Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. 06CECG02127, Donald R. Franson, Jr., Judge.
James C. Sanchez, City Attorney, John W. Fox and Shannon L. Chaffin, Deputy City Attorneys, for Defendants and Appellants.
Nossaman, Guthner, Knox & Elliott, Nossaman, John J. Flynn III, Robert C. Horton and Benjamin Z. Rubin, for Plaintiff and Respondent.
OPINION
Ardaiz, P.J.
In 1970 the California Legislature declared a statewide interest in uniform building codes and enacted legislation expressing an intent to generally preempt the field of building standards. (ABS Institute v. City of Lancaster (1994) 24 Cal.App.4th 285 (ABS Institute); Danville Fire Protection Dist. v. Duffel Financial & Constr. Co. (1976) 58 Cal.App.3d 241 (Danville Fire); Baum Electric Co. v. City of Huntington Beach (1973) 33 Cal.App.3d 573.) The Legislature nevertheless allowed local authorities to adopt ordinances which vary from the uniform codes in certain limited circumstances. Health and Safety Code section 17958.5 states in pertinent part 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.” Health and Safety Code section 17958.7 states in pertinent part that “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.” The section further states that “[n]o modification or change shall become effective or operative for any purpose until the finding and the modification or change have been filed with the California Building Standards Commission.” (Health & Saf. Code, § 17958.7.)
In the case before us, the City Council (Council) of the City of Fresno (City) adopted Ordinance No. 2006-66 (also known as Bill No. B-64), amending the Fresno Municipal Code to require installation of fire sprinklers in kitchens in residences of less than 5,000 square feet, and requiring installation of such sprinklers throughout residences larger than 5,000 square feet. The Council also adopted “Express Findings” which included a finding that the “[m]odification considers local climatic, geological and topographical conditions.” The Council adopted no finding, however, that this modification to the Fresno Municipal Code was “reasonably necessary because of” any local climatic, geological or topographical conditions. (Health & Saf. Code, § 17958.7, subd. (a).) The superior court granted the petition of respondent Building Industry Association of the San Joaquin Valley (BIA) for a writ of mandate directing the City and the City Council to set aside the approval of Bill No. B-64 and Ordinance No. 2006-66.
Appellants contend that the superior court erred in granting the petition for writ of mandate. They contend that the fire sprinkler ordinance was validly enacted. As we shall explain, however, because the Council failed to make the finding of reasonable necessity required by the statute for a valid local modification to the uniform code, we conclude that the ordinance was not validly enacted and that the superior court’s order granting respondent’s petition for writ of mandate must be affirmed.
FACTS
Certain basic procedural facts are not in dispute.
In September 2003, the Council authorized the formation of a Public Safety Commission (Commission) to evaluate a request submitted by the Fresno Fire Department to meet the long-term public safety needs generated by the 2025 Fresno General Plan. One of the Commission’s recommendations was for the City to work with the local building industry to develop a consensus on the use of residential sprinklers to reduce the long-term fire risks. Because industry representatives and the City were unable to reach a consensus, a meeting was held before the Council on January 10, 2006, to see whether there was sufficient support to recommend that an ordinance be drafted to require the installation of sprinklers inside new residential construction.
At this meeting, the Council voted 4-3 to direct the Fresno Fire Department to prepare such an ordinance. Another meeting before the Council was held on April 18, 2006. Eventually a final proposed ordinance was completed, and reintroduced on May 16, 2006. On that date, the Council adopted Bill No. B-64, amending the Fresno Municipal Code to require installation of fire sprinklers in kitchens in residences under 5,000 square feet. Sprinklers throughout the entire residence were required for all units over 5,000 square feet. The resolution took affect on June 30, 2006. It passed by a vote of 4-2, with one member absent.
Respondent BIA, is a California nonprofit Mutual Benefit Trade Association. Its members are homebuilders, land developers, architects, engineers, surveyors, title companies, and leaders in other industry professions.
On June 29, 2006, BIA filed a verified petition for writ of mandate and complaint for declaratory and injunctive relief. A preliminary injunction was issued on the declaratory relief cause of action on August 25, 2006.
On February 7, 2007, the day of trial, the parties stipulated that the second cause of action for declaratory relief be dismissed without prejudice, but that the preliminary injunction remain in effect pending decision by the court on the trial of the petition for writ of mandate. The superior court found that appellants did not comply with Health and Safety Code section 17958.7, dissolved the preliminary injunction, and ordered issuance of a writ directing appellants to void their approval of Bill No. B-64 and Ordinance 2006-66.
HEALTH AND SAFETY CODE SECTIONS 17958.5 AND 17958.7
The genesis of Health and Safety Code sections 17958.5 and 17958.7 is succinctly explained in Danville Fire, supra, 58 Cal.App.3d 241. In Danville Fire a fire protection district enacted an ordinance requiring heat and smoke detector alarm systems and fire sprinkler systems to be installed in all new construction of certain types. The superior court concluded that the ordinance was void because the field was totally preempted by the State Housing Law. The Court of Appeal agreed:
“In 1961, the state Legislature enacted the State Housing Law, part 1.5, commencing with section 17910 of the Health and Safety Code, providing for ‘Regulation of Buildings Used For Human Habitation.’ The act then provided in section 17921 that the department (subsequently the Commission of Housing and Community Development) ‘shall adopt, amend, repeal, and, as hereinafter provided … shall enforce rules and regulations for the protection of the public health, safety, and general welfare of the occupant and the public governing the erection, construction, enlargement, conversion, alteration, repair, moving, removal, demolition, occupancy, use, height, court, area, sanitation, ventilation and maintenance of all hotels, apartment houses, and dwellings.’ (Stats. 1961, ch. 1844, p. 3920.)
“In 1966, our state Supreme Court held that the State Housing Law empowered local agencies to enact building regulations imposing standards ‘equal to or greater’ than those promulgated by the state (§ 17951) and the state statutes and regulations were made inapplicable in any city having and enforcing such local regulation (§ 19825). (City of Bakersfield v. Miller, 64 Cal.2d 93, 100-101.) Thus, at that time, the state building requirements did not preempt the field of building regulation.
“In 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 sate, and repealed former section 19825. Other substantial revisions of the State Housing Law (Stats. 1970, ch. 1436) directed the State Housing Commission to adopt rules and regulations imposing ‘the same requirements’ as are contained in the various uniform building codes, including the Uniform Building Code of the International Conference of Building Officials (§ 17922).
“The Legislature also added new sections 17958, 17958.5 and 17958.7 … and declared that ‘uniformity of codes throughout the State … is a matter of statewide interest and concern since it would reduce housing costs and increase the efficiency of the private housing construction industry and its production.’ (Stats. 1970, ch. 1436, § 7.) In addition, section 17921 provided for the adoption of comprehensive rules and regulations governing the erection, construction, alteration, repair, moving, removal, demolition, occupancy, use, height, court,area, sanitation, ventilation and maintenance of all hotels, motels, apartment houses, and dwellings, and buildings and structures accessory thereto, and recited that the department shall enforce the rules and regulations of the protection of the public health, safety and general welfare of the occupant and the public.” (Danville Fire, supra, 58 Cal.App.3d at pp. 244-246, fns. omitted.)
Health and Safety Code section 17958.5 states:
“Except as provided in Section 17922.6, in adopting the ordinances or 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 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.
“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.”
Health and Safety Code section 17958.7 states:
“(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 those findings, together with the modification or change expressly marked and identified to which each finding refers, shall be filed with the California Building Standards Commission. No modification or change shall become effective or operative for any purpose until the finding and the modification or change have been filed with the California Building Standards Commission.
“(b) The California Building Standards Commission may reject a modification or change filed by the governing body of a city or county if no finding was submitted.”
We are not the first court to observe that the language of Health and Safety Code section 17958.7 is clear. “To qualify for this preemption exception, the local agency must (as provided in subdivision (a) of section 17958.7) ‘make an express finding that such modifications or changes are reasonably necessary because of local climatic, geological or topographical conditions.’” (ABS Institute, supra, 24 Cal.App.4th at pp. 288-289, italics original.) “Section 17958.7, subdivision (a) mandates that the governing body of a city or county ‘shall make an express finding that such modifications or changes are reasonably necessary because of local climatic, geological, or topographical conditions.’” (Briseno v. City of Santa Ana (1992) 6 Cal.App.4th 1378, 1383.) If the governing body does not make the express finding required by Health and Safety Code section 17958.7, the governing body’s legislation does not comply with state law and is void. “Under the police power granted by the Constitution, counties and cities have plenary authority to govern, subject only to the limitation that they exercise this power within their territorial limits and subordinate to state law. [Citation.]” (Candid Enterprises, Inc. v. Grossmont Union High School Dist. (1985) 39 Cal.3d 878, 885.) “Apart from this limitation, the ‘police power [of a county or city] under this provision … is as broad as the police power exercisable by the Legislature itself.’ [Citation.]” (Ibid.) “If otherwise valid local legislation conflicts with state law, it is preempted by such law and is void.” (Ibid.; in accord, see also Sherwin-Williams Co. v. City of Los Angeles (1993) 4 Cal.4th 893, 897.) “[T]he limited grant of reserved power to local entities is by implication a denial of the grant of any greater jurisdiction.” (Briseno v. City of Santa Ana, supra. 6 Cal.App.4th at p. 1383; Danville Fire Protection Dist. v. Duffel Financial & Constr. Co., supra, 58 Cal.App.3d at p. 247.)
Article XI, section 7 of the California Constitution states: “A county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.”
THE STANDARD OF REVIEW
The parties agree that the passing of the sprinkler ordinance and the adoption of findings associated with that ordinance are legislative and not adjudicatory actions. “Generally speaking, a legislative action is the formulation of a rule to be applied to all future cases, while an adjudicatory act involves the actual application of such a rule to a specific set of existing facts. [Citations.]” (Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 35, fn. 2.) “The fact that findings are required does not transform a legislative act into an adjudicatory process. … The adoption of an ordinance is a legislative act. [Citations.]” (ABS Institute, supra, 24 Cal.App.4th at p. 295.) “Although the statutory obligation to make a ‘finding’ is a characteristic shared with adjudicatory proceedings, it does not stamp the function with an adjudicative character. [Citation.]” (Joint Council of Interns & Residents v. Board of Supervisors (1989) 210 Cal.App.3d 1202, 1212.) The court in ABS Institute specifically held that the adoption of Health and Safety Code section 17958.7 findings is a legislative act. (ABS Institute, supra, 24 Cal.App.4th at pp. 294-295.) Legislative acts are reviewed under the procedures governing ordinary or traditional mandamus, as opposed to adjudicatory decisions, which are reviewed under the procedures governing administrative mandamus. (Balch Enterprises, Inc. v. New Haven Unified School Dist. (1990) 219 Cal.App.3d 783, 790-791.)
Code of Civil Procedure section 1085 provides that a writ of mandate “may be issued by any court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins ….” (Code Civ. Proc., § 1085, subd. (a).) “A traditional writ of mandate under Code of Civil Procedure section 1085 is a method for compelling a public entity to perform a legal and usually ministerial duty. [Citation.] The trial court reviews an administrative action pursuant to Code of Civil Procedure section 1085 to determine whether the agency’s action was arbitrary, capricious, or entirely lacking in evidentiary support, contrary to established public policy, unlawful, procedurally unfair, or whether the agency failed to follow the procedure and give the notices the law requires. [Citations.] ‘Although mandate will not lie to control a public agency’s discretion, that is to say, force the exercise of discretion in a particular manner, it will lie to correct abuses of discretion. [Citation.] In determining whether an agency has abused its discretion, the court may not substitute its judgment for that of the agency, and if reasonable minds may disagree as to the wisdom of the agency’s action, its determination must be upheld. [Citation.]’ [Citation.]” (Klajic v. Castaic Lake Water Agency (2001) 90 Cal.App.4th 987, 995; in accord, see also Strumsky v. San Diego County Employees Retirement Assn., supra, 11 Cal.2d at p. 34, fn. 2; Pitts v. Perluss (1962) 58 Cal.2d 824, 833.) “‘In reviewing a trial court’s judgment on a petition for writ of ordinary mandate, we apply the substantial evidence test to the trial court’s factual findings.’ [Citation.] Thus, foundational matters of fact are conclusive on appeal if supported by substantial evidence. [Citations.] However, we exercise our independent judgment about legal questions. [Citation.]” (Klajic v. Castaic Lake Water Agency, supra, 90 Cal.App.4th at pp. 995-996.)
APPELLANTS FAILED TO COMPLY WITH HEALTH AND SAFETY CODE SECTION 17958.7
Respondent BIA’s petition for writ of mandate alleged that appellants’ adoption of the sprinkler ordinance “violated Health & Safety Code section 17958.7, subdivision (a), and otherwise constituted a prejudicial abuse of discretion in that [appellants] (a) failed to proceed in the manner required by law, (b) failed to act upon substantial evidence in the record; and (3) made findings and a decision that are not supported by substantial evidence.” It is clear to us that appellants failed to follow the procedure required by law. (Klajic v. Castaic Lake Water Agency, supra, 90 Cal.App.4th at p. 995; Strumsky v. San Diego County Employees Retirement Assn., supra, 11 Cal.2d at p. 34; Pitts v. Perluss, supra, 58 Cal.2d at p. 833.) This is because Health and Safety Code section 17958.7 requires that “the governing body of a city …, 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” (§ 17958.7, subd. (a)), and no such express finding was made.
Appellants did make an express finding that the “[m]odification considers local climatic, geographical and topographical conditions,” and that these conditions included “extreme heat and dryness,” that the “Fresno metropolitan area is in a virtual desert,” and a “relatively low density growth pattern in the Fresno area.” On the topic of local “climatic” conditions, appellants found that the extreme heat contributes to heat stress, and that “[t]he number of firefighting personnel required and duration of time needed for final extinguishment and overhaul in structures with fire sprinklers is significantly reduced, and the associated heat stress physical effort required of firefighters is also greatly reduced.” On the topic of local “geological” conditions, appellants found: “Firefighters may need only a few gallons per minute for 10 to 15 minutes to control and suppress a fire in a sprinklered building. However, the same incident in a similar building without the benefit of fire sprinklers will in all likelihood require thousands of gallons per minute for up to several hours in some cases.” On the topic of local “topographical” conditions, appellants found that “[w]ithout the incorporation of [fire sprinkler] technology, and due to the relatively low density growth pattern in the Fresno area, more personnel, equipment and fire stations will have to be added to provide fire protection to the citizens of Fresno” and that “[t]his would increase the number of firefighters needed by 272 firefighters over what was proposed by the 2025 Plan.” Appellants and respondent argue at length about whether the findings made by appellants would be legally sufficient to support an “express finding that such modifications or changes are reasonably necessary because of local climatic, geological or topographical conditions” (Health & Saf. Code, § 17958.7, subd. (a)), but this argument is academic and hypothetical because there is no such express finding that the sprinkler ordinance is reasonably necessary. Likewise, we need not comment on whether the asserted justifications are sufficient within the meaning of the statute.
Appellants’ briefing to this court appears to assume that there was a finding of reasonable necessity. Appellants then argue that the meaning of the phrase “or entirely lacking in evidentiary support” in the standard of judicial review of legislative actions under traditional mandamus should be construed to mean entirely lacking any “reasonable basis.” They contend that this is different than applying a review of the record for substantial evidence because the legislative body is not required even to hold an evidentiary hearing prior to taking legislative action. (See City of Santa Cruz v. Local Agency Formation Com. (1978) 76 Cal.App.3d 381, 388-389.)
In Balch Enterprises, Inc. v. New Haven Unified School Dist. (1990) 219 Cal.App.3d 783, 792, the court stated:
“Government Code section 65995 requires school districts to make certain findings as a precondition to imposing development fees. How should the standard of review under Code of Civil Procedure section 1085 be applied to such findings? The issue is not uncommon; many statutes or municipal charters require findings of this sort. In terms of the traditional standard of review, the task of the trial court is to determine if the findings were arbitrary or capricious. (See Walker v. County of Los Angeles (1961) 55 Cal.2d 626, 636; Heist v. County of Colusa (1984) 163 Cal.App.3d 841, 848; Anderson v. Board of Supervisors (1964) 229 Cal.App.2d 796, 798.) We see no way, however, that this determination can be distinguished from application of the substantial evidence rule as applied in administrative mandamus actions—in either case the question is whether there was a reasonable basis for the decision. (See Russ Bldg. Partnership v. City and County of San Francisco (1987) 199 Cal.App.3d 1496, 1511.) In viewing such findings of quasi-legislative agencies, some courts have in fact inquired into the existence of substantial evidence in support of the findings. Joint Council of Interns & Residents v. Board of Supervisors, supra, 210 Cal.App.3d 1202, 1214; City of Santa Cruz v. Local Agency Formation Com. [supra 76 Cal.App.3d at p.] 393.) Nevertheless, precedents drawn from administrative mandamus proceedings should probably still be applied with caution to the review of findings in a quasi-legislative context. Procedural or evidentiary requirements drawn from analogy to judicial proceedings would appear peculiarly inappropriate here. (Stauffer Chemical Co. v. Air Resources Board [(1982)]128 Cal.App.3d 789.)”
The superior court appears to have viewed this language as a statement that substantial evidence review is required when a petitioner challenges a legislative or quasi-legislative finding and argues that the finding is entirely lacking in evidentiary support. Arguably, the language states or implies just the opposite. We observe, however, that in the case of Stauffer Chemical Co. v. Air Resources Board (1982) 128 Cal.App.3d 789, cited in Balch Enterprises, Inc. v. New Haven Unified School Dist., supra, 219 Cal.App.3d 783, the petitioner did “not argue that the Board’s recitals are entirely lacking in evidentiary support.” (Stauffer Chemical Co. v. Air Resources Board, supra, 128 Cal.App.3d at p. 795.) In Stauffer the petitioner unsuccessfully argued that a state board did not follow procedures required by law when it adopted certain regulations without providing “express findings, a statement of reasons and a detailed response to public comments.” (Ibid.) The court observed that no such procedural requirements existed for the board’s quasi-legislative act of adopting the regulations, and stated that the “limited judicial review” conducted under traditional mandamus “forecloses inquiry as to the agency’s reasons for its legislative action.” (Id. at p. 794.) “So long as a reasonable basis for such action exists, the motivating factors considered in reaching the decision are immaterial [citation] and supportive findings are not required. [Citations].” (Id. at pp. 794-795.) The Stauffer court also said, however: “In summary, the narrow scope of judicial inquiry into quasi-legislative actions is restricted to an examination of the record for procedural compliance and the existence vel non of an evidentiary basis for the challenged action in order to determine whether such administrative action was arbitrary or capricious.… Our examination reveals neither procedural irregularity nor absence of a sufficient evidentiary basis.” (Id. at p. 796.) Thus the court in Stauffer appears to have undertaken an “examination of the record” for a determination of whether a “sufficient evidentiary basis” existed for adoption of the regulations.
Appellants argue that respondent BIA had, and still has, the burden of demonstrating the absence of any reasonable basis for the presumed finding of reasonable necessity. Even if we assume, without deciding the issue, that appellants are correct about the standard of review, we are still faced with the reality that appellants made no finding of reasonable necessity at all in the first place. There is no finding of reasonable necessity to be reviewed, under any standard. Health and Safety Code section 17958.7 requires a finding of reasonable necessity to be made, and thus appellants have failed to follow the procedure required by law.
At oral argument the City contended that the case of Sanguinetti v. City Council (1965) 231 Cal.App.2d 813 permits this court to find substantial compliance with Health and Safety Code section 17958.7. We see nothing in that case, however, which would justify deeming the total absence of any finding whatsoever addressing the topic of the reasonable necessity (or not) of the modifications contained in the ordinance to constitute substantial compliance with the statutory requirement of an “express finding that such modifications or changes are reasonably necessary because of local climatic, geological or topographical conditions.” (Health & Saf. Code, § 17958.7, subd. (a).) Sanguinetti addresses neither the requirements of Health and Safety Code section 17958.7 nor the meaning of the term “express finding.” The adjective “express” has been defined to mean “expressed and not implied; explicit” (Webster’s New World Dict. (2d college ed. 1982) p. 495) and “[c]learly and unmistakenly communicated; directly stated” (Black’s Law Dict. (8th ed. 2004) p. 620). “Words used in a statute … should be given the meaning they bear in ordinary use. [Citations.] If the language is clear and unambiguous there is no need for construction ….” (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735; Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 977.) The express finding of reasonable necessity required by Health and Safety Code section 17958.7 was not made here.
DISPOSITION
The judgment is affirmed. Costs to respondent.
WE CONCUR: Cornell, J., Dawson, J.