The opinion
TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 94-708
of :
: March 7, 1995
DANIEL E. LUNGREN :
Attorney General :
:
MAXINE P. CUTLER :
Deputy Attorney General :
:
________________________________________________________________________________
THE CALIFORNIA BUILDING STANDARDS COMMISSION has requested an
opinion on the following question:
As a condition of issuing a building permit for construction of a single-family residence
or other building, may a city or county require by ordinance the installation of an emergency water
supply, such as a 5,000 gallon water reservoir?
THE HONORABLE DAN HAUSER, MEMBER OF THE CALIFORNIA STATE
ASSEMBLY, has requested an opinion on the following question:
As a condition of issuing a building permit for the construction of a single-family
residence, may a city or county require by ordinance the installation of a paved driveway from the
property line to the residence for emergency vehicle access?
CONCLUSIONS
1. As a condition of issuing a building permit for the construction of a
single-family residence or other building, a city or county may require by ordinance the installation of
an emergency water supply, such as a 5,000 gallon water reservoir. Specific findings may be necessary
for adoption of the ordinance depending upon the particular facts and circumstances.
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2. As a condition of issuing a building permit for the construction of a
single-family residence, a city or county may require by ordinance the installation of a paved driveway
from the property line to the residence for emergency vehicle access. Specific findings may be
necessary for adoption of the ordinance depending upon the particular facts and circumstances.
ANALYSIS
The two questions presented for resolution concern the authority of cities and counties
to impose certain conditions when issuing building permits. The conditions would require an
emergency water supply, such as a private water reservoir, and a paved access road for the proposed
building structure. Both conditions would serve to protect the building and its occupants in case of a
fire or other emergency. We conclude that cities and counties have the constitutional authority to
impose the two requirements when issuing building permits.
1. Emergency Water Supply
The first question presents an issue similar to one we addressed in a 1985 opinion. In
68 Ops.Cal.Atty.Gen. 225 (1985), we were asked whether a fire protection district could require the
installation of an emergency water supply at the time of construction of every building in the district.
We explained the factual situation therein as follows:
"In many rural communities with established subdivisions of large lot parcels and
no public or private water systems, the availability of a water source sufficient to fight a
fire at each building site is of major concern. Normally, the fire truck itself would
have a limited supply of 500 to 1,000 gallons, and water from wells available at the site
would be of limited supply and have insufficient pressure to prove effective. One
alternative in solving this problem would be to have a water reservoir of, for example,
5,000 gallons installed at each building site which a fire truck could drain with its
pumps." (Id., at p. 226.)1
The general authority of cities and counties to adopt local ordinances is set forth in
section 7 of article XI of the Constitution:
"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."
This constitutional authority, often referred to as the "police power," is subject only to the limitations
that it be exercised within territorial limits and be subordinate to state law. As explained by the
Supreme Court in Candid Enterprises, Inc. v. Grossmont Union High School District (1985) 29 Cal.3d
878, 885: "Counties and cities have plenary authority to govern, subject only to the limitation that they
1
In our 1985 opinion, we concluded that a fire protection district did not have the statutory authority to impose such a
requirement. The Legislature has since granted fire protection districts the necessary authority. (Health & Saf. Code, '
13869.7.)
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exercise this power within their territorial limits and subordinate to state law." Except for these
limitations, the police power authority of a city or county "is as broad as the police power exercisable
by the Legislature itself." (Birkenfeld v. City of Berkeley (1976) 17 Cal.3d 129, 140.)
Of course, the exercise of the police power by the Legislature or by cities and counties
is subject to the limitations imposed by the state and federal Constitutions. Among these limitations is
the requirement that the legislation be rationally related to a legitimate governmental concern.
(Metromedia, Inc. v. City of San Diego (1981) 453 U.S. 490, 415; Schad v. Mt. Ephraim (1981) 452
U.S. 61, 68.) We assume for purposes of this analysis that the requisite need for an emergency water
supply may be established in the particular circumstances.
The regulation of land development is a traditional subject for the exercise of the
constitutional police power by a city or county. (See Griffin Development Company v. City of Oxnard
(1985) 39 Cal.3d 256, 261-264; Santa Monica Pines, Ltd. v. Rent Control Board (1984) 35 Cal.3d 858,
868-869; Birkenfeld v. City of Berkeley, supra, 17 Cal.3d at 140.) The courts have upheld numerous
types of conditions imposed by cities and counties when approving building permits. (See, e.g., Shelby
Realty Co. v. City of San Buenaventura (1973) 10 Cal.3d 110 [dedication of a right of way]; Friends of
Westwood, Inc. v. City of Los Angeles (1987) 191 Cal.App.3d 259 [street access points and internal
parking circulation]; Slagle Construction Co. v. County of Contra Costa (1977) 67 Cal.App.3d 559
[burial of overhead utility lines].)2 More particularly, 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 a city's or county's police power authority. (58 Ops.Cal.Atty.Gen. 13, 14 (1975); 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 with general state law. (Cf., Stanislaus Co. etc. Assn. v. Stanislaus (1937) 8 Cal.2d 378,
383-384; Freeman v. Contra Costa County Water District (1971) 18 Cal.App.3d 404, 408.)
We have not been apprised of any state law that would be in conflict with the proposed
emergency water supply ordinance in question. We have examined the codes and have found none.
Nevertheless, a discussion of several statutory provisions appears appropriate to dispel any uncertainty.
In 68 Ops.Cal.Atty.Gen. 225, supra, we indicated that requiring an emergency water
supply could in some circumstances be considered a "building standard" for purposes of the State
Building Standards Law (Health & Saf. Code, '' 18901-18949.6).3 Section 18909, subdivision (b)
provides: ". . . `building standard' includes architectural and design functions of a building or structure
. . . ." The building standards published in the State Building Standards Code "shall be binding on the
state and other public agencies . . . ." (' 18944.5.) While the code does not contain a building
standard for an emergency water supply, section 18941.5, subdivision (b) states:
2
Under Government Code section 65909, subdivision (a), a city or county may not "condition the issuance of any
building . . . permit . . . on . . . [t]he dedication of land for any purpose not reasonably related to the use of the property for
which the . . . building . . . permit is requested." (See Dolan v. City of Tigard (1994) 512 U.S. ___ [129 L.Ed.2d 304]; Nollan
v. California Coastal Comm'n (1987) 483 U.S. 825 [97 L.Ed.2d 677]; Salton Bay Marina, Inc. v. Imperial Irrigation Dist.
(1985) 172 Cal.App.3d 914, 936-938.)
3
All references hereafter to the Health and Safety Code are by section number only.
3. 94-708
"Neither the State Building Standards Law contained in this part, 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. . . ."
Similarly, the State Housing Law ('' 17910-17995.5; see Taschner v. City Council
(1973) 31 Cal.App.3d 48, 60), which would be applicable to single-family residences, allows cities and
counties to adopt more restrictive building standards than those adopted on a statewide basis by the
Department of Housing and Community Development. Although the latter has not adopted a building
standard for an emergency water supply, section 17958.5, subdivision (a) states:
". . . a city or county may make changes or modifications in the requirements
contained in the provisions published in the California Building Standards Code and the
other regulations adopted [by the Department of Housing and Community
Development] 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."
Subdivision (a) of section 17958.7 states in turn:
". . . 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."
The Legislature has accorded similar treatment to the fire safety standards adopted by
the State Fire Marshal for various types of buildings. (See, e.g., '' 13108, 13143, 13143.6, 13211,
17921; 72 Ops.Cal.Atty.Gen. 180 (1989).) Again, although the State Fire Marshal has not adopted an
emergency water supply requirement, subdivision (a) of section 13143.5 provides:
"Notwithstanding Part 2 (commencing with Section 13100) of Division 12, Part
1.5 (commencing with Section 17910) of Division 13, and Part 2.5 (commencing with
Section 18901) of Division 13, any city, county, or city and county may, by ordinance,
make changes or modifications that are more stringent than the requirements published
in the California Building Standards Code relating to fire and panic safety and the other
4. 94-708
regulations adopted pursuant to this part. Any changes or modifications that are more
stringent than the requirements published in the California Building Standards Code
relating to fire and panic safety shall be subject to subdivision (b) of Section 18941.5."4
Consistent with this legislative approach, the statutory scheme (Pub. Resources Code,
'' 4290-4299) authorizing the State Board of Forestry to adopt fire safety standards for state
responsibility area lands (see 76 Ops.Cal.Atty.Gen. 19 (1993)) allows the board to set standards for
"[m]inimum private water supply reservoirs for emergency fire use" (Pub. Resources Code, ' 4290,
subd. (a)), but then specifies that such standards "do not supersede local regulations which equal or
exceed" the minimum standards established by the board (Pub. Resources Code, ' 4290, subd. (b)).
Because each of these statutory schemes expressly authorizes or recognizes local
legislation, the exercise by a city or county of its constitutional police power authority in these areas
would not be "in conflict with general laws." (Cal. Const., art. XI, ' 7.) As stated by the Supreme
Court in People ex rel. Deukmejian v. County of Mendocino, supra, 36 Cal.3d at 485: "Preemption by
implication of legislative intent may not be found when the Legislature has expressed its intent to
permit local regulations. Similarly, it should not be found when the statutory scheme recognizes local
regulations."
Finally, we note "the general rule that a builder must comply with the laws which are in
effect at the time a building permit is issued, including the laws which were enacted after application
for the permit. [Citations.]" (Avco Community Developers, Inc. v. South Coast Regional Com. (1976)
17 Cal.3d 785, 795.) On occasion, the Legislature has changed the general rule. Government Code
section 65961, for example, states in part:
"Notwithstanding any other provision of law, upon approval or conditional
approval of a tentative map for a subdivision of single- or multiple-family residential
units, or upon recordation of a parcel map for such a subdivision for which no tentative
map was required, during the five year period following recordation of the final map or
parcel map for the subdivision, a city, county, or a city and county shall not require as a
condition to the issuance of any building permit or equivalent permit for such single- or
multiple-family residential units, conformance with or the performance of any
conditions that the city or county could have lawfully imposed as a condition to the
previously approved tentative or parcel map. Nor shall a city, county, or city and
county withhold or refuse to issue a building permit or equivalent permit for failure to
conform with or perform any conditions that the city, county, or city and county could
have lawfully imposed as a condition to the previously approved tentative or parcel
map. However, the provisions of this section shall not prohibit a city, county, or city
and county from doing any of the following:
4
Our 1989 opinion concluded that cities and counties do not have the authority to modify the fire safety standards
adopted by the State Fire Marshal. (72 Ops.Cal.Atty.Gen., supra, 180.) With its amendment in 1990 (Stats. 1990, ch. 1111,
' 3), section 13143.5 now grants such statutory authority to cities and counties. Of course, requiring an emergency water
supply must reasonably be viewed as "more restrictive," "more stringent," and a "change" in standards that lack such a
requirement.
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"(a) Imposing conditions or requirements upon the issuance of a building permit or
equivalent permit which could have been lawfully imposed as a condition to the
approval of a tentative or parcel map if the local agency finds it necessary to impose the
condition or requirement for any of the following reasons:
"(1) A failure to do so would place the residents of the subdivision or of the
immediate community, or both, in a condition perilous to their health or safety, or both.
"(2) The condition is required in order to comply with state or federal law.
"(b) Withholding or refusing to issue a building permit or equivalent permit if the
local agency finds it is required to do so in order to comply with state or federal law.
"(c) Assuring compliance with the applicable zoning ordinance."
Depending upon the individual circumstances, the limitations of Government Code section 65961 may
require consideration when adopting an ordinance mandating the installation of an emergency water
supply as a condition of issuing a building permit. (See Golden State Homebuilding Associates v. City
of Modesto (1994) 26 Cal.App.4th 601, 607-613.)5
In answer to the first question, therefore, we conclude that as a condition of issuing a
building permit for the construction of a single-family residence or other building, a city or county may
require by ordinance the installation of an emergency water supply, such as a 5,000 gallon water
reservoir. 6 Specific findings may be necessary for adoption of the ordinance depending upon the
particular facts and circumstances.
2. A Paved Driveway
The second question posed is whether a city or county may require, as a condition of
issuing a building permit for a single-family residence, the installation of a paved driveway from the
property line to the residence in order to provide emergency vehicle access.
Our analysis of the first question provides the answer to the second question. A city or
county has constitutional authority to enact ordinances protecting the public health, safety, and welfare
5
The judicially developed doctrine of "vested rights" which is founded in the common law and based upon the principle
of equitable estoppel would not be applicable here, since "the right generally has been held to arise only upon issuance of a
building permit or other final discretionary approval, and is limited in scope to the terms of the permit itself." (Golden State
Homebuilding Associates v. City of Modesto, supra, 26 Cal.App.4th at 607.)
6
Because of the conclusion reached, we need not address the "home rule" constitutional authority of charter cities and
counties to enact ordinances inconsistent with general law. (See Cal. Const., art XI, '' 3-6; Dibb v. County of San Diego
(1994) 8 Cal.4th 1200, 1206-1208; Agnew v. City of Los Angeles (1961) 190 Cal.App.2d 820, 827.)
6. 94-708
of its inhabitants. The obvious purpose of requiring paved emergency access to a single-family
residence would be to protect the health, safety, and welfare of its occupants.
As with a local ordinance imposing an emergency water supply requirement, we must
determine if any general state laws have been enacted which might be "in conflict with" an ordinance
requiring a paved driveway. No law has been brought to our attention providing such a conflict; we
have found none.
While an emergency water supply requirement might involve a "building standard," a
paved driveway requirement would not. ('' 18908-18909.) Assuming a paved driveway requirement
is imposed as a fire safety standard by the State Fire Marshal (see Cal. Code Regs., tit. 19, ' 3.05) or the
State Board of Forestry, the state laws governing such standards authorize local legislation. ('
13143.5; Pub. Resources Code, ' 4290.) Accordingly, no preemption of local ordinances may be
found in these state laws. (See People ex rel. Deukmejian v. County of Mendocino, supra, 36 Cal.3d at
485.) Of course, the local standard must be reasonable and meet any applicable statutory conditions.
In answer to the second question, therefore, we conclude that as a condition of issuing a
building permit for the construction of a single-family residence, a city or county may require by
ordinance the installation of a paved driveway from the property line to the residence for emergency
vehicle access. Specific findings may be necessary for adoption of the ordinance depending upon the
particular facts and circumstances.
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