State revives stricter multi-family sprinkler standard under AG Kaul opinion

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The Wisconsin Department of Safety and Professional Services will again require sprinkler systems in small apartment buildings after Attorney General Josh Kaul reversed a legal opinion from his Republican predecessor last fall.

Up until 2017, the agency had required multifamily apartment buildings with four or more units to have a sprinkler system installed. But a legal opinion in 2017 from former Attorney General Brad Schimel found the agency’s authority to enforce that standard wasn’t explicitly laid out in state law. The opinion effectively prevented the department from requiring fire safety sprinklers in apartments with fewer than 20 units, and threw into question the ability of state agencies to create and enforce administrative rules.

An opinion last fall from Attorney General Josh Kaul, however, reversed Schimel’s opinion. The DSPS said earlier this month that it was still evaluating the effect of Kaul’s opinion, and on Friday announced it would revive the stricter sprinkler standard for multifamily buildings. The rules reflect standards set by the International Code Council.

“The International Code Council promulgated this standard and the department adopted it because fire sprinkler systems prevent injuries and save lives,” said DSPS Secretary-designee Dawn Crim. “Enforcing this provision will protect individuals and families that live in multi-family dwellings and it will protect the fire fighters who respond to calls.”

The department’s new rules require that multi-family apartment buildings with three or more dwelling units have an automatic sprinkler system, with few exceptions. Any building plans submitted on or after April 19 will need to comply with the new standard.

The so-called sprinkler rule may have implications beyond DSPS.

Schimel’s 2017 legal opinion rescinding the DSPS’ sprinkler standard cited a 2011 law, Act 21, that lays out the procedures by which state agencies can make administrative rules. Schimel concluded that the law directed state agencies not to make rules that aren’t explicitly laid out in state law.

That meant the DSPS couldn’t require sprinkler units in apartments with four or more units, as it had been doing, because state statues didn’t say that outright. It also provided a legal avenue to challenge other rules created by state agencies that aren’t explicitly found in state statutes.

The opinion delivered a victory for some construction trade groups who viewed the DSPS’ rules as being too strict. The Wisconsin Builders Association, for instance, challenged the sprinkler rule in court and supported legislative attempts to change the standard. The association called Kaul’s reversal of Schimel’s opinion “disappointing” earlier this month.

Most apartment projects approved in Wisconsin already have automatic sprinkler systems, according to the DSPS.

The agency last year approved 530 apartment projects that would have been subject to the stricter sprinkler standard. Although the DSPS then only required apartment buildings with 20 or more units to have sprinkler systems, only 79 buildings with less than 20 units had no plans for a sprinkler system.

By contrast, 419 apartment buildings approved by the agency last year included plans for complete sprinkler systems, even though the agency didn’t require them.

“The industry is already moving toward safety,” Crim said. “Fire sprinkler systems save lives. They also prevent catastrophic property loss. Requiring them makes sense.”

Correction: A previous version of this story referenced the height of an apartment building as a factor in determining if the structure needs a fire sprinkler system. A building’s height, in fact, is not a factor, according to an updated statement from DSPS Friday afternoon.  Follow @natebeck9