Board of Sup'rs of Fairfax County v. Miller and Smith, Inc.

• Decision Date: 12 June 1981
• Docket Number: No. 790677,790677
• Citation: 279 S.E.2d 158,222 Va. 230
• Court: Virginia Supreme Court
• Parties: The BOARD OF SUPERVISORS OF FAIRFAX COUNTY, et al. v. MILLER AND SMITH, INC. Record

Page 158

279 S.E.2d 158

222 Va. 230

The BOARD OF SUPERVISORS OF FAIRFAX COUNTY, et al. v. MILLER AND SMITH, INC.

Record No. 790677.

Supreme Court of Virginia.

June 12, 1981.

David T. Stitt, County Atty. (Frederic Lee Ruck, County Atty., Edward J. Finnegan, Asst. County Atty., on briefs), for appellants.

Robert A. Lawrence, Fairfax (Hazel, Beckhorn & Hanes, Fairfax, on brief), for appellee.

C. F. Hicks, Martin, Hicks & Ingles, Ltd., Gloucester, amicus curiae, for Virginia Association of Counties, appellant.

Before CARRICO, C. J., and HARRISON, COCHRAN, POFF, COMPTON, THOMPSON and STEPHENSON, JJ.

THOMPSON, Justice.

The dispositive issue here is whether the building permit refund provisions of a Fairfax County ordinance have been superseded by regulations promulgated under the Uniform Statewide Building Code. For the reasons hereinafter set forth, we hold that the Fairfax County ordinance was in conflict with the statewide regulation and must therefore yield to it.

On June 10, 1976, Miller and Smith, Inc. (Miller and Smith), a housing construction firm located in Fairfax County, sought from the Board of Supervisors of Fairfax County (Fairfax County) a refund of the fees it had paid for eleven of 1,168 building permits acquired by it in 1973 and 1974 but never utilized. Fairfax County denied its request. Miller and Smith again asked in writing for a refund on July 8, 1977, this time for the fees paid on all 1,168 permits, totaling $42,516. After Fairfax County failed to take action, Miller and Smith, on September 9, 1977, filed for a declaratory judgment, asking the trial court to require Fairfax County to refund the full amount. The trial court, sitting without a jury, heard the case on July 5, 1978.

In 1972, the General Assembly adopted Chapter 829 (Code §§ 36-97 through 36-119) directing and empowering the State Board of Housing to adopt and promulgate a Uniform Statewide Building Code (U.S.B.C.) which would supersede all local building codes and regulations. The adopted code, patterned after the Building Officials and Code Administration model codes (BOCA), will be referred to in the opinion as BOCA/U.S.B.C. The refund provision of BOCA/U.S.B.C. was worded in part:

In the case of a revocation or abandonment or discontinuance of a building project, the volume of the work actually completed shall be computed and any excess fee for the incompleted work shall be returned to the permit holder.

BOCA/U.S.B.C. § 118.8. ¹

Prior to September 1, 1973, Fairfax County had its own building code, basically a codification of BOCA with some modifications. In adopting BOCA, Fairfax County modified the BOCA provision concerning refund of building permit fees to read in pertinent part:

Any permit ... under which no work is commenced, may be cancelled upon the application of the owner at any time within six (6) months from the date of issuance and the Board of Supervisors shall refund fifty percent of the fee paid for such permit.

Fairfax County Code § 6-5(g) (1961) as amended August 4, 1971.

BOCA/U.S.B.C. became effective September 1, 1973. Fairfax County amended its building code subsequent to this date, but did not change its original refund provision, continuing this provision as Fairfax County Code § 6-6(1), the alleged supersession of which is at issue in this case.

The trial court concluded that because BOCA § 118.8 had been adopted by the State Board of Housing, the action of Fairfax County in adopting, in Fairfax County Code § 6-6(1), a different provision dealing with building permit refunds was invalid. The court thus computed the refund based on the amount of incompleted work without regard to the provisions of the local code.

I. Jurisdiction of Circuit Court.

Fairfax County contends that the circuit court lacked jurisdiction of the claim because Miller and Smith did not follow the appeal procedures set forth in Code §§ 15.1-552, -553, and hence the bar of Code § 15.1-554 controls. See Chesterfield County v. Town & Country Apartments, 214 Va. 587, 203 S.E.2d 117 (1974). But the record clearly indicates that counsel for Miller and Smith, by letter dated July 8, 1977, and addressed to the Fairfax County Board and all of its officials charged with the enforcement of the building code, specifically requested the refunds with the listing of the projects involved. Approximately seven months later, the clerk of the Board of Supervisors of Fairfax County notified counsel for Miller and Smith that there was no evidence the refund claim was ever presented to the Board of Supervisors. We agree with the trial court that, within the meaning of Code § 15.1-553, Fairfax County had "refused or neglected to act upon the claim," and it is excepted from the bar of Code §§ 15.1-553 and -554. Parker v. Prince William County, 198 Va. 231, 93 S.E.2d 136 (1956).

Fairfax County argues further that it was a prerequisite to circuit court jurisdiction that administrative remedies under the building code and its regulations should first be exhausted. Code §§ 36-105, -114, -116, and -118, and § 127.1 of the Regulations.

Code § 36-105 provides that "no appeal to the State Building Code Technical Review Board shall lie prior to a final determination by the local Board of Building Code appeals." Code § 36-105 also provides that the local board's "duties and responsibilities shall be prescribed in the Building Code." The Building Code is defined in Code § 36-97(5) as the U.S.B.C.

The only provision in BOCA/U.S.B.C. providing for appeals to the local board is § 127.1. The first sentence of § 127.1 defines the scope of a local board review authority. It is any "decision of the building official refusing to grant a modification to the provisions of this code covering the manner of construction or materials to be used " in the erection, alteration, or repair of a building or structure. (Emphasis added.)

The second sentence of § 127.1 provides the situations in which an appeal will lie from a decision concerning "the manner of construction or the materials to be used." These situations are (1) where the true intent of this Code or of the rules legally adopted thereunder has been incorrectly interpreted; (2) where the provisions of this Code do not fully apply; or (3) where an equally good or better form of construction can be used. This sentence does not provide additional areas of appeal, but rather sets out the situations wherein the local board of appeals may overturn the building official's decision as to the "manner of construction or materials to be used" if the local board of appeals finds one or more of the three situations to exist.

Section 127.1 therefore limits the jurisdiction of local boards of appeal to appeals from decisions of the building official as to the "manner of construction or materials to be used." The validity of a local ordinance such as Fairfax County Code § 6-6(1) is not a question within the scope of § 127.1, nor should it be. The local building official would not be qualified to make such a determination. Refunds are not covered by the § 127.1 administrative appeal procedure. Since this is the only statutory delegation of appellate jurisdiction to local boards of appeal, Miller and Smith's refund request was not a proper subject of this appeal process and, consequently, not a matter within the purview of the State Technical Review Board.

II. Is Fairfax County Code § 6-6(1) Superseded by State Regulation BOCA/U.S.B.C. § 118.8?

The enabling legislation, Code § 36-98, the regulation promulgated thereunder, and the Fairfax County ordinance are set forth in the margin. ²

In Board of Supervisors of Loudoun County, et al. v. Pumphrey, 221 Va. 205, 206-07, 269 S.E.2d 361, 362 (1980), we said:

Code § 1-13.17 ... precludes a local governing body from enacting ordinances "inconsistent with" state law .... (A)n ordinance may not conflict with state law. Hanbury v. Commonwealth, 203 Va. 182, 185, 122 S.E.2d 911, 913 (1961); Allen v. City of Norfolk, 196 Va. 177, 180, 83 S.E.2d 397, 399 (1954).

....

Code § 1-13.17 provides: "When the council or authorities of any city or town, or any corporation, board, or number of persons, are authorized to make ordinances, bylaws, rules, regulations or orders, it shall be understood that the same must not be inconsistent with the Constitution and laws of the United States or of this State."

On the same day, in Tabler, etc. v. Supervisors, Fairfax County, 221 Va. 200, 202, 269 S.E.2d 358, 359 (1980), we said: "As noted in several recent decisions, Virginia follows the Dillon Rule of strict construction concerning the legislative powers of local governing bodies ...."

Fairfax County argues that the power given under Code § 36-98 to adopt and promulgate a U.S.B.C. does not include the authority to adopt administrative procedures for the code so adopted. In fact, they argue that Code § 36-99 explicating the code was limited to standards in the construction of buildings and structures, and that the provision for "procedures for the administration and enforcement of such standards" was not added until Acts 1977, c. 423, which was adopted subsequent to the events of this case. The argument then is that at the time BOCA/U.S.B.C. was promulgated, January 29, 1973, to be effective not later than September 1, 1973, the power to prescribe administrative standards and procedures did not then exist, and only came into existence by the express language of the 1977 amendment to Code § 36-99.

We reject this argument of Fairfax County. The enabling legislation, Code § 36-98, directed the State Board of Housing to adopt and promulgate a uniform statewide building code, and implicit in this is the power to adopt administrative rules and procedures carrying out the building code. In Portsmouth v. Virginia Railway and Power Company, 141 Va. 54, 61, 126 S.E. 362, 364 (1925), we said:

(E)very power expressly granted, or fairly implied from the language used, or which is necessary to...