KENTUCKY ASSOCIATION OF FIRE CHIEFS, INC., ET AL. VS. KENTUCKY BOARD OF HOUSING, BUILDINGS AND CONSTRUCTION, ET AL.
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RENDERED: DECEMBER 10, 2010; 10:00 A.M.
TO BE PUBLISHED
MODIFIED: JANUARY 14, 2011; 10:00 A.M.
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-001476-MR
AND
NO. 2009-CA-001945-MR
KENTUCKY ASSOCIATION OF
FIRE CHIEFS, INC; JEFFERSON COUNTY
FIRE INSPECTORS ASSOCIATION;
JEFFERSONTOWN FIRE PROTECTION
DISTRICT; AND JACK V. RECKNER
v.
APPELLANTS
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NO. 08-CI-01439
KENTUCKY BOARD OF HOUSING, BUILDINGS
AND CONSTRUCTION; KENTUCKY OFFICE OF
HOUSING, BUILDINGS AND CONSTRUCTION;
AND HOMEBUILDERS ASSOCIATION OF
KENTUCKY, INC.
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, DIXON, AND WINE, JUDGES.
APPELLEES
WINE, JUDGE: The Appellants, consisting of several non-profit associations of
fire chiefs throughout Kentucky (hereinafter referred to collectively as “the Fire
Chiefs”), appeal from two orders of the Franklin Circuit Court. The Fire Chiefs
sought a declaratory judgment against the Kentucky Board of Housing, Buildings
and Construction (“the Board”) and the Kentucky Office of Housing, Buildings
and Construction, which is now the Kentucky Department of Housing Buildings
and Construction (“the Department”). The Fire Chiefs argued that the Board and
the Department exceeded their statutory authority by interpreting the state Building
and Residential Codes as a “maxi code,” which prohibits local governments from
enacting construction standards exceeding those required by the state codes. The
Fire Chiefs specifically challenged the Board’s attempt to enjoin enforcement of an
ordinance adopted by the City of Indian Hills, and they further argued that the
Board’s interpretation would affect the enforceability of ordinances adopted by
fifteen other local governments.
The trial court concluded that the state codes preempt local regulation
of construction standards and that the Board properly enjoined enforcement of the
Indian Hills Ordinance. In a separate order, the trial court dismissed the
declaratory claims involving the fifteen other ordinances, concluding that they
were not ripe for review. On the first issue, we agree with the trial court that the
Board acted within its authority by adopting an interpretation of the Building and
Residential Codes which would preclude enforcement of the Indian Hills
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Ordinance. On the second issue, we agree that the trial court properly dismissed
the remaining claims as not ripe for review. Hence, we affirm in both appeals.
The factual and procedural history of this action is not in dispute. On
October 18, 2007, the City of Indian Hills, a fifth-class city in Jefferson County,
enacted Ordinance No. 15.06.010 (“the Indian Hills Ordinance”). Under the Indian
Hills Ordinance, any new building construction having a roof supported by
columns or walls and intended for shelter, housing use, or enclosure of persons, is
required to be equipped with an approved automatic sprinkler system. The Indian
Hills Ordinance defines the “sprinkler system” as a “system installed in accordance
with the National Fire Protection Association (NFPA) Standards.” Under the
Indian Hills Ordinance, the fire marshals of the St. Matthews Fire Department, the
fire marshals of Harrods Creek Fire Department, or their designees, or the Code
Enforcement Officer of the City of Indian Hills were authorized to conduct
inspections to ensure the installation of the sprinkler system. The Indian Hills
Ordinance also provides that any person who fails to equip new construction with
such a system will be assessed a fine not in excess of $100 for each offense, further
providing that each day a violation persists after notice will constitute a separate
offense.
After receiving a complaint in October of 2007, the Department’s
Division Director, Terry Slade, informed the Board about the Indian Hills
Ordinance. Believing the ordinance to be in conflict with the Kentucky Residential
Code, embodied in 815 Kentucky Administrative Regulation (“KAR”) 7:125 (“the
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Residential Code”), the Department sent a letter to the City of Indian Hills stating
that its ordinance was in conflict with the Residential Code and should not be
enforced (the “do not enforce letter”).
In the meantime, the Board and the Department had a meeting, at
which they discussed the uniform state building codes promulgated under
Kentucky Revised Statute (“KRS”) 198B.050, consisting of the Kentucky Building
Code, embodied in 815 KAR 7:120 (“the Building Code”), and the Residential
Code, in light of the proposed amendments filed on May 14, 2008, to the
Legislative Research Commission (“LRC”). Beginning in 1997, the Building
Code included a prefatory statement explaining the Board’s position that the Code
establishes minimum and maximum building code requirements for detached
single family dwellings, two-family (“the Mini/Maxi Code Statement”). Similar
language appeared in the 2002 versions of both the Building Code and the
Residential Code. However, this language was not included in the 2007 version of
the Codes. Consequently, the Board and the Department began the process of
amending the Building and Residential Codes to re-adopt the Mini/Maxi Code
Statements.
On August 12, 2008, the LRC’s Administrative Regulation Review
Subcommittee (“LRC-ARRS”) held its own meeting to discuss the proposed
amendments to the uniform state building codes. At that meeting, several fire
service and fire marshal representatives opposed the proposed amendments. The
challenged, proposed amendments were as follows:
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(1) The inclusion of a prefatory statement in the Residential Code
that provided as follows:
“The Kentucky Residential Code is a “mini-maxi” code in that
it establishes minimum and maximum building code
requirements for detached single family dwellings, twofamily.”
(2) The Purpose Clause in the Residential Code, i.e., Chapter 1,
Section R101.3, reads as follows:
“101.3 Purpose. The Purpose of this code is to establish
minimum and maximum requirements to safeguard the public
safety, health and general welfare through affordability,
structural strength, means of egress facilities, stability,
sanitation, light and ventilation, energy conservation and safety
to life and property from fire and other hazards attributed to life
and property from fire and other hazards attributed to the built
environment. No local government shall adopt or enforce any
other building code for detached single family dwellings, two
family dwellings and townhouses.”
The Building Code was proposed to contain similar prefatory or
introductory statements.1 The proposed amendments to Section 101.3 of the
Residential Code took effect on September 24, 2008. However, the proposed
changes to Section 101.3 of the Building Code had not taken effect at the time this
matter was pending before the trial court.2
1
The prefatory or introductory statement of the Building Code reads, “...The Kentucky Building
code is a ‘mini/maxi’ code, meaning that it is a statewide uniform mandatory building code and
no local government shall adopt or enforce any other building code; except that the Kentucky
Residential Code shall govern detached single family dwellings, two family dwellings and
townhouses.”
2
The Purpose Clause in the Building Code, with the proposed changes if and when adopted, will
read as follows:
101.3 Purpose. The purpose of this code is to establish the
minimum and maximum requirements to safeguard the public
health, safety and general welfare through structural strength,
means of egress facilities, stability, sanitation, adequate light and
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On September 2, 2008, the Fire Chiefs filed a verified complaint for
declaratory action. They primarily challenged the validity of adopting the
Mini/Maxi Code Statement as a preface to the Residential Code, including the
amendment of Section 101.3 of the Residential Code, which reiterates what is
expressed in the Mini/Maxi Code Statement. The Fire Chiefs also challenged the
Board’s directive that the City of Indian Hills cease all efforts to enforce the Indian
Hills Ordinance. In addition, the Fire Chiefs asserted that the Board’s position
would affect the enforcement of fire safety ordinances in fifteen other cities
throughout Kentucky.3 The Fire Chiefs alleged that the Board exceeded its
statutory authority by adopting the Mini/Maxi Code language in the current version
of the Residential Code. Consequently, the Fire Chiefs sought to enjoin the Board
and the Department from “interfering with the functions of fire chiefs, fire
marshals and other fire services across the state in enforcing local ordinances
involving fire safety.”
ventilation, energy conservation, and safety to life and property
from fire and other hazards attributed to the built environment. No
local government shall adopt or enforce any other building code
for detached single family dwellings, two-family dwellings and
townhouses.” (Italics and emphasis supplied to highlight proposed
changes.)
3
In addition to the Indian Hills Ordinance, the Plaintiffs below sought Declaratory judgment
concerning the enforceability of fire-safety ordinances adopted in: Louisville Metro
Government; Jefferson County; Danville, Boyle County; Erlanger, Kenton County; Florence,
Boone County; Fort Mitchell, Kenton County; Fort Wright, Kenton County; Highland Heights,
Campbell County; Lexington-Fayette Urban-County Government, Fayette County; Ludlow,
Kenton County; Minor Lane Heights, Jefferson County; Munfordville, Hart County;
Nicholasville, Jessamine County; Stanford, Lincoln County; Sturgis, Union County; and
Woodlawn, Campbell County.
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Soon after the complaint was filed, the Home Builders’ Association of
Kentucky, Inc. (“the Intervener”) filed a motion to intervene in the case. The trial
court granted the motion on October 10, 2006, allowing intervention. On
November 21, 2008, the Fire Chiefs filed a motion for summary judgment,
asserting that there were no genuine issues of material fact in this case and that
they were entitled to declaratory judgment as a matter of law. On January 16,
2009, the Board and the Department filed a cross-motion for summary judgment,
also seeking judgment as a matter of law. These motions dealt primarily with the
issues related to the Indian Hills Ordinance. In a separate motion filed on January
26, 2009, the Fire Chiefs moved for partial summary judgment on the claims
relating to the fifteen other ordinances raised in their declaratory judgment action.
Since the Board, the Department, and the Interveners did not challenge the validity
of those ordinances, the Fire Chiefs argued that trial court should grant its motion
for partial summary judgment relating to these ordinances.
On January 16, 2009, the Board and the Department filed a crossmotion for summary judgment arguing, among other things, that municipalities
have no legal authority to mandate building code requirements more stringent than
those required under statewide, uniform, and comprehensive building codes. The
Board and the Department further argued that the Fire Chiefs lacked standing to
bring this action. The Intervener also filed a cross-motion for summary judgment
challenging the enforceability of the Indian Hills Ordinance.
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After further briefing and oral arguments, the trial court entered an
opinion and order on July 14, 2009. As an initial matter, the trial court found that
the Fire Chiefs have a clearly recognizable interest in the dispute or controversy as
it relates to the Indian Hills Ordinance. However, the court also found that the
Board, the Department, and the Interveners were entitled to judgment as a matter
of law. The trial court determined that the Board and the Department have the
authority to establish minimum and maximum building code standards across the
Commonwealth. Consequently, the court found that the City of Indian Hills does
not have the authority to establish fire-safety standards which are more stringent
than those contained in the State Building and Residential Codes.
Thereafter, the Fire Chiefs filed a timely notice of appeal from this
order. In a separate order entered on September 18, 2009, the trial court entered an
order dismissing the declaratory claims as they related to the fifteen other
ordinances. The trial court found there was no actual controversy because the
Board and the Department had not challenged the enforcement of any provisions of
those ordinances. The Fire Chiefs filed a separate notice of appeal from this order.
Subsequently, this Court ordered the appeals consolidated.
As an initial matter, we question whether all necessary parties were
before the trial court in this action. During the proceedings before the trial court,
the parties focused on whether the Fire Chiefs had standing to seek relief as a party
to this action. As the trial court noted, associational or representational standing
allows associations generally to assert claims of its members on their behalf as
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long as its members have a clearly recognizable interest in the dispute or
controversy. See, City of Ashland v. Ashland F.O.P. No. 3, Inc., 888 S.W.2d 667
(Ky. 1994). The trial court further found that the Fire Chiefs demonstrated a
sufficient interest to seek a determination of its obligation to enforce local building
requirements relating to fire safety. No party has sought review from this aspect of
the trial court’s order.
However, this is a distinct issue from whether the City of Indian Hills
or the other local governments are indispensable parties to this action. “An
indispensible party is one whose absence prevents the Court from granting
complete relief among those already parties.” Milligan v. Schenley Distillers, Inc.,
584 S.W.2d 751, 753 (Ky. App. 1979) (superseded by statute on other grounds).
Likewise, the Court in West v. Goldstein, 830 S.W.2d 379 (Ky. 1992),
characterized a necessary party as one whose interest would be divested by an
adverse judgment. See also, Kentucky Rules of Civil Procedure (“CR”) 19.01 and
19.02.
In its judgment, the trial court found that the Indian Hills Ordinance is
void because it prescribes standards that are more stringent than those found in the
State Building and Residential Codes. The trial court further stated that, “the City
of Indian Hills, by purporting to regulate any building intended for enclosure of
persons, overstepped its enforcement authority under KRS 198B.0060 (sic). Thus,
its action is null and void.” The trial court’s wording raises a question of whether
the City of Indian Hills would be an indispensible party to any determination
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concerning the validity of any ordinance it had enacted. Similarly, this raises a
question of whether the other local governments would be necessary parties for
any determination concerning the validity of their own legislation.
Although the issue of whether the local government was an
indispensible party was not properly preserved for review, we will address it. This
Court has previously addressed this issue under very similar circumstances, finding
that the local government was not an indispensible party even though the trial
court’s judgment implicated the validity of an ordinance. In Liquor Outlet, LLC v.
Alcoholic Beverage Control Bd., 141 S.W.3d 378 (Ky. App. 2004), the state
Alcoholic Beverage Control (“ABC”) Board suspended a store’s liquor license for
selling package liquor on a Sunday. The store filed an action for declaratory relief,
relying on a local ordinance which permitted such sales. The circuit court found
that the local ordinance conflicted with the statute and was therefore void. On
appeal, the store argued for the first time that the local government was a necessary
party to any determination concerning the validity of its ordinance.
This Court rejected that argument, concluding that the circuit court’s
ruling that the ordinance was void was “merely ancillary” to the ABC Board’s
finding that the store had violated the statute by selling liquor on a Sunday. The
local government was not prejudiced in any way because the ultimate judgment
concerned only the store’s actions. Id. at 387.
Similarly, the only matters at issue in this case concern the authority
of the Board to adopt regulations that supersede local ordinances and the Fire
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Chiefs’ obligation to enforce local ordinances which conflict with the state codes.
Since the trial court’s judgment related only to the rights and duties of the parties
before it, the other local governments were not indispensible parties to this action.
Based on this reasoning, we must also conclude that the trial court
properly dismissed the claims relating to the fifteen other ordinances as not ripe for
adjudication at this time. The Board has only exercised its authority to preempt
enforcement of the sprinkler provisions of the Indian Hills Ordinance. Thus, the
only active controversy concerns the duty of the Fire Chiefs to enforce that
provision. Any question concerning the validity of any other local ordinance is not
before the Court because the Board has not challenged enforcement of those
ordinances and because the affected local governments are not parties to this
action. Therefore, these claims are not ripe for adjudication at this time in this
action.
Thus, the only remaining question in this case concerns the Board’s
authority to adopt an interpretation of the Building and Residential Codes which
preempt local fire safety ordinances relating to construction. Kentucky has long
recognized that local ordinances relating to fire safety are within the general police
powers of municipalities. See, City of Monticello v. Bates, 163 Ky. 38, 173 S.W.
159, 161 (1915). However, KRS 82.082(1) specifies that a city may only exercise
such powers when it is in furtherance of a public purpose and “not in conflict with
a constitutional provision or statute”. KRS 82.082(2) further provides that “[a]
power or function is in conflict with a statute if it is expressly prohibited by a
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statute or there is a comprehensive scheme of legislation on the same general
subject embodied in the Kentucky Revised Statutes including, but not limited to,
the provisions of KRS Chapters 95 and 96.”
The mere presence of the state in a particular area of the law or
regulation will not automatically eliminate local authority to enact appropriate
regulations. Lexington Fayette County Food and Beverage Ass’n. v. LexingtonFayette Urban County Government, 131 S.W.3d 745, 750 (Ky. 2004). The true
test of the concurrent authority of state and local governments to regulate a
particular area is the absence of conflict. Id. In determining whether there is a
conflict between state and local regulations, the courts must consider whether:
(1) The subject matter has been so fully and completely
covered by general law as to clearly indicate that it has
become exclusively a matter of state concern; (2) the
subject matter has been partially covered by general law
couched in such terms as to indicate clearly that a
paramount state concern will not tolerate further or
additional local action; or (3) the subject matter has been
partially covered by general law and the subject is of
such a nature that the adverse effect of a local ordinance
on the transient citizens of the state outweighs the
possible benefit to the municipality.
Commonwealth v. Do, Inc., 674 S.W.2d 519, 521 (Ky. 1984).
In addressing these questions, we must first look to language of the
statutes which created the Board and directed that it adopt a Building Code. The
General Assembly established the Board in 1978 pursuant to KRS 198B.020 and
vested it with the power “[t]o adopt and promulgate a mandatory uniform state
building code, and parts thereof, which shall establish standards for the
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construction of all buildings . . . .” KRS 198B.040(7). Furthermore, KRS
198B.050 specifically authorizes the Board to adopt and promulgate a “mandatory
Uniform State Building Code” with the following characteristics: (1) it shall be
comprehensive; (2) it shall provide uniform standards and requirements for
construction and construction materials; (3) it shall include but not be limited to
provisions for general construction; structural quality; mechanical systems to
include heating, cooling, and ventilation; electrical systems; and life safety from
hazards of fire, explosion, and other disasters, whether caused by acts of nature or
man; and (4) it must be designed after and may be selected from models offered by
model code agencies.
The Fire Chiefs maintain that the requirements that the Building Code
be mandatory, uniform, and comprehensive do not preclude local governments
from adopting additional standards beyond the minimum requirements of the
Building Code. Furthermore, in 1998, the legislature deleted language from KRS
198B.060(1) which specifically provided that local governments were required to
enforce the Uniform State Building Code “and shall neither adopt nor enforce any
other ordinance regulating buildings which conflicts with the Uniform State
Building Code.” At the same time, the legislature added language to KRS
198B.060(4), which prohibits the commissioner of housing, buildings and
construction from preempting or asserting jurisdiction for the enforcement of the
Building Code on single-family dwellings. Given these provisions, the Fire Chiefs
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argue that local governments retain some authority to prescribe higher building
standards which cannot be preempted.
However, KRS 198B.060 specifically addresses local enforcement of
the Building Code. As the trial court noted, this authority is distinguishable from
the authority to promulgate building or construction standards. In addition, KRS
227.300 authorizes the Department Commissioner to promulgate fire safety
standards. That section specifies that “no part of the standards of safety shall
establish, in whole or part, any building code other than the Uniform State
Building Code, but the commissioner may supplement the Uniform State Building
Code with fire safety regulations designed to operate in conjunction with the
code.” This section would seem to authorize only the Department to adopt
supplemental regulations beyond the requirements set out in the State Building
Code. The delegation of such power to the administrative agency impliedly
conflicts with any exercise of such power by a local government.
Given the statutory scheme, it is not entirely clear that the General
Assembly required the Board to adopt a Mini/Maxi interpretation of the Building
Code. Even if this were the case, courts generally grant deference to any
permissible construction of that statute by the administrative agency charged with
its implementation. See, Board of Trustees of Judicial Form Retirement System v.
Attorney General of Commonwealth, 132 S.W.3d 770, 786-87 (Ky. 2003), citing
Chevron, U.S.A., Inc. v. Natural Resourses Defense Council, Inc., 467 U.S. 837,
844-45, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984). The General Assembly
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delegated sufficient authority to the Board to promulgate uniform, comprehensive,
and mandatory regulations in the field of building and construction standards. The
Board has reasonably interpreted that authority as precluding local adoption of
construction standards either greater than or less than those set out in the State
Building Code. To the extent the Board’s exercise of that authority conflicts with
local enactment of ordinances regulating the same subject, the provisions of the
State Building Code implicitly preempt any other local requirements.
We note that the Board has not consistently exercised its authority to
preclude such local initiatives. As noted above, the Mini/Maxi Code Statement
was not included in the Building Code until 1997. It is arguable that the statement
was unnecessary until that time given the express language of KRS 198B.060.
However, this position is somewhat undermined by the omission of the Mini/Maxi
Code Statement from the 2007 versions of the prefaces to the Building and
Residential Codes. Nevertheless, even in the absence of an express Mini/Maxi
Code Statement, we conclude that the Board clearly has the authority and the
discretion to adopt this interpretation of the Building Code. Based on this
interpretation, we find the sprinkler requirement of the Indian Hills Ordinance
conflicts with the Board’s interpretation of the Building and Residential Codes.
Consequently, the Board properly issued the do not enforce letter to the City of
Indian Hills. Any other issue is beyond the scope of this opinion or the scope of
relief which may be granted to the parties before the Court.
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Accordingly, the judgment of the Franklin Circuit Court is affirmed in
result with respect to the sprinkler requirements of the Indian Hills Ordinance. The
order of the Franklin Circuit Court dismissing the declaratory claims relating to the
fifteen other ordinances is also affirmed.
ALL CONCUR.
BRIEFS AND ORAL ARGUMENT
FOR APPELLANT:
Maurice A. Byrne, Jr.
Louisville, Kentucky
BRIEFS AND ORAL ARGUMENT
FOR APPELLEE DEPARTMENT OF
HOUSING, BUILDINGS AND
CONSTRUCTION; AND
KENTUCKY OFFICE OF
HOUSING, BUILDINGS AND
CONSTRUCTION:
Dawn M. Bellis
Frankfort, Kentucky
M. Holliday (Hollie) Hopkins
Frankfort, Kentucky
BRIEFS AND ORAL ARGUMENT
FOR APPELLEE HOMEBUILDERS
ASSOCIATION OF KENTUCKY,
INC.:
Thomas M. Todd
Lexington, Kentucky
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