Avalon Assisted Living Facilities v. Zager

Decision Date31 December 2002
Docket NumberRecord No. 0778-02-4,Record No. 0820-02-4.
Citation574 S.E.2d 298,39 Va. App. 484
CourtVirginia Court of Appeals
PartiesAVALON ASSISTED LIVING FACILITIES, INC., d/b/a Avalon Homes v. Zofia A. ZAGER, Fairfax County Building Official, and Director, Fairfax County Office of Building Code Services. State Building Code Technical Review Board v. Zofia A. Zager, Fairfax County Building Official, and Director, Fairfax County Office of Building Code Services.

Andrew D. Levy (Sharon Krevor-Weisbaum, Shelly Marie Martin, Baltimore, MD; Mark E. Sharp, Fairfax; Brown, Goldstein & Levy, L.L.P., Baltimore, MD; Culin, Sharp & Autry, P.L.C., on briefs), for Avalon Assisted Living Facilities, Inc.

Jennifer C. Williamson, Assistant Attorney General (Jerry W. Kilgore, Attorney General; Richard B. Zorn, Senior Assistant Attorney General; John B. Purcell, Jr., Assistant Attorney General, on briefs) for State Building Code Technical Review Board.

Cynthia A. Bailey, Assistant County Attorney (David P. Bobzien, County Attorney; J. Patrick Taves, Deputy County Attorney; Jan L. Brodie, Senior Assistant County Attorney, on briefs), for appellee.

Present: Judges ELDER, ANNUNZIATA and AGEE.

ELDER, Judge.

Avalon Assisted Living Facilities, Inc., d/b/a Avalon Homes (Avalon), and the State Building Code Technical Review Board (TRB) appeal from a decision of the Fairfax County Circuit Court holding that the TRB erroneously applied the Uniform Statewide Building Code (USBC) to Avalon's request to allow it to depart from the USBC's use group classifications.1 On appeal, Avalon and the TRB contend the TRB had the authority to grant the requested modification and that the evidence in the record supported its decision to do so. We affirm the circuit court's conclusion that the TRB lacked authority to modify the USBC's use group classifications. Further, we hold, as a matter of law, that Avalon's facility constituted an 1-2 use. Finally, we conclude that any modifications to the provisions of the USBC covering the manner of construction or materials to be used in the alteration of Avalon's facility to comply with the 1-2 use group standards must be the functional equivalent of those expressly required by the USBC. Thus, we affirm in part, reverse in part, and remand to the circuit court with instructions to remand to the TRB to determine whether the alterations it approved were, in fact, the functional equivalent of those required by the USBC for a facility housing an 1-2 use group.

I. BACKGROUND

This appeal stems from a request by Avalon for classification of its facility under the USBC as a residential use group rather than an institutional use group in order to avoid having to meet certain USBC fire safety standards which Avalon alleged were cost-prohibitive. Avalon proposed adding certain lesser protections, which included central station monitoring and a sprinkler system in all compartments except the attic, in exchange for the requested modification of its USBC use group classification. The local building code official (the local official), Zofia A. Zager, after consulting with her advisory committee, denied the request. The local official wrote, "This denial is based on the fact that your proposal for an R-4 use does not provide the occupants the same level of protection as that which is required by the [USBC] for an 1-2 use."

Avalon appealed to the local board of building code appeals (the local appeals board). After hearing statements from representatives of Avalon and the local official, the local appeals board granted the modification request. It concluded the additional safeguards Avalon proposed, coupled with added safeguards including the installation of heat rise detectors in the attic space and "smoke tight" doors and partitions separating the corridor from the sleeping rooms, "[were] sufficient to balance the omission of the fire protection requirements of structural components otherwise required by the [USBC]."

The local official appealed to the TRB, which affirmed the decision of the local appeals board. The TRB, in making its decision, had before it the record of the proceedings from the local appeals board. It also swore witnesses and heard additional evidence. The record included evidence of the following:

In a single-family residence in McLean, Virginia, Avalon operates an adult care residence (ACR), see 22 Va. Admin. Reg. 40-71-10, which is licensed by the Department of Social Services (DSS) to house up to eight residents.2 Avalon provides care primarily for elderly women suffering from Alzheimer's disease and the mental and physical ailments which accompany it. The 2,700-square-foot residence has been converted to house a maximum of eight patients and two full-time staff people.

The purpose of Avalon's McLean ACR is to provide Alzheimer's patients with continuity of care, allowing them to "stay there through until the end, and sometimes have hospice come in when people are at the end-stages of their illness." Avalon's residents are usually "ambulatory from the standpoint that they can walk," although some are wheelchair bound and require physical assistance. However, because the residents are cognitively confused, in the event of an emergency, some of the residents who can walk nevertheless may need to be led out by the hand. Also, due to the fact that Alzheimer's patients "go through ... peaks and valleys," the number of residents able to respond with help could vary from day to day. In the event of an emergency requiring evacuation, any patients physically incapable of walking would be carried out on their bed sheets. The facility conducts monthly fire drills, and "usually the longest it takes . . . is five, six minutes to get all eight people out," provided none of the occupants are bedridden.

Although Avalon was licensed by DSS for up to eight residents at a time, local officials had interpreted the USBC to allow operation of the ACR under the requirements for a residential use group as long as no more than five of those eight residents were non-ambulatory, i.e., needed assistance to evacuate. Avalon was concerned that this restriction had the potential to force relocation of a resident if her condition deteriorated such that she became the sixth non-ambulatory resident at the ACR. Avalon represented that it would limit to five the number of residents who were bedridden or otherwise physically unable to evacuate. It sought a USBC waiver so that it could have up to eight residents unable to evacuate independently due to psychological limitations, such as those residents who were physically able to evacuate if led by the hand.

Avalon hired Mark P. Dempsey, a fire protection engineer, to investigate upgrading the ACR to meet the 1-2 use group requirements but concluded such upgrades would be cost-prohibitive. Avalon then proposed to add certain lesser safety protections in exchange for being allowed to continue to be classified as a residential rather than institutional use even with more than five nonambulatory residents. Those protections included (1) installation of (a) an automatic sprinkler system for all areas of the residence except the attic, (b) smoke detectors and (c) a manual fire alarm system connected to both the sprinkler system and an approved central station for monitoring; and (2) placement of any non-ambulatory residents in bedrooms located on the grade level. Ordinarily, an ACR with a residential use group classification is required to have only single station smoke detectors. See Code § 36-99.5:1. Dempsey concluded that the additional fire protections he outlined were "at least equivalent in protection to those required by the 1-2 standard."

Representatives of the local official noted their "group unanimously ... came to the conclusion that the differences [between the fire safety requirements for a structure housing an 1-2 use group and the protections which Avalon proposed adding] were far too great" and that "[i]t was beyond [the local official's] authority to grant this modification."

The local official continued to object on the ground that Avalon's plan included no "passive fire protection whatsoever." She emphasized that Avalon's facility is Type 5-B construction, which "has zero fire ratings on.... its structural components." An 1-2 use group must be Type 5-A construction, which "requires a minimum of one-hour fire rating on major structural components to make sure that the building does not collapse" during the time it takes the fire department to respond.

After considering the evidence and argument, the TRB granted Avalon's modification request. In doing so, however, it noted

two areas of concern in the wording of the USBC and its application to ACR's. First, the inclusion of group homes licensed by [DSS] in the exception to § 308.2 should not include the statement that such facilities house mentally ill, mentally retarded or developmentally disabled persons[,] as ACR's by statutory and regulatory definition are for persons who are aged, infirm or disabled. Notwithstanding the incorrect language, the [TRB] determines the intent of the USBC is for the exception to apply to ACR's. Secondly, the determination that § 308.2 and its exception permit up to five residents [out of eight] at any given time to be unable to exit the residence without personal assistance from staff does not match the explicit language of the code. Recognizing however that this has been a long-standing application of the code and is supported by an interpretation issued by the BOCA Code Interpretations Committee, the [TRB] agrees § 308.2 and its exception may be applied as stated in this case.

The TRB expressly recommended the Housing Board amend the USBC to address these inconsistencies.

In support of its decision to grant Avalon's requested modification, the TRB relied on four findings. First, it found that allowing Avalon to house eight residents of varying degrees of awareness after...

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