ABS Institute v. City of Lancaster

• Decision Date: 30 March 1994
• Docket Number: No. B074636,B074636
• Citation: 29 Cal.Rptr.2d 224,24 Cal.App.4th 285
• Court: California Court of Appeals Court of Appeals
• Parties: ABS INSTITUTE et al., Plaintiffs and Appellants, v. CITY OF LANCASTER, Defendant and Respondent.

Page 224

29 Cal.Rptr.2d 224

24 Cal.App.4th 285

ABS INSTITUTE et al., Plaintiffs and Appellants, v. CITY OF LANCASTER, Defendant and Respondent.

No. B074636.

Court of Appeal, Second District, Division 1, California.

March 30, 1994.

Sanford I. Millar and Joel P. Schiff, Los Angeles, for plaintiffs and appellants.

Stradling, Yocca, Carlson & Rauth, Donald J. Hamman, and David H. Mann, Newport Beach, for defendant and respondent.

MIRIAM A. VOGEL, Associate Justice.

ABS Institute, Colby Plastics, and Polaris Pipe Company, Inc. filed a complaint for declaratory and injunctive relief challenging a City of Lancaster ordinance adopted to prohibit the use of ABS cellular pipe. ¹ Judgment was entered in favor of the City and the Institute appeals. We affirm.

BACKGROUND

A.

Until the 1970's, every city and county in California adopted its own building code, unfettered by mandated state standards or state control. (City of Bakersfield v. Miller (1966) 64 Cal.2d 93, 97, 48 Cal.Rptr. 889, 410 P.2d 393.) In 1970, the Legislature put an end to all that by declaring a statewide interest in uniform building codes (Stats.1970, ch. 1436, § 7) and otherwise expressing an intent to generally preempt the field. (Baum Electric Co. v. City of Huntington Beach (1973) 33 Cal.App.3d 573, 577, 109 Cal.Rptr. 260; see also Danville Fire Protection Dist. v. Duffel Financial & Constr. Co. (1976) 58 Cal.App.3d 241, 248, 129 Cal.Rptr. 882.) But that is not to say that local authorities may never adopt ordinances which vary from the uniform codes. They may do so if they come within the exception of section 17958.5 of the Health and Safety Code, ² which 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 [the Uniform Housing Code] as it determines, pursuant to the provisions of Section 17958.7, are reasonably necessary because of local climatic, geological, or topographical conditions."  (Emphasis added.)   To qualify for this preemption exception, the local entity must (as provided in subdivision (a) of section 17958.7) "make an express finding that such modifications or changes are [24 Cal.App.4th 289] reasonably necessary because of local climatic, geological or topographical conditions."  (Emphasis added.) 3
                

B.

The state, through the Department of Housing and Community Development (HCD), reviews national model uniform codes and promulgates modifications which, in turn, are reviewed and approved by the California Building Standards Commission (and are then referred to as the California Building Standards Code). (§§ 17922, 18930, 18935.) Uniformity is achieved by requiring all cities and counties to adopt the uniform building codes, as modified by the HCD, as their local building codes. (§§ 17958, 18941.5.) Local modifications are permitted only as allowed by sections 17958.5 and 17958.7.

C.

Before 1982, the Uniform Plumbing Code (and, therefore, the California Building Standards Code) restricted the use of ABS pipe to "drain, waste and vent" pipe in residential structures of "two stories or less." In 1982, the Uniform Plumbing Code deleted the "two stories or less" limit and permitted the use of ABS pipe in any structure built with other "combustible" construction materials. But California did not go along with this amendment. Instead, it continued (and still continues) the two story residential restriction on ABS pipe. (Cal.Code of Regs., tit. 24, §§ 401, subd. (a)(2), 503, subd. (a)(2), and 1004, subd. (a).) ⁴

FACTS

In 1989, the Lancaster City Council first considered Ordinance 541 which would have adopted HCD's modified Uniform Plumbing Code (with the two story residential restriction on the use of ABS pipe). In reaction to citizen concerns about public safety, however, the City Council had its staff study the issue and prepare a report. Among other things, the report explained that some California cities (including Beverly Hills and San Leandro) had always banned the use of ABS drain, waste and vent piping; and that there had been some "failures" of ABS systems in those parts of the state where its use was permitted, as a result of which the International Association of Plumbing and Mechanical Officials (which publishes the Uniform Plumbing Code) had tightened its quality control program. The report recommended retention of the existing two story residential restriction "unless testimony at the hearing [on the proposed ordinance] demonstrates to the Council further restriction is necessary."

At the scheduled hearing on the ordinance (March 19, 1990), it became apparent that the ABS pipe issue needed further study and the hearing was therefore continued to April 2, 1990. On April 2, the plumbing code was segregated from the other codes covered by Ordinance 541 and introduced separately as Ordinance 545. After a request from an ABS pipe proponent for "a future public forum for addressing the pros and cons of the matter," the issue was continued to a special meeting set for May 9. Although ABS proponents as well as its opponents Reed's testimony is quoted at length below. For the moment, it suffices to note that Reed stressed the flammability of ABS cellular pipe and the proximity of Lancaster to the San Andreas fault, and then summed it up this way: "In your community here, because of your concern for seismic safety, fire safety, because of the intense sunlight and temperature changes of your desert environment, because of your problems with air quality, and your concern over water quality and solid waste, it may be appropriate for you to exclude this from the Code. The City is growing very rapidly and it seems that in the light of the City's special conditions and the questions over the mechanical suitability of the pipe, that excluding the material from the Code today, may ensure that these buildings which are being built and which will become an enduring part of your City, will be quality environments and be safe and will comply with the goals ... set forth in your own General Plan."

attended the meeting, only one expert testified. Tom Reed, a chemist with 17 years experience who had been studying plastic pipe, including ABS, for 10 years, asked the City of Lancaster to "consider the inherent unsuitability of ABS for use in drain, waste and vent and [to] consider the City's geography, climate and the environment as a basis for excluding the pipe from the City Code."

In addition to Reed, there was testimony by other, non-expert witnesses opposed to the use of ABS pipe. David Birka-White, an attorney specializing in ABS pipe lawsuits (he represents plaintiffs), testified about his experience in 40 to 50 lawsuits since 1986. He commented upon statewide incidents of pipe failures, with sewage dumped directly into the walls of houses, and similar problems. In his view, the ABS pipe industry has been unable to regulate itself sufficiently to ensure a quality product. A local plumber, Arnold A. Rodio, Jr., testified about several plumbing failures involving ABS pipe manufactured by several different companies.

No expert testimony was offered by the ABS proponents to controvert Reed's evidence about Lancaster's climatic, topographical and geological conditions. Instead, Sanford Millar, the Institute's attorney, testified about industry efforts to satisfy the HCD's concerns; Ted Grizzell, representing the Plastic Pipe and Fittings Association, testified in favor of expanded use of ABS pipe and pointed to a trade publication showing various devices available to inhibit the spread of smoke and fire through plastic pipe; and other plastic pipe manufacturers, wholesalers and plumbers testified in favor of ABS pipe.

On June 4, 1990, the City Council approved Ordinance 545, adopting by reference the Uniform Plumbing Code but prohibiting all use of cellular core ABS pipe in the City and limiting the use of solid core ABS pipe in residential construction to buildings not more than two stories in height. ⁵ Included in Ordinance 545 was a finding of necessity: "The provisions of this chapter are reasonably necessary because of local climatic, geographical, or topographical conditions. These findings are made pursuant to Sections 17958.5 and 17958.7 of the State Health and Safety Code and based upon evidence presented at the May 9, 1990 City Council meeting." As required by section 17958.7, subdivision (a), the City filed a copy of Ordinance 545 and a copy of the minutes of the May 9 meeting with HCD. After HCD notified the City that its "findings of need" were insufficient, the City Council adopted Resolution No. 90-277 to clarify its findings. Among other things, the City found that:

--"A significant portion of the residential area of the City lies in the vicinity near the San Andreas Fault. The location of the Fault increases the likelihood of seismic disturbances of substantial magnitude occurring which would cause consequent damage. Such damage is often accompanied by structural fire. Because cellular core ABS pipe is combustible, emits toxic gases and acids, and generates large amounts of smoke, its presence increases the threat to life and property in the event of a seismic disturbance. Additionally, seismic activity would cause cellular --"A large area under residential development in the northwestern portion of the City ... is potentially subject to liquefaction which may cause a loss of lateral support for cellular core ABS pipe, resulting in its failure. Liquefaction often results in a greater degree and different form of differential movement which may cause excessive strain on cellular core ABS pipe."

core ABS pipe to weaken over time, yielding sewage problems."

--"A sizable portion of the City ... is characterized by soils of high shrink-swell potential which will cause excessive strain on cellular core ABS pipe."

--"The City is subject...