                                          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
                                                -2-
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.
                                               -3-
               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.
                                                 -4-
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

                                                 -5-
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
                                                 -6-
                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
                                                  -7-
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




                                                 -8-
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.




                                               -9-
                              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

                                               - 10 -
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.




                                               - 11 -
