Can a Tennessee regional planning commission force homebuilders to install sprinklers in subdivisions where fire hydrants can't reach within 1,000 feet?

Subject

Opinion No. 13-61, Mandatory Sprinkler Requirement for Residential Dwellings, August 1, 2013

Plain-English summary

Tennessee's statewide building safety standards (under Tenn. Code Ann. § 68-120-101(a)) do not include a sprinkler requirement for one-family and two-family dwellings. Section 68-120-101(a)(8)(A) explicitly excludes them. But local governments may adopt more stringent requirements, including mandatory sprinklers, through the procedure in § 68-120-101(a)(8)(B)(i).

Rep. Joe Carr asked four related questions about a draft Rutherford County subdivision regulation that would require sprinklers if a lot can't be reached by a fire hydrant within 1,000 feet.

Is the proposed regulation a "mandatory sprinkler requirement"? Yes. The regulation says the granting of a waiver from the fire hydrant requirement "shall require any residential development in a subdivision to install a sprinkler system." The word "shall" makes it mandatory. Bellamy v. Cracker Barrel Old Country Store, Inc., 302 S.W.3d 278, 281 (Tenn. 2009). It therefore triggers § 68-120-101(a)(8).

Does the Commission have authority to impose it? Yes, under § 68-120-101(a)(8)(B)(i), which authorizes local governments to adopt more stringent sprinkler requirements for one- and two-family dwellings.

What procedural requirements apply? § 68-120-101(a)(8)(B)(i) imposes three specific procedural rules:

• 2/3 affirmative vote on final reading. A simple majority is not enough.
• Spaced readings. If passage requires two readings, the readings must be in open session on two specially called meeting days at least two weeks apart. If three readings are required, the last two must be on two different days at least two weeks apart.
• Separate vote. "Mandatory sprinkler requirements shall be voted on in an ordinance or resolution separate from any other ordinance or resolution addressing building construction safety standards."

The proposed Rutherford County regulation was buried inside a 55-page subdivision regulation package. The AG's pointed conclusion: the Commission must extract the sprinkler provision into its own ordinance or resolution and put it through the 2/3-vote, spaced-readings procedure separately. A subdivision regulation document containing other building safety items does not satisfy the separate-vote requirement.

What if the Commission doesn't follow the procedure? Aggrieved residential developers can sue for a declaratory judgment that the regulation is void. Cherokee Country Club, Inc. v. City of Knoxville, 152 S.W.3d 466, 475-77 (Tenn. 2004); Town of Surgoinsville v. Sandidge, 866 S.W.2d 553, 557 (Tenn. Ct. App. 1993). A declaratory judgment doesn't require exhaustion of administrative remedies when the validity of the regulation itself is the issue. Ready Mix, USA, LLC v. Jefferson County, 380 S.W.3d 52, 64-65 (Tenn. 2012); State ex rel. Moore & Associates, Inc. v. West, 246 S.W.3d 569, 581 (Tenn. Ct. App. 2005); B.F. Nashville, Inc. v City of Franklin, 2005 WL 127082 (Tenn. Ct. App. Jan. 21, 2005).

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Tennessee Code § 68-120-101 has been amended periodically since 2013. The sprinkler-related subsections may have been renumbered or modified. Anyone currently working on a local sprinkler ordinance should confirm the current procedural rules under the latest version of the statute.

Background and statutory framework

Statewide standards. § 68-120-101(a) directs the State Fire Marshal to promulgate minimum statewide building construction safety standards, with Tenn. Comp. R. & Regs. 0780-02-01 to -23 as the resulting rules.

Sprinkler exclusion. § 68-120-101(a)(8)(A) provides those standards "shall not include mandatory sprinkler requirements for one-family and two-family dwellings."

Local opt-up. § 68-120-101(a)(8)(A) immediately adds: "[H]owever, local governments may adopt more stringent requirements for one-family and two-family dwellings." § 68-120-101(a)(8)(B)(i) then sets out the procedural process for doing so.

The mandatory-procedure language. § 68-120-101(a)(8)(B)(i) provides in full:

[I]f a local government seeks to adopt mandatory sprinkler requirements for one-family and two-family dwellings . . . then the local government may only adopt such requirements, by either ordinance or resolution, as appropriate, upon an affirmative two-thirds ( 2/3 ) vote on final reading; provided, that if passage of such ordinance or resolution requires two (2) readings, then such requirements may only be adopted after reading such ordinance or resolution in open session of the legislative body at meetings specially called on two (2) different days that are no less than two (2) weeks apart; and if passage requires three (3) readings, then the last two (2) readings shall occur on two (2) different days that are no less than two (2) weeks apart. Mandatory sprinkler requirements shall be voted on in an ordinance or resolution separate from any other ordinance or resolution addressing building construction safety standards.

Statutory construction of "shall." Bellamy v. Cracker Barrel Old Country Store, Inc., 302 S.W.3d 278, 281 (Tenn. 2009) (citing Stubbs v. State, 393 S.W.2d 150, 154 (Tenn. 1965)): "When 'shall' is used in a statute or rule, the requirement is mandatory."

Procedural defects void the regulation. Cherokee Country Club, Inc. v. City of Knoxville, 152 S.W.3d 466, 475-77 (Tenn. 2004): a city ordinance enacted without compliance with the procedural statute is invalid. Town of Surgoinsville v. Sandidge, 866 S.W.2d 553, 557 (Tenn. Ct. App. 1993): failure to follow procedural statute renders the amendment void.

Declaratory judgment is the remedy. Ready Mix, USA, LLC v. Jefferson County, 380 S.W.3d 52, 64-65 (Tenn. 2012); State ex rel. Moore & Associates, Inc. v. West, 246 S.W.3d 569, 581 (Tenn. Ct. App. 2005); B.F. Nashville, Inc. v City of Franklin, 2005 WL 127082 (Tenn. Ct. App. Jan. 21, 2005).

Common questions

My homebuilder business is in Rutherford County. Can the county just slip the sprinkler rule into the subdivision regulations?

No. § 68-120-101(a)(8)(B)(i) requires the sprinkler rule to be voted on in an ordinance or resolution separate from any other building construction safety regulation. The Commission must pull the sprinkler provision out of the 55-page subdivision regulation and present it as its own item, on its own vote, with the spaced readings, with a 2/3 majority on final reading.

What if the Commission already passed the regulation as part of the package without 2/3?

Aggrieved developers can sue for a declaratory judgment that the regulation is void. Cherokee Country Club. If the regulation hasn't been validly adopted under § 68-120-101(a)(8)(B)(i), it's not enforceable.

Why does the state make local sprinkler rules so hard to pass?

The statute layers several procedural barriers (2/3 vote on final reading, spaced readings, a separate vote) on top of the ordinary process for adopting a local building standard. The opinion treats those requirements as mandatory conditions on adopting any local sprinkler mandate, but does not explain the legislature's reasons for them.

Could a commission do a phased adoption, sprinklers only in some areas?

The statute doesn't directly address geographically partial adoption. The procedural rules apply to any "mandatory sprinkler requirement." A phased approach that imposes sprinklers in any one- or two-family dwelling area would seem to need to follow the statutory procedure for at least that adoption.

Can the commission accomplish the same outcome through a "voluntary" sprinkler incentive?

A purely voluntary incentive (e.g., reduced setback if developer voluntarily installs sprinklers) doesn't trigger § 68-120-101(a)(8). The trigger is the "shall" language making sprinklers mandatory. A waiver structure that conditions another approval on sprinkler installation is the gray area; if the only way to get the approval involves sprinklers (i.e., it's mandatory in practice), the AG's analysis suggests it's a mandatory sprinkler requirement.

What about commercial or multifamily?

§ 68-120-101(a)(8) is specific to "one-family and two-family dwellings." Sprinkler requirements for commercial buildings, hotels, multifamily housing, and similar are governed elsewhere (notably the International Building Code's adoption under § 68-120-101(b)). This opinion doesn't reach those.

Citations

Tenn. Code Ann. § 68-120-101, including (a), (a)(8), (a)(8)(A), (a)(8)(B)(i). Tenn. Comp. R. & Regs. 0780-02-01 to -23. Cases: Bellamy v. Cracker Barrel Old Country Store, Inc., 302 S.W.3d 278 (Tenn. 2009); Stubbs v. State, 393 S.W.2d 150 (Tenn. 1965); Cherokee Country Club, Inc. v. City of Knoxville, 152 S.W.3d 466 (Tenn. 2004); Town of Surgoinsville v. Sandidge, 866 S.W.2d 553 (Tenn. Ct. App. 1993); Ready Mix, USA, LLC v. Jefferson County, 380 S.W.3d 52 (Tenn. 2012); State ex rel. Moore & Associates, Inc. v. West, 246 S.W.3d 569 (Tenn. Ct. App. 2005); B.F. Nashville, Inc. v City of Franklin, 2005 WL 127082 (Tenn. Ct. App. Jan. 21, 2005).

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2013/op13-061.pdf

Original opinion text

August 1, 2013

Opinion No. 13-61

Mandatory Sprinkler Requirement for Residential Dwellings

QUESTIONS

1. Does a proposed regulation by a Regional Planning Commissioner (hereinafter "Commission") constitute a "mandatory sprinkler requirement" under Tenn. Code Ann. § 68-120-101, where the regulation would allow the Commission to waive a requirement that a lot in a residential subdivision be located within 1,000 feet of a fire hydrant in situations where the water lines in the subdivision cannot support the placement of a fire hydrant within 1,000 feet of that lot and the developer installs a sprinkler system in the residential development on the lot?

2. If so, does the Commission have the authority pursuant to Tenn. Code Ann. § 68-120-101 to impose a "mandatory sprinkler requirement"?

3. If the Commission is authorized to impose a "mandatory sprinkler requirement," then what procedural requirements must the Commission follow to establish this requirement?

4. If the Commission's actions do not conform with the aforementioned procedural requirements, what remedies, if any, are available to residential developers?

OPINIONS

1. Yes. A proposed regulation that requires the installation of sprinklers in all dwellings that are not within 1,000 feet of a fire hydrant is a "mandatory sprinkler requirement."

2. Yes.

3. Any regulation adopting a mandatory sprinkler requirement established by a Commission must conform with the procedures set forth in Tenn. Code Ann. § 68-120-101(a)(8)(B)(i).

4. If a Commission's actions do not conform with the procedures set forth in Tenn. Code Ann. § 68-120-101, residential developers aggrieved by the regulation may commence litigation to have the regulation declared void.

ANALYSIS

1 & 2. Building construction safety standards are governed by Tenn. Code Ann. § 68-120-101. This statute directs the state fire marshal to promulgate rules "establishing minimum statewide building construction safety standards . . . [which] shall be designed to afford a reasonable degree of safety to life and property from fire and hazards incident to the design, construction, alteration and repair of buildings or structures." Tenn. Code Ann. § 68-120-101(a). See also Tenn. Comp. R. & Regs. 0780-02-01 to -23.

These standards do "not include mandatory sprinkler requirements for one-family and two-family dwellings." Tenn. Code Ann. § 68-120-101(a)(8)(A). However, "local governments may adopt more stringent requirements for one-family and two-family dwellings." Id. Specifically, local governments may adopt mandatory sprinkler requirements. Tenn. Code Ann. § 68-120-101(a)(8)(B)(i).

The regulation in question, provided to this Office with this opinion request, addresses fire protection. See Draft Rutherford County Subdivision Regulations, Article III, Rule D.3 (Feb. 25, 2013) (hereinafter "Draft Regulations"). According to the proposed regulation, developers shall provide fire hydrants in all subdivisions, and all subdivision lots must be within 1,000 feet of a hydrant. Id. In the event water lines cannot support a fire hydrant, the Commission may grant a waiver from the hydrant requirement but "[t]he granting of a waiver from the fire hydrant requirement shall require any residential development in a subdivision to install a sprinkler system." Id. at D.3.c.ii (emphasis added).

Tennessee courts have recognized that "[w]hen 'shall' is used in a statute or rule, the requirement is mandatory." Bellamy v. Cracker Barrel Old Country Store, Inc., 302 S.W.3d 278, 281 (Tenn. 2009) (citing Stubbs v. State, 393 S.W.2d 150, 154 (Tenn. 1965)). Thus, use of the word "shall" in the proposed regulation creates a mandatory requirement. The regulation requires the installation of sprinkler systems; therefore, the proposed regulation is a "mandatory sprinkler requirement" as contemplated by statute. See Tenn. Code Ann. § 68-120-101(a)(8). The Commission is authorized to impose a mandatory sprinkler requirement pursuant to Tenn. Code Ann. § 68-120-101(a)(8)(B)(i).

3. To impose a mandatory sprinkler requirement for one-family and two-family dwellings, the Commission must follow the process established by Tenn. Code Ann. § 68-120-101(a)(8)(B)(i). The statute provides in pertinent part:

[i]f a local government seeks to adopt mandatory sprinkler requirements for one-family and two-family dwellings . . . then the local government may only adopt such requirements, by either ordinance or resolution, as appropriate, upon an affirmative two-thirds ( 2/3 ) vote on final reading; provided, that if passage of such ordinance or resolution requires two (2) readings, then such requirements may only be adopted after reading such ordinance or resolution in open session of the legislative body at meetings specially called on two (2) different days that are no less than two (2) weeks apart; and if passage requires three (3) readings, then the last two (2) readings shall occur on two (2) different days that are no less than two (2) weeks apart. Mandatory sprinkler requirements shall be voted on in an ordinance or resolution separate from any other ordinance or resolution addressing building construction safety standards.

Tenn. Code Ann. § 68-120-101(a)(8)(B)(i).

The Draft Regulations provided to the Office contain the proposed mandatory sprinkler requirement but that regulation is just one regulation among fifty-five pages of proposed regulations. The applicable Tennessee statute mandates that any such proposal for a mandatory sprinkler "shall be voted on . . . separate from any other ordinance or resolution addressing building construction standards." Id. (emphasis added). Accordingly, the Commission must present the mandatory sprinkler requirement separate from its other subdivision regulations, and the Commission must vote on the regulation separately. Id. The Commission must also follow the statutory process for reading and voting upon this regulation, including that the regulation to pass must receive "an affirmative two-thirds (2/3) vote on final reading." Id.

4. The general rule is that an ordinance or regulation is considered invalid if its passage violates its authorizing statute. See, e.g., Cherokee Country Club, Inc. v. City of Knoxville, 152 S.W.3d 466, 475-77 (Tenn. 2004) (concluding that a city ordinance was invalid because the ordinance was not enacted in accordance with the applicable procedural statute); Town of Surgoinsville v. Sandidge, 866 S.W.2d 553, 557 (Tenn. Ct. App. 1993) (holding that failure to pass a zoning amendment according to the procedural statute renders the amendment void). One remedy available to aggrieved residential developers in such circumstances is to seek to have a court declare the regulation void by means of a declaratory judgment action. See Ready Mix, USA, LLC v. Jefferson County, 380 S.W.3d 52, 64-65 (Tenn. 2012); State ex rel. Moore & Associates, Inc. v. West, 246 S.W.3d 569, 581 (Tenn. Ct. App. 2005); B.F. Nashville, Inc. v City of Franklin, No. M2003-00180-COA-R3-CV, 2005 WL 127082, at * 5-8 (Tenn. Ct. App. Jan. 21, 2005) (courts observing that a declaratory judgment may be commenced without exhausting administrative remedies where a party challenges the validity of an ordinance).

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

DEREK C. JUMPER
Assistant Attorney General

Requested by:

The Honorable Joe Carr
State Representative
205 War Memorial Building
Nashville, Tennessee 37243