The Wisconsin Department of Safety and Professional Services (DSPS) sent Wisconsin Attorney General Brad Schimel a letter in 2017 requesting an official legal opinion on whether a law passed in 2011 should prevent state officials from enforcing a rule calling for sprinklers to be installed in multifamily dwellings with between five and 20 dwelling units. The 2011 law prohibits the state from adopting rules that are stricter than what is specifically allowed by statute. The Wisconsin Builders Association (WBA), Wisconsin REALTORS® Association (WRA) and others had pointed out that Wisconsin statutes require sprinklers in multifamily dwellings with more than 20 units but make no explicit mention of buildings with fewer apartments.
Over the past decade, the Sprinkler Rule has been the focus of numerous disputes and actions pitting one interest against another in a series of “duels.”
The statutes vs. the administrative code
The basic players in this saga come from the law books. Under Wis. Stat. § 101.14(4m)(b), the DSPS must require an automatic fire sprinkler system in “every multifamily dwelling that contains . . . [m]ore than 20 dwelling units.” We will refer to this law as the 20-Unit Statute.
The DSPS, however, enacted Wis. Admin. Code § SPS 362.0903(5)(b), which currently provides that an automatic sprinkler system must be installed in every multifamily dwelling that “contain[s] more than 4 dwelling units.” We will refer to this provision as the Sprinkler Rule.
That leaves the question: which of these applies when a developer constructs new multifamily housing?
Wisconsin Builders Association v. State Department of Commerce
This issue was tackled a decade ago in a Court of Appeals case decided in 2008 involving the WBA and what was then the Wisconsin Department of Commerce, which later became the DSPS.
At that time, Wis. Admin. Code § Comm 62.0903(6) required sprinkler systems in all newly constructed multifamily dwellings that contained more than 16,000 square feet or more than eight dwelling units. As of January 1, 2011, sprinkler systems were to be required in all new multifamily dwellings except townhouses meeting certain specifications.
The WBA contended that the 20-Unit Statute prevented the department from imposing a requirement that was more restrictive. The 20-Unit Statute states: “The department shall require an automatic fire sprinkler system or 2-hour fire resistance in every multifamily dwelling that contains any of the following: 1. Total floor area, for all individual dwelling units, exceeding 16,000 square feet. 2. More than 20 dwelling units. 3. Total floor area of its nondwelling unit portions exceeding the limits established in par. (c).”
The court observed that the Department of Commerce had general authority under Wis. Stat. § 101.02(15) to enforce and administer all laws and lawful orders making public buildings safe and that require “the protection of the life, health, safety and welfare of … the public or tenants in any such public building.” In addition, the court saw no reason within the language of the 20-Unit Statute that limited the department’s power to promulgate rules requiring fire protection in multifamily properties with fewer than 21 dwelling units. Thus the court found the department could enforce the Sprinkler Rule.
See Wisconsin Builders Association v. State Department of Commerce, 2009 WI App 20, at www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&seqNo=35008.
Gov. Walker vs. burdensome regulation
But that was before 2011. Gov. Walker and lawmakers took aim at the broad rulemaking authority then enjoyed by state agency officials who, unlike legislators, are not elected. One specific example cited in this discussion was that the Department of Commerce implemented rules requiring sprinkler systems in all multifamily dwellings except certain townhouse units even though state law explicitly stated that sprinkler systems were required in multifamily dwellings exceeding 16,000 square feet or with more than 20 dwelling units. The practice of creating rules without explicit legislative authority was called out as a constitutionally questionable practice granting power to individuals not accountable to Wisconsin citizens. The solution was legislation that states an agency may not create rules more restrictive than the regulatory standards or thresholds provided by the legislature, and specifies that broad statements of policies, general duties or powers do not empower a department to create rules not explicitly authorized in the statutes.
And thus 2011 Wis. Act 21 (Act 21) was born, supposedly passed because various lawmakers believed the Wisconsin Department of Natural Resources was overstepping its authority to regulate things like high-capacity wells. Act 21 modified Wis. Stat. § 227.11(2) to state:
Wis. Stat. § 227.11(2)
(a) Each agency may promulgate rules interpreting the provisions of any statute enforced or administered by the agency, if the agency considers it necessary to effectuate the purpose of the statute, but a rule is not valid if the rule exceeds the bounds of correct interpretation. All of the following apply to the promulgation of a rule interpreting the provisions of a statute enforced or administered by an agency:
1. A statutory or nonstatutory provision containing a statement or declaration of legislative intent, purpose, findings, or policy does not confer rule-making authority on the agency or augment the agency's rule-making authority beyond the rule-making authority that is explicitly conferred on the agency by the legislature.
2. A statutory provision describing the agency's general powers or duties does not confer rule-making authority on the agency or augment the agency's rule-making authority beyond the rule-making authority that is explicitly conferred on the agency by the legislature.
3. A statutory provision containing a specific standard, requirement, or threshold does not confer on the agency the authority to promulgate, enforce, or administer a rule that contains a standard, requirement, or threshold that is more restrictive than the standard, requirement, or threshold contained in the statutory provision.
Act 21 vs. the pre-existing rule
The DSPS, as the successor to the Department of Commerce, continued to enforce the Sprinkler Rule, which had evolved to the current version of Wis. Admin. Code § SPS 362.0903(5)(b) that requires an automatic sprinkler system be installed in every multifamily property with more than four dwelling units. The Sprinkler Rule was on the books before Act 21 was enacted, so the question became whether the DSPS could enforce the Sprinkler Rule, that was thought to be more restrictive than the 20-Unit Statute, because the rule was in place before Act 21.
Wisconsin attorney general opinion
This is where the Wisconsin Attorney General Brad Schimel came into the picture, at the behest of the DSPS — and the WRA and the WBA — with assistance by the WRA Legal Action Program — to resolve the lingering doubts and settle the matter for the benefit of the DSPS and the builders and all others. The Legal Action Program had joined with the WBA to pay for a memorandum on the Sprinkler Rule issue prepared by outside legal counsel. The memorandum was intended to be used in convincing the DSPS to ask for a formal attorney general opinion on the enforceability of the Sprinkler Rule. This was apparently successful because the DSPS sent Schimel a letter requesting an official legal opinion on whether Act 21 prevents the DSPS officials from enforcing the Sprinkler Rule. Specifically the DSPS asked whether the Sprinkler Rule is a more restrictive requirement than the 20-Unit Statute and, if so, whether the Sprinkler Rule could still be enforced because it was in place before Act 21 was enacted.
On December 8, 2017, Schimel issued a formal opinion to DSPS Secretary Laura Gutiérrez (OAG-04-17). The opinion addressed the application of Act 21 to the Sprinkler Rule. Schimel determined that the Sprinkler Rule contains a requirement that is more restrictive than the 20-Unit Statute. Schimel further concluded that Act 21 prohibits the DSPS from enforcing or administering the Sprinkler Rule even though the rule was lawfully promulgated before Act 21 was passed. Given the history leading to the passage of Act 21, the Attorney General indicated his analysis is unavoidable, noting it will be up to Wisconsin’s lawmakers to set different standards if those are prudent.
Under Act 21, a state agency may not “enforce” or “administer a rule that contains a standard, requirement, or threshold that is more restrictive than the standard, requirement, or threshold contained in the statutory provision.” Wis. Stat. § 227.11(2)(a)3.
Read the attorney general opinion at https://docs.legis.wisconsin.gov/misc/oag/recent/oag_4_17.pdf.
Developers vs. the fire marshals
Of course everyone wants the residents of multifamily housing to be protected against the risk of fires. On the other hand, affordable housing is a key concern, and the cost of installing fire sprinkler systems is high and works counter to efforts to keep construction costs in check so that reasonable rents can be charged by property owners.
Defenders of the Sprinkler Rule say that certain parts of building codes have been loosened up under the assumption that most multifamily dwellings would have sprinkler systems. As a result, building codes may now require the installation of fewer fire walls and allow longer distances to fire exits. Thus the fire-protection groups may continue to have concerns over fire safety in buildings without sprinklers. If they believe the building codes are too lax without the Sprinkler Rule requirements, they may encourage legislators to change the law, or if that does not work, they may consider going to court.'
Definition of multifamily dwelling and when Wis. Stat. § 101.14(4m) applies
One lingering question has been what constitutes a multifamily dwelling for proper application of the automatic sprinkler system and fire resistance requirements found in the 20-Unit Statute? The DSPS Guidance for Automatic Sprinkler Systems and Fire Resistance answers this question in the following way.
Wis. Stat. § 101.971(2) provides that “‘multifamily dwelling’ means an apartment building, row house, town house, condominium, or modular home, as defined in s. 101.71 (6), that does not exceed 60 feet in height or 6 stories and that consists of 3 or more attached dwelling units the initial construction of which is begun on or after January 1, 1993.”
Wis. Stat. § 101.71(2) provides that “‘dwelling’ means any building that contains one or more dwelling units. ‘Dwelling unit’ means a structure or that part of a structure which is used or intended to be used as a home, residence or sleeping place by one person or by 2 or more persons maintaining a common household, to the exclusion of all others.”
Thus the Sprinkler Rule applies to apartment buildings, town homes and condominiums.
See the DSPS Guidance for Automatic Sprinkler Systems and Fire Resistance at https://dsps.wi.gov/Documents/Programs/CommercialBuildings/AutomaticSprinklerSystemsFireResistanceGuidance.pdf.
Debbi Conrad is Senior Attorney and Director of Legal Affairs for the WRA.