COURT OF APPEALS OF VIRGINIA

Present: Judges Humphreys, Haley and Alston Argued at Alexandria, Virginia

RICHARD CLAYTON MEMORANDUM OPINION * BY v. Record No. 1847-10-4 J UDGE ROBERT J. HUMPHREYS FEBRUARY 8, 2011 STATE BUILDING CODE TE CHNICAL REVIEW BOARD

FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA Nolan B. Dawkins, Judge Richard N. Clayton, pro se

. Steven P. Jack, Assistant Attorn ey General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Richard Clayton (“Clayton”) appeals an order entered by the Circuit C ourt for the City of Alexandria (“circuit court”), upholding the State Building Co de Technical Review Board’s (“Review Board”) decision that the absence of fi restops in Clayton’s co ndominium building does not violate the Virginia Mainte nance Code (“VMC”). For the following reasons, we disagree with Clayton and affirm the circuit court.

I. ANALYSIS Clayton contends on appeal that the circu it court erred in concluding the Review Board “committed no error of law and properly interpreted its regulations” when it ruled that the absence of firestops in Clayton’s condominium bu ilding does not violate the VMC. Specifically, Clayton argues the Review Board “improperly relied solely on secti on 105.3 of the VMC and disregarded sections 105.1 and 703.1 of the VMC, which mandate installation of fire stops

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - because they were required at the time of c onstruction and their absence creates an unsafe condition.” We disagree with the legal position advanced by Clayton. “On appeal of an agency decision, ‘the sole de termination as to factual issues is whether substantial evidence exists in the agency record to support the ag ency’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 co me to a different conclusion.’” Avalon Assisted Living Facilities v. Zager , 39 Va. App. 484, 499-500, 574 S.E.2d 298, 305 (2002) (quoting Johnston-Willis, Ltd. v. Kenley , 6 Va. App. 231, 242, 369 S.E.2d 1, 7 (1988)). “In making this determination, ‘the reviewing court shall take due account of the presumption of official regularity, the experience and specialized comp etence of the agency, a nd the purposes of the basic law under which the agency has acted.’” Id. “[W]here the question involves an interpretation which is within the specialized co mpetence of the agency and the agency has been entrusted with wide discretion by the General As sembly, the agency’s decision is entitled to special weight in the courts.” Johnston-Willis , 6 Va. App. at 244, 369 S.E.2d at 8. “The rationale of the statutory sc heme is that the [administrative agency] shall apply expert discretion to the matters coming within its cognizance, and judicial inte rference is permissible only for relief against the arbitrary or cap ricious action that constitutes a clear abuse of the delegated disc retion. The reviewing judicial authority may not exercise anew the jurisdiction of the administrative agency and merely substitute its own independent judgment for that of the body entrus ted by the Legislature with the administrative function.” Virginia Alcoholic Beverage Contro l Com. v. York Street Inn, Inc. , 220 Va. 310, 315, 257 S.E.2d 851, 855 (1979) (alterati on in original) (quoting Schmidt v. Board of Adjustment of City

of Newark , 88 A.2d 607, 615-16 (N.J. 1952)). “Whether th e issue is one of law or fact or substantial evidence, we are dire cted to take account of the role for which agencies are created and public policy as evidenced by the basic laws under which they operate.” Johnston-Willis , 6 Va. App. at 244, 369 S.E.2d at 8 (citation omitted).- 3 - Clayton’s appeal rests largel y upon principles associated w ith statutory interpretation, which is a question of law that we review de novo. Grafmuller v. Commonwealth , 57 Va. App. 58, 61, 698 S.E.2d 276, 278 (2010). “‘[W]e determine th e legislative intent from the words used in the statute, applying the plain meaning of th e words unless they are ambiguous or would lead

to an absurd result.’” Id. (quoting Wright v. Commonwealth , 278 Va. 754, 759, 685 S.E.2d 655, 657 (2009)). “[W]e must give eff ect to the legislature’s inten tion as expressed by the language used unless a literal interpretation of the langu age would result in a manifest absurdity.” Conyers v. Martial Arts World of Richmond, Inc. , 273 Va. 96, 104, 639 S.E.2d 174, 178 (2007). “If a statute is subject to more than one interpretation, we must a pply 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 pref erred over any curious, narrow, or strained construction.”

Commonwealth v. Zamani , 256 Va. 391, 395, 507 S.E.2d 608, 609 (1998). As the Review Board correctly notes, the Uniform Statewide Building Code (“USBC”) is divided into three distinct parts. Part I pertains specifically to the construction of new buildings

and is referred to as the Virginia Construction Code. See 13 VAC 5-63-10(A). Part II pertains

to the rehabilitation of existing buildings and is referred to as the Virginia Rehabilitation Code.

See 13 VAC 5-63-400(A). Part III pertains to the maintenance of existing structures and is

referred to as the VMC. 1 See 13 VAC 5-63-450(A). These distin ct parts “must be considered together in construing their va rious material provisions.” Colbert v. Commonwealth , 47 Va. App. 390, 395, 624 S.E.2d 108, 110 (2006). “This re quires that ‘the literal meaning of separate provisions, if in apparent conflict[,] . . . must yield to a reasonable and fair interpretation

1 According to the Review Board, the VMC cont emplates three distinct types of existing structures: buildings constructe d where no codes were in effect at the time of construction; buildings constructed where a local building code was in effect at the time of construction; and buildings that were subject to the USBC at th e time of construction. Clayton’s condominium falls into the category of a structure constructed u nder a local building code in effect at the time of construction.- 4 - to be gathered from the contex t, the subject matter and the reason and spirit of the law.’” Id. at 395, 624 S.E.2d at 110-11 (altera tion in original) (quoting Buzzard v. Commonwealth , 134 Va. 641, 653, 114 S.E. 664, 667 (1922)). In other words, “we have a ‘duty to interpret the several parts of a statute as a consistent and harmonious w hole so as to effectuate the legislative goal.’”

Id. at 395, 624 S.E.2d at 111 (quoting Virginia Elec. & Power Co. v. Bd. of County Supervisors , 226 Va. 382, 387-88, 309 S.E.2d 308, 311 (1983)). Several sections of the VMC are especially pertinent to this app eal. Section 103.1 of the VMC provides in relevant part, “[t]his code pres cribes regulations for the maintenance of all existing buildings and structures and associated equipment, in cluding regulations for unsafe buildings and structures.” 13 VAC 5-63-470( A). To that end, Section 103.2 states, Buildings and structures 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

. 13 VAC 5-63-470(B) (emphases added). In ac cordance with Section 105.1, “[a]ll conditions causing such structures to be classified as unsaf e or unfit for human occupancy shall be remedied

or as an alternative to corre cting such conditions, the struct ure may be vacated and secured against public entry or razed a nd removed.” 13 VAC 5-63-490(A). A structure “unfit for human occupancy” is defined in the VMC as [a]n existing structure determined by the code official to be dangerous to the health, safety a nd welfare of the occupants of the structure or the public because (i) of the degree to which the structure is in disrepair or lacks maintenance, ventilation, illumination, sanitary or heating facilities or other essential equipment or (ii) the required pl umbing and sanitary facilities are inoperable.- 5 - 13 VAC 5-63-510(B). An “ unsafe structure” is [a]n existing structure (i) determin ed by the code official to be dangerous to the health, safety a nd welfare of the occupants of the structure or the public, (ii) that contains unsafe equipment, or (iii) that is so damaged, decayed, d ilapidated, structurally unsafe or of such faulty construction or unstable foundation that partial or complete collapse is likely.

Id.

When the code official finds a condition that constitutes a serious and dangerous hazard to life or he alth in a building or structure constructed prior to the initial edition of the USBC and when that condition is of a cause other than improper maintenance or failure to comply with state or local bui lding codes that were in effect when the building or structure was constructed, then the code official shall be permitted to order those minimum changes to the design or construction of the build ing or structure to remedy the condition. 13 VAC 5-63-490(C) (emphasis added). Thus, a lthough the VMC “[i]n acco rdance with Section 103.2 . . . does not generally provide for requiring the re trofitting of any building or structure,” 13 VAC 5-63-490(D), Section 105.3.1 acknowledges that “conditions may exist in buildings or structures constructed prior to the initial ed ition of the USBC because of faulty design or equipment that constitute a danger to life or he alth or a serious hazard,” 13 VAC 5-63-490(D). However, Section 105.3.1 also provides, Any changes to the design or c onstruction required by the code official under this section shall be only to remedy the serious hazard or danger to life or health and such changes shall not be required to fully comply with the requirements of the Virginia Construction Code applicable to newly constructed buildings or structures. 13 VAC 5-63-490(D) (emphasis added). Upon a review of these provisions, the Re view Board concluded that the lack of compliance with the operative building code at the time the condominiums were built “may not- 6 - be treated as [a] violation[] of the VMC.” 2 The Review Board found that “the lack of firestopping is not a condition which in and of itself rises to the le vel of meeting th e definition of an unsafe structure in [13 VAC 5-63-510(B)]. ” The Review Board noted that, “accepted practices at the time of construction of the bu ilding may have permitted the use of alternative

materials or methods of constr uction negating or minimizing the need for firestopping.” The Review Board further observed, “even the curr ent USBC for the construction of new buildings does not contain provisions specifically for preventing the migration of cigarette smoke in buildings.” In fact, all fina l inspections and approvals under the operative building code were completed at the time of construction and a certificate of occupancy was issued for the condominiums in August 1976. 3 The Review Board, thus, concl uded that because the lack of firestops in the condominiums does not render the condominiums unsafe for human occupancy or otherwise dangerous to the life and health of its occupants, the insertion of firestops is not mandated by the VMC. The Review Board’s findi ngs and conclusions are in keeping with the “experience and specialized competence of the agen cy,” and they are in accord with the basic law under which the agency has acted.” See Johnston-Willis , 6 Va. App. at 244, 369 S.E.2d at 8. We are, thus, bound by the Review Board’s decision. In other words, because the Review

2 The parties do not dispute the fact that th e lack of firestopping in the condominiums resulted in a violation of the building code unde r which they were built. The parties merely disagree as to the appropriate remedy.

3 According to the local department, “any code violations relating to construction would have been required to be reported within two years after the issuance of the certificate of occupancy.” See 13 VAC 5-63-150(C). Because “no such violations were noted,” the local department found that “the stat ute of limitations has expired.”- 7 - Board’s findings are not arbitrary and caprici ous, and because the VMC by its plain wording supports the Review Board’s conclusions, we may not dist urb its decision on appeal. Indeed, Clayton’s suggesti on that the condominiums are “unsafe” and “unfit for human occupancy” is untenable under the VMC’s arti culated definitions of those terms. The condominiums were not in disrepai r, they contained a ll necessary and functio ning utilities, they were structurally sound, and they did not impose any particularized dange r to the occupants or the public. In fact, the building has existed in this current condition since it was built more than 35 years ago. Thus, contrary to Clayton’s asse rtion, the Review Board did not err in finding the

condominiums do not meet the definition of “uns afe” or “unfit for human occupancy” under the plain language of the VMC. It follows that, be cause the condominiums ar e not, in fact, “unsafe” or “unfit for human occupancy,” the Review Boar d was correct in finding that the lack of firestopping does not violate the VMC, or that retrofitting is not required under the VMC. See 13 VAC 5-63-490. The circuit court did not, th erefore, abuse its di scretion in upholding the

decision of the Review Board. Clayton, nevertheless, disagrees with the ultimate conclusions reached by the Review Board, arguing instead that the delineated sections of the VMC support his assertion that the lack of firestopping in his building is a clear violation of the VMC a nd, as such, the installation of firestopping is mandated by the VMC. Fundame ntally, Clayton disagrees with the Review Board’s finding that the lack of firestoppi ng does not render the condominiums “unsafe” or “unfit for human occupancy.” Clayton suggests th at the lack of firestopping is a fire hazard under Section 703.1 of the VMC, which provides that , “[t]he required fire resistance rating of fire-resistance-rated walls, fire stops, shaft enclosures, partitions and floors shall be- 8 - maintained.” 4 Clayton interprets the phrase “shall be maintained” in Section 703.1 essentially as meaning “shall be brought into compliance with th e original building code .” In support of his assertion, Clayton cites the Virg inia Public Building Safety Regulations (“VPBSR”), which provides that “an existing building is required to be maintained in accordance with the building

code that was in effect at the time the buildi ng was constructed and with the requirements of any applicable maintenance provisions of Virginia’s fire code.” Ho wever, the VPBSR also states, This means that many conditions identified in an older building that may not be in full compliance with today’s codes are acceptable because these conditions were okay at the time the building was constructed. As long as the use of the building is not changed, the building owner is not legally required to retrofit the building to meet the current code. VPBSR, page ii. For all of these reasons, we hold that the Review Board did not act arbitrarily or capriciously in finding that retrof itting of firestops in Clayton’s condominium is not required as a matter of law. We, thus, affirm the circuit court.

II. CONCLUSION For the foregoing reasons, we conclude the circuit court did not a buse its discretion in finding that the Review Board “committed no er ror of law and properly interpreted its regulations,” in upholding the Review Board’s d ecision. We, thus, affirm the circuit court. 5

Affirmed.

4 The VMC actually ends at Chapter 6 and doe s not include a Chapter 7. However, the VMC adopts by reference the Inte rnational Property Maintenance Code of 2006, which includes Chapter 7 “Fire Safety Requirements.” Section 703.1 of the VMC, thus, refers to Chapter 7 of the International Property Maintenance Code of 2006. See 13 VAC 5-63 Title Doc. Inc. by Ref. (2010).

5 We deny Clayton his request for attorney’s fees. See Code § 2.2-4030(A) (“In any civil case . . . in which any person contests any agency action, such person shall be entitled to recover from that agency . . . reasonable costs and attorneys’ fees if such person subst antially prevails on the merits of the case and the agency’s position is not substantially justified . . . . (emphasis added)).