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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Western States Fire Protection Co. of AK v. Municipality of Anchorage (11/10/2006) sp-6069

Western States Fire Protection Co. of AK v. Municipality of Anchorage (11/10/2006) sp-6069, 146 P3d 986

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,


PROTECTION COMPANY OF ) Supreme Court No. S- 11895
) Superior Court No.
Appellant, ) 3AN-04-4479 CI
v. ) O P I N I O N
MUNICIPALITY OF ANCHORAGE, ) No. 6069 - November 9, 2006
Appellee. )
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Philip R. Volland, Judge.

          Appearances:  Lea E. Filippi  and  Barbra  Z.
          Nault,   Bankston   Gronning   OHara,   P.C.,
          Anchorage,  for  Appellant.  Dean  T.  Gates,
          Assistant  Municipal Attorney, and  Frederick
          H. Boness, Municipal Attorney, Anchorage, for

          Before:   Bryner,  Chief  Justice,  Matthews,
          Eastaugh, Fabe, and Carpeneti, Justices.

          CARPENETI, Justice.

          More  than  one  hundred acoustic tiles hang  from  the
ceiling  of  the  auditorium  at  A.J.  Dimond  High  School   in
Anchorage.   The  acoustic tiles hang below the fire  sprinklers.
The fire department determined that the tiles obstructed too much
water  from  the  sprinklers.  The board of  building  examiners,
finding that the sprinkler installation complied with local  fire
codes,  overruled  the  fire  department.   The  superior   court
reversed  the  boards  decision and the sprinkler  installer  now
appeals.  Because interpretation of the fire code calls  for  the
boards  technical  expertise,  we ask  only  whether  the  boards
decision  has  a rational basis in law and fact.   However,  even
under this deferential standard of review, we hold that the board
failed to determine whether the sprinklers and the tiles in their
current  configuration actually permit adequate  water  coverage.
We therefore vacate the decision of the board and remand the case
to  the  board  for  reconsideration, which  may  include  taking
additional evidence.
          Western  States  Fire  Protection  Company  of   Alaska
(Western  States) designed and installed the sprinkler system  in
the  new auditeria of A.J. Dimond High School.  Overhead  in  the
auditeria more than one hundred acoustic tiles, known as  clouds,
hang  approximately twelve feet below the ceiling.  Each  of  the
clouds  is four feet wide and eight to twelve feet long.  Western
Statess  technical drawings, which the Anchorage Fire  Department
preliminarily approved, show the positions of the clouds relative
to  the sprinklers.  The parties disagree on the distance between
the  clouds.  Western States asserts that the clouds  are  spaced
roughly two feet apart, referring to photographs of the auditeria
ceiling  and  technical drawings.  However,  based  on  the  same
drawings,  the fire department asserts that the clouds  are  only
six inches apart.1  In any case, Western States conceded that the
sprinklers and clouds are not configured to take advantage of the
open  gaps  between the clouds.2  After the clouds and sprinklers
were  installed, the fire department inspected the auditeria  and
issued  a  fire  inspection  notice  expressing  the  departments
concern  over the number of clouds and their position  below  the
sprinkler heads.  According to the inspection notice, the  clouds
would  disrupt  the  sprinkler discharge  pattern,  resulting  in
inadequate  coverage of any fire erupting below the clouds.   The
fire  marshal  refused  to approve the sprinklers  until  Western
States  remedied the situation by remov[ing] obstructions  and/or
add[ing] additional sprinkler heads as necessary.
          Western  States appealed the fire departments  decision
to  the  Anchorage  Board  of Building Regulation  Examiners  and
Appeals.3   At hearings before the board, Western States  pointed
out that before construction it showed its sprinkler installation
plans  to  five different entities (including the fire  marshal),
who  signaled  their  approval.   According  to  Western  States,
because  of  the clouds, only sixty-eight percent  of  the  floor
coverage  is  open  to  water application.  Western  States  also
indicated  that  the sprinklers are placed closer  together  than
legally  required, although the resulting additional  water  they
provide  would not make up for the water blocked by  the  clouds.
Western  States additionally noted that fire alarms and a  nearby
fire  station provide backups for the sprinkler system.  Although
Western  States was asked several questions about water flow  and
coverage  during  the  hearing, it is  unclear  from  the  record
whether  the  board reached any conclusion about  the  amount  of
          water actually capable of reaching the floor from the sprinklers
and  whether the amount would provide adequate protection against
fire hazards in the auditeria.
          The fire departments fire inspector urged the board  to
find  that the sprinklers [should] be extended through or between
the acoustic panels to a level that [will] extend the coverage to
the area below, in other words, to the floor area below, which is
where the hazard is.  Otherwise, according to the inspector,  the
sprinkler   system  fails  to  comply  with  the  National   Fire
Protection Association standard for sprinkler systems (NFPA  13)4
as  incorporated into Anchorages fire code.5  The fire department
submitted a letter from the manufacturer of the acoustic  clouds,
which stated that similar installations, including one at a  high
school   in   Fairbanks,  were  required  to  include  additional
sprinklers  either in the gaps between the clouds or  penetrating
the clouds themselves.
          In  deliberations after the hearing, the board  members
discussed   NFPA   13s    four-foot   benchmark   for   sprinkler
obstructions  in  connection  with the  four-foot  width  of  the
accoustical  tiles.6  According to one board  member,  over  four
feet  is  not  the same thing as four feet or more, and  this  is
pretty  clear[,] it says over four feet.  Following this comment,
another  board  member  made a motion to  grant  Western  Statess
appeal,  remarking, Thats our only option.  The board then  voted
unanimously that Western States had complied with NFPA 13.
          The fire department appealed the boards decision to the
superior court.  Anchorage Superior Court Judge Philip R. Volland
reversed  the  boards  decision,  applying  the  substitution  of
judgment  standard of review.  According to the  superior  court,
substitution   of   judgment   was   appropriate,   since   [t]he
interpretation  of such non-technical terms as  continuous,  non-
continuous, fixed obstructions, and over four feet  wide  .  .  .
does  not  involve agency expertise or broad policy formulations.
The   superior   court   determined  that  the   boards   literal
interpretation  of NFPA 13 produced an absurd result,  since  the
sprinkler-cloud arrangement might technically comply with NFPA 13
while  negating the standards purpose, which is to ensure that  a
sufficient amount of water from the sprinkler reaches the hazard.7
Western States appeals.
          Where  the superior court acts as an intermediate court
of  appeal from an administrative decision such as the boards, we
review  the  administrative decision directly.8  When the  boards
interpretation  of law turns on its technical  expertise  or  the
determination  of fundamental policies within the  scope  of  the
[boards]   statutory   function,9   we   inquire   whether    the
interpretation  has  a rational basis.  As we  stated  in  Tesoro
Alaska  Petroleum  Co. v. Kenai Pipe Line Co., two  circumstances
generally call for rational basis review: (1) where the agency is
making  law  by  creating standards to be used in evaluating  the
case  before  it and future cases, and (2) when a  case  requires
resolution of policy questions which lie within the agencys  area
of  expertise  and are inseparable from the facts underlying  the
agencys decision.10  When applying the rational basis test, we ask
          whether the decision is supported by the facts and has a
reasonable basis in law.11
          The  rational basis test may be appropriate  even  when
interpreting  commonly  used words, if there  are  technical  and
policy  reasons  to  defer  to  the  administrative  agency,  and
especially  if  the  legislature has  granted  the  agency  broad
discretion.   For  example,  in  Matanuska-Susitna   Borough   v.
Hammond, we applied the rational basis test to a decision of  the
Department of Community and Regional Affairs, and deferred to its
interpretation of the statutory term population.12   We  affirmed
the  departments  interpretation of population for  the  sake  of
revenue  sharing  and  tax limitation in that  case  because  the
legislature  had  granted broad discretion to the  department  by
permitting  the  department  to make a  population  determination
based  on  data  which,  in the judgment of  the  department,  is
          Similarly,   in  this  case,  although   the   disputed
provisions  of  NFPA 13 contain common terms like continuous  and
noncontinuous,   they   also  contain  open-ended   terms   whose
interpretation requires technical expertise.  For  instance,  the
board,  and not the judiciary, is qualified to determine  whether
the size of the clouds relative to their location will impair the
functioning  of  the  sprinklers, such that  the  clouds  prevent
adequate  coverage.14  NFPA 13s terminology permits the  building
inspector and the board to determine compliance on a case-by-case
basis.   For  instance, it states that [i]n some situations,  the
obstruction  cannot  be  avoided, and additional  sprinklers  are
necessary  to  compensate for areas under  the  obstruction  that
would not receive adequate coverage.15  Additionally, a four-foot
wide  obstruction (that is, one that is not over four feet)  does
not  automatically comply, since [t]he size at which obstructions
become too large to ignore is typically 4 ft (1.2 m).16  Finally,
the Anchorage Assembly has granted broad discretion to the board.
According to AMC 03.60.050:
          [The  board] may hear and decide de novo  all
          matters appealed and may exercise independent
          judgment   as  to  the  weight  of   evidence
          supporting  or refuting the findings  of  the
          administrative  official .  .  .  from  whose
          decision  the  appeal  is  taken,   and   may
          exercise independent judgment on legal issues
          raised by the parties.
          With the relatively deferential rational basis test  in
mind,  we  now  turn to the boards decision in  order  to  decide
whether   the  board  correctly  determined  that  the  sprinkler
installation complied with the fire code.
          The fire department disputes the boards conclusion that
the  sprinkler  system complies with the fire code,  although  it
does not dispute the boards finding that the clouds are four feet
wide  and  the  boards determination that NFPA 13 determines  the
sprinklers proper configuration in relation to them.  The overall
objective  of  NFPA 13 is to ensure that a sufficient  amount  of
          water from the sprinkler reaches the hazard.17  According to this
standard,  additional sprinklers are required where a  horizontal
obstruction  more  than  four feet wide  is  situated  more  than
eighteen  inches below the original sprinkler.18  Yet this  rules
converse  is not necessarily true; i.e., the rule does not  imply
that  an  obstruction  exactly four  feet  wide  (and  more  than
eighteen inches below the original sprinkler) will never  require
an  additional  sprinkler below it.  Contrary to Western  Statess
argument,   the sprinkler requirement for obstructions more  than
four  feet wide does not establish that obstructions, like  those
at  issue here, that are exactly four feet wide or less than four
feet wide, are never subject to the requirements.19  The Anchorage
Municipal  Code  is  consistent with this  interpretation,  since
technical   compliance  with  the  NFPA  leads  to  a  rebuttable
presumption  rather than a conclusion that the  sprinkler  system
provides  adequate coverage.20  NFPA 13 also covers  obstructions
four  feet  wide  or less that fail to permit adequate  sprinkler
coverage.  It provides, The size at which obstructions become too
large to ignore is typically 4 ft (1.2 m).21  This indicates that
obstructions exactly four feet wide may obstruct the  water  flow
to  such  an extent that they are too large to ignore.  In  other
words,  if  an  obstruction  of any  size  interrupts  the  water
discharge in a manner to limit the distribution of water  to  the
hazard, then additional sprinklers may be necessary to compensate
for  areas under the obstruction that would not receive  adequate
          On  this  critical question  whether water coverage  in
the event of a fire would be sufficient  there is no evidence  in
the record indicating that the board made a decision.  It did not
make  any  findings  on the distance between  the  clouds,  their
number,  or  their  effect  on the sprinkler  discharge  pattern.
Rather,  it appears that the board believed it had no  choice  in
the  matter and regarded its approval as mandatory on account  of
the clouds four-foot width.  Therefore, we hold that it failed to
consider  other  relevant provisions of NFPA 13,  especially  its
overall purpose to ensure that a sufficient amount of water  from
the sprinkler reaches the hazard.23
          Administrative  expertise requires deference  from  the
judiciary.   However,  because the board  has  not  answered  the
crucial  question,  that is, whether adequate water  reaches  the
floor, we VACATE the decision of the board and REMAND the case to
the   board  for  additional  proceedings  consistent  with  this
     1     In its reply brief, Western States maintains that  the
clouds are more than six inches apart.

     2     According to Western States, [T]he sprinklers are  not
aligned  to  the  gap between the clouds; rather, the  sprinklers
were  configured to avoid obstructions above the  clouds  at  the
roof level of the auditeria.

     3     The board is composed of eleven building experts.  See

     4     See  infra note 18 for the text of relevant provisions
of NFPA 13.

     5     According to Uniform Fire Code  101.3 (1997) (formerly
incorporated  into  the Anchorage fire code  by  AMC  23.45.100):
[C]ompliance  with  applicable standards  of  the  National  Fire
Protection  Association  . . . shall be  deemed  as  prima  facie
evidence of compliance with the intent of this code. . . .  [But]
[n]othing  herein shall derogate from the power of the  chief  to
determine  compliance . . . .).  This text  is  now  incorporated
into  the  Anchorage fire code by reference to the  International
Fire Code. See AMC 23.05.010;  Intl Fire Code  102.7 (2003).  See
Natl Fire Prot. Assn Standard 13 (NFPA 13)  5.5-5 (1999) (amended
2002).   The 2002 amendments to NFPA recodified section 5.5-5  as
section although the substantive provisions  remain  the
same.  In this opinion we refer to the 1999 version of NFPA 13.

     6     NFPA  13  5-5.3.1 provides, in part, that [s]prinklers
shall  be installed under fixed obstructions over 4 ft.  (1.2  m)
wide . . . .

     7    NFPA 13  5-5.5.

     8     Raad  v. Alaska State Commn for Human Rights, 86  P.3d
899, 903 (Alaska 2004); Tesoro Alaska Petroleum Co. v. Kenai Pipe
Line Co., 746 P.2d 896, 903 (Alaska 1987).

     9    Tesoro, 746 P.2d at 903.

     10    Id.

     11    Id.

     12    Matanuska-Susitna Borough v. Hammond, 726 P.2d 166, 175
(Alaska 1986) ([T]he reasonable basis standard is the appropriate
standard  of  review  here  because  both  agency  expertise  and
fundamental policy decisions are involved in the determination of
population,  and because the legislature intended  to  place  the
decision in the hands of the department.).

     13     Id. at 169 (quoting former AS 29.88.015).  See id. at
175-76, 176 n.17.

     14    NFPA 13  A-5-5.3.

     15    Id. (emphasis added).

     16    Id.   5- (emphasis added).

     17    Id.  5-5.5.

     18     This  conclusion follows from the  NFPA  13  sections
quoted below.

          NFPA 13  5-5.5.3 provides:

          Continuous or noncontinuous obstructions that
          interrupt the water discharge in a horizontal
          plane  more  than 18 in. (457 mm)  below  the
          sprinkler deflector in a manner to limit  the
          distribution  from  reaching  the   protected
          hazard shall comply with [this section].
          According to  A-5-5.3:

          Once  the  sprinkler  discharge  pattern   is
          developed,  obstructions  in  the  horizontal
          plane  can  prevent  the sprinkler  discharge
          from  reaching the protected hazard.  In some
          situations,   the   obstruction   cannot   be
          avoided,   and   additional  sprinklers   are
          necessary  to compensate for areas under  the
          obstruction  that would not receive  adequate
          According to  5-

          Sprinklers  shall  be installed  under  fixed
          obstructions over 4 ft (1.2 m) wide  such  as
          ducts,  decks,  open grate flooring,  cutting
          tables, and overhead doors. . . . The size at
          which obstructions become too large to ignore
          is typically 4 ft (1.2 m).
     19     See, e.g., Ward Bros. Co. v. Zimmerman, 166 N.E. 545,
546 (Ind. App. 1929):

          [A]ppellant sought to have the court instruct
          the  jury that . . . a speed of less than  35
          miles  an hour was prima facie not negligent,
          this being urged in view of the statute . . .
          making  speed greater than 35 miles per  hour
          prima  facie negligence. It is true that,  by
          the statute referred to, a speed in excess of
          the   limit   there  fixed  is  prima   facie
          negligent,   but   the   converse   is    not
          necessarily true.  The statute provides  that
          no person shall operate a motor vehicle on  a
          public  highway  at a speed greater  than  is
          reasonable  and  prudent, and  it  is  easily
          conceivable  that  one  might  violate   this
          provision of the statute, and still  be  well
          within the prima facie limit fixed.
See generally A.R. Lacey, A Dictionary of Philosophy 49 (defining
denial  of  antecedent as the [f]allacy of arguing  that  if  the
antecedent  of  a  conditional statement  is  false,  so  is  the
consequent, e.g. If all cats are black, Tiddles is black; but not
all cats are black, so Tiddles is not black. ); 5 Encyclopedia of
Philosophy 37, 42 (Paul Edwards ed., 1967).

     20    See former AMC, supra note 5.

     21    NFPA 13  5-

     22    Id.  5-5.5.3 & A 5-5.5.3.

     23    Id.   5-5.5.

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