State Building Code Review Board v. Zofia Zager,etc

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Annunziata and Agee
Argued at Alexandria, Virginia
AVALON ASSISTED LIVING FACILITIES, INC.,
D/B/A AVALON HOMES
v. Record No. 0778-02-4
ZOFIA A. ZAGER, FAIRFAX COUNTY
BUILDING OFFICIAL, AND DIRECTOR,
FAIRFAX COUNTY OFFICE OF
BUILDING CODE SERVICES OPINION BY
JUDGE LARRY G. ELDER
STATE BUILDING CODE TECHNICAL DECEMBER 31, 2002
REVIEW BOARD
v. Record No. 0820-02-4
ZOFIA A. ZAGER, FAIRFAX COUNTY
BUILDING OFFICIAL, AND DIRECTOR,
FAIRFAX COUNTY OFFICE OF
BUILDING CODE SERVICES
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Leslie M. Alden, Judge
Andrew D. Levy (Sharon Krevor-Weisbaum;
Shelly Marie Martin; Mark E. Sharp; Brown,
Goldstein & Levy, LLP; Culin, Sharp & Autry,
P.L.C., on briefs), for Avalon Assisted
Living Facilities, Inc.
Jennifer C. Williamson, Assistant Attorney
General (Jerry W. Kilgore, Attorney General;
Richard B. Zorn, Senior Assistant Attorney
General; John B. Purcell, Jr., Assistant
Attorney General, on briefs) for State
Building Code Technical Review Board.
Cynthia A. Bailey, Assistant County Attorney
(David P. Bobzien, County Attorney; J.
Patrick Taves, Deputy County Attorney;
Jan L. Brodie, Senior Assistant County
Attorney, on briefs), for appellee.
Avalon Assisted Living Facilities, Inc., d/b/a Avalon Homes
(Avalon), and the State Building Code Technical Review Board
(TRB) appeal from a decision of the Fairfax County Circuit Court
holding that the TRB erroneously applied the Uniform Statewide
Building Code (USBC) to Avalon's request to allow it to depart
from the USBC's use group classifications. 1 On appeal, Avalon
and the TRB contend the TRB had the authority to grant the
requested modification and that the evidence in the record
supported its decision to do so. We affirm the circuit court's
conclusion that the TRB lacked authority to modify the USBC's
use group classifications. Further, we hold, as a matter of
law, that Avalon's facility constituted an I-2 use. Finally, we
conclude that any modifications to the provisions of the USBC
covering the manner of construction or materials to be used in
the alteration of Avalon's facility to comply with the I-2 use
group standards must be the functional equivalent of those
expressly required by the USBC. Thus, we affirm in part,
reverse in part, and remand to the circuit court with
instructions to remand to the TRB to determine whether the
alterations it approved were, in fact, the functional equivalent
of those required by the USBC for a facility housing an I-2 use
group.
1
Although these appeals have been assigned separate case
numbers, they arise out of the same proceedings and involve
similar assignments of error. Thus, we consolidate them for
purposes of appeal.
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I.
BACKGROUND
This appeal stems from a request by Avalon for
classification of its facility under the USBC as a residential
use group rather than an institutional use group in order to
avoid having to meet certain USBC fire safety standards which
Avalon alleged were cost-prohibitive. Avalon proposed adding
certain lesser protections, which included central station
monitoring and a sprinkler system in all compartments except the
attic, in exchange for the requested modification of its USBC
use group classification. The local building code official (the
local official), Zofia A. Zager, after consulting with her
advisory committee, denied the request. The local official
wrote, "This denial is based on the fact that your proposal for
an R-4 use does not provide the occupants the same level of
protection as that which is required by the [USBC] for an I-2
use."
Avalon appealed to the local board of building code appeals
(the local appeals board). After hearing statements from
representatives of Avalon and the local official, the local
appeals board granted the modification request. It concluded
the additional safeguards Avalon proposed, coupled with added
safeguards including the installation of heat rise detectors in
the attic space and "smoke tight" doors and partitions
separating the corridor from the sleeping rooms, "[were]
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sufficient to balance the omission of the fire protection
requirements of structural components otherwise required by the
[USBC]."
The local official appealed to the TRB, which affirmed the
decision of the local appeals board. The TRB, in making its
decision, had before it the record of the proceedings from the
local appeals board. It also swore witnesses and heard
additional evidence. The record included evidence of the
following:
In a single-family residence in McLean, Virginia, Avalon
operates an adult care residence (ACR), see 22 Va. Admin. Reg.
40-71-10, which is licensed by the Department of Social Services
(DSS) to house up to eight residents. 2 Avalon provides care
2
DSS regulations define "Adult care residence" as follows:
any place, establishment or institution,
public or private, operated or maintained
for the maintenance or care of four or more
adults who are aged, infirm or disabled and
who are cared for in a primarily residential
setting, except (i) a facility or portion of
a facility licensed by the State Board of
Health or the Department of Mental Health,
Mental Retardation and Substance Abuse
Services, but including any portion of such
facility not so licensed; (ii) the home
residence of an individual who cares for or
maintains only persons related to him by
blood or marriage; and (iii) a facility or
portion of a facility serving infirm or
disabled persons between the ages of 18 and
21, or 22 if enrolled in an educational
program for the handicapped . . . .
22 Va. Admin. Code 40-71-10.
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primarily for elderly women suffering from Alzheimer's disease
and the mental and physical ailments which accompany it. The
2,700-square-foot residence has been converted to house a
maximum of eight patients and two full-time staff people.
The purpose of Avalon's McLean ACR is to provide
Alzheimer's patients with continuity of care, allowing them to
"stay there through until the end, and sometimes have hospice
come in when people are at the end-stages of their illness."
Avalon's residents are usually "ambulatory from the standpoint
that they can walk," although some are wheelchair bound and
require physical assistance. However, because the residents are
cognitively confused, in the event of an emergency, some of the
residents who can walk nevertheless may need to be led out by
the hand. Also, due to the fact that Alzheimer's patients "go
through . . . peaks and valleys," the number of residents able
to respond with help could vary from day to day. In the event
of an emergency requiring evacuation, any patients physically
incapable of walking would be carried out on their bed sheets.
The facility conducts monthly fire drills, and "usually the
longest it takes . . . is five, six minutes to get all eight
people out," provided none of the occupants are bedridden.
Although Avalon was licensed by DSS for up to eight
residents at a time, local officials had interpreted the USBC to
allow operation of the ACR under the requirements for a
residential use group as long as no more than five of those
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eight residents were non-ambulatory, i.e., needed assistance to
evacuate. Avalon was concerned that this restriction had the
potential to force relocation of a resident if her condition
deteriorated such that she became the sixth non-ambulatory
resident at the ACR. Avalon represented that it would limit to
five the number of residents who were bedridden or otherwise
physically unable to evacuate. It sought a USBC waiver so that
it could have up to eight residents unable to evacuate
independently due to psychological limitations, such as those
residents who were physically able to evacuate if led by the
hand.
Avalon hired Mark P. Dempsey, a fire protection engineer,
to investigate upgrading the ACR to meet the I-2 use group
requirements but concluded such upgrades would be
cost-prohibitive. Avalon then proposed to add certain lesser
safety protections in exchange for being allowed to continue to
be classified as a residential rather than institutional use
even with more than five non-ambulatory residents. Those
protections included (1) installation of (a) an automatic
sprinkler system for all areas of the residence except the
attic, (b) smoke detectors and (c) a manual fire alarm system
connected to both the sprinkler system and an approved central
station for monitoring; and (2) placement of any non-ambulatory
residents in bedrooms located on the grade level. Ordinarily,
an ACR with a residential use group classification is required
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to have only single station smoke detectors. See Code
§ 36-99.5:1. Dempsey concluded that the additional fire
protections he outlined were "at least equivalent in protection
to those required by the I-2 standard."
Representatives of the local official noted their "group
unanimously . . . came to the conclusion that the differences
[between the fire safety requirements for a structure housing an
I-2 use group and the protections which Avalon proposed adding]
were far too great" and that "[i]t was beyond [the local
official's] authority to grant this modification."
The local official continued to object on the ground that
Avalon's plan included no "passive fire protection whatsoever."
She emphasized that Avalon's facility is Type 5-B construction,
which "has zero fire ratings on . . . its structural
components." An I-2 use group must be Type 5-A construction,
which "requires a minimum of one-hour fire rating on major
structural components to make sure that the building does not
collapse" during the time it takes the fire department to
respond.
After considering the evidence and argument, the TRB
granted Avalon's modification request. In doing so, however, it
noted
two areas of concern in the wording of the
USBC and its application to ACR's. First,
the inclusion of group homes licensed by
[DSS] in the exception to § 308.2 should not
include the statement that such facilities
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house mentally ill, mentally retarded or
developmentally disabled persons[,] as ACR's
by statutory and regulatory definition are
for persons who are aged, infirm or
disabled. Notwithstanding the incorrect
language, the [TRB] determines the intent of
the USBC is for the exception to apply to
ACR's. Secondly, the determination that
§ 308.2 and its exception permit up to five
residents [out of eight] at any given time
to be unable to exit the residence without
personal assistance from staff does not
match the explicit language of the code.
Recognizing however that this has been a
long-standing application of the code and is
supported by an interpretation issued by the
BOCA Code Interpretations Committee, the
[TRB] agrees § 308.2 and its exception may
be applied as stated in this case.
The TRB expressly recommended the Housing Board amend the USBC
to address these inconsistencies.
In support of its decision to grant Avalon's requested
modification, the TRB relied on four findings. First, it found
that allowing Avalon to house eight residents of varying degrees
of awareness after equipping its facility with the proposed
safety features was an improvement over the situation permitted
by the code, which could involve housing five residents totally
incapable of exiting in a building with no fire protections
whatsoever. Second, it observed that other facilities with the
same number and type of residents with equivalent fire safety
construction and features presumably are being approved in other
states, under the Life Safety Code, another nationally
recognized safety standard. Third, it noted that the USBC use
group definitions do not distinguish between licensed and
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unlicensed facilities and the terms of Avalon's DSS license
provide additional safeguards and restrictions on Avalon's use
of its ACR, including the restriction that it shall not admit or
retain individuals requiring continuous licensed nursing care.
Finally, it found that Avalon's facility is not "an exact match"
for Use Group I-2, "shares most of the characteristics of a Use
Group I-1 facility," and "nearly qualifies for the residential
exception to the Use Group I-1 classification without any added
safety features." As a result, it concluded that the requested
modification preserved the spirit and intent of the USBC and
assured the public health, welfare and safety.
The TRB did not expressly address the meaning of the I-1
requirement that the residents be "physically capable of
responding to an emergency situation without personal
assistance." However, the conclusion that this phrase includes
those physically but not cognitively able to exit on their own
appears to be implicit in its determination that Avalon "shares
most of the characteristics of a Use Group I-1 facility" and
"nearly qualifies" for the residential exception.
The local official appealed the decision of the TRB to the
Fairfax County Circuit Court under the APA. The circuit court
observed as follows:
[M]y concern about the TRB is not in their
determination that this fire safety
provision is substantially equivalent to
that which is required in the I-2
category. . . . [I]n my view, that's what
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the TRB is there to do, make those technical
construction type determinations. . . . My
concern is that they're now making the
determination that given the adequacy of
this system, well, it makes sense to allow
three more patients there.
* * * * * * *
[G]iving all due deference to the
correctness of administrative decisions,
today I conclude the [TRB] must be reversed
and Avalon's request denied . . . .
Now, I think the difference between the
I-1 and I-2 use groups, as set out in the
BOCA Code, is clearly that in the I-1
category the residents must not require
personal assistance to be evacuated. And I
refer at least in part in that determination
on looking at the definition in [Code
§] 63.1-174.1, and I think with . . . the
aid of that statute, the construction in the
BOCA Code is clear.
Now, the [TRB] has the authority to
determine whether a facility is in the I-1
category or in the I-2 category, and it also
has the authority to determine whether the
technical requirements of those categories
had been met, but the review board does not
have the authority, under the guise of
making a modification to BOCA Code, to
create what was essentially a new use group
or an exception to the substantive
requirements of one or another use group,
and I think that's what the TRB has done
here.
By the TRB's own wording, they said,
well, Avalon is mostly an I-1, but kind of
an I-2, and the TRB has declined to put the
facility in one category or the other. And
what the TRB has clearly done is created
another category and tried to call it a
modification.
Now, the TRB has determined that the
facility is compliant with the I-1, R-4
category, but that simply is belied by the
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record, because the record clearly
establishes that there are persons in the
facility who need personal assistance to be
evacuated.
And what the TRB has tried to do is to
create the same kind of exception to the I-2
category that the Housing and Community
Development Department created in the I-1
category, and this is an act that the TRB
simply has no authority to do.
And I think the TRB has really
recognized that itself, that it's waded into
the legislative waters under the guise of [a
modification] in this case, because the TRB
has recognized that what its correct role
is, I think in this case, is to recommend to
the Housing and Community Development
Department that some legislative change be
made to these use groups. And the TRB is
probably absolutely right that some
legislative change ought to be made to these
use groups.
I think the TRB made a very practical
decision, I understand why they did what
they did; I just don't think they have the
legal authority to do that.
II.
STATUTORY AND REGULATORY FRAMEWORK
The legislature has created the Board of Housing and
Community Development (the Housing Board) and directed it to
adopt a Uniform Statewide Building Code (USBC). Code §§ 36-98,
36-131, 36-135. As described by the legislature,
The provisions [of the USBC] shall be such
as to protect the health, safety and welfare
of the residents of this Commonwealth,
provided that buildings and structures
should be permitted to be constructed at the
least possible cost consistent with
recognized standards of health, safety,
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energy conservation and water conservation
and barrier-free provisions for the
physically handicapped and aged.
Code § 36-99(A). The legislature also has directed that, "[i]n
formulating the [USBC] provisions, the [Housing] Board shall
have due regard for generally accepted standards as recommended
by nationally recognized organizations, including . . . the
Building Officials Conference of America [BOCA] . . . ." Code
§ 36-99(B). Finally, the legislature has provided that "[t]he
[Housing] Board may modify, amend or repeal any [USBC]
provisions from time to time as the public interest requires,
after notice and hearing," Code § 36-102, and "in accordance
with the Administrative Process Act [(APA)]," Code § 36-100.
The legislature has delegated responsibility for
"[e]nforcement of the [USBC] [to] . . . the local building
department," Code § 36-105, which is defined as "the agency or
agencies of any local governing body charged with the
administration, supervision or enforcement of the [USBC] and
regulations," Code § 36-97. Within each local building
department, "[t]here shall be established . . . a local board of
Building Code Appeals" or other designated body (the local
appeals board). Code § 36-105. The legislature has provided
that a party not satisfied with the local department's decision
"concerning application of the [USBC] or [the local
department's] refusal to grant a modification to the provisions
of the [USBC] covering the manner of construction or materials
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to be used in the erection, alteration or repair of a building
or structure" may appeal to the local appeals board. Id. A
party dissatisfied with the decision of the local appeals board
may appeal to the TRB under the provisions of the APA. Code
§§ 36-105, 36-114.
The Housing Board, pursuant to the legislature's delegation
of authority, has promulgated a USBC. 3 In doing so, the Board
incorporated by reference the majority of the BOCA National
Building Code of 1996 (BNBC). 4 USBC § 104.1, 13 Va. Admin. Code
5-61-25(A). The USBC provides that the local "building code
official [(the local official)] shall enforce the provisions of
the USBC as provided herein, and as interpreted by the [TRB]."
USBC § 107.1, 13 Va. Admin. Code 5-61-41. The USBC also
purports to give the local official the authority to "grant
modification to any of the provisions of the USBC, provided the
spirit and intent of the USBC are observed and public health,
welfare and safety are assured." USBC § 107.2, 13 Va. Admin.
Code 5-61-41 (emphasis added).
3
The Housing Board was first authorized to promulgate a
USBC in 1972. See 1972 Va. Acts, ch. 829. It has enacted
revised versions of the USBC periodically since that time.
Except where otherwise noted, all references to the USBC herein
are to the version applicable to the present proceedings, which
took effect on September 15, 2000. See 13 Va. Admin. Code
5-61-25 (historical notes).
4
All references herein to the BNBC are to the 1996 edition
except where otherwise noted.
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The USBC classifies all structures "in one or more . . .
use groups" with respect to the number of occupants and manner
of occupancy. BNBC § 302.1. Among the ten use groups are four
categories of residential use groups (groups R-1 to R-4) and
three categories of institutional use groups (groups I-1 to
I-3). Id. The USBC provides that "[a]ll structures shall be
classified with respect to occupancy in one or more of the
[listed] use groups" and that "[w]here a structure is proposed
for a purpose which is not specifically provided for in this
code, such structure shall be classified in the use group which
the occupancy most nearly resembles." Id.
A structure's use group classification determines which set
of USBC safety standards that structure must meet. For example,
fire safety standards for structures occupied by residential use
groups are more lenient than those for structures occupied by
institutional use groups. See generally BNBC, chs. 6, 7, 9.
The USBC defines institutional use groups as follows:
Section 308.0 INSTITUTIONAL USE GROUPS
308.1 General: All structures in which
people suffering from physical limitations
because of health or age are harbored for
medical or other care or treatment, or in
which people are detained for penal or
correction purposes, or in which the liberty
of the inmates is restricted, shall be
classified as Use Group I-1, I-2 or I-3.
the term "Use Group 1" shall include Use
Groups I-1, I-2 and I-3.
308.2 Use Group I-1: This use group shall
include buildings and structures which house
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six or more individuals who, because of age,
mental disability or other reasons, must
live in a supervised environment but who are
physically capable of responding to an
emergency situation without personal
assistance. Where accommodating persons of
the above description, the following types
of facilities shall be classified as I-1
facilities: board and care facilities,
half-way houses, group homes, social
rehabilitation facilities, alcohol and drug
centers and convalescent facilities. A
facility such as the above with five or
[fewer] occupants shall be classified as a
residential use group.
Exception: Group homes licensed by the
Virginia Department of Mental Health, Mental
Retardation and Substance Abuse Services or
the Virginia Department of Social Services
which house no more than eight mentally ill,
mentally retarded or developmentally
disabled persons with one or more resident
counselors shall be classified as
[Residential] Use Group R-3 or R-4.
308.3 Use Group I-2: This use group shall
include buildings and structures used for
medical, surgical, psychiatric, nursing or
custodial care on a 24-hour basis of six or
more persons who are not capable of
self-preservation. Where accommodating
persons of the above description, the
following types of facilities shall be
classified as I-2 facilities: hospitals,
nursing homes (both intermediate care
facilities and skilled nursing facilities),
mental hospitals and detoxification
facilities. A facility such as the above
with five or [fewer] occupants shall be
classified as a residential use group.
308.3.1 Child care facility: A child
care facility which accommodates more
than five children 2 1/2 years of age
or less for any length of time shall be
classified as a Use Group I-2.
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308.4 Use Group I-3: This use group shall
include buildings and structures which are
inhabited by six or more persons who are
under some restraint or security . . .
[including] prisons, jails, reformatories,
detention centers, correctional centers and
prerelease centers. . . .
BNBC § 308 (emphases added); USBC § 104.1, 13 Va. Admin. Code
5-61-25 (adopting BNBC); 13 Va. Admin. Code 5-61-210 (adding
exception to § 308.2).
III.
ANALYSIS
On appeal of 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." 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 competence of the agency, and the purposes of the
basic law under which the agency has acted." Id.On appeal of an agency's determination on issues of law,
the standards differ. "'If the issue falls outside the area
generally entrusted to the agency, and is one in which the
courts have special competence, i.e., the common law or
constitutional law,'" the court need not defer to the agency's
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interpretation. Id. at 243-44, 369 S.E.2d at 8 (quoting
Hi-Craft Clothing Co. v. NLRB, 660 F.2d 910, 914-15 (3d Cir.
1981)).
However, where the question involves an
interpretation which is within the
specialized competence of the agency and the
agency has been entrusted with wide
discretion by the General Assembly, the
agency's decision is entitled to special
weight in the courts[, and] . . . "'judicial
interference is permissible only for relief
against the arbitrary or capricious action
that constitutes a clear abuse of delegated
discretion.'"
Id. at 244, 369 S.E.2d at 8 (quoting Va. Alcoholic Beverage
Control Comm'n v. York St. Inn, Inc., 220 Va. 310, 315, 257
S.E.2d 851, 855 (1979) (quoting Schmidt v. Bd. of Adjustment,
88 A.2d 607, 615-16 (N.J. 1952))).
The outcome of this appeal turns, in the first instance, on
the scope of the modification authority granted under the USBC
and its enabling legislation. This is a legal question
involving an interpretation of both regulations and statutes.
A.
AUTHORITY TO MODIFY USBC'S USE GROUP CLASSIFICATIONS
The regulations at issue give the local official--and,
indirectly via the right of appeal, the local board and the
TRB--the authority to "grant modification to any of the
provisions of the USBC, provided the spirit and intent of the
USBC are observed and public health, welfare and safety are
assured." USBC § 107.1, 13 Va. Admin. Code 5-61-41 (emphasis
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added); see Code §§ 36-105, 36-114. The BNBC, by contrast,
originally limited the local official to modifications of the
"structural or mechanical provisions of [the BNBC]." BNBC
§ 107.1 (1987 ed.); see also BNBC § 107.1 (1996 ed.) (deleting
"structural or mechanical" language). We assume without
deciding that the Housing Board, in deviating from the language
of the BNBC, intended to permit modification of any of the
USBC's provisions, not just its structural or mechanical
provision. Nevertheless, the authority of the Housing Board to
permit modification is limited to that granted by the General
Assembly in the enabling legislation, see Code § 36-105, which
implicitly allows modifications only to USBC provisions
governing "the manner of construction or materials." See, e.g.,
Brown v. United Airlines, Inc., 34 Va. App. 273, 276, 540 S.E.2d
521, 522 (2001) (noting legislative enactment which delegates to
agency authority to adopt rules and regulations for carrying out
enactment does not permit adoption of inconsistent rules or
regulations).
The related statutory scheme does not expressly grant any
power to the local official to modify the USBC's provisions. It
expressly grants such power only to the Housing Board, which
"may modify, amend or repeal any [USBC] provisions . . . after
notice and hearing" and "in accordance with the [APA]." Code
§§ 36-100, 36-102. However, the legislature expressed its
intent in Code § 36-105, which provides that a party not
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satisfied with the local official's decision "concerning
application of the [USBC] or [the local official's] refusal to
grant a modification to the provisions of the [USBC] covering
the manner of construction or materials to be used in the
erection, alteration or repair of a building or structure" may
appeal to the local appeals board. In the absence of other
statutory language permitting the local official to grant a
modification of the USBC, we hold the legislature contemplated
the local official would have authority "to grant a
modification" only to "the provisions of the [USBC] covering the
manner of construction or materials to be used in the erection,
alteration or repair of a building or structure," as listed in
Code § 36-105.
To the extent the Housing Board purported to authorize the
local official--and the local appeals board and TRB via the
appeals process--to grant modification to any of the provisions
of the USBC, that regulation exceeds the Housing Board's
statutory authority and constitutes a clear abuse of delegated
discretion. The only modifications permitted are those
involving "the manner of construction or materials to be used in
the erection, alteration or repair of a building or structure."
Code § 36-105. Thus, we affirm the circuit court's ruling that
the TRB lacked authority to create a new use group or to
classify Avalon in a use group the definition of which it did
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not meet because those modifications do not directly involve
"the manner of construction or materials to be used."
B.
PROPER CLASSIFICATION OF AVALON UNDER
EXISTING USBC USE GROUP DEFINITIONS
We also affirm the circuit court's ruling that Avalon's
facility constitutes an I-2 use. This classification requires
an interpretation of regulations which fall "within the
specialized competence" of the local official and local appeals
board. Although the TRB has the authority on appeal to classify
a particular structure in its proper use group, the TRB hears
appeals from decisions arising under the USBC, the Fire
Prevention Code and various other state construction safety
laws. See Code § 36-114. As the circuit court observed, the
TRB's job is to make "technical construction type
determinations," such as whether the fire safety features
proposed by Avalon would be "substantially equivalent to that
which is required" by a facility in Avalon's use group. The
TRB's specialized competence does not extend to interpreting the
USBC's various use group definitions, and we need not defer to
the TRB in that regard.
Both the local official and the local appeals board
concluded that Avalon's facility constituted an I-2 use.
Relying in part on rules applicable to the construction of
statutes, we agree. "In construing statutes, courts are charged
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with ascertaining and giving effect to the intent of the
legislature." Crown Cent. Petroleum Corp. v. Hill, 254 Va. 88,
91, 488 S.E.2d 345, 346 (1997). "That intention is initially
found in the words of the statute itself, and if those words are
clear and unambiguous, we do not rely on rules of statutory
construction or parol evidence, unless a literal application
would produce a meaningless or absurd result." Id. We must
"avoid interpreting each word [in a statute] in a way that makes
it repetitious of another." Germek v. Germek, 34 Va. App. 1, 8,
537 S.E.2d 596, 600 (2000). Further, statutes on the same
subject matter, i.e., those standing in pari materia, must be
considered together and harmonized if possible. Lambert v.
Barrett, 115 Va. 136, 141, 78 S.E. 586, 587 (1913). We see no
reason not to apply these same rules to the interpretation of
regulations adopted by an administrative agency pursuant to
statutory authority granted it by the legislature.
Applying these principles, we hold that Avalon must be
classified as an I-2 facility rather than an I-1 facility or a
residential facility pursuant to Virginia's I-1 exception. In
order to be eligible for classification under the I-1 use group
designation or its residential exception, a facility must house
individuals "who are physically capable of responding to an
emergency situation without personal assistance." BNBC § 308.2.
Avalon urges us to interpret the subject language, "physically
capable of responding to an emergency situation without personal
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assistance," as distinguishing a resident's physical ability to
evacuate from her cognitive or psychological ability to do so.
Under the principles of construction above, however, we conclude
this interpretation would lead to an absurd result. The
interpretation to be given the phrase, "physically capable of
responding," manifestly must be governed by the subsequent
phrase, "without personal assistance." A resident who is
physically capable of moving her body without assistance but who
is cognitively unable to recognize the need to do so when warned
by an external source such as a fire alarm or a verbal
instruction in an emergency situation is not "physically capable
of responding to an emergency situation without personal
assistance." (Emphasis added).
The correctness of this interpretation is further
illustrated by the language defining Use Group I-2. All
Institutional Use Groups I-1 and I-2 house "people suffering
from physical limitations because of health or age [who are]
harbored for medical care or other treatment." Use Group I-2
specifically includes those who are "not capable of
self-preservation," whereas the I-1 definition covers those
"physically capable of responding to an emergency situation
without personal assistance." Considering these two use group
definitions together, the logical conclusion is that the Housing
Board intended to cover all levels of ability within these two
definitions. Use Group I-2 residents are those expressly "not
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capable of self-preservation," whereas I-1 residents, by
inference, are those who are capable of self-preservation.
Thus, "physically capable of responding to an emergency
situation without personal assistance" means "capable of
self-preservation," and Use Group I-1 residents must be both
physically and mentally capable of evacuating, if necessary,
"without personal assistance." The I-1 Use Group definition
specifically provides that it includes "board and care
facilities," "group homes" and other listed facilities only
where those facilities "accommodat[e] persons of the above
description"--those "physically capable of responding to an
emergency situation without personal assistance." Thus, Avalon
is not an I-1 facility simply because it is a group home;
rather, how it is classified depends on the abilities of its
residents.
The language in Code § 63.1-174.1, 5 which pertains to DSS's
licensure of homes for "[a]ged, [i]nfirm or [d]isabled
[a]dults," does not require a different result. Code
§ 63.1-174.1 does not constitute a legislative requirement that
5
This statute was in effect at all times relevant to these
proceedings. In 2002, the legislature repealed Title 63.1 and
reenacted an amended version of former Code § 63.1-174.1 as Code
§ 63.2-1705. The new statute refers to "[b]uildings licensed as
assisted living facilities [and] adult day care centers" but
continues to provide that those facilities "shall be licensed
for ambulatory or nonambulatory residents or participants" and
retains the definitions of ambulatory and nonambulatory which
were present in former Code § 63.1-174.1.
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the Housing Board conform its regulations to the statutory
definitions or regulations of DSS. Rather, it requires
buildings licensed by DSS "for ambulatory or nonambulatory
residents," as those terms are defined in the statute, to "meet
the specifications for the proper [USBC] Use Group." Although
the legislature lists both "physical and mental impairment" in
Code § 63.1-174.1 in referring to whether an individual is
"capable of self-preservation," it does so only in the context
of defining who is ambulatory and who is not. In fact, the
legislature's definitions of ambulatory and nonambulatory are
roughly co-extensive with the interpretations of the I-1 and I-2
Use Group definitions we adopt herein.
It is true that the 1987 edition of the USBC deviated from
the 1987 BNBC and defined Use Group I-1 in reference to an
earlier definition of "ambulatory" contained in Code
§ 63.1-174.1. However, with one exception not relevant here, 6
the 1990 edition of the USBC adopted the 1990 BNBC definition of
Use Group I-1 as written, which provided that I-1 residents must
be "physically capable of responding to an emergency situation
without personal assistance" and contained no additional
requirement that the residents be "ambulatory." The Housing
6
That exception was an earlier version of the present
exception which permits certain group homes to house up to eight
people rather than five while still retaining a residential use
group classification.
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Board has adopted that same definition in each subsequent
edition of the USBC.
Prior to the Housing Board's adoption of the BNBC
definition in 1990, the BOCA Interpretations Committee issued a
code interpretation indicating that both physical and mental
limitations must be considered in determining whether an
occupant of an institutional facility is "physically capable of
responding to an emergency situation without personal
assistance." BOCA Code Interp. No. 11/306/84 (Apr. 4, 1984).
When the Housing Board adopted the BNBC's I-1 Use Group
definition in 1990, it was charged with knowledge of BOCA's
interpretation of its own uniform code and implicitly accepted
it. Cf. Weathers v. Commonwealth, 262 Va. 803, 805, 553 S.E.2d
729, 730 (2001) ("When the General Assembly acts in an area in
which one of its appellate courts already has spoken, it is
presumed to know the law as the court has stated it and to
acquiesce therein, and if the legislature intends to countermand
such appellate decision it must do so explicitly."); Clinchfield
Coal Co. v. Robbins, 261 Va. 12, 18-19, 541 S.E.2d 289, 292-93
(2001) (applying same principle to legislature's knowledge of
Attorney General's interpretation of statutes). Thus, this BOCA
code interpretation provides further support for the conclusion
that the Housing Board intended to include both physical and
mental limitations in the determination of whether residents are
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"physically capable of responding to an emergency situation
without personal assistance."
Even if we were to construe this phrase as Avalon urges,
holding that residents with only cognitive limitations are
"physically capable of responding to an emergency situation
without personal assistance," Avalon would be ineligible for the
I-1 residential use exception for the two reasons identified by
the TRB.
First, Virginia's residential exception to Use Group I-1
specifically states that it applies to "Group homes licensed by
. . . [DSS] which house no more than eight mentally ill,
mentally retarded or developmentally disabled persons." Avalon
is an ACR, and ACRs "by statutory and regulatory definition are
for persons who are aged, infirm or disabled" rather than for
people who are "mentally ill, mentally retarded or
developmentally disabled" as required for the residential
exception. Thus, Avalon's McLean ACR does not meet this
criterion of the I-1 residential exception.
Second, Avalon admitted that, as a facility housing
Alzheimer's patients in various stages of physical and mental
decline, most of its residents would become bedridden before
dying, and it sought to be classified as a residential use under
the I-1 exception while still housing up to five residents who
were bedridden or otherwise physically unable to evacuate. As
the TRB expressly noted, "the determination that [Use Group I-1]
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and its exception permit up to five residents [out of eight] at
any given time to be unable to exit the residence without
personal assistance from staff does not match the explicit
language of the [USBC]." Use Group I-1 expressly applies to
facilities with six or more occupants and requires that all
occupants must be "physically capable of responding to an
emergency situation without personal assistance." A facility
which meets Use Group I-1's substantive criteria but has five or
fewer residents remains residential. The residential exception
to the I-1 Use Group permits certain group homes which meet the
substantive criteria for I-1 classification to house up to eight
people, rather than five, while retaining a residential
classification. For a facility to be eligible for the
residential exception, all eight occupants must be "physically
capable of responding to an emergency situation without personal
assistance." Thus, even under the alternate definition of the
phrase, if Avalon had even one resident with significant
physical limitations due to the natural progression of
Alzheimer's, Avalon would be ineligible for the I-1 residential
exception.
C.
STANDARD FOR MODIFYING USBC'S
STRUCTURAL AND MECHANICAL PROVISIONS
In light of our conclusion that Avalon's facility was an
I-2 use, we next consider the circumstances under which the TRB
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had the authority to permit Avalon to deviate from the
provisions of the USBC covering "the manner of construction or
materials to be used in the . . . alteration or repair of a
building or structure" housing an I-2 use group. We hold that
the USBC provision permitting modification where "the spirit and
intent of the USBC are observed and public health, welfare and
safety are assured" requires a finding that the alternate
material or manner of construction is the functional equivalent
of the USBC's express requirement.
When the legislature delegates authority to an
administrative agency to promulgate regulations, those
regulations must neither exceed the scope of the authority
delegated nor be inconsistent with it. See, e.g., Brown, 34 Va.
App. at 276, 540 S.E.2d at 522. Furthermore, "delegations of
legislative power are valid only if they establish specific
policies and fix definite standards to guide the official,
agency, or board in the exercise of the power. Delegations of
legislative power which lack such policies and standards are
unconstitutional and void." Ames v. Town of Painter, 239 Va.
343, 349, 389 S.E.2d 702, 705 (1990). For example, language in
an enabling statute which provides merely "that the regulations
be designed to protect and promote the safety and health of
employees" is insufficient. Bell v. Dorey Elec. Co., 248 Va.
378, 381, 448 S.E.2d 622, 624 (1994). "[T]he General Assembly
cannot delegate its legislative power accompanied only by such a
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broad statement of general policy. . . . [D]elegations of
authority are adequately limited [only] where the terms or
phrases employed have a well understood meaning and prescribe
sufficient standards to guide the administrator." Id. at
381-82, 448 S.E.2d at 624 (citations omitted). We hold,
correspondingly, that the related regulations must also contain
"definite standards to guide . . . the exercise of the power."
Ames, 239 Va. at 349, 389 S.E.2d at 705.
Avalon contends the USBC permits two kinds of
modifications. The type of modification permitted under USBC
§ 112.1 expressly requires equivalency to the terms being
modified. That section provides as follows:
Where practical, [as required by] § 36-99 of
the Code of Virginia, provisions of the USBC
have been stated in terms of required level
of performance, to facilitate the prompt
acceptance of new building materials and
methods. The provisions of the USBC are not
intended to prohibit the use of any material
or method of construction not specifically
prescribed by the USBC, provided any such
alternative has been approved. An
alternative material or method of
construction shall be approved when the code
official finds that the proposed design is
satisfactory and complies with the intent of
the provisions of the USBC, and that the
material, method or work offered is, for the
purpose intended, at least the equivalent of
that prescribed by the USBC in quality,
strength, effectiveness, fireresistance,
durability and safety.
USBC § 112.1, 13 Va. Admin. Code 5-61-65 (emphasis added).
Avalon contends that USBC § 107.2, by contrast, requires a
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finding that the modification preserves "the spirit and intent
of the USBC" and that the "public health, welfare and safety are
assured" without regard to whether the modification achieves
functional equivalency. See 13 Va. Admin. Code 5-61-41; see
also USBC § 107.2.1, 13 Va. Admin. Code 5-61-41 (providing that
code official considering modification under USBC § 107.2 "may
require and consider a statement from a professional engineer,
architect or other competent person as to the equivalency of the
proposed modification").
Once again, based on the language of the enabling statutes,
we disagree and hold that, regardless of the intent of the
Housing Board, the legislative delegation of authority permits
only modifications which are the functional equivalent of what
the USBC requires. The legislature expressly stated that the
provisions of the USBC
A. . . . shall be such as to protect
the health, safety and welfare of the
residents of this Commonwealth, provided
that buildings and structures should be
permitted to be constructed at the least
possible cost consistent with recognized
standards of health [and] safety . . . .
Such regulations shall be reasonable and
appropriate to the objectives of this
chapter.
B. . . . .
C. Where practical, the [USBC]
provisions shall be stated in terms of
required level of performance, so as to
facilitate the prompt acceptance of new
building materials and methods. When
generally recognized standards of
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performance are not available, such
provisions shall provide for acceptance of
materials and methods whose performance has
been found by the Board, on the basis of
reliable test and evaluation data, presented
by the proponent, to be substantially equal
in safety to those specified.
Code § 36-99 (emphases added). In delineating the process for
appealing decisions made under the USBC, the legislature
specifically listed only two categories of appeals, (1) those
involving "application of the [USBC]" and (2) those involving
the refusal of the local official to "grant a modification to
the provisions of the [USBC] covering the manner of construction
or materials to be used in the erection, alteration or repair of
a building or structure." Code § 36-105 (emphasis added).
Thus, the legislative scheme authorizes the Housing Board, in
promulgating the USBC, to set out the minimum standards for
construction methods and materials, and it authorizes the Board
to permit individual modifications to the USBC's provisions
"covering the manner of construction or materials to be used in
the erection, alteration or repair of a building or structure"
only when the alternative "materials and methods" are
"substantially equal in safety to those specified." Code
§§ 36-99, 36-105 (emphases added). In order to construe USBC
§ 107.2 to be consistent with the authority delegated by the
enabling legislation and to contain sufficiently definite
standards to guide the administrator, see Bell, 248 Va. at
381-82, 448 S.E.2d at 624; Brown, 34 Va. App. at 276, 540 S.E.2d
- 31 -
at 522, we interpret its language permitting modifications which
preserve "the spirit and intent of the USBC" and "assure[]" the
"public health, welfare and safety" to require that any
modifications approved thereunder are functionally equivalent to
the USBC standards from which deviation is sought. Any
modifications which are not functionally equivalent to these
standards are void.
Finally, we remand to the circuit court with instructions
to remand to the TRB to determine whether the modifications
approved by the local appeals board, which included those
proposed by Avalon as well as the additional modifications
listed by the local appeals board, were the functional
equivalent of what the USBC would otherwise provide.
IV.
For these reasons, we hold the TRB lacked authority to
modify the USBC's use group classifications. Further, we hold,
as a matter of law, that Avalon's facility constituted an I-2
use. Finally, we conclude that any modifications to the
provisions of the USBC covering the manner of construction or
materials to be used in the alteration of Avalon's facility had
to be the functional equivalent of those expressly required by
the USBC. Thus, we affirm in part, reverse in part, and remand
to the circuit court with instructions to remand to the TRB to
determine whether the proposed modifications were, in fact, the
- 32 -
functional equivalent of those required by the USBC for an I-2
use.
Affirmed in part,
reversed in part
and remanded.
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