The opinion
TO BE PUBLISHED THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 92-807
of :
:
DANIEL E. LUNGREN : MARCH 17, 1993
Attorney General :
:
GREGORY L. GONOT :
Deputy Attorney General :
:
______________________________________________________________________________
THE HONORABLE JOHN F. HAHN, COUNTY COUNSEL, COUNTY OF
AMADOR, has requested an opinion on the following question:
Do the fire safety standards adopted by the Board of Forestry for development on
state responsibility area lands apply to the perimeters and access to buildings constructed after
January 1, 1991, on parcels created by parcel or tentative maps approved prior to January 1, 1991?
CONCLUSION
The fire safety standards adopted by the Board of Forestry for development on state
responsibility area lands apply to the perimeters and access to buildings constructed after January
1, 1991, on parcels created by parcel or tentative maps approved prior to January 1, 1991, to the
extent that conditions relating to the perimeters and access to the buildings were not imposed as part
of the approval of the parcel or tentative maps.
ANALYSIS
By legislation enacted in 1987 (Stats. 1987, ch. 955, § 2), the State Board of Forestry
("Board") was directed to adopt minimum fire safety standards for state responsibility area lands1/
1. On state responsibility area lands (see Pub. Resources Code, §§ 4126-4127; Cal. Code
Regs., tit. 14, §§ 1220-1220.5), the financial responsibility of preventing and suppressing fires is
primarily the responsibility of the state, as opposed to local or federal agencies. (Pub. Resources
Code, § 4125.)
under the authority of the Department of Forestry and Fire Protection. Public Resources Code
section 42902/ states:
"(a) The board shall adopt regulations implementing minimum fire safety
standards related to defensible space which are applicable to state responsibility area
lands under the authority of the department. These regulations apply to the
perimeters and access to all residential, commercial, and industrial building
construction within state responsibility areas approved after January 1, 1991. The
board may not adopt building standards, as defined in Section 18909 of the Health
and Safety Code, under the authority of this section. As an integral part of fire safety
standards, the State Fire Marshal has the authority to adopt regulations for roof
coverings and openings into the attic areas of buildings specified in Section 13108.5
of the Health and Safety Code. The regulations apply to the placement of mobile
homes as defined by National Fire Protection Association standards. These
regulations do not apply where an application for a building permit was filed prior
to January 1, 1991, or to parcel or tentative maps or other developments approved
prior to January 1, 1991, if the final map for the tentative map is approved within the
time prescribed by the local ordinance. The regulations shall include all of the
following:
"(1) Road standards for fire equipment access.
"(2) Standards for signs identifying streets, roads, and buildings.
"(3) Minimum private water supply reserves for emergency fire
use.
"(4) Fuel breaks and greenbelts.
"(b) These regulations do not supersede local regulations which equal or
exceed minimum regulations adopted by the state." (Emphasis added.)
As indicated in the statute, the Board's regulations are to help create "defensible space"3/ for the
protection of state responsibility areas against wildfires.
2. All references hereafter to the Public Resources Code prior to footnote 8 are by section
number only.
3. Defensible space is defined as:
"The area within the perimeter of a parcel, development, neighborhood or
community where basic wild land fire protection practices and measures are
implemented, providing the key point of defense from an approaching wildfire or
defense against encroaching wild fires or escaping structure fires. The perimeter as
used in this regulation is the area encompassing the parcel or parcels proposed for
construction and/or development, excluding the physical structure itself. The area
is characterized by the establishment and maintenance of emergency vehicle access,
emergency water reserves, street names and building identification, and fuel
modification measures." (Cal. Code Regs., tit. 14, § 1271.00.)
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Originally the regulations were to be applicable with respect to all building
construction approved after July 1, 1989, but by subsequent legislation (Stats. 1989, ch. 60, § 1), the
threshold date was changed to January 1, 1991. The regulations (Cal. Code Regs., tit. 14, §§ 1270-
1276.03)4/ in fact became operative on May 30, 1991.
A "grandfather clause" in the underlying statute provides that "[t]hese regulations do
not apply where an application for a building permit was filed prior to January 1, 1991, or to parcel
or tentative maps or other developments approved prior to January 1, 1991, if the final map for the
tentative map is approved within the time prescribed by the local ordinance." (§ 4290.) We are
asked to determine whether the regulations apply to an application for a building permit filed after
January 1, 1991, for a dwelling to be built on a parcel lawfully created by a parcel map or tentative
map approved prior to January 1, 1991.
We begin by noting that the grandfather clause contains two ostensibly independent
exceptions to the application of the regulations. One is directed at building permits and the other
at subdivision maps.5/ These exceptions were apparently designed by the Legislature to exempt
construction and development activity already in the "pipeline" as of January 1, 1991. According
to Regulation 1270.01, it is the "future design and construction of structures, subdivisions and
development" (emphasis added) which is to trigger application of the regulations.
Thus, although an application for a building permit is not made until after January
1, 1991, the proposed construction may garner an exemption if the parcel is covered by a parcel or
tentative map approved prior to January 1, 1991 (provided that the final map for the tentative map
is approved within the time prescribed by the local ordinance).6/ However, this raises the question
of the purpose of the building permit exception since virtually any application for a building permit
will be preceded by a parcel or tentative map approval for the parcel upon which the construction
is proposed, even one which may have been obtained in the distant past.7/ A well-established rule
of statutory construction holds that "`[w]henever possible, effect should be given to the statute as
a whole, and to its every word and clause, so that no part or provision will be useless or meaningless.
. . .'" (Colombo Construction Co. v. Panama Union School Dist. (1982) 136 Cal.App.3d 868, 876;
see Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1149, 1159 ["In analyzing statutory
language, we seek to give meaning to every word and phrase in the statute to accomplish a result
consistent with the legislative purpose, i.e., the object to be achieved and the evil to be prevented
by the legislation"].)
4. All references hereafter to title 14 of the California Code of Regulations are by
regulation number only.
5. A parcel map is filed when creating subdivisions of four or fewer parcels, while a
tentative map and final map are filed when creating subdivisions of five or more parcels. (Gov.
Code, §§ 66426, 66428.)
6. The approval of a final map is a ministerial function once the tentative map has been
approved and the conditions that were attached to the tentative map have been fulfilled. (Gov. Code,
§§ 66458, 66473, 66474.1; Santa Monica Pines, Ltd. v. Rent Control Board (1984) 35 Cal.3d 858,
865; Youngblood v. Board of Supervisors (1978) 22 Cal.3d 644, 653.)
7. Statutory provisions for tentative maps and final maps first appeared in 1929 (Stats.
1929, ch. 838), while parcel maps were first required in 1971 (Stats. 1971, ch. 1446). (See Cal.
Subdivision Map Act Practice (Cont.Ed.Bar 1987) §§ 1.2-1.3, pp. 3-5.)
3. 92-807
Our task then is to search for an interpretation of section 4290 which is not only
consistent with the legislative purpose but also furnishes independent significance to each of the two
exceptions. We believe that the answer lies in the different manner in which each exception is
phrased. The first is "where an application for a building permit was filed prior to January 1, 1991,"
and the second is "to parcel or tentative maps or other developments approved prior to January 1,
1991 . . . ." The "where" of the first exception implies a broad exemption encompassing all activity
related to the building permit, whereas the "to" of the second exception implies an exemption which
is limited to matters contained in the parcel or tentative map approval.
Under this reading of section 4290, only those perimeter and access conditions which
were imposed during the parcel or tentative map approval process would be immune from the effect
of the regulations. Typically, parcel and tentative map approvals include requirements for the
improvement of the parcels within the subdivision. The Subdivision Map Act (Gov. Code, §§
66410-66499.37; "Act")8/ establishes general criteria for land development planning in the creation
of subdivisions throughout the state. Cities and counties are given authority under the legislation
to regulate the design and improvement of divisions of land in their areas through a process of
approving subdivision maps required to be filed by each subdivider. (§ 66411; Santa Monica Pines,
Ltd. v. Rent Control Board, supra, 35 Cal.3d 858, 869; South Central Coast Regional Com. v.
Charles A. Pratt Construction Co. (1982) 128 Cal.App.3d 830, 844-845.) A subdivider must obtain
approval of the appropriate map before the subdivided parcels are offered for sale, or lease, or are
financed. (§§ 66499.30, 66499.31; Bright v. Board of Supervisors (1977) 66 Cal.App.3d 191, 193-
194.)
The Act sets forth procedures by which cities and counties may impose a variety of
specific conditions when approving the subdivision maps. Such conditions typically cover streets,
public access rights, drainage, public utility easements, and parks, among other improvements. (§§
66475-66489; see Associated Home Builders etc., Inc. v. City of Walnut Creek (1971) 4 Cal.3d 633,
639-647; Ayers v. City Council of Los Angeles (1949) 34 Cal.2d 31, 37-43.)
The Act vests cities and counties with the power to regulate and control the "design
and improvement of subdivisions" (§ 66411) independent of the power to impose the specified
conditions enumerated above. "Design" is defined as:
". . . (1) street alignments, grades and widths; (2) drainage and sanitary
facilities and utilities, including alignments and grades thereof; (3) location and size
of all required easements and rights-of-way; (4) fire roads and firebreaks; (5) lot size
and configuration; (6) traffic access; (7) grading; (8) land to be dedicated for park or
recreational purposes; and (9) such other specific physical requirements in the plan
and configuration of the entire subdivision as may be necessary to ensure consistency
with, or implementation of, the general plan or any applicable specific plan." (§
66418.)
"Improvement" is defined as:
". . . any street work and utilities to be installed, or agreed to be installed, by
the subdivider on the land to be used for public or private streets, highways, ways,
and easements, as are necessary for the general use of the lot owners in the
8. All references hereafter to the Business and Professions Code are by section number
only.
4. 92-807
subdivision and local neighborhood traffic and drainage needs as a condition
precedent to the approval and acceptance of the final map thereof.
". . . also . . . any other specific improvements or types of improvements, the
installation of which, either by the subdivider, by public agencies, by private utilities,
by any other entity approved by the local agency, or by a combination thereof, is
necessary to ensure consistency with, or implementation of, the general plan or any
applicable specific plan." (§ 66419.)
Accordingly, we believe that when a person applies for a building permit after
January 1, 1991, the Board's fire safety regulations would be inapplicable as to any matters approved
prior to January 1, 1991, as part of the parcel or tentative map process.9/ By contrast, a person who
applied for a building permit prior to January 1, 1991, would not be subject to any of the access or
perimeter requirements set forth in the regulations.
In addition to preserving independent significance for the building permit exception,
the aforementioned reading of Public Resources Code section 4290 comports with another principle
of statutory construction, namely that "`[e]xceptions to the general rule of a statute are to be strictly
construed.'" (Da Vinci Group v. San Francisco Residential Rent etc. Bd. (1992) 5 Cal.App.4th 24,
28; see Goins v. Board of Pension Commissioners (1979) 96 Cal.App.3d 1005, 1009; see also Board
of Medical Quality Assurance v. Andrews (1989) 211 Cal.App.3d 1346, 1355 [statutes conferring
exemptions from regulatory schemes are narrowly construed].) More specifically, we have cited
"the general rule that a grandfather clause, being contrary to the general rule expressed in a statute,
must be narrowly construed. [Citations.]" (57 Ops.Cal.Atty.Gen. 284, 286 (1974).) A blanket
exemption for all construction and development activity related to a parcel covered by an approved
tentative or parcel map (provided the final map for the tentative map is approved within the time
prescribed by the local ordinance) would violate these principles of statutory construction.
On the other hand, we decline to construe the grandfather clause here so narrowly
that all of the Board's fire safety regulations become applicable when the owner of a parcel covered
by a parcel or tentative map approved prior to January 1, 1991, applies for a permit to build on that
parcel after January 1, 1991. To do so would mean that the exception for approved tentative or
parcel maps would afford the landowner nothing at the construction and development stage. Again,
we are guided by the principle that a statute should be interpreted in such a way that no part or
provision will be rendered useless or meaningless. (Colombo Construction Co. v. Panama Union
School District, supra, 136 Cal.App. 868, 876.)
Finally, we observe the rule that if more than one construction of a statute appears
possible, we must adopt the one that leads to the most reasonable result. (Industrial Indemnity Co.
v. City and County of San Francisco (1990) 218 Cal.App.3d 999, 1008.) An exemption from the
regulations for those access and perimeter conditions which are included in the approval of a parcel
or tentative map prior to January 1, 1991, serves to lock in reasonable entitlements while ensuring
that other fire safety standards may be applied at the time a building permit is sought subsequent to
January 1, 1991.
On the basis of the foregoing analysis and principles of statutory construction, we
conclude that the fire safety standards adopted by the Board for development on state responsibility
9. Regulation 1270.02, for example, exempts "[r]oads required as a condition of tentative
[or] parcel maps prior to the effective date of these regulations . . . ."
5. 92-807
area lands apply to the perimeters and access to buildings constructed after January 1, 1991, on
parcels created by parcel or tentative maps approved prior to January 1, 1991, to the extent that
conditions relating to the perimeters and access to the buildings were not imposed as part of the
approval of the parcel or tentative maps.
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