Fire Safe Regulations - FAQs: Local Jurisdiction FSR Implementation Requirements
Firefighters can fight fires and save structures only after people are safely evacuated.
The State’s Minimum Fire Safe Regulations specify the requirements that local jurisdictions need to follow.
Enforcement: CalFire has the authority to inspect and enforce the FSR in the State Responsibility Area (SRA) (§ 1270.06(d)). For the Very High Fire Hazard Severity Zones (VHFHSZ) in the Local Responsibility Area (LRA), no independent oversight mechanism was specified; thus, local jurisdictions do the inspections and enforcement.
Issue: Lack of training for local jurisdictions: Although the FSR specify the requirements that local jurisdictions need to follow, the State (Board of Forestry and Fire Protection) did not conduct outreach or offer training to adequately inform local jurisdictions how to implement the FSR.
Regardless, in 2022, the CA Attorney General’s office issued guidance for local jurisdictions/ lead agencies when considering the impacts of approving new development in wildfire-prone areas. Attorney General Guidelines: “Best Practices for Analyzing and Mitigating Wildfire Impacts of Development Projects under the CA Environmental Quality Act.”
Many local jurisdiction’s land use approvals or ordinances do not comply with the FSR if they incorrectly allow “Exemptions” (a complete exclusion from the rule) or “Exceptions to Standards” (a variation of the rule deemed to have the “same practical effect”).
Exemptions vs Exceptions to Standards:
In the FSR, “Exemptions” refer to a complete exclusion from the rule, and have strict limitations. The FSRs define a Road as Exempt if it is used solely for Agriculture, mining or management of timberland or harvesting of forest products (§ 1270.04(d)).
A road used for agriculture, mining or timberland would not be exempt if there were residences or visitor serving facilities using the same road.
Exemptions are completely different from “Exceptions to Standards,” a variation of the rule or standard that must have the “Same Practical Effect.”
The FSRs allow Exceptions to Standards for roads within the development; yet, many local jurisdictions misuse the exception process, thereby jeopardizing public safety.
Recent wind-driven wildfires have proven that new construction design standards are not enough; there is a need for better evacuation planning and on-going practice by the community using different evacuation routes.
FAQs
Q. Are local jurisdictions required to have their fire safety ordinances certified by the Board of Forestry (BOF)?
A. No. The certification practice stopped in November 2020. The State confirmed that the FSRs were the minimum standards to be followed statewide and required that local ordinances, road regulations, and building construction meet these FSR minimum standards for the SRA and VHFHSZ of the LRA, with no new exemptions. The FSR states local ordinances can always have stricter standards.
The 2023 State Minimum Fire Safe Regulations have clear requirements and state that local Exemptions cannot be applied unless they are Exemptions enumerated in Subchapter 2 below:
State FSR § 1270.05. Local Regulations
(a) Subchapter 2 shall serve as the minimum Wildfire protection standards applied in SRA and VHFHSZ. However, Subchapter 2 does not supersede local regulations which equal or exceed the standards of this Subchapter.
(b) A local regulation equals or exceeds a minimum standard of this Subchapter only if, at a minimum, the local regulation also fully complies with the corresponding minimum standard in this Subchapter.
(c) A Local Jurisdiction shall not apply exemptions to Subchapter 2 that are not enumerated in Subchapter 2. Exceptions requested and approved in conformance with § 1270.07 (Exceptions to Standards) may be granted on a case-by-case basis.
(d) Notwithstanding a local regulation that equals or exceeds the State Minimum Fire Safe Regulations, Building construction shall comply with the State Minimum Fire Safe Regulations.
For example, Orange County’s ordinance follows the 2021 State Minimum Fire Safe Standards, and includes some stricter standards. The City of Los Angeles has adopted its own very high severity zone map based on state law, and its website provides residents with valuable preparation and evacuation information.
Q. Are local jurisdictions misconstruing the Exemption of the 2023 Fire Safe Regulations (FSRs) that only exempts development that was approved and in the pipeline prior to 1991? Can this Exemption be applied to allow new development on any parcel or tentative map approved in the State Responsibility Area (SRA) before 1991?
A. YES, some are misconstruing the pre-1991 exemption, and NO, that exemption cannot be applied to any parcel or tentative map approved pre-1991. Some local jurisdictions are misapplying this exemption to allow new residential development on any pre-1991 vacant parcel even though the conditions “relating to the perimeters and access to the buildings” were not specified in the associated pre-1991 parcel or tentative map; i.e., the parcel was not included in a subdivision map approved before 1991 or the roads accessing it were made before 1991.
This section of the FSR is difficult to understand: Regulations § 1270.03(b): “Subchapter 2 does not apply where an application for a Building permit is filed after January 1, 1991 for Building construction on a parcel that was formed from a parcel map or tentative map (if the final map for the tentative map is approved within the time prescribed by the local ordinance) approved prior to January 1, 1991, to the extent that conditions relating to the perimeters and access to the Buildings were imposed by the parcel map or a final tentative map approved prior to January 1, 1991.”
So in 1993, the State Attorney General issued a clarifying opinion in response to Amador County which is clear: the State FSRs would apply to all new building permits unless conditions relating to road access were imposed in an associated pre-1991 parcel map. The Attorney General’s Opinion further clarified, “These exceptions were apparently designed by the Legislature to exempt construction and development activity already in the "pipeline" as of January 1, 1991.”
These requirements were written into the FSRs in Subchapter 2 (§ 1270.03(b)). Both the BOF and the State Fire Marshal’s Office have confirmed that the ONLY pre-1991 “Exemption” allowed for development on a parcel is if it is associated with a pre-1991 parcel or final tentative map specifying conditions relating to access to the perimeters and access to the buildings, i.e., as stated in the 1993 AG opinion.
Q. Are there “Exceptions to Standards” in the FSR, where standards can be met through alternative means?
A. Yes, with criteria and limits: Exceptions must provide specific proposals with “material facts” supporting how they will provide the “Same Practical Effect” as the FSR standard “within the development parcel.” All Exceptions must provide fire apparatus ingress and safe concurrent civilian evacuation as required in the FSR.
However, improvements within the parcel to meet the FSR standards do not alone determine compliance with the FSR. Safe evacuation for access roads outside of the parcel is also required. If a public road does not meet the FSR, this would not fall under the criteria for an Exception as the road is outside the development parcel. The applicant would need to discuss improvements with the local Public Works authority. If improvements are not agreed and implemented to meet the standards in the FSR (paid for either by the applicant or local jurisdiction), then new development cannot occur.
Q. How does the Exception process work in the Fire Safe Regulations?
A. The applicant applies for an Exception with details of what will be done to meet the FSR requirements. Exceptions proposals must provide the “Same Practical Effect” as the FSR within the development parcel. This includes fire apparatus ingress and safe concurrent civilian evacuation. The local fire marshal/official must approve any Exception and provide it to CAL FIRE. On a private road, the applicant would need to make fire safety improvements to get a building or use permit. If the applicant does not agree to make infrastructure improvements to meet the FSR that are acceptable to the Fire Marshal and CAL FIRE, then the unsafe new development cannot occur.
Q. Do existing public access roads to reach a parcel for proposed development need to meet the FSR and provide for safe evacuations?
A. Yes. The State FSRs apply “to the perimeters and access to all residential, commercial and industrial Building construction…”, and to “Roads and Driveways, whether public or private.”
There is no exemption for existing roads, whether public (offsite) or private (onsite) providing access to residential, commercial or industrial projects. The only limited FSR exemptions are for roads used solely for mining, timber harvesting, or agriculture. Under the FSRs, if a private road does not meet the FSR criteria, the applicant can apply for an “exception to standards,” which means the applicant would need to make infrastructure improvements with the “same practical effect” as the standard within the development parcel. This includes fire apparatus ingress and safe concurrent civilian evacuation as detailed in the FSR. The local fire marshal/official must approve any Exception and provide it to CAL FIRE, which has final approval. On a private road, If the applicant does not agree to make infrastructure improvements to meet the FSR that are acceptable to the Fire Marshal and CAL FIRE, then the unsafe new development cannot be built. If a public access road does not meet the FSR, the applicant can explore required improvements with the local Public Works authority. Again, if public access roads cannot be improved to meet the FSR, then new development cannot occur.
Some Counties have incorrectly taken the position that the FSRs do not apply to existing offsite public roads. This is patently wrong, as the FSR specify they apply to all roads, public and private, with no exemption provided for existing public roads. Such a position of exempting existing public roads also violates the requirement that no exemptions can be made that are not in the FSR. This position would exempt the majority of new residential, commercial, or industrial developments from needing to comply with the FSR, leaving residents often stranded when trying to evacuate on substandard roads, with the potential for significant loss of life. Requiring safe evacuation only on the private roads that only lead to the parcel line does not save residents from a conflagration and contradicts the basic requirement of the FSR to provide fire-fighting equipment access and safe concurrent evacuation.
Q. Napa and Sonoma County designate wineries as “agricultural uses,” yet wineries and tasting rooms are open to the public, with hundreds of non-Agriculture-related vehicle trips per day. Is providing public access to tasting rooms on non-conforming roads being used as a loophole under the Agriculture Road exemption?
A. In some instances, YES: The FSRs exempt roads if they are “…used solely for Agriculture, mining or management of and harvesting of timber (§ 1270.04(d)”.
The FSRs state that if other uses or residences are along the road, it is not exempt. Residences and/or visitor-serving traffic at wineries and tasting rooms on a non-conforming road significantly increases fire and evacuation risks and negates any agricultural road exemption as the road is not solely used for agriculture.
Q. Do the Minimum FSR Standards mean a proposed new development should not be approved by the local jurisdiction on a narrow long dead-end road?
A. Correct. To be approved for new development, the road would need to be improved to meet the Minimum Fire Safe Standards and the applicant would need to build a second egress to a non-dead-end road that met the FSR standards of 20 feet wide, properly surfaced, grade limitations, and other standards.
Q. Who is liable when people die and property is lost because local jurisdictions keep approving new development in dangerous fire-prone areas?
A. California faces a lifetime liability issue as climate-intensified wildfires continue to grow. The court system is overturning many unsafe project approvals; however, it is unknown whether public officials in local jurisdictions and fire officials will be held responsible for approving unsafe new development that results in dire evacuations and devastating community burnover.
Q. What does the State Attorney General say about the Fire Safe Regulations?
A. In letters to various county planning commissions, the Attorney General’s office has decisively confirmed the regulations apply to New Development on Existing Roads, both Public and Private, and has stated that length limits on dead-end roads cannot be eliminated with an “Exception”. (Oct 25, 2019 letter to Monterey County Planning Commission).
Q. Separate from the FSR, does the BOF 2019 Fire Safety Survey (Title 14 § 1267.00-1267.04) allow new development on a dead-end road with a second egress on a substandard road that does not meet the FSR?
A. No. The 2019 Fire Safety Survey only applies to existing communities that are on a dead-end road with no second egress. In that case, they ask the local jurisdiction to identify a second emergency egress, which may be of lesser standards than the primary access. However, the standards of the FSR always apply to all new developments.
Q. Some local jurisdictions allege that the only revisions to the FSR (Public Resource Code Statute § 4290) are those specified in Senate Bill 901. In 2018, SB 901 clarified administrative and contracting practices, expanded the applicability of the FSRs to VHFHSZ in the LRA, and required updated regulations for fuel breaks, greenbelts, and ridgelines.
A. When the BOF adopted the revised State Minimum Fire Safe Regulations, in addition to setting certain minimum standards for structures, subdivisions, and developments in the SRA and LRA VHFHSZ, the revised regulations provide for basic emergency access and perimeter wildfire protection, as well as standards for greenbelts near communities, fuel breaks, and measures to protect undeveloped ridgelines to reduce fire risks and improve protection. Also, certain administrative changes were, in part, intended to improve clarity regarding inspection and enforcement processes and requirements for local ordinances to ensure local jurisdiction compliance with the Minimum Fire Safe Regulations.