Legislature Douses Local Fire Sprinkler Requirements
The New Hampshire legislature this year passed two bills intended to prohibit municipalities from requiring fire suppression sprinklers in residential dwellings. One of those bills was vetoed by the Governor and is currently awaiting override votes in the House and Senate. Whether that bill ultimately becomes law or not, the ability of municipalities to require sprinklers for new homes has been severely restricted.
How the new restrictions apply, however, is already proving confusing for some municipalities. This article is an effort to make sense of those restrictions. Although the analysis involves a tortuous (and perhaps torturous) exercise in statutory interpretation, it ends with some fairly simple conclusions and recommendations.
SB 91
The easier bill to understand is the one whose future remains in doubt. The Governor vetoed SB 91 on July 13. The House and Senate will likely meet in September or October to consider an override of the veto. Given the large margin by which both houses passed the bill, there is a reasonable chance of an override. Nevertheless, until that is certain, readers should understand that SB 91 is not yet the law.
New sprinkler requirements prohibited. If it does become law, SB 91 will add a paragraph to RSA 674:51 stating (in part), "No municipality or local land use board … shall adopt any ordinance, regulation, code, or administrative practice requiring the installation of automatic fire suppression sprinklers in any new or existing detached one- or 2-family dwelling unit in a structure used only for residential purposes."
This prohibition on adopting new sprinkler requirements is clear enough. But what about municipalities that already have sprinkler requirements? Can they still be enforced?
Existing requirements probably enforceable. Even if SB 91 becomes law, it should not by itself prohibit the enforcement of any pre-existing sprinkler requirements.
When SB 91 was introduced, it read, "No municipality or local land use board … shall adopt or enforce any ordinance, regulation, code, or administrative practice requiring the installation of automatic fire suppression sprinklers…." (Emphasis added.) The Senate passed it with that language intact.
The House, however, amended the bill by deleting the words "or enforce." Although there is nothing in either the committee minutes or the House Journal explaining why those words were deleted, the audio file of the House debate makes it clear. The lead speaker in support of the bill stated, "Our committee was also mindful of towns that already have ordinances for sprinklers…. We felt that it was prudent to respect their choices and not to overreach. Senate Bill 91 was amended to grandfather those towns." The chair of the Municipal and County Government Committee also stated, "Senate Bill 91 respects those communities by grandfathering those existing ordinances and regulations."
In interpreting statutes, courts in New Hampshire are guided by the intent of the legislature. However, they also follow the "plain meaning rule"—if the meaning of a statute is clear on its face, there is no need to look beyond its language to ascertain what the legislature intended.
Setting aside the legislative history, is the meaning of SB 91 clear on its face? The use of the words "shall not adopt" suggests only a prospective prohibition. At the very least, this implies that there is no intent to invalidate existing ordinances.
Further, SB 91 includes a second sentence that was added in a committee of conference. It states, "Notwithstanding any provision of law to the contrary, no municipality or local land use board shall enforce any existing ordinance, regulation, code, or administrative practice requiring the installation or use of automatic fire suppression sprinklers in any manufactured housing unit … situated in a manufactured housing park…." This reinforces the interpretation that the first sentence does not prohibit enforcement of existing requirements. If the first sentence affected existing requirements, there would be no need for the second sentence, which forbids municipalities to "enforce any existing [requirement]" only in the case of manufactured homes—and thus implicitly allows enforcement in all other cases.
It thus seems fairly clear on the face of SB 91 that, if it does become law, it will not affect existing sprinkler requirements. To the extent there is any doubt about the language, the legislative history provides further support. A municipality that has already adopted a sprinkler requirement as part of its zoning ordinance or building code, therefore, should have no reservations about continuing to enforce it.
An existing requirement adopted by the planning board as part of its subdivision regulations also would not be affected by SB 91. However—the story with respect to planning board regulations may be different under the other bill, HB 109.
HB 109
This bill became law on July 1 as chapter 203, after both houses overrode the Governor's veto. It adds a new paragraph to RSA 674:36, stating, in part, "The planning board shall not require, or adopt any regulation requiring, the installation of a fire suppression sprinkler system in proposed one- or 2-family residences as a condition of approval for a local permit."
No effect on requirements contained in the zoning ordinance or building code. The first major difference between HB 109 and SB 91 is that HB 109 affects only planning board requirements. Thus, it does not affect a municipality's ability to enforce a pre-existing sprinkler requirement contained in a zoning ordinance or building code; for that matter, it does not prevent any future adoption of a sprinkler requirement in a zoning ordinance or building code—although, as discussed above, SB 91 will prohibit any new requirements if it becomes law.
There are two methods a planning board might use to require the installation of sprinklers. The first is to include such a requirement in its subdivision regulations, so that sprinklers are required in all new subdivisions, or in all subdivisions defined by certain criteria, such as distance from the fire station or from a water source. The second is to require sprinklers on a case-by-case basis, typically as a condition of approval when the subdivision would otherwise be rejected as "scattered or premature" under RSA 674:36, II(a).
New subdivision regulations requiring sprinklers prohibited. It is clear under HB 109 that a planning board may not, after July 1, 2011, adopt a new regulation requiring sprinklers in single- or two-family dwellings. The statement that a planning board "shall not … adopt any regulation requiring" the installation of sprinklers leaves no doubt about that.
Existing regulations may or may not be affected. Less clear is how the legislation affects subdivision regulations that existed before July 1. The legislature definitely intended to allow continued enforcement of pre-existing regulations, but the evidence of that intent is not as clear as it could be.
The legislative history of HB 109 is very similar to that of SB 91. When it passed the House, the language of the bill began, "The planning board shall not require, or adopt or enforce any regulation requiring, the installation of a fire suppression sprinkler system…." (Emphasis added.) Just as the House deleted the words "or enforce" from SB 91, the Senate deleted the same words from HB 109, and for the same reason—to allow municipalities with such regulations to continue to enforce them.
Unfortunately, the only evidence of that intent exists in the memories of those who were present when it was discussed. The only substantive discussion of the Senate amendment took place at an executive session of the Public and Municipal Affairs Committee, for which no written or audio record exists. There was little discussion of the bill, and no discussion at all of the amendment, at the full Senate session when the bill was passed. The House easily acceded to the Senate's amendment, and there was no discussion of it on the House floor.
The argument for continued enforcement of existing regulations. Interpreting HB 109 again begins with the "plain meaning" of the statute. The structure of HB 109 is similar to that of SB 91, stating that the planning board "shall not … adopt any regulation requiring [sprinklers]." (Let us set aside, for now, the words "require or" that precede "adopt any regulation.") One could reasonably assert that this is a prospective prohibition on the adoption of new regulations, and nothing more. At worst, the language is ambiguous, so any effort to apply the prohibition to pre-existing regulations would require looking for the legislature's intent in the bill's history.
Although there are no recorded statements of intent in the legislative history of HB 109, the inquiry should not end there. There is no question that the words "or enforce" were deleted; this must have been done for a reason.
Even if it is not clear from the record why those words were deleted from HB 109, there are very clear statements about why they were deleted from SB 91; and it is an accepted principle of statutory interpretation that laws enacted at the same time should be interpreted harmoniously. We know the legislature deleted the words "or enforce" from SB 91 to allow continued enforcement of pre-existing requirements. It is reasonable, therefore, to conclude that it deleted the same words from HB 109 for the same reason.
What about "shall not require"? Now let's get back to those words we intentionally ignored a few paragraphs ago. The new law says, "The planning board shall not require, or adopt any regulation requiring, the installation of [sprinklers]." (Emphasis added.) Even if the words "or adopt any regulation" do not preempt the enforcement of pre-existing regulations, one could argue that the words "shall not require" have exactly that effect. If the planning board "shall not require" sprinklers then, arguably, it may not enforce an existing sprinkler regulation, because to do so would be to "require" sprinklers.
That is a legitimate argument. On the other hand, if the phrase "shall not require" were intended to cover sprinkler requirements contained in planning board regulations, then the words "or adopt any regulation" would be unnecessary. It is another accepted principle of statutory interpretation that the legislature is not presumed to include meaningless words in a statute. Under this principle, the words "shall not require" and the words "or adopt any regulation requiring" should be presumed to have separate meanings.
A plausible interpretation, consistent with that principle, is that the words "shall not require" prohibit only the requiring of sprinklers in the absence of a regulation—typically, as mentioned above, as a condition of approval to avoid a "scattered or premature" finding—while requirements contained in a regulation are addressed separately by the "or adopt any regulation requiring" language, which applies only to future regulations. Under this interpretation, a pre-existing regulation that requires sprinklers could still be enforced. This, in fact, seems to be the only interpretation that gives meaning to all the words of the statute and also honors the legislature's intent.
Whether this interpretation would convince a judge is another question, given the appeal of the relatively uncomplicated counter-argument that "the statute says the planning board shall not require sprinklers, end of story." If your planning board has a regulation requiring sprinklers, you probably should consult with your municipality's legal counsel about the likelihood of prevailing in an attempt to enforce it.
Case-by-case sprinkler requirements clearly prohibited. Whatever the fate of planning board regulations may be, it is clear that HB 109 prohibits the practice of requiring sprinklers as a condition of subdivision approval in the absence of a regulation. If the words "shall not require" mean anything, they mean that.
What about previously approved subdivisions? If a planning board approved a subdivision before July 1 subject to a condition that sprinklers be installed in all houses, can that condition still be enforced? Probably. Assuming the condition was valid at the time of the approval, a subsequent legislative enactment should be presumed not to affect it.
Further, the new law states that the planning board "shall not require" sprinklers. This is a prospective prohibition. If the condition has already been imposed, then the "requiring" is in the past. At this point it is a question of enforcing what the planning board has already required, and that is a job for the building inspector or code enforcement officer, or perhaps the selectmen. HB 109, by its terms, limits only the planning board's authority, so there should be no impediment to enforcing a previously imposed condition.
Can the board negotiate a sprinkler condition? What if, in the future, an applicant offers to install sprinklers as a means of obtaining a subdivision approval that otherwise would be denied? If the planning board accepts this offer, is it any good?
Don't count on it. A planning board might try this on the theory that it is not "requiring" the sprinklers—it is merely accepting the applicant's offer to install them. Unfortunately, this probably puts the board in the position of relying entirely on the applicant's good faith. What will the board do if, as soon as the ink is dry on the approval, the applicant changes his mind? If the board tries to enforce the condition, the applicant will say, "You shall not require the installation of a fire suppression sprinkler as a condition of approval."
In a situation like this, if the board concludes that sprinklers really are the only solution, the prudent action may be to deny the application, since the only alternative that works is one that the board cannot require. Thus, the legislature, in an effort to ease restrictions on developers, may well have done the opposite, at least in some cases: where an application previously would have been approved with a condition that the developer disliked but could reluctantly accept, now the application will simply be denied.
Summary
In short, here is the situation regarding sprinkler requirements:
If, but only if, SB 91 becomes law, a municipality cannot adopt any new sprinkler requirements in its zoning ordinance or building code.
Regardless of what happens with SB 91, any requirements already contained in a zoning ordinance, building code, or elsewhere, except for planning board regulations, should remain enforceable.
Under HB 109, a planning board cannot adopt any new regulations requiring sprinklers.
A planning board may be able to enforce pre-existing sprinkler regulations, but this is far from clear. Planning boards that have such regulations in place should consult with their municipality's legal counsel about the likelihood of prevailing in efforts to enforce them.
Absent a pre-existing regulation, a planning board cannot require sprinklers as a condition of approval, and negotiating a "voluntary" sprinkler condition is risky. However, if sprinklers were required as a condition of an approval that was granted before July 1, it should be enforceable.
If you have questions, you are strongly encouraged to consult your municipality's legal counsel or LGC's Legal Services Department.
Cordell Johnston is Government Affairs Counsel for the New Hampshire Municipal Association. He can be reached at 800.852.3358, ext. 384, or by email.