California Apt. Assn v. City of Fremont

• Decision Date: 12 April 2002
• Docket Number: No. A095016.,A095016.
• Citation: 118 Cal.Rptr.2d 603,97 Cal.App.4th 693
• Court: California Court of Appeals Court of Appeals
• Parties: CALIFORNIA APARTMENT ASOCIATION et al. Plaintiffs and Appellants, v. CITY OF FREMONT, Defendant and Respondent.

118 Cal.Rptr.2d 603

97 Cal.App.4th 693

CALIFORNIA APARTMENT ASOCIATION et al. Plaintiffs and Appellants, v. CITY OF FREMONT, Defendant and Respondent.

No. A095016.

Court of Appeal, First District, Division 2.

April 12, 2002.

Counsel for Appellants: Livingston & Mattesich, S. Craig Hunter, Sacramento.

Counsel for Respondent: Harvey E. Levine, City Attorney, Michael Barrett, Senior Deputy City Attorney, Richards, Watson & Gershon, Gary E. Gans, Los Angeles, Janet E. Coleson, San Jose.

RUVOLO, J.

I. INTRODUCTION

Health and Safety Code section 17958¹ states that California's Building Standards Code (the State Code) becomes effective 180 days following publication of a new State Code, unless amended by local authorities. Appellants California Apartment Association and Rental Housing Owners of Southern Alameda (collectively CAA) brought suit against the City of Fremont (the City), claiming the City's fire sprinkler ordinances requiring automatic fire sprinklers in certain apartment buildings, which were adopted outside the 180-day period, were not timely adopted and, therefore, were void. The trial court sustained the City's demurrer after concluding that section 17958 does not preclude cities from making amendments, additions or deletions to the State Code more than 180 days after the publication of the new State Code. We agree and affirm.

II. FACTS AND PROCEDURAL HISTORY

On June 22, 1999, the City adopted Ordinance Nos. 2344 and 2339 (the fire sprinkler ordinances), which require that apartment buildings of a certain size, having interior corridors particularly susceptible to rapidly spreading fire, be retrofitted with automatic fire sprinkler systems. In support of this local legislation, the City made findings that there are a number of apartment buildings in the City having center corridor-type structures. In these buildings, the ingress and egress of dwelling units is through the center hallway. In the event of a fire, the central hallway—the only means of escape—functions as a horizontal chimney, creating a dangerous condition known as "fire flash over." The "flash over" condition results from the accumulation of gases from the fire seeping into the hallway. The gases accumulate in the hallway ceiling area and ignite when the gas flash point temperature is reached. Therefore, residents cannot exit safely through the hallway, and residents in upper stories of a burning building may be forced to leap from windows and balconies in order to try to escape death or serious injury. The City concluded that automatic fire sprinkler systems installed in the hallways of central corridor structures can save lives and property by preventing "fire flash over" and by delaying the spread of fires.

In the underlying action, CAA challenged the validity of the fire sprinkler ordinances on numerous grounds, including that the ordinances: 1) were not timely adopted; 2) violated due process; 3) constituted an unconstitutional taking; 4) were unconstitutionally vague; and 5) violated equal protection. Because CAA eventually dismissed all of these causes of action, this appeal concerns only the second cause of action in CAA's complaint, which is denominated "preemption by state law as not timely adopted." This cause of action alleged that the sprinkler ordinances were not adopted within the 180-day time frame prescribed by state statute, and were, therefore, null and void.

By way of background, until the 1970's, every city and county in California adopted its own building code, unfettered by mandated state standards or state control. In 1970, the Legislature put an end to this practice by declaring a statewide interest in uniform building codes and by otherwise expressing an intent to preempt the field of setting building code standards. (See generally Briseno v. City of Santa Ana (1992) 6 Cal.App.4th 1378, 1382-1383, 8 Cal.Rptr.2d 486.) Since then uniform statewide building standards have been generally specified by the Legislature. (See § 17922 [adoption of specific uniform building standards relating to construction dealing with everything from plumbing to fire safety incorporated into state law].) The State Code is a compilation of these building standards and is binding on the state and other public agencies, including private parties and entities. (See § 18944.5.) The State Code must be published in its entirety once in every three years, with supplements in other years as necessary. (See § 18942, subd. (a).) Once published, the State Code takes effect at the local level 180 days thereafter. (§ 17958.)

However, local entities, such as the City, are not absolutely precluded from enacting standards different from the standards set out in the State Code. As explained in ABS Institute v. City of Lancaster (1994) 24 Cal.App.4th 285, 29 Cal. Rptr.2d 224 (ABS), "There is a statewide interest in uniform building codes and the field has therefore been preempted by state law, subject to a statutory exception which permits a local entity to modify the provisions of the California Building Standards Code when it determines, and expressly finds, that such changes are reasonably necessary because of local climatic, geological or topographical conditions. [Citations.]" (Id. at p. 293, 29 Cal.Rptr.2d 224.) (See § 18941.5, subd. (b).) Section 17958.5 permits such modifications where "reasonably necessary because of local climatic, geological, or topographical conditions," and section 17958.7, subdivision (a) requires an express finding that such conditions exist. In enacting the fire sprinkler ordinances, the City made express findings that more stringent fire protection measures were required because of local conditions, such as the City's proximity to the active Hayward earthquake fault, the high fire hazard exposure, and certain topographic features of the City.²

Section 17958, which sets out the 180-day time limit that is at the center of this controversy, reads as follows: "Except as provided in Sections 17958.8 and 17958.9, any city or county may make changes in the provisions adopted pursuant to Section 17922 and published in the California Building Standards Code or the other regulations thereafter adopted 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 California 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 California 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 California Building Standards Commission. Amendments, additions, and deletions to the California Building Standards Code adopted by a city or county pursuant to Section 17958.7, together with all applicable portions of the California Building Standards Code, shall become effective 180 days after publication of the California Building Standards Code by the California Building Standards Commission." (Added by Stats. 1984, c. 908, § 3, p. 3031; amended by Stats.1997, c. 645 (A.B.1071), § 9.)

CAA's second cause of action questions the timeliness of the adoption of the sprinkler ordinances based on CAA's interpretation of the 180-day timeframe set out in section 17958. CAA believes section 17958 absolutely fixes 180 days following the new State Code's publication as a period of limitations within which the City must have adopted its fire sprinkler ordinances. Since the official publication date of the new 1998 State Code was November 1998, the sprinkler ordinances, which were adopted by the City on June 22, 1999, were well outside the 180-day period prescribed by section 17958. As a consequence, CAA claimed the sprinkler ordinances were invalid and unenforceable.

The City filed a demurrer to CAA's second cause of action arguing that section 17958 simply says, that if a local governmental entity does not make modifications to the State Code within 180 days of its triennial publication date, the State Code becomes "effective" in that city 180 days after publication. Nothing in section 17958 states that cities only have the power to make modifications to the State Code within 180 days of publication and, if they fail to meet this narrow time frame, they must wait until the next publication date three years later in order to modify the State Code.

When this matter was orally argued below, the City pointed out that a 1979 amendment rewrote the previous version of section 17958, which had read: "The governing body of every city or county shall adopt ordinances or regulations imposing the same requirements as are contained in the regulations adopted pursuant to Section 17922 within one year after November 23, 1970. If any city or county does not adopt such ordinances or regulations, the provisions of this part and the rules and regulations promulgated thereunder shall be applicable within one year after November 23, 1970." (Italics added.) City's counsel argued that the deletion of the "one-year" time requirement signaled a desire by the Legislature to eliminate the one-year window for city-sponsored amendments to the State Code which existed in the prior law: "If the Legislature had intended to change one year to 180 days, it easily could have done so. All it had to do was take that one sentence where it says `shall have one year' and change one year to 180 days."

On February 27, 2001, the trial court sustained the City's demurrer to the second cause of action without leave to amend. CAA then voluntarily dismissed every...