Untitled California Attorney General Opinion ( 1989 )

OFFICE OF THE ATTORNEY GENERAL
State of California
JOHN K. VAN DE KAMP
Attorney General
______________________________________
OPINION :
: No. 88-904
of :
: SEPTEMBER 14, 1989
JOHN K. VAN DE KAMP :
Attorney General :
:
RONALD M. WEISKOPF :
Deputy Attorney General :
:
______________________________________________________________________________
THE HONORABLE JAMES F. MCMULLEN, STATE FIRE MARSHAL, has
requested an opinion on the following questions:
1. Under sections 17922, 17958.5 and 17958.7 of the State Housing Law, may cities
and counties adopt building standards relating to fire and panic safety that are more stringent than
the state standards adopted by the State Fire Marshal?
2. May a fire protection district adopt a fire prevention code or regulations setting
forth building standards relating to fire and panic safety that are stricter than those contained in the
State Building Standards Code?
CONCLUSIONS
1. 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.
2. A fire protection district may not adopt a fire prevention code or other regulations
that set forth building standards relating to fire and panic safety which are stricter than the standards
contained in the State Building Standards Code.
ANALYSIS
The function of the Office of the State Fire Marshal is to promote and develop ways
and means of protecting life and property against fire and panic. (Health & Saf. Code, § 13100.1.)1
Toward that end several sections of the Health and Safety Code direct the Fire Marshal to prepare
and adopt building standards relating to certain aspects of fire prevention and for the protection of
life and property against fire and panic in various categories of structures throughout the state. (See
1
Unidentified statutory references are to the Health and Safety Code.
1. 88-904
e.g., §§ 13108 [state-owned buildings and institutions], 13143 [certain types of occupancies such
as jails, hospitals, nurseries, schools, theaters, and auditoriums], 13143.6 [occupancies for semi-
custodial care]; 13211 [high rise structures], 17920.7 [structural fire safety and fire-resistant exits
in multiple story structures let for human habitation], 17921(b) [hotels, motels, lodging houses,
apartment houses, dwellings, buildings, and accessory structures].) These building standards are
submitted to the State Building Standards Commission for approval under the State Building
Standards Law (div. 13, pt. 2.5, § 18901 et seq.) and are then published in the State Building
Standards Code (Tit. 24, Code Cal. Regs.). (§§ 18907, 18930, 18938, 18940, 18942, 18943; 69
Ops.Cal.Atty.Gen. 260, 261 (1986); cf., § 18902.)2
Two of the sections pursuant to which the State Fire Marshal adopts building
standards, sections 17920.7 and 17921(b), appear in the State Housing Law (Health & Saf. Code,
div. 13, pt. 1.5, § 17910 et seq.). Sections 17922, 17958.5 and 17958.7 of that Law permit local
agencies to modify certain state building standards to accommodate certain local conditions. We
are specifically asked whether under those particular sections, cities and counties, and also fire
protection districts, may adopt building standards which are more stringent than those adopted by
the Fire Marshal. We conclude that under the specified code sections, neither cities and counties,
nor fire protection districts, may adopt building standards more stringent than those of the State Fire
Marshal.3
To be clear at the outset, this opinion is specifically concerned with the authority of
local agencies to adopt more stringent standards than those adopted by the State Fire Marshal under
the three particular sections of the State Housing Law we are asked about. Because of that specific
focus we do not address other provisions of law that permit local agencies to adopt local building
standards that deviate from state building standards adopted by the State Fire Marshal, and which
may permit them to adopt stricter building standards than those thereunder. (See e.g., §§ 13216,
17951(d), 17920.7; cf., 58 Ops.Cal.Atty.Gen. 13 (1975).)
1. Cities and Counties Adopting Building Standards Relating To Fire and Panic
Safety Under Sections 17922, 17958, 17958.5 and 17958.7 of the State Housing Law That
Are More Stringent Than The State Fire Marshal's Standards.
Under section 7 of article XI of the California Constitution, a city or county "may
make . . . within its limits all local, police, sanitary, and other ordinances and regulations not in
conflict with general laws." (Cal. Const, art. XI, § 7.) A local ordinance which is intended to
protect the public health, safety and welfare, such as one prescribing building standards relating to
fire safety, would fall within that ambit. (58 Ops.Cal.Atty.Gen. 13, 14, supra; cf., People ex rel.
Deukmejian v. County of Mendocino (1984) 36 Cal. 3d 476, 484; People v. Mueller (1970) 8
Cal. App. 3d 949, 954 fn. 1.) The ordinance would be presumed valid so long as it did not conflict
2
The Legislature has recently provided that all references to the State Building Standards Code,
the State Building Code, or Title 24 of the California Administrative Code shall mean the
"California Building Standards Code." (§ 18902, added by Stats. 1988, ch. 1194, p. [2899], § 1.)
Inasmuch as we quote from sections of law which refer to that Code as the "State Building Standards
Code," we will do likewise to avoid confusion.
3
We were also asked whether a fire protection district could adopt building standards relating to
fire and panic safety that were more restrictive than those found in a city or county code. That
aspect of the second question is rendered moot by our conclusions 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, and that fire protection districts may not do so either.
2. 88-904
with general, i.e., state law. (Cf., Freeman v. Contra Costa County Water District (1971) 18
Cal. App. 3d 404, 408; Stanislaus Co. etc. Assn. v. Stanislaus (1937) 8 Cal. 2d 378, 383, 384.)
But local legislation that does conflict with state law is void. As our Supreme Court
has summarized:
"`"As defined by the cases the constitutional phrase `conflict with general
laws'. . . may arise in several different ways. It may grow out of the exact language
of the state and municipal laws [citations] or from a local attempt `to impose
additional requirements in a field that is preempted by general law' [citations] or
from the state's adoption of `a general scheme for the regulation of a particular
subject' [citations]." (Baron v. City of Los Angeles (1970) 2 Cal. 3d 535, 541
[emphasis added]; see also People ex rel Deukmejian v. County of Mendocino, supra,
36 Cal.3d at 484-485; Lancaster v. Municipal Court (1972) 6 Cal. 3d 805, 806, 808;
58 Ops.Cal.Atty.Gen. 519, 521-523, 529 (1975); 58 Ops.Cal.Atty.Gen. 13, 14,
supra.)
"Conflict" with state law can thus arise in many ways, and as pertinent herein one of them occurs
when the state has enacted a comprehensive legislative scheme intended for uniform application
throughout the state and a local ordinance seeks to impose a more stringent requirement to govern
a particular facet of the area. In such a case, the local ordinance would be "to that extent void
insofar as it prohibits what [the] state law authorizes. [Citations.]" (Markus v. Justice's Court
(1953) 117 Cal. App. 2d 391, 397; see also, Danville Fire Protection Dist. v. Duffel Financial &
Constr. Co. (1976) 58 Cal. App. 3d 241, 249; In re Lane (1962) 58 Cal. 2d 99, 102-103; 61
Ops.Cal.Atty.Gen 365, 372 (1978);43 Ops.Cal.Atty.Gen. 218, 219 (1964).)4
The State Housing Law presently constitutes a legislative design to secure uniform
building standards throughout the state and to preëmpt local divergences therefrom, except as
specifically authorized by it. Prior to 1970, the State Housing Law, although detailed and
comprehensive, had not preëmpted the field of building safety standards because it specifically
empowered cities and counties to enact building regulations imposing standards that were "equal
to or greater" than those promulgated by the state (former § 17951; Stats. 1961, ch. 1844, p. 3922,
§ 8), and it made the state standards inapplicable in those local jurisdictions which did so (former
§§ 19825 [Stats. 1961, ch. 1844, p. 3926, § 1], 19826 [id., § 12, p. 3927]). (See, City of Bakersfield
v. Miller (1966) 64 Cal. 2d 93, 100-101; see Danville Fire Protection Dist. v. Duffel Financial &
Constr. Co., supra, 58 Cal. App. 3d 241, 245; People v. Wheeler (1973) 30 Cal. App. 3d 282, 289;
Baum Electric Co. v. City of Huntington Beach (1975) 33 Cal. App. 3d 573, 577.)
4
Under article XI, section 5, subdivision (a) of the California Constitution, a local ordinance of
a charter city would supersede general state law with respect to "municipal affairs." (Fisher v. City
of Berkeley (1984) 37 Cal. 3d 644, 704; Baggett v. Gates (1982) 32 Cal. 3d 128-135-136.) But "if
the subject matter or field of the legislation has been fully occupied by the state, there is no room
for supplementary or complimentary legislation, even if the subject is otherwise one properly
characterized as a `municipal affair.' (Lancaster v. Municipal Court, supra, 6 Cal. 3d 805.)"
(Danville Fire Protection Dist. v. Duffel Financial & Constr. Co., supra, 58 Cal. App. 3d 241, 249.
"While `[t]he determination of what constitutes a strict municipal affair is often a difficult question'
[citation], the courts look to the provisions of the conflicting state statute to see if it addresses a
matter of `statewide concern' [citations]. If so, the state law is controlling regardless of the charter
provision. [Citations.]" (69 Ops.Cal.Atty.Gen. 203-206 (1986).) The matter of having uniform
statewide building standards relating to fire and panic safety would be a matter of "statewide
concern." (58 Ops.Cal.Atty.Gen. 13, supra; cf., Stats. 1970, ch. 1436, p. 2786, § 7.)
3. 88-904
In 1970, however, the Legislature substantially amended the State Housing Law in
order to provide a comprehensive scheme to secure a general uniformity of building standards
throughout the state in matters such as safety and structure of buildings, details of construction, use
of materials, and electrical, plumbing and heating specifications. (Stats. 1970, ch. 1436, § 7, p.
2786; Green v. Superior Court (1974) 10 Cal. 3d 616, 627; Danville Fire Protection Dist. v. Duffel
Financial & Constr. Co., supra, 58 Cal.App.3d at 245-247, 248; Baum Electric Co v. City of
Huntington Beach, supra, 33 Cal. App. 3d 573, 584; Taschner v. City Council [of Laguna Beach]
(1973) 31 Cal. App. 3d 48, 60; 60 Ops.Cal.Atty.Gen. 234, 237-239 (1977); 55 Ops.Cal.Atty.Gen. 157,
160 (1972); 54 Ops.Cal.Atty.Gen. 87, 88-89 (1971).)5 It (i) directed the State Department of
Housing and Community Development to adopt rules and regulations imposing "the same
requirements" that are contained in various uniform industry building codes (Stats. 1970, ch. 1436,
§ 1, p. 2785, amending § 17922, subd. (a)), and then (ii) it removed the aforementioned authority
of cities and counties to adopt more stringent building standards than those imposed by the state (and
the companion provision making the less stringent state standards inapplicable those local
jurisdictions which did so), and required instead that every city and county adopt ordinances or
regulations imposing those same requirements within their jurisdictions within one year, or they
would be made applicable in them at that time by force of law (id., § 3, p. 2786, adding § 17958).
(See, Danville Fire Protection Dist. v. Duffel Financial & Constr. Co, supra, 58 Cal. App. 3d 245;
People v. Wheeler, supra, 30 Cal. App. 3d 282; Baum Electric Co. v. City of Huntington Beach,
supra, 33 Cal. App. 3d 573; 55 Ops.Cal.Atty.Gen. 157, 160, supra; 54 Ops.Cal.Atty.Gen. 87, 88-89,
supra.)
But even then local jurisdictions were allowed wide latitude to deviate from state
building standards under the State Housing Law. (See e.g., Baum Electric Co. v. City of Huntington
Beach, supra; People v. Wheeler, supra; 55 Ops.Cal.Atty.Gen. 157, 160, supra; 54
Ops.Cal.Atty.Gen. 87, 88 (1971).) This is because while the 1970 amendments to the Law were
designed to secure a uniformity of codes throughout the State, the Legislature showed a "sensitivity
to, and deference for, local conditions and needs." (55 Ops.Cal.Atty.Gen. 157, 160, supra, quoted
in Baum Electric Co. v. City of Huntington Beach, supra at 584.) For example, the Law as amended
provided that a county or city could make such changes or modifications in the state requirements
"as it determines are reasonably necessary because of local conditions" (§ 17958.5, added by Stats.
5
When it adopted the 1970 amendments to the State Housing Act, the Legislature declared that
"the uniformity of codes throughout the State . . . [was] a matter of statewide interest and concern
since it would reduce housing costs and increase the efficiency of private housing construction
industry and its production" and that such "uniformity [could] be achieved within a framework of
local autonomy, by allowing local governments to adopt changes making modifications in [the]
codes based on differences in local conditions . . . ." (Stats. 1970, ch. 1436, supra; Danville Fire
Protection Dist. v. Duffel Financial & Constr. Co, supra, 58 Cal. App. 3d 241, 245; People v.
Wheeler (1973) 30 Cal. App. 3d 282, 289; Baum Electric Co. v. City of Huntington Beach, supra, 33
Cal. App. 3d 573, 577.) In 60 Ops.Cal.Atty.Gen. 234, supra, we pointed out that the utilization of
the uniform codes was an attempt to reduce housing costs by reducing production costs and
increasing the efficiency of the housing industry. (Id., at 237.) By allowing the industry to rely on
a single set of standards rather than a different one for every area, it could develop more economical
and efficient approaches to basic design, construction techniques and materials. (Id., at 238.) Of
course another purpose underlying the building regulations was the protection of the public health
and safety. (Baum Electric Co. v. City of Huntington Beach, supra, at 581.) In that opinion we also
pointed out that since uniform codes are based on professional expertise, research and testing that
is not routinely available to local agencies, the adoption of statewide uniform standards would also
serve that end. (60 Ops.Cal.Atty.Gen., supra; see also Danville Fire Protection Dist. v. Duffel
Financial & Constr. Co., supra, 58 Cal. App. 3d 241, 249.)
4. 88-904
1970, ch. 1436, § 4, p. 2786), and it also provided that the State Housing Law was not meant to alter
local building regulations that had been enacted prior to its effective date. (§ 17958.7, added by
Stats. 1970, ch. 1436, § 5, p. 1436.) In 55 Ops.Cal.Atty.Gen. 157, supra, we concluded that the
former provision demonstrated an intention to allow cities and counties to adopt regulations with
additional or more restrictive building standards than those promulgated by the state (id., at 160­
161), and in 54 Ops.Cal.Atty.Gen. 87, supra, we said that the latter provision meant that the Law's
requirement for uniformity did not apply to building activity that was already regulated by an
existing local regulation enacted on or before November 23, 1970 (id., at 88-89).
These broad exemptions from statewide building standards no longer obtain and state
preëmption of the "field" is more complete. In 1980 the Legislature (i) amended section 17958.5
of the State Housing Law to severely limit the types of local conditions for which local agencies
could deviate from statewide building standards (Stats. 1980, ch. 130, p. 303, § 2; Stats. 1980, ch.
1238, p. 4203, § 9), and (ii) it deleted the exception from the requirement of uniformity previously
found in section 17958.7 for nonconforming local building regulations that were enacted on or
before November 23, 1970 (Stats. 1980, ch. 1295, p. 4381, § 1). As mentioned, what we have now
is a state preëmption of the field of building standard regulation, except for such now more limited
deviations therefrom as the Legislature has specifically permitted local agencies. Our attention is
particularly and specifically directed to three sections of the Law in which the Legislature has
permitted such activity: sections 17922, 17958.5, and 17958.7. Before we turn to them, however,
we will briefly relate them to each other and to other sections of the State Housing Law.
We have mentioned how two sections of the State Housing Law impose a duty on
the State Fire Marshal to prepare and adopt building standards relating to certain aspects of fire
prevention in multiple story structures let for human habitation (§ 17920.7) and in hotels, motels,
lodginghouses, apartment houses and dwellings, and buildings in general (§ 17921, subd. (b)). But
the major thrust of the Law is concerned with building standards (and other regulations) prepared
and adopted by the Department of Housing and Community Development. Subdivision (a) of
section 17921 imposes a duty upon that department (cf., § 17920, subd. (d)) to adopt building
standards (other than those relating to fire and panic safety) for the protection of the public health,
safety and general welfare with respect to the construction, alteration, repair, etc., of all hotels,
motels, lodginghouses, apartment houses, and dwellings. (§ 17921, subd. (a).) As with the Fire
Marshal's building standards, those of the department are submitted to the State Building Standards
Commission for approval and inclusion in the State Building Standards Code, under the State
Building Standards Law (div. 13, pt. 2.5, § 18901 et seq.).
Subdivision (a) of section 17922 requires that the building standards thus adopted by
the department "impose substantially the same requirements as are contained in the most recent
editions of [various] uniform industry codes . . . ." (§ 17922, subd. (a).) (See generally, 63
Ops.Cal.Atty.Gen. 566 (1980.) Section 17958 then essentially makes those standards applicable in
all cities and counties: It permits cities and counties to make changes or modifications in them only
if the changes would "impose the same requirements," and it provides that if a city or county does
not amend, adopt or repeal ordinances or regulations to impose those requirements, they will become
applicable in such city or county 180 days after they are published in the State Building Standards
Code.6 (See also, § 18941.5, subd. (a).)
6
Section 17958 provides:
"Except as provided in Sections 17958.8 and 17959, 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
5. 88-904
But there is one notable exception to section 17958: Under section 17958.5 a city
or county may make changes or modifications to the building standards adopted pursuant to section
17922, subdivision (a), "as it determines . . . are reasonably necessary because of local climatic,
geological, or topographical conditions." (§ 17958.5.) Section 17958.7 provides that for any such
change to be effective, the local jurisdiction must make an express "finding" that it is reasonably
necessary because of those particular local conditions, and it must file the "finding" with the
Department of Housing and Community Development.
The first question asks whether under sections 17922, 17958.5 and 17958.7 a city or
county may adopt building standards which are more stringent than those adopted by the State Fire
Marshal? The essence of the answer is simple: Inasmuch as section 17922, upon which the other
sections are predicated, only deals with building standards adopted by the Department of Housing
and Community Development and not those adopted by the State Fire Marshal, none of the sections
about which we are asked provides authority for a city or county to adopt more stringent standards
than those adopted by the latter.
A. Section 17922. As just mentioned, section 17922 directs the Department of
Housing and Community Development in adopting building standards for approval by the
Commission on Housing and Community Development under the State Building Standards Law to
"impose substantially the same requirements as are contained in the most recent editions of [various]
uniform industry codes . . . ." (§ 17922, subd. (a); see 63 Ops.Cal.Atty.Gen. 566 (1980).) When
speaking of building standards, all of the subdivisions of the section refer to those of that
Department. Thus the section commences:
"(a) Except as otherwise specifically provided by law, the building standards
adopted and submitted by the department for approval . . . and the other rules and
regulations . . . adopted . . . pursuant to this chapter
. . . shall impose substantially the same requirements as are contained in the most
recent editions of the following uniform industry codes as adopted by the
organizations specified . . . ." (Emphasis added.)
Subdivisions (c) and (d) of the section each commences with the similar reference:
pursuant to Section 17922 to amend, add, or repeal ordinances or regulations which
impose the same requirements as are contained in the provisions adopted pursuant
to Section 17922 and published in the State Building Standards Code or the other
regulations adopted pursuant to Section 17922 or make changes or modifications in
those requirements upon express findings pursuant to Sections 17958.5 and 17958.7.
If any city or county does not amend, add, or repeal ordinances or regulations to
impose those requirements or make changes or modifications in those requirements
upon express findings, the provisions published in the State Building Standards Code
or the other regulations promulgated pursuant to Section 17922 shall be applicable
to it and shall become effective 180 days after publication by the commission.
Amendments, additions, and deletions to the State Building Standards Code adopted
by a city or county pursuant to Section 17958.7, together with all applicable portions
of the State Building Standards Code, shall become effective 180 days after
publication of the State Building Standards Code by the State Building Standards
Commission."
6. 88-904
"(c) [and (d)] Regulations other than building standards which are adopted,
amended or repealed by the department and building standards adopted and
submitted by the department for approval . . . ." (Emphasis added.)
Nowhere in section 17922 is any reference made to building standards adopted by the State Fire
Marshal. As was seen at the very outset of this Opinion, his adoption of building standards for
submission for approval to the Commission on Housing and Community Development and
incorporation in the State Building Standards Code is directed by other provisions of law, viz.,
sections 13108, 13143, 13143.6, 13211, 17920.7, and 17921(b).
It is true that two of the sections pursuant to which the State Fire Marshall adopts
building standards, 17920.7 and 17921(b), are found in the State Housing Law and indeed appear
in the very same chapter in which section 17922 is found. But when section 17922 speaks of
building standards, it does not refer to building standards that are adopted under the chapter of the
State Housing Law in which it appears, as it refers to other regulations that are adopted thereunder.
Such a reference could bring the building standards adopted by the State Fire Marshal pursuant to
sections 17920.7 and 17921(b) within its ambit. Instead, as we have seen, when section 17922
speaks of building standards, it specifically and continually refers to those that are adopted by the
Department of Housing and Community Development. Accordingly the section would not provide
authority for a city or county to adopt building standards which are more stringent than those of the
State Fire Marshal.7
B. Sections 17958 and 17958.5. As mentioned, when the 1970 amendments to the
State Housing Law were first enacted, section 17958.5 gave broad authority for cities or counties
to make changes or modifications in the state building standards taken from the uniform building
7
We are aware that one subdivision of section 17922 does provide for a greater exercise of local
authority. Subdivision (b) "specifically and entirely" reserves regulation in the areas of local use
zone requirements, local fire zones, building setback, side and rear yard requirements, and property
line requirements to local jurisdictions, "notwithstanding any requirement found or set forth in [the
State Housing Law]." The use of the phrase "notwithstanding any requirement found or set forth
in [the State Housing Law]" would mean that local regulation in those areas would take precedence
over anything found in the State Housing Law. (Cf., In Re Marriage of Dover (1971) 15 Cal. App. 3d
675, 678 fn. 3; State of California v. Superior Court (1965) 238 Cal. App. 2d 691, 695-696.) That
would include the State Fire Marshal's building standards which are adopted pursuant to sections
17921 and 17920.7. However, the problem with applying the reserved jurisdiction of subdivision
(b) to the Fire Marshal's building standards is that the matters which it reserves for local regulation
involve zoning and not building standards. (See e.g., Taschner v. City Council (1973) 31
Cal. App. 3d 48, 60 [overruled on other grounds in Associated Home Builders etc., Inc. v. City of
Livermore (1976) 18 Cal. 3d 582, 596 fn. 14]; Danville Fire Protection Dist. v. Duffel Financial &
Constr. Co., supra, 58 Cal. App. 3d 241, 247.) Zoning is an area that traditionally has been exercised
by cities and counties (Taschner v. City Council, supra at 62 referring to Cal. Const., art XI, § 7; cf.
§§ 17920(b), 18909(a), Gov. Code, §§ 65800, 65850) and is not one with which the State Fire
Marshal would be involved in adopting building standards. Conversely, since the "specific grant
of reserved local jurisdiction in subdivision (b) is a very limited one," it "is by implication a denial
of the grant of any greater jurisdiction," (Danville Fire Protection Dist. v. Duffel Financial &
Constr. Co., supra, 58 Cal. App. 3d 241, 247), and as such, would not be a grant of authority to act
in other areas, such as adopting building standards. (Ibid.)
7. 88-904
codes to adapt them to local conditions.8 In 1980, however, the Legislature amended the section and
greatly restricted the types of local conditions for which a deviation from statewide standards could
be made: It limited them to local climatic, geographical, or topographical conditions. (Stats. 1980,
ch. 130, p. 303, § 2; Stats. 1980, ch. 1238, p. 4208, § 9.)9 Section 17958.5 currently provides in part
as follows:
"(a) Except as provided in Section 17922.6 [which deals with the Office of
Noise Control establishing minimum noise insulation standards for certain multi-
occupant dwellings], in adopting the ordinance regulations pursuant to Section
17958, a city or county may make such changes or modifications in the requirements
contained in the provisions published in the State 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. [¶] For purposes of this subdivision, a city
and county may make reasonably necessary modifications to the requirements,
adopted pursuant to Section 17922, contained in the provisions of the code and
regulations on the basis of local conditions." (§ 17958.5; emphases added.)
While it may appear at first glance that subdivision (a) of section 17958.5 would enable a city or
county to impose stricter building standards than those adopted by the State Fire Marshal if called
for by the particularities of local climatic, geological, or topographic conditions10, when one follows
through to examine the sections referred to in the subdivision, one sees that it does not.
Subdivision (a) of section 17958.5 authorizes cities and counties (i) in adopting
ordinances or regulations pursuant to Section 17958, (ii) to make changes in the requirements
contained in the provisions of the State Building Standards Code and the other regulations adopted
pursuant to section 17922. Section 17958, we recall, provides that cities and counties must adopt
the state building standards promulgated pursuant to section 17922 within their respective
jurisdictions within 180 days, lest they be made applicable in them by operation of law. But it also
provides that those local agencies may (i) make changes in those standards if that would impose "the
same requirements" as would have been imposed by them, and (ii) that they may change or modify
the state standards if found to be necessary because of local climatic, geological, or topographical
conditions. (See fn. 6, ante.)
8
As originally enacted, section 17958.5 simply provided that "[i]n adopting the ordinances or
regulations pursuant to Section 17958, a city or county may make such changes or modifications in
the requirements contained in regulations adopted pursuant to Section 17922 as it determines are
reasonably necessary because of local conditions." (Stats. 1970, ch. 1436, p. 2758, § 4.)
9
The limitation was based on an Opinion we had issued in 1974 in which we said that the bare
phrase "local conditions" could not include political, economic or social phenomena, lest it destroy
any possibility of statewide uniformity in building codes, and so we concluded that the term referred
"only to conditions which may be labeled broadly as geographical or topographical." (57
Ops.Cal.Atty.Gen. 443, 445 (1974).) We iterated that observation three years later and further
discussed its ramifications vis-à-vis the powers of the Commission on Housing and Development.
(See 60 Ops.Cal.Atty.Gen. 234, 235-239, supra.)
10
For example, under the subdivision, a city or county could prohibit the use of materials,
appliances, installations, devices, arrangements, or methods of construction. (§ 17922, subd. (e).)
8. 88-904
The problem with using sections 17958 and 17958.5 as authority for cities or counties
to adopt more stringent building standards, albeit for limited reasons, than those adopted by the State
Fire Marshal, is that both sections refer exclusively to building standards (or other regulations)
adopted pursuant to section 17922, but that section, as seen, deals only with building standards
adopted by the Department of Housing and Community Development and not those of the State Fire
Marshal. Since section 17922 does not purport to deal with building standards adopted by the State
Fire Marshal, neither could section 17958 which refers to it, nor section 17958.5 which refers to the
latter in turn. Accordingly, neither section 17958 nor section 17958.5 could provide authority for
cities and counties to adopt stricter building standards than those adopted by the State Fire Marshal.
C. Section 17958.7. Section 17958.7 prescribes the express finding that a city or
county must make before modifying state building standards under section 17958.5:
"(a) Except as provided in Section 17922.6, the governing body of a city or
county, before making any modifications or changes pursuant to Section 17958.5,
shall make an express finding that such modifications or changes are reasonably
necessary because of local climatic, geological or topographical conditions. Such
a finding shall be available as a public record. A copy of such findings, together
with the modification or change expressly marked and identified to which each such
finding refers, shall be filed with the department. No such modification or change
shall become effective or operative for any purpose until the finding and the
modification or change have been filed with the department.
"(b) The department may reject a modification or change filed by the
governing body of a city or county if no finding was submitted." (§ 17958.7;
emphases added.)
The problem with viewing section 17958.7 as authority for a local agency to make changes in
building standards adopted by the State Fire Marshal is that it refers to modifications or changes a
city or county would make pursuant to section 17958.5, but as we have just shown that section
applies only to changing the building standards of the Department of Housing and Community
Development and not those of the State Fire Marshal. Indeed, the correctness of our perception is
confirmed by the requirement of section 17958.7 for any such changes to be approved by "the
department."11 Thus, section 17958.7 would not authorize cities or counties to adopt more stringent
building standards than those adopted by the State Fire Marshal.
It has been suggested that the section may do so indirectly because of a recent
amendment to section 18941.5 of the State Building Standards Law. That section was amended last
year (Stats. 1988, ch. 1302, p. [3314], § 1) and now reads as follows:
"(a) The building standards contained in [the various Uniform Codes] as
referenced in the State Building Standards Code shall apply to all occupancies
throughout the state and shall become effective 180 days after publication in the
State Building Standards Code by the State Building Standards Commission.
11
The procedural requirement for the making of findings and for filing with the Department were
apparently intended "as a deterrent to the excessive adoption of changes or modifications." (57
Ops.Cal.Atty.Gen. 443, 445, supra, citing Stats. 1970, ch. 1436, p. 2786, § 7; see also 60
Ops.Cal.Atty.Gen. 234, 237, supra; 55 Ops.Cal.Atty.Gen. 157, 162, supra.)
9. 88-904
"(b) Amendments, additions, and deletions to the State Building Standards
Code adopted by a city, county, or city and county pursuant to subdivision (c) or
pursuant to Section 17958.7, together with all applicable portions of the State
Building Standards Code, shall become effective 180 days after publication of the
State Building Standards Code by the State Building Standards Commission.
"(c) Neither the State Building Standards Law . . . nor the application of
building standards contained in this section, shall limit the authority of a city, county
or city and county to establish more restrictive building standards reasonably
necessary because of local climatic, geological, or topographical conditions. The
governing body shall make the finding required by Section 17958.7 and the other
requirements imposed by Section 17958.7 shall apply to that finding." (Emphasis
added.)
The suggestion is that under subdivision (c) a city or county could adopt a more restrictive building
standard than one adopted by the State Fire Marshal and published in the State Building Standard
Code, if it properly makes a finding under section 17958.7 that such is "reasonably necessary
because of local climatic, geological or topographical conditions."
We reject the suggestion. Subdivision (c) of section 18941.5, as amended, does not
provide an independent grant of authority for cities and counties to act. Rather, it speaks in negative
terms of not limiting the authority of those local entities to establish more restrictive building
standards because of the existence of local climatic, geological, or topographical conditions. The
grant of such "authority" must therefore be found elsewhere, and it is -- in sections 17958.5 and
17958.7 of the State Housing Law. But once so found, the measure of the authority of cities and
counties to act under those sections is defined by their terms, and they, as just shown, do not reach
building standards adopted by the State Fire Marshal. Inasmuch as section 18941.5 does not
independently grant authority to cities and counties to act, it would not permit those local
jurisdictions to adopt more stringent building standards for their jurisdictions than those adopted by
the State Fire Marshal.
To summarize our answer to the first question then: Since section 17922 of the State
Housing Law does not deal with building standards adopted by the State Fire Marshal, neither it, nor
sections 17958.5 and 17958.7 which are predicated upon it, can authorize a city or county to adopt
more stringent building standards relating to fire and panic safety than those adopted by the State
Fire Marshal. Again though, this answer is confined by the parameters of the opinion request and
relates solely to those three specific sections about which we were asked.
2. Fire Protection Districts Adopting A Fire Prevention Code Or Ordinances With
Building Standards That Are More Stringent Than Those Adopted By The State Fire
Marshal And Contained In The State Building Standards Code.
Unlike cities and counties, fire protection districts are not granted broad police power
authority by the state Constitution. (Cf., Moore v. Municipal Court (1959) 170 Cal. App. 2d 548,
555; 68 Ops.Cal.Atty.Gen. 225, 229 fn. 3.) They are creatures of statute, which serves to define
their powers and duties. (Cf., 68 Ops.Cal.Atty.Gen. at 228; 25 Ops.Cal.Atty.Gen. 234, 235 (1955);
10 Ops.Cal.Atty.Gen. 47, 48 (1947).)
10. 88-904
Fire protection districts are presently organized under the Fire Protection District Law
of 1987 (div. 12, pt. 3, § 13800 et seq.).12 That Law gives them authority:
-- to adopt ordinances (§ 13861, subd. (h));
-- to adopt a fire prevention code by reference, in the manner that counties and cities
do (§ 13869); and
-- to establish rules and regulations relating to furnishing fire protection and other
services relating to the protection of lives and property (§ 13861, subd. (i); § 13862,
subds. (a),(f)).13
Would these grants of authority, either singularly or in combination, authorize a fire protection
district to adopt a fire protection code or regulations with building standards that were more
stringent than those of the State Fire Marshal? We believe not.
As we saw in answering the first question, the State Housing Law presently preëmpts
all local regulation of building standards except as the Legislature may permit in certain areas. As
12
In 1987 the Legislature repealed the Fire Protection District Law of 1961 (Stats. 1961, ch. 565,
§ 1; div. 12, pt. 2.7, § 13801 et seq.) and succeeded it with the Fire Protection District Law of 1987.
(Stats. 1987, ch. 1013 [SB 505, Bergeson], §§ 10, 11.) For the most part, any fire protection district
organized or reorganized under the former Law "remain[s] in existence as if it had been organized
pursuant to the [new one] . . . ." (§ 13803, subd. (a).) An excellent explanation of the new Fire
Protection District Law is found in A New Law For A New Mission (Senate Bill 515 and the "Fire
Protection District Law of 1987") [cited hereinafter as A New Law] that was prepared by the Senate
Committee on Local Government in October 1987.
13
Section 13861 currently describes the general powers of the Districts, providing in part as
follows:
"A district shall have and may exercise all rights and powers, express or
implied, necessary to carry out the purposes and intent of this part, including, but not
limited to the following powers:
"(h) To adopt ordinances following the procedures of Article 7 (commencing
with Section 25120) of Chapter 1 of Part 2 of Division 2 of Title 3 of the
Government Code. [Cf., former §§ 13869, 13870, 13871.]
"(i) To establish and enforce rules and regulations for the administration,
operation, and maintenance of the services listed in Section 13862." [Cf., former §
13852, subd. (d).]
Among the services listed in section 13862 is that of providing "fire protection services (id., subd.
(a)), as well as a general one to provide "[a]ny other services relating to the protection of lives and
property." (Id., subd. (f).)
Section 13869 specifically empowers Fire Prevention Districts to "adopt a fire prevention
code by reference" as cities and counties do under the Government Code (§ 50022.2). (§ 13869
[former § 13871].) When they do so, the District's board is "deemed a legislative body and the
district . . . deemed a local agency." (§ 13869.)
11. 88-904
we also saw in that Law, the Legislature has specifically permitted cities and counties to adopt local
building standards which diverge from the state standards in certain areas because of local
conditions. (§§ 17958.5, 17958.7.) But as we have shown, that limited grant of authority does not
permit those local agencies to adopt more stringent building standards relating to fire and panic
safety than those which are adopted by the State Fire Marshal. The authority for fire protection
districts to do so is even more attenuated because the Legislature has not accorded them a similar
limited authority to adopt building standards which diverge from the state's standards.14 Indeed, as
we said in a recent opinion, we knew of nothing in the State Housing Law that would confer
discretionary authority upon fire protection districts to adopt stricter building standards than are
found therein. (Id., at 228, 229.)
Could such authority be found in the Fire Protection District Law itself? There we
have seen that fire protection districts are granted authority to adopt ordinances (§ 13861, subd. (h)),
to adopt a fire prevention code by reference (§ 13869), and to establish rules and regulations
relating, inter alia, to furnishing fire protection and other services (§ 13861, subd. (i); § 13862,
subds. (a),(f)). The Legislature has declared the local provision of fire protection services to be
"critical to the public peace, health, and safety of the state" (§ 13801) and the Fire Protection District
Law to be "necessary for the public, health, safety, and welfare" (§ 13804). Accordingly, the
Legislature has said that the Law "shall be liberally construed to effectuate its purposes. (Ibid.)
(Cf., A New Law, op.cit.supra, at 25; 68 Ops.Cal.Atty.Gen. 225, 228, supra.)
However, the foregoing grants of authority to fire protection districts in the Fire
Protection District Law of 1987 are general and are controlled by the more specific provisions of
the State Housing Law. (Danville Fire Protection Dist. v. Duffel, supra,
58 Cal. App. 3d 241, 247; 68 Ops.Cal.Atty.Gen. 226, 228-229, supra.)
In Danville Fire Protection Dist. v. Duffel Financial & Constr. Co., supra, 58
Cal. App. 3d 241, it was held that a fire protection district could not adopt an ordinance under former
section 13869 [now § 13861, subd. (h)] to require certain heat and smoke detector alarm systems
and fire sprinkler systems to be installed in specific types of new buildings because the requirements
of such were more stringent than what was required by the State Housing Law. (Id., at 243, 246­
247.) The basis for the ruling was that "the fire protection requirements of the district were void as
the field was totally preempted by the State Housing Law." (Id., at 244.) Indeed, the court
specifically said that although the authority of a Fire Protection District to "adopt and enforce
reasonable ordinances for the prevention and suppression of fires and conflagrations and for the
protection and preservation of life and property against the hazards of fire and conflagration"
14
Again, the "specific and entire" reservation to "local jurisdiction" of the right to regulate "local
zone use requirements, local fire zones, building setback, side and rear yard requirements, and
property line requirements" that is found in section 17922, subdivision (b) would not provide a fire
protection district with authority to adopt building standards which are more stringent than the
state's. Even assuming that a fire protection district would be considered a "local jurisdiction"
within the meaning of that subdivision, its "limited grant of reserved power . . . is by implication a
denial of the grant of any greater jurisdiction" (Danville Fire Protection Dist. v. Duffel Financial
& Constr. Co., supra, 58 Cal. App. 3d 241, 247), and we have seen how the reserved areas cover
zoning matters and not building standards.
12. 88-904
(former § 13869) was broad, it was also general and controlled by the more specific provisions of
sections 17922, 17958, and 17958.5 of the State Housing Law. (Id., at 247.)15
In 68 Ops.Cal.Atty.Gen. 226, supra, we similarly concluded that the more specific
provisions of the State Housing Law controlled over the authority of fire protection districts to adopt
ordinances, so that despite the language of section 13869, a fire protection district did not have the
authority to adopt an ordinance requiring the installation of a water reservoir at the time of
construction of new buildings in the district, because that would impose a more stringent standard
than the fire suppression and water delivery requirements of the State Housing Law. (Id., at 228.)
In fact, in that opinion we went further and said that the authority of fire protection districts to adopt
ordinances "must be limited . . . to those ordinances not in conflict with any other state law." (Id.,
at 229.)16
What is true of the authority of fire protection districts to adopt ordinances (§ 13861,
subd. (h)), would be equally true of its authority to establish rules and regulations relating to fire
protection and other services (§§ 13861(i), 13862(a)(f)). Both grants of authority would be subject
to the more specific provisions of the State Housing Law.
The legislative history of the Fire District Protection Law of 1987 convinces us that
the Legislature never intended fire protection districts to be able to adopt ordinances setting forth
building standards stricter than those of the state. As the Bill which enacted that Law (SB 515)
traveled through the legislative process, it was amended several times. As originally introduced, and
prior to amendments made on April 20, 1987, section 13861, which defines the powers of a fire
protection district, contained a subdivision to include among those powers, one "[t]o adopt
ordinances pursuant to Section 17958." At the request of the California Building Industry
Association, the author of the legislation requested an opinion of Legislative Counsel as to whether
that would increase the authority of fire prevention districts. Legislative Counsel rendered an
opinion on April 3, 1987 (# 7483) answering in the affirmative, saying that the subdivision would
increase the existing authority of fire protection districts by allowing them to adopt their own, more
stringent building codes. Opposition from the California Building Industry Association led to the
deletion of the subdivision from the Bill. (See, A New Law, op. cit. supra, at pp. 7, 26.)
"The courts have repeatedly concluded that when the Legislature has rejected a
specific provision which was part of an act when originally introduced, the law as enacted should
not be construed to contain that provision. [Citations.]" (Ventura v. City of San Jose (1984) 151
Cal. App. 3d 1076, 1080.) It will be recalled that section 17958 authorizes cities and counties, (i) to
make changes in state building standards in applying them to their respective jurisdictions as long
15
It is interesting to note that the present authority for fire protection districts "to adopt
ordinances" (§ 13861, subd. (h)) is even more broadly and more generally stated than was their prior
"ordinance authority" which was found to be preëmpted by state law in Danville.
16
See also, 61 Ops.Cal.Atty.Gen. 61, 63-68 (1978), wherein we concluded that despite the broad
language of former section 13869, a fire protection district had no authority to prohibit the sale of
fireworks in the district because it would conflict with the specific and controlling provisions of the
State Fireworks Law; and 10 Ops.Cal.Atty.Gen. 47, 48, supra, where we concluded that
notwithstanding the broad language of former section 14460, which provided that a district could
adopt such ordinances or resolutions as it deemed proper to prevent fires or conflagrations, a fire
protection district was prohibited from adopting an ordinance requiring the installation of a 25,000
gallon water reservoir at recreational vehicle campsites, along with associated equipment, because
state law had preëmpted the field of automobile and trailer camp regulation.
13. 88-904
as they impose the same requirements as those adopted by the Department of Housing and
Community Development, or (ii) to make changes or modifications in those requirements for local
climatic, geological or topographical reasons. What the aforegoing legislative history teaches, is that
the Legislature rejected the suggestion that fire protection districts be authorized to alter state
building standards adopted under the State Housing Law at all. That would certainly mean that the
Legislature did not intend fire protection districts to adopt more stringent building standards than
the those of the State. (See also, Stats. 1988, ch. 1302, § 1, supra, amending § 18941.5.)
As we said earlier, "[w]hat cities and counties may regulate with regard to building
construction standards . . . must be distinguished from the responsibilities of fire protection districts
under the State Housing Law." (68 Ops.Cal.Atty.Gen. 226, 228, supra.) That Law imposes upon
the chief of any fire department or district providing fire protection services, and their authorized
representatives, the duty of enforcing in their respective areas "all of those provisions of [the State
Housing Law]." (§ 17962; cf., § 17966; 69 Ops.Cal.Atty.Gen. 260, 263-265 (1986).) That would
include an obligation to enforce the state building standards relating to fire and panic safety
promulgated by the State Fire Marshal (as well as those of the Department of Housing and
Community Development) and published in the State Building Standards Code. It would also
include the obligation to enforce any city or county code because the adoption of those local codes
is specifically compelled by provisions of the State Housing Law. (§ 17958.)
Accordingly, we conclude that a fire protection district may not adopt more stringent
building regulations than those of the State Fire Marshal.
*****
14. 88-904