Cooper v. Occoquan Land Development Corp.

• Decision Date: 07 March 1989
• Docket Number: No. 1250-86-4,1250-86-4
• Citation: 8 Va.App. 1,377 S.E.2d 631
• Parties: Claude G. COOPER, Building Official for Fairfax County, Virginia, Jane W. Gwinn, Zoning Administrator for Fairfax County, Virginia, and Board of Supervisors of Fairfax County, Virginia v. OCCOQUAN LAND DEVELOPMENT CORPORATION, State Technical Review Board. Record
• Court: Virginia Court of Appeals

Page 631

377 S.E.2d 631

8 Va.App. 1

Claude G. COOPER, Building Official for Fairfax County, Virginia, Jane W. Gwinn, Zoning Administrator for Fairfax County, Virginia, and Board of Supervisors of Fairfax County, Virginia v. OCCOQUAN LAND DEVELOPMENT CORPORATION, State Technical Review Board.

Record No. 1250-86-4.

Court of Appeals of Virginia.

March 7, 1989.

J. Patrick Taves, Asst. County Atty., (David T. Stitt, County Atty., George A. Symanski, Jr., Sr. Asst. County Atty., on brief), for appellants.

Robert S. Perry, Fairfax, for appellee, Occoquan Land Development Corp.

Richard C. Kast, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen. on brief), for appellee, State Technical Review Bd.

Present: BARROW, BENTON and DUFF, JJ.

BENTON, Judge.

This appeal arises from a circuit court's dismissal of an appeal from a decision of the State Technical Review Board (the Board). We are asked to consider (1) whether the notice of appeal of the Board's decision was timely filed; (2) whether the Board had jurisdiction to hear the appeal from the local building code appeals board; and (3) whether certain building permits were properly revoked by the local building official for false statements or misrepresentations of fact in the applications. We answer each question in the affirmative, and, because the Board's determination was without substantial evidence to support it, we reverse the judgment of the circuit court.

I

Occoquan Land Development Corporation (Occoquan) obtained permits to build single family dwellings on three lots in Fairfax County. Soon after the issuance of the permits, heavy rains caused flooding on two of the lots. Claude G. Cooper, a county building official, then revoked the building permits because the site plans and applications which had been submitted by Occoquan did not "contain complete and accurate information regarding soil and drainage conditions." All the parties agree that the portion of the applications relating to grading and drainage review, which presumably would have revealed high water table conditions, remained blank. Occoquan had certified, however, on each building permit application "that the information [on the application] is complete and correct." In addition, Occoquan's engineer had certified on the site plan which was submitted as a part of the building permit application, "that this drawing or plan and related specifications ... are in conformance with all applicable local ordinances or regulations." Local ordinances prohibited construction on land where high water table conditions exist until adequate safeguards are taken.

Occoquan appealed the revocation of the permits to the Fairfax County Board of Building Code Appeals (the "local board"), which ordered reinstatement of the permits but only "upon full compliance with the building code and accompanied by engineering documentation on establishing flood plains and a soils report on each lot." Occoquan then appealed the local board's decision to the State Technical Review Board, which concluded that the building permits should not have been revoked because there was "insufficient evidence that any false statements or misrepresentations of fact were made in the application for the permits." The Board ordered the permits restored "subject to the provisions of the Virginia Uniform Statewide Building Code in effect at the time the permits were issued." The County entities appealed the Board's decision to the circuit court. Concluding that the County had failed to file timely a notice of appeal as required by Rule 2A:2, the circuit court judge dismissed the appeal. The judge also concluded that even if the notice had been effective, the Board's decision on the merits was not in error.

II

With regard to the judge's procedural ruling, we note at the outset that the parties stipulated in the circuit court that counsel for the County mailed the notice of appeal to the Board on August 21, 1985, and received the certified mail receipt showing delivery to the Board on August 22, 1985. The record of this case contains a copy of a certified mail receipt showing that the County caused a document to be delivered to the Board on August 22, 1985. Applying Rule 2A:2, which governs the filing of a notice of appeal pursuant to the Administrative Process Act, the circuit judge ruled that circumstantial evidence established that the notice of appeal was received by the Board on August 22, 1985, more than 30 days after July 20, 1985, the date the trial judge determined the final order of the Board was entered.

The record, however, does not support the judge's ruling that the Board's order was entered July 20, 1985. The date of entry of the Board's order is ambiguous at best. The order contains three different dates. The first date, contained in the last sentence of the order, recites that "[t]his decision has been entered this 28th day of June 1984 A.D."--almost one year before the date of the actual hearing of the case. Appearing, without explanation, below the chairman's signature is another date, "July 20, 1985." Finally, the date "July 23, 1985" appears, without explanation, at the end of the document below the secretary's attestation.

Despite the ambiguity concerning the date of entry of the order, the circuit judge decided that "[t]he final order of the Board was 'entered' when it was signed by the chairman" on July 20, 1985. In so deciding, the judge compared the Board's order to that of a circuit court's final order, which is entered when the circuit judge affixes his or her signature to the document. It also appears that the judge assumed that July 23, 1985, was the date that the signature of the secretary of the Board was affixed to the order. Deeming that July 23, 1985, was the date upon which occurred the purely ministerial function of certifying the authenticity of the document, the judge apparently discarded July 23, 1985 as the date of entry of the order. Although the judge's opinion letter does not specify a reason for discarding the date stated on the Board's order as the entry date ("this 28th day of June 1984 A.D."), the conclusion that the date of entry was in fact June 28, 1985, is nothing more than sheer speculation and is not supported on this record.

In view of the plain error on the face of the order (reciting the date of entry as June 28, 1984--almost one year prior to the hearing) and in the absence of Board regulations governing the date of entry of its orders, we conclude that no rational basis supports the circuit judge's determination that July 20, 1985, rather than July 23, 1985, was the date from which the thirty day requirement of Rule 2A:2 should be measured. Significantly, the Board's responsive pleading in the circuit court admitted that the date of entry of its decision was July 23, 1985. Despite that admission the trial judge picked one of the other two dates on the order and ruled the notice untimely.

We also believe that consideration should have been given to Code § 9-6.14:14 of the Administrative Process Act, which mandates that the Board serve its decisions upon the "parties by mail unless service otherwise made is duly acknowledged ... in writing." The Board could not have served its decision prior to July 23, 1985, the date the trial judge apparently assumed to be the date the order was authenticated by the authorized Board representative. Unless the mandatory mailing requirement of Code § 9-6.14:14 is read in connection with the notice requirement of Rule 2A:2, there exists a real possibility that the Board's failure to mail the order promptly could deprive a party of the right to appeal. In this case, for example, even if we assume that the order was intended to recite an entry date of June 28, 1985 (instead of "entered this 28th day of June 1984 A.D." as erroneously stated on the order), the order was not mailed to the parties until July 23, 1985, or sometime thereafter, twenty five or more days after its entry. Where two provisions are in potential conflict, it is this Court's duty to construe those provisions in a manner which would give full force and effect to both provisions. See Kirkpatrick v. Bd. of Supervisors, 146 Va. 113, 125, 136 S.E. 186, 190 (1926). We will not presume that the legislature intended to work an injustice on the parties. See Ferguson v. Ferguson, 169 Va. 77, 87, 192 S.E. 774, 777 (1937).

For the foregoing reasons, we hold that the selection of July 20, 1985, as the date upon which the order was entered is not supported by the record. The patent ambiguity in the Board's own order concerning the date of entry of the order does not permit a rational conclusion that the Board's order was entered prior to the last date contained on the order--July 23, 1985. We further conclude that since the record establishes that the order was not authenticated and mailed until July 23, 1985, at the earliest, this record does not provide a basis upon which to conclude that the notice of appeal was not timely and that such an ambiguity must not control the disposition of this dispute. Accordingly, we now consider other issues raised in this appeal.

III

Occoquan waited some fifteen months after revocation of the permits before appealing the decision to the local board. The County contends that although the building code contains no provision limiting the period within which appeals may be taken to the local board, some time limit should apply. Accordingly, the County argues the time limit must be determined by the life of the permits and applications as controlled by Virginia Uniform Statewide Building Code (USBC) §§ 104.10 and 109.9. ¹ Based upon the application of either of these provisions, the County asserts that Occoquan's failure to appeal the revocation of the permits within six months barred appeal of the then expired permits and applications. A review of these provisions, however, indicates that they have no application to the circumstances of the present dispute.

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