences a basic misunderstanding of the law of preemption. The City argues that because the state granted local governments the power to depart from state standards in certain instances, this means the state did not intend to fully occupy the field of building standards relating to housing. However, as the Briseno court noted, the opposite is true. Because the state has specifically delineated where and in what manner local authorities may “adopt ordinances which vary from the uniform codes,” this means the Legislature intended to preempt local government’s power to legislate in the field of housing building standards, except as specifically permitted by state statutes. (Briseno, supra, 6 Cal.App.4th at pp. 1382-1383; see §§ 17958.5, subd. (a), 17958.7, subd. (a) [permitting localities to amend building standards based on local climatic, geological, or topographical conditions but requiring local governments to make specific findings to do so]; § 17922, subd. (b) [reserving to local jurisdictions power over “local use zone requirements, local fire zones, building setback, side and rear yard requirements, and property line requirements”]; § 17951, subd. (d)(2) [allowing local governments to approve alternate material or methods of construction provided that the alternate has been approved by the state and is “for the purpose intended, at least the equivalent of that prescribed in the California Building Standards Code”].)

It is true that the power granted to the local authorities by the state in this area is broad; however, because the state has preempted this area, that authority must be exercised pursuant to a specific statutory grant of authority, not pursuant to the local government’s general police power. (ABS Institute v. City of Lancaster, supra, 24 Cal.App.4th at pp. 288, 293.) B. State Law Authorizes a City to Adopt More Restrictive Automatic Fire-extinguishing System Requirements Based on Local Conditions

Even though the state has generally preempted the field of residential building standards, a local government may adopt building standards that differ from state standards if a state statute specifically authorizes the local government to do so. (Cedar Shake, supra, 997 F.2d at p. 624.) Thus, the genuine issue in this case is whether the state has granted the City statutory authority to impose more stringent residential fire sprinkler standards than those found in the Uniform Building Code. We conclude the state has granted this authority to cities and counties where local climatic, geological, or topographical conditions justify the stricter standards. (§§ 17958, 17958.5, 17958.7; ABS Institute v. City of Lancaster, supra, 24 Cal.App.4th at p. 293.)

Section 17958 provides in part that “any city or county may make changes in the provisions adopted pursuant to Section 17922 and published in the State Building Standards Code or the other regulations thereafter adopted pursuant to Section 17922 . . . upon express findings pursuant to Sections 17958.5 and 17958.7.” Section 17958.5, subdivision (a) provides that “. . . a city or county may make such changes or modifications in the requirements contained in the provisions published in the California Building Standards Code and the other regulations adopted pursuant to Section 17922 as it determines, pursuant to the provisions of Section 17958.7, are reasonably necessary because of local climatic, geological, or topographical conditions.” To qualify under this provision, the local entity must “make an express finding that such modifications or changes are reasonably necessary because of local climatic, geological or topographical conditions.” (§ 17958.7, subd. (a); ABS Institute v. City of Lancaster, supra, 24 Cal.App.4th at pp. 288-289.)

In this case, the Livermore City Council expressly found that modified standards for automatic fire-extinguishing systems were necessary because of local conditions. In particular, the city council found that dry, hot, windy summers in the City had led to grass and brush fires in the grassland surrounding the City and that these conditions greatly increased the fire risk to residences, especially new residences being built in the grassland area. The council also found the City has an unusual number of topographical features which hinder fire suppression services. Finally, the council noted the City is near several earthquake faults, and that a “major seismic event” would create a demand for fire suppression services that the City Fire Department could not meet.

The Building Association has not challenged the City’s findings in this regard. Instead, the Building Association contends the preemption exception established by sections 17958, 17958.5, and 17958.7 simply does not apply to residential fire sprinkler requirements. The Building Association argues this is so because residential fire sprinkler requirements are not “building standards” adopted pursuant to section 17922, but are instead “fire and panic safety standards” adopted by the State Fire Marshal under a separate procedure. Consequently, the Building Association argues that residential fire sprinkler requirements do not fall within the ambit of sections 17958, 17958.5, and 17958.7.

To understand the Building Association’s argument, it is necessary to briefly outline the structure of California’s statutory scheme regulating housing construction. Division 13 of the Health and Safety Code regulates housing generally; part 1.5 of that division concerns the regulation of buildings used for human habitation and is known as the State Housing Law. 9Briseno, supra, 6 Cal.App.4th at p. 1382.) Section 17921, subdivision (a) of the State Housing Law requires the Department of Housing and Community Development (Department of Housing) to adopt building standards for the construction of dwelling units generally. (See § 17920, subd. (e).) Section 17921, subdivision (b) requires the State Fire Marshal to adopt building standards specifically relating to fire and panic safety in dwelling units. {Cedar Shake, supra, 997 F.2d at p. 624, fn. 3.) After adopting the standards, the State Fire Marshal and the Department of Housing submit the standards to the State Building Standards Commission. The commission evaluates the recommendations and, once approved, the standards are codified in the California Building Standards Code, title 24 of the California Code of Regulations. (997 F.2d at p. 624, fn. 3; see also ABS Institute v. City of Lancaster, supra, 24 Cal.App.4th at p. 289; §§ 18930, 18935.)

Section 17922, subdivision (a) incorporates into the State Housing Law the residential building standards that are published in the California Building Standards Code. (Cedar Shake, supra, 997 F.2d at p. 625.) Section 17922, subdivision (a) provides in pertinent part: “[T]he building standards adopted and submitted by the [Department of Housing] for approval . . . and the other rules and regulations, which are contained in Title 24 of the California [Code of Regulations] adopted, amended or repealed from time to time pursuant to this chapter shall be adopted by reference, except that the building standards and rules and regulations shall include any additions or deletions made by the department.” (Italics added.)

Again, section 17958 provides in part that “any city or county may make changes in the provisions adopted pursuant to Section 17922 and published in the State Building Standards Code . . . upon express findings pursuant to Sections 17958.5 and 17958.7.” (Italics added.) The Building Association contends that only the building standards adopted by the Department of Housing are “adopted pursuant” to section 17922. Since the rules regarding automatic fire-extinguishing systems were adopted by the State Fire Marshal, the Building Association contends they are not “adopted pursuant to section 17922” and thus do not fall within the preemption exception created by section 17958. We disagree.

The plain language of the statute indicates the State Fire Marshal’s standards are “adopted pursuant to section 17922.” Section 17922, subdivision (a) incorporates both “building standards adopted and submitted by the [Department of Housing]” and “the other rules and regulations, which are contained in Title 24 of the [California Code of Regulations], adopted . . . pursuant to [chapter 2 of the State Housing Law]” (Italics added.) The standards adopted by the State Fire Marshal are codified in title 24 of the California Code of Regulations. Moreover, the State Fire Marshal’s dwelling standards are adopted pursuant to section 17921, subdivision (b). That provision is found in chapter 2 of the State Housing Law. Thus, the State Fire Marshal’s building standards are adopted pursuant to “this chapter”; that is, chapter 2 of the State Housing Law. (Cedar Shake, supra, 997 F.2d at p. 625.)

Under this analysis, the State Fire Marshal’s standards are “adopted pursuant to section 17922” and the City may modify those standards pursuant to section 17958 when it expressly finds that the changes are necessary because of local climatic, geological or topographical conditions. (§§ 17958, 17958.5, 17958.7; ABS Institute v. City of Lancaster, supra, 24 Cal.App.4th at p. 293.)

In reaching this conclusion, we are aware the Attorney General reached the opposite conclusion in 72 Ops.Cal.Atty.Gen. 180 (1989). (3) “Opinions of the Attorney General, while not binding, are entitled to great weight. [Citations.] In the absence of controlling authority, these opinions are persuasive ‘since the Legislature is presumed to be cognizant of that construction of the statute.’ [Citation.]’’ {Ñapa Valley Educators’ Assn. v. Napa Valley Unified School Dist. (1987) 194 Cal.App.3d 243, 251 [239 Cal.Rptr. 395].) (lc) However, we believe the opinion at issue is simply wrong, and consequently we need not follow it. (See Moore v. Panish (1982) 32 Cal.3d 535, 544 [186 Cal.Rptr. 475, 652 P.2d 32]; IT Corp. v. Solano County Bd. of Supervisors (1991) 1 Cal.4th 81, 95-96 [2 Cal.Rptr.2d 513, 820 P.2d 1023].) Moreover, after the Attorney General issued its opinion, the Legislature took action to overturn the opinion’s primary conclusion. Consequently, its persuasive authority has been substantially undermined.

In 72 Ops.Cal.Atty.Gen., supra, at page 180, the Attorney General concluded that “Cities and counties may not adopt building standards relating to fire and panic safety that are more stringent than those adopted by the State Fire Marshal under sections 17922, 17958.5 or 17958.7 of the State Housing Law.” (Id. at pp. 180-181.) The Attorney General recognized section 17958 permits a city or county to modify the provisions adopted by the state pursuant to section 17922 if the local government expressly finds that the modifications are reasonably necessary because of local climatic, geological or topographical conditions. (72 Ops.Cal.Atty.Gen., supra, at p. 186.) However, the Attorney General concluded that section 17958 did not permit a local government to modify building standards specifically adopted by the State Fire Marshal because those standards are not adopted pursuant to section 17922. The Attorney General reasoned: “When speaking of building standards, all of the subdivisions of [section 17922] refer to those of that Department. Thus the section commences: [