Virginia Administrative Code › Title 13 - HOUSING › Agency 5 - DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT › Chapter 63 - VIRGINIA UNIFORM STATEWIDE BUILDING CODE › Part I - Construction › Section 13VAC5-63-190 - Section 119 Appeals

Current through Register Vol. 40, No. 24, July 15, 2024
A.
				  Section 119.1 Establishment of appeals board. In accordance with §
										36-105
				  of the Code of Virginia, there shall be established within each local building
				  department a LBBCA. Whenever a county or a municipality does not have such a
				  LBBCA, the local governing body shall enter into an agreement with the local
				  governing body of another county or municipality or with some other agency, or
				  a state agency approved by DHCD for such appeals resulting therefrom. Fees may
				  be levied by the local governing body in order to defray the cost of such
				  appeals. In addition, as an authorization in this code, separate LBBCAs may be
				  established to hear appeals of different enforcement areas such as electrical,
				  plumbing or mechanical requirements. Each such LBBCA shall comply with the
				  requirements of this section. The locality is responsible for maintaining a
				  duly constituted LBBCA prepared to hear appeals within the time limits
				  established in this section. The LBBCA shall meet as necessary to assure a duly
				  constituted board, appoint officers as necessary, and receive such training on
				  the code as may be appropriate or necessary from staff of the
				  locality.
B. Section 119.2
				  Membership of board. The LBBCA shall consist of at least five members appointed
				  by the locality for a specific term of office established by written policy.
				  Alternate members may be appointed to serve in the absence of any regular
				  members and as such, shall have the full power and authority of the regular
				  members. Regular and alternate members may be reappointed. Written records of
				  current membership, including a record of the current chairman and secretary
				  shall be maintained in the office of the locality. In order to provide
				  continuity, the terms of the members may be of different length so that less
				  than half will expire in any one-year period.
C. Section 119.3 Officers and qualifications
				  of members. The LBBCA shall annually select one of its regular members to serve
				  as chairman. When the chairman is not present at an appeal hearing, the members
				  present shall select an acting chairman. The locality or the chief executive
				  officer of the locality shall appoint a secretary to the LBBCA to maintain a
				  detailed record of all proceedings. Members of the LBBCA shall be selected by
				  the locality on the basis of their ability to render fair and competent
				  decisions regarding application of the USBC and shall to the extent possible,
				  represent different occupational or professional fields relating to the
				  construction industry. At least one member should be an experienced builder; at
				  least one member should be an RDP, and at least one member should be an
				  experienced property manager. Employees or officials of the locality shall not
				  serve as members of the LBBCA.
D.
				  Section 119.4 Conduct of members. No member shall hear an appeal in which that
				  member has a conflict of interest in accordance with the State and Local
				  Government Conflict of Interests Act (§
										2.2-3100
				  et seq. of the Code of Virginia). Members shall not discuss the substance of an
				  appeal with any other party or their representatives prior to any
				  hearings.
E. Section 119.5 Right of
				  appeal; filing of appeal application. Any person aggrieved by the local
				  building department's application of the USBC or the refusal to grant a
				  modification to the provisions of the USBC may appeal to the LBBCA. The
				  applicant shall submit a written request for appeal to the LBBCA within 30
				  calendar days of the receipt of the decision being appealed. The application
				  shall contain the name and address of the owner of the building or structure
				  and in addition, the name and address of the person appealing, when the
				  applicant is not the owner. A copy of the building official's decision shall be
				  submitted along with the application for appeal and maintained as part of the
				  record. The application shall be marked by the LBBCA to indicate the date
				  received. Failure to submit an application for appeal within the time limit
				  established by this section shall constitute acceptance of a building
				  official's decision.
Note: To the extent that a decision of a building official
					 pertains to amusement devices there may be a right of appeal under the
					 VADR.
F. Section 119.6
				  Meetings and postponements. The LBBCA shall meet within 30 calendar days after
				  the date of receipt of the application for appeal, except that a period of up
				  to 45 calendar days shall be permitted where the LBBCA has regularly scheduled
				  monthly meetings. A longer time period shall be permitted if agreed to by all
				  the parties involved in the appeal. Notice indicating the time and place of the
				  hearing shall be sent to the parties in writing to the addresses listed on the
				  application if requested or by electronic means at least 14 calendar days prior
				  to the date of the hearing unless a lesser time period is agreed to by all the
				  parties involved in the appeal. When a quorum of the LBBCA is not present at a
				  hearing to hear an appeal, any party involved in the appeal shall have the
				  right to request a postponement of the hearing. The LBBCA shall reschedule the
				  appeal within 30 calendar days of the postponement, except that a longer time
				  period shall be permitted if agreed to by all the parties involved in the
				  appeal.
G. Section 119.7 Hearings
				  and decision. All hearings before the LBBCA shall be open meetings and the
				  appellant, the appellant's representative, the locality's representative and
				  any person whose interests are affected by the building official's decision in
				  question shall be given an opportunity to be heard. The chairman shall have the
				  power and duty to direct the hearing, rule upon the acceptance of evidence and
				  oversee the record of all proceedings. The LBBCA shall have the power to
				  uphold, reverse or modify the decision of the official by a concurring vote of
				  a majority of those present. Decisions of the LBBCA shall be final if no
				  further appeal is made. The decision of the LBBCA shall be explained in
				  writing, signed by the chairman and retained as part of the record of the
				  appeal. Copies of the written decision shall be sent to all parties by
				  certified mail. In addition, the written decision shall contain the following
				  wording:
"Any person who was a party to the appeal may appeal to the
					 State Review Board by submitting an application to such Board within 21
					 calendar days upon receipt by certified mail of this decision. Application
					 forms are available from the Office of the State Review Board, 600 East Main
					 Street, Richmond, Virginia 23219, (804) 371-7150."
H. Section 119.8 Appeals to the State Review
				  Board. After final determination by the LBBCA in an appeal, any person who was
				  a party to the appeal may further appeal to the State Review Board. In
				  accordance with Section
				  36-114 of
				  the Code of Virginia, the State Review Board shall have the power and duty to
				  hear all appeals from decisions arising under the application of the USBC and
				  to render its decision on any such appeal, which decision shall be final if no
				  appeal is made therefrom. In accordance with §
										36-98.2
				  of the Code of Virginia for state-owned buildings and structures, appeals by an
				  involved state agency from the decision of the building official for
				  state-owned buildings or structures shall be made directly to the State Review
				  Board. The application for appeal shall be made to the State Review Board
				  within 21 calendar days of the receipt of the decision to be appealed. Failure
				  to submit an application within that time limit shall constitute an acceptance
				  of the building official's decision. For appeals from a LBBCA, a copy of the
				  building official's decision and the written decision of the LBBCA shall be
				  submitted with the application for appeal to the State Review Board. Upon
				  request by the office of the State Review Board, the LBBCA shall submit a copy
				  of all pertinent information from the record of the appeal. In the case of
				  appeals involving state-owned buildings or structures, the involved state
				  agency shall submit a copy of the building official's decision and other
				  relevant information with the application for appeal to the State Review Board.
				  Procedures of the State Review Board are in accordance with Article 2 (§
										36-108
				  et seq.) of Chapter 6 of Title 36 of the Code of Virginia.
I. Section 119.9 Hearings and decision. All
				  hearings before the State Review Board shall be open meetings and the chair
				  shall have the power and duty to direct the hearing, rule upon the acceptance
				  of evidence and oversee the record of all proceedings. The State Review Board
				  shall have the power to uphold, reverse, or modify the decision of the LBBCA by
				  a concurring vote of a majority of those present. Proceedings of the Review
				  Board shall be governed by the provisions of the Administrative Process Act
				  (§
										2.2-4000 et
				  seq. of the Code of Virginia), except that an informal conference pursuant to
				  §
										2.2-4019
				  of the Code of Virginia shall not be required. Decisions of the State Review
				  Board shall be final if no further appeal is made. The decision of the State
				  Review Board shall be explained in writing, signed by the chair and retained as
				  part of the record of the appeal. Copies of the written decision shall be sent
				  to all parties by certified mail. In addition, the written decision shall
				  contain the following wording: "As provided by Rule 2A:2 of the Supreme Court
				  of Virginia, you have thirty (30) days from the date of service (the date you
				  actually received this decision or the date it was mailed to you, whichever
				  occurred first) within which to appeal this decision by filing a Notice of
				  Appeal with the Secretary of the Review Board. In the event that this decision
				  is served on you by mail, three (3) days are added to that period."
Statutory Authority: §
												36-98
						of the Code of Virginia.