Gaines v. Dep't of Hous. & Cmty. Dev. State Bldg. Code Technical Review Bd.
| Decision Date | 07 January 2020 |
| Docket Number | Record No. 1090-19-1 |
| Citation | 71 Va.App. 385,837 S.E.2d 54 |
| Court | Virginia Court of Appeals |
| Parties | Joshua GAINES and Makiba Gaines v. DEPARTMENT OF HOUSING & COMMUNITY DEVELOPMENT STATE BUILDING CODE TECHNICAL REVIEW BOARD and City of Norfolk |
Makiba Gaines (The Gaines Law Firm, P.L.L.C., on briefs), for appellants.
Elizabeth B. Myers, Assistant Attorney General (Mark R. Herring, Attorney General; Donald D. Anderson, Deputy Attorney General; Heather Hays Lockerman, Senior Assistant Attorney General & Section Chief; Justin I. Bell, Assistant Attorney General; Andrew Fox, Deputy City Attorney, on brief), for appellees.
Present: Judges Humphreys, Huff and AtLee
OPINION BY JUDGE ROBERT J. HUMPHREYS
Joshua and Makiba Gaines ("the Gaineses") appeal an order entered by the Circuit Court of the City of Virginia Beach ("circuit court"), upholding the State Building Code Technical Review Board’s ("Review Board") decision that the Virginia Maintenance Code ("VMC") requires the installation of a heating system and that the lack of a heating system in the Gaineses’s rental property rendered the property unfit or unsafe for habitation. On appeal, the Gaineses raise two assignments of error:
I. BACKGROUND
The Gaineses own a rental property located at 2410 West Avenue in the City of Norfolk. The property was constructed in 1965, prior to the adoption of the Uniform Statewide Building Code ("USBC"). On February 7, 2017, a code official for the City inspected the property and issued a notice of violation after determining that the property’s defective heating facility violated Sections 603.1 and 605.1 of the VMC. On February 15, 2017, the City issued a second notice of violation, "identifying the property as unsafe or unfit for human habitation for the lack of a functioning heating system" and placarded the property. The tenants who lived at the property relocated sometime between the issuance of the first and second notices of violation. However, the Gaineses intended to lease the property to occupants in the future. In March 2017, the Gaineses obtained a permit from the City to install a gas space heater. The City inspected the property on March 20, 2017, but did not approve the installation due to the use of an unvented heater as the property’s sole source of heat. The Gaineses then removed the defective heating system and have yet to install an operable heating system in the property.
The Gaineses appealed to the City of Norfolk Local Board of Building Code Appeals ("local appeals board"). After conducting a hearing on the merits of the appeal, the local appeals board denied the Gaineses’s appeal. The Gaineses then appealed to the Review Board. On October 12, 2018, the Review Board entered an order upholding the City’s decision to placard the property as uninhabitable, holding that "violations of Section[s] [ ]603.1 and 605.1 of the VMC exist[ ] and that the installation of a heating system is required." Moreover, the Review Board agreed with the City that the property was "unfit" or "unsafe" according to Section 202 and that the City was obligated to placard the property, pursuant to Section 105.6, once it was found unsafe or unfit. The Review Board also found that "the violations cannot be satisfied by the removal of the existing heating system and that a heating system is required to be in place according to the VMC."
The Gaineses appealed the Review Board’s decision to the circuit court.1 The circuit court entered an order on June 6, 2019, holding that the Review Board "correctly interpreted Sections 105, 202, 603.1, and 605.1" of the VMC. The circuit court affirmed the Review Board’s finding that violations of the VMC existed "due to Appellants’ removal of the property’s heating facility and refusal to install a functioning heating facility in the property as required by the VMC." Accordingly, the circuit court affirmed the Review Board’s decision.2 This appeal follows.
II. ANALYSIS
"On appeal of agency action under the [Virginia Administrative Process Act ("VAPA") ], the party complaining bears the ‘burden of demonstrat[ing] an error ... subject to review.’ " Va. Bd. of Med. v. Hagmann, 67 Va. App. 488, 499, 797 S.E.2d 422 (2017) (alterations in original) (quoting Code § 2.2-4027 ). In a VAPA appeal, the circuit court functions as an appellate court, "equivalent to an appellate court’s role in an appeal from a trial court."
Comm’r v. Fulton, 55 Va. App. 69, 80, 683 S.E.2d 837 (2009) (quoting Sch. Bd. of York v. Nicely, 12 Va. App. 1051, 1062, 408 S.E.2d 545 (1991) ). In both the circuit court and this Court, appellate review of an agency action is limited to issues of law, including:
(i) accordance with constitutional right, power, privilege, or immunity, (ii) compliance with statutory authority, jurisdiction limitations, or right as provided in the basic laws as to subject matter, the stated objectives for which regulations may be made, and the factual showing respecting violations or entitlement in connection with case decisions, (iii) observance of required procedure where any failure therein is not mere harmless error, and (iv) the substantiality of the evidentiary support for findings of fact.
When reviewing an appeal from an agency decision, Avalon Assisted Living Facilities, Inc. v. Zager, 39 Va. App. 484, 499-500, 574 S.E.2d 298 (2002) (quoting Johnston-Willis, Ltd. v. Kenley, 6 Va. App. 231, 242, 369 S.E.2d 1 (1988) ). "In making this determination, ‘the reviewing court shall take due account of the presumption of official regularity, the experience and specialized competence of the agency, and the purposes of the basic law under which the agency has acted.’ " Id. (quoting Johnston-Willis, 6 Va. App. at 242, 369 S.E.2d 1 ).
The Gaineses’s appeal rests entirely on statutory interpretation, which is a question of law that we review de novo . Code § 2.2-4027. However, "[w]e accord great deference to an administrative agency’s interpretation of the regulations it is responsible for enforcing." Hilliards v. Jackson, 28 Va. App. 475, 479, 506 S.E.2d 547 (1998) ; see Johnston-Willis, 6 Va. App. at 243, 369 S.E.2d 1 ().3 Accordingly, we will only overturn the agency’s interpretation of its own regulations if such interpretation is arbitrary and capricious or conflicts with the statutory scheme. Hilliards, 28 Va. App. at 480, 506 S.E.2d 547. Thus, the Review Board’s interpretations of the VMC, which was promulgated through regulations, are entitled to special weight on appeal. See Code § 36-99.6:3 (); see also Code § 36-114.
"[W]e must give effect to the legislature’s intention as expressed by the language used unless a literal interpretation of the language would result in a manifest absurdity." Conyers v. Martial Arts World of Richmond, Inc., 273 Va. 96, 104, 639 S.E.2d 174 (2007). "If a statute is subject to more than one interpretation, we must apply the interpretation that will carry out the legislative intent behind the statute." Id. "The plain, obvious, and rational meaning of a statute is to be preferred over any curious, narrow, or strained construction." Commonwealth v. Zamani, 256 Va. 391, 395, 507 S.E.2d 608 (1998).
The Gaineses assert that the regulations promulgated by the Review Board are both inconsistent with the Code of Virginia and inapplicable to their property. They assert that under a correct review of the statutory and regulatory scheme, they are simply not required to provide heat to their tenants. For the following reasons, we disagree.
The stated purpose of the USBC is to "prescribe building regulations to be complied with in the ... rehabilitation of buildings and structures, and the equipment therein" and to "prescribe regulations to ensure that such buildings and structures are properly maintained" in order to "protect the health, safety and welfare of the residents of the Commonwealth." Code § 36-99(A). Under the USBC, "equipment" includes heating equipment. Code § 36-97. The USBC is divided into three distinct parts. As relevant here, Part III of the USBC pertains to the maintenance of existing structures and is commonly referred to as the VMC. 13 VAC 5-63-450(A) ; 13 VAC 5-63-470(A).
The Review Board is entrusted with adopting and promulgating "building regulations that facilitate the maintenance, rehabilitation, development and reuse of existing buildings at the least possible cost to ensure the protection of the public health, safety and welfare." Code § 36-103. Those regulations apply to the "[s]ubsequent reconstruction, renovation, repair or demolition of such buildings or structures," as well as the equipment contained therein. Id. The General Assembly has made clear that the purpose of the USBC applies with equal force to vacant structures: "there are large numbers of older residential buildings in the Commonwealth, both occupied and vacant, which are...
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