Joshua Gaines & Makiba Gaines v. Dept. of Housing & Community ( 2020 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Huff and AtLee
Argued at Norfolk, Virginia
PUBLISHED
JOSHUA GAINES AND
MAKIBA GAINES
OPINION BY
v. Record No. 1090-19-1 JUDGE ROBERT J. HUMPHREYS
JANUARY 7, 2020
DEPARTMENT OF HOUSING & COMMUNITY
DEVELOPMENT STATE BUILDING CODE
TECHNICAL REVIEW BOARD AND CITY OF NORFOLK
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
James C. Lewis, Judge
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.
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. The circuit court erred in concluding “the Review Board
correctly interpreted sections 105, 202, 603.1, and 605.1 of the
Virginia Maintenance Code.”
II. The circuit court erred in affirming the City of Norfolk’s
citation of Appellants’ property because Appellants are not
required by the Virginia Maintenance Code to furnish a heating
appliance to the property.
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
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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
A. Standard of Review
“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 (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
(2009) (quoting Sch. Bd. of York v. Nicely, 12 Va. App. 1051, 1062 (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
1
Although the property is located in Norfolk, Code § 8.01-261(1)(a)(1) provides for
preferred venue where the aggrieved party resides.
2
The circuit court’s order contains a scrivener’s error, stating that it was affirming the
Review Board’s August 2, 2018 order when the Review Board’s order was entered on October
12, 2018.
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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.
Code § 2.2-4027.
When reviewing an appeal from an agency decision, “the sole determination as to factual
issues is whether substantial evidence exists in the agency record to support the agency’s
decision. The reviewing court may reject the agency’s findings of fact only if, considering the
record as a whole, a reasonable mind necessarily would come to a different conclusion.” Avalon
Assisted Living Facilities, Inc. v. Zager, 39 Va. App. 484, 499-500 (2002) (quoting
Johnston-Willis, Ltd. v. Kenley, 6 Va. App. 231, 242 (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).
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 (1998); see Johnston-Willis, 6 Va. App. at 243
(noting that the degree of deference we afford to an agency decision depends “upon whether the
issue falls within the area of ‘experience and specialized competence of the agency’” (quoting
Code § 6.14:17 (current version at Code § 2.2-4027))).3 Accordingly, we will only overturn the
3
Code § 2.2-4027 was amended in 2013 to specifically provide that “[t]he duty of the
court with respect to the issues of law shall be to review the agency decision de novo.” 2013 Va.
Acts ch. 619. The Gaineses do not cite the amendment or argue that the statutory amendment
abrogated the deference previously accorded to an agency’s interpretations of its own
regulations. Thus, they have waived that argument and we assume without deciding that the
2013 change to the statute does not alter this precedent.
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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. 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 (“The Board shall promulgate regulations . . .
establishing standards for heating . . . facilities in new, privately owned residential dwellings.”);
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 (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 (1998).
B. The Review Board Correctly Interpreted the VMC
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
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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 in urgent need of rehabilitation and which must be rehabilitated
if the State’s citizens are to be housed in decent, sound, and sanitary conditions.” Code
§ 36-99.01(A).
Several sections of the VMC are especially pertinent to this appeal. Section 103.1 of the
VMC provides, in relevant part, that “[t]his code prescribes regulations for the maintenance of all
existing buildings and structures and associated equipment, including regulations for unsafe
buildings and structures.” 13 VAC 5-63-470 (emphasis added). To that end, Section 103.2
states,
[b]uildings, structures and systems shall be maintained and kept in
good repair in accordance with the requirements of this code and
when applicable in accordance with the USBC under which such
building or structure was constructed. No provision of this code
shall require alterations to be made to an existing building or
structure or to equipment unless conditions are present which meet
the definition of an unsafe structure or a structure unfit for human
occupancy.
Id. (emphasis added). According to the VMC, a structure “unfit for human occupancy” is,
[a]n existing structure determined by the code official to be
dangerous to the health, safety and welfare of the occupants of the
structure or the public because (i) of the degree to which the
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structure is in disrepair or lacks maintenance, ventilation,
illumination, sanitary or heating facilities or other essential
equipment, or (ii) the required plumbing and sanitary facilities are
inoperable.
13 VAC 5-63-510(C) (“VMC § 202”) (emphasis added). “Unsafe equipment” includes any
“heating equipment . . . that is in such disrepair or condition that such equipment is determined
by the code official to be dangerous to the health, safety and welfare of the occupants of a
structure or the public.” Id. An existing structure, including a vacant structure that is unsecured
or open, is considered unsafe if it contains unsafe equipment and is “determined by the code
official to be dangerous to the health, safety and welfare of the occupants of the structure or the
public.” Id.
Here, the City of Norfolk’s code enforcement official determined, and the Review Board
agreed, that the property was “unsafe or unfit for human habitation for the lack of a functioning
heating system.” The Gaineses argue that the property could not have been in violation of the
VMC because it was vacant at the time of the notice of violation and thus not a threat to any
occupants or the public. However, the plain language of the VMC makes it applicable to both
vacant and occupied structures.
At the time of the notice of violation, Section 603.1 provided that “[r]equired or provided
mechanical equipment, appliances, fireplaces, solid fuel-burning appliances, cooking appliances,
chimneys, vents, and water heating appliances shall be maintained in compliance with the code
under which the appliances, system, or equipment was installed, kept in safe working condition,
and capable of performing the intended function.” 13 VAC 5-63-540 (2015) (emphasis added).
Similarly, Section 605.1 provided that “[e]lectrical equipment, wiring, and appliances shall be
maintained in accordance with the applicable building code.” 13 VAC 5-63-540 (2015).
Although the VMC “does not generally provide for requiring the retrofitting of any
structure[,] . . . conditions may exist in structures constructed prior to the initial edition of the
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USBC because of faulty design or equipment that constitute a danger to life or health or a serious
hazard.” 13 VAC 5-63-490(D). Moreover, under the VMC, the City is permitted to “request the
legal counsel of the locality to institute the appropriate legal proceedings to restrain, correct or
abate the violation or to require the removal or termination of the use of the building or structure
involved.” 13 VAC 5-63-485 (“VMC § 105.6”).
Upon a review of these provisions, the Review Board concluded that the lack of a heating
system in the property violated Sections 603.1 and 605.1 “and that the installation of a heating
system is required.” 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 Review Board’s findings and conclusions are in keeping with the
“experience and specialized competence of the agency,” and they are in accord with the basic
law under which the agency has acted. See Johnston-Willis, 6 Va. App. at 244. The Review
Board could fairly conclude that the VMC required the Gaineses to maintain an operable heating
facility in their rental property because, without the ability to provide adequate heat to the
building’s residents, the property meets the definition of “unfit for human occupancy,” that
Sections 603.1 and 605.1 require electrical equipment be maintained in working condition, and
that other provisions of the VMC make clear that the regulations apply to vacant structures. We
are, thus, bound by the Review Board’s decision. In other words, because the Review Board’s
findings are not arbitrary and capricious, and because the VMC by its plain wording supports the
Review Board’s conclusions, we may not disturb its decision on appeal.
Nevertheless, the Gaineses argue that the Review Board’s interpretation of Sections
603.1 and 605.1 reduces Section 602 “to a codified ornament,” effectively repealing the section.
At the time of the notice of violation, Section 602.1 read, “Facilities required. Heating facilities
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shall be provided in structures as required by this section.” 13 VAC 5-63-540 (2015). Section
602.2 provided,
Heat supply. Every owner and operator of a Group R-2 apartment
building or other residential building who rents, leases, or lets one
or more dwelling unit, rooming unit, dormitory, or guestroom on
terms, either expressed or implied, to furnish heat to the occupants
thereof shall supply heat during the period from October 15 to May
1 to maintain a temperature of not less than 68°F (20°C) in all
habitable rooms, bathrooms, and toilet rooms. The code official
may also consider modifications as provided in Section 104.5.2
when requested for unusual circumstances or may issue notice
approving building owners to convert shared heating and cooling
piping HVAC systems 14 calendar days before or after the
established dates when extended periods of unusual temperatures
merit modifying these dates.
13 VAC 5-63-540 (2015). Essentially, the Gaineses argue that “[b]y requiring the furnishing of
specific facilities under Sections 603 and 605, the Review Board achieves a result carefully
avoided by Section 602.” However, Section 602.2 only requires that landlords of certain
dwellings, who have agreed either explicitly or implicitly to provide a heat supply, supply heat
from October 15 to May 1 at a minimum of 68°F in the listed rooms. The context of the Section
implies that the “heat supply” referenced is a shared heating system in a multi-unit residential
building. Section 602.2 does not address the general rules for the presence or absence of a
heating system outside of the limited circumstances to which that Section applies. Section 603.1
requires that, once installed, mechanical equipment, including heating systems, be properly
maintained. Thus, when Section 602.2 does not apply, the VMC does not permit the complete
removal or absence of a heating system. Accordingly, the circuit court did not err in affirming
the Review Board’s interpretation of Sections 105, 202, 603.1, and 605.1 of the VMC.
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C. The City’s Citation of the Property
In their second assignment of error, the Gaineses argue that the circuit court erred in
affirming the City’s citation of the property leading to the Review Board’s decision because the
VMC did not require the furnishing of a heating system.
The appellate jurisdiction of this Court in cases such as this is limited to “Any final
decision of a circuit court on appeal from . . . a decision of an administrative agency.” Code
§ 17.1-405. Thus, ordinarily, this Court only has jurisdiction over a final decision of the circuit
court on appeal from a decision of an administrative agency and not over the actions of local
authorities. Code §§ 17.1-405(1), 2.2-4002. However, the peculiar regulatory scheme laid out in
Code §§ 36-97 et seq. effectively creates a partnership between the Review Board and localities
for the enforcement of the USBC. See Code § 36-105 (“Enforcement of the provisions of the
Building Code for construction and rehabilitation shall be the responsibility of the local building
department.”).
Essentially, the USBC contemplates the initiation of enforcement actions regarding the
Building Code by officials of local government, the subsequent review of any locality’s
enforcement decision by the Review Board—a state agency—and any subsequent
implementation of the Review Board’s decision by the locality. Thus, because the interests and
responsibilities of localities and the Review Board are overlapping and complimentary in the
Code, any distinction between a case decision by the Review Board and the initiation and
enforcement of that decision by a locality is one without a jurisdictional difference insofar as our
authority to review it is concerned. Given this unique statutory scheme that effectively
assimilates the actions of a locality and those of a state administrative agency and provides
appellate review through the mechanism of the VAPA, we conclude that we have subject matter
jurisdiction to resolve assignments of error relating to the initiation and enforcement of the
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decisions of the Review Board by localities. In this case, because we conclude that the Review
Board properly interpreted the provisions of the VMC, we likewise hold that the circuit court
was correct in concluding that the initial citation of the property and subsequent enforcement of
the Review Board’s case decision by the City was not error.
III. CONCLUSION
For the reasons stated above, we affirm the circuit court’s judgment with respect to both
assignments of error. However, we remand the case to the circuit court for the limited purpose
of correcting the scrivener’s error in the order, which stated that it was affirming the Review
Board’s order of August 2, 2018 rather than October 12, 2018.
Affirmed and remanded.
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