Randall A. Strawbridge v. Chesterfield Co.

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Fitzpatrick
Argued at Richmond, Virginia
RANDALL A. STRAWBRIDGE and
STATE BUILDING CODE TECHNICAL
REVIEW BOARD
OPINION BY
v. Record Nos. 2438-95-2 JUDGE JAMES W. BENTON, JR.
2521-95-2 NOVEMBER 19, 1996
COUNTY OF CHESTERFIELD, VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
William R. Shelton, Judge
William F. Etherington (Beale, Balfour,
Davidson, Etherington & Parker, P.C., on
brief), for appellant Randall A. Strawbridge.
John B. Purcell, Jr., Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief) for appellant State
Building Code Technical Review Board.
Stylian P. Parthemos, Senior Assistant County
Attorney (Steven L. Micas, County Attorney,
on brief), for appellee.
Randall A. Strawbridge, a professional engineer, and the
State Building Code Technical Review Board appeal a circuit
judge's decision reversing a ruling of the Review Board and
referring the case back to the Chesterfield County Board of
Building Code Appeals for a ruling on the merits. We must
decide: (1) Whether Chesterfield County had standing to appeal
the decision of the Review Board to the circuit court; (2)
whether Strawbridge had standing to appeal the decision of the
County Board of Appeals to the Review Board; (3) whether the
Review Board had jurisdiction; and (4) whether the Review Board's
ruling was erroneous. For the reasons that follow, we reverse
the circuit judge's decision.
I.
Tomac Corporation, a builder, hired Strawbridge to inspect
concrete pours at a residential construction project in
Chesterfield County. The inspection was required by the Virginia
Uniform Statewide Building Code ("USBC") and had to be made
on-site when concrete was poured for a building's foundation. An
inspector is required to examine the concrete's strength and
customarily uses a tool known as a "slump cone" for that
measurement. Although these inspections are ordinarily conducted
by Chesterfield County employees, the County also accepts
inspections by private engineers such as Strawbridge.
While traveling to the site, Strawbridge's vehicle became
disabled. The builder sent a truck to bring Strawbridge to the
site. When Strawbridge arrived at the site, the trucks were
ready to pour concrete. However, Strawbridge discovered that he
had inadvertently left his slump cone in his vehicle. To prevent
further delay, Strawbridge conducted a visual slump test. During
the test, William Dupler, a County building official, arrived at
the site and noticed that Strawbridge was not using a slump cone.
He asked Strawbridge to conduct the tests with a slump cone.
Strawbridge obtained his slump cone from his vehicle and
continued testing the concrete with the slump cone.
Upon receiving Strawbridge's inspection report, Dupler
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rejected the tests. He informed Strawbridge in writing that he
would not accept the report and would no longer accept any
concrete pour inspections from Strawbridge. Dupler also required
Tomac to obtain further tests using an alternative method. Those
tests confirmed Strawbridge's report that the concrete met the
County's requirements.
Strawbridge appealed Dupler's decision to the County Board
of Appeals and requested that the County Board of Appeals reverse
Dupler's decision to bar him from conducting inspections. Ruling
that the appeal was not authorized by the USBC, the County Board
of Appeals dismissed the case. Strawbridge appealed that
decision to the Review Board. The Review Board directed
Strawbridge to submit a statement of facts demonstrating that his
case was governed by the USBC and it also ordered the County to
submit a reply to Strawbridge's statement. Based upon the
submissions, the Review Board decided that it had jurisdiction
and conducted an evidentiary hearing. The Review Board then
ruled "that the building official acted arbitrarily under Section
107.1 of the USBC when he rejected the technical data submitted
by Mr. Strawbridge, and that the building official may not
summarily reject any future engineering reports made by Mr.
Strawbridge."
Pursuant to the Administrative Process Act ("APA"), Code
§ 9-6.14:1, the County appealed to the Circuit Court of
Chesterfield County. The County alleged that (1) the Review
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Board incorrectly decided that it had jurisdiction to review the
inspection decision, (2) the Review Board erred in ruling on the
merits of the appeal and should have remanded the case to the
County Board of Appeals, and (3) the Review Board incorrectly
reversed the inspection decision. Strawbridge and the Review
Board filed a motion to dismiss the appeal, arguing that the
County lacked standing to bring the action in the circuit court.
The circuit court judge denied the motion to dismiss, heard
the appeal, and ruled that the Review Board had jurisdiction
solely to determine whether the County Board of Appeals should
have dismissed the appeal for lack of jurisdiction. Thus, the
judge found that the Review Board should not have decided the
merits of the appeal and remanded the case to the Review Board
with instructions that the County Board of Appeals should decide
the merits of the case. Strawbridge and the Review Board
appealed to this Court from that decision.
II.
The General Assembly statutorily established the framework
for the adoption and enforcement of the USBC. The Code directs
the Board of Housing and Community Development, a state agency,
"to adopt and promulgate a Uniform Statewide Building Code
[USBC]." Code § 36-98. Except as provided by the building code
statutes, the USBC "shall supersede the building codes and
regulations of the counties, municipalities and other political
subdivisions and state agencies." Id. Pursuant to this mandate,
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the Board of Housing and Community Development adopted a set of
regulations entitled the "Virginia Uniform Statewide Building
Code" [USBC].
The General Assembly specified that "[e]nforcement of the
[USBC] shall be the responsibility of the local building
department" and that each local building department must
establish a local board of Building Code appeals. Code § 36-105.
"Appeals from the local building department concerning
application of the [USBC] . . . shall first lie to the local
board of Building Code appeals." Code § 36-105. The General
Assembly also established the Review Board and gave it "the power
and duty to hear all appeals from decisions [of the local board
of Building Code appeals] arising under application of the
Building Code." Code § 36-114. The USBC contains regulations
consistent with the building code statutes. See USBC §§ 102,
103, and 116 (formerly §§ 116 and 117).
III.
The Review Board and Strawbridge contend that the County did
not have standing to appeal the Review Board's decision to the
circuit court. We disagree.
Proceedings of the Review Board are governed by the APA.
Code § 36-114. The APA states that "[a]ny . . . party aggrieved
by and claiming unlawfulness of a case decision . . . shall have
a right to the direct review [of the decision] by an appropriate
and timely court action." Code § 9-6.14:16(A). Thus, the County
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may appeal if (1) the Review Board's decision constitutes a "case
decision," (2) the County was a named party in the Review Board
proceeding, and (3) the County was aggrieved by the agency
ruling. See id.
The Review Board's decision was a "case decision" because it
was an "agency proceeding or determination that . . . a named
party . . . either is, [or] is not . . . in compliance with any
existing requirement for obtaining or retaining a . . . right or
benefit." Code § 9-6.14:4(D) (defining "case decision"). In
ruling that the "building official acted arbitrarily under
Section 107.1 of the USBC," the Review Board decided that Dupler,
the County's building official, was not in compliance with the
USBC, and, therefore, he did not have the right to reject
Strawbridge's reports. In addition, this was a case decision
because it included an application of the law to the facts of
this particular case. See Kenley v. Newport News Gen. & Non-
Sectarian Hosp. Ass'n, 227 Va. 39, 45, 314 S.E.2d 52, 55 (1984)
(holding that a letter written by the State Health Commissioner
was a case decision because the Commissioner "applied the rules
and regulations to the facts" gathered at a previous meeting).
The County was a named party in the Review Board's
proceeding because the Review Board's decision was styled,
Randall A. Strawbridge, P.E. v. County of Chesterfield. More
importantly, the record establishes that the County participated
throughout the Review Board's proceedings. The Review Board
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directed the County to respond to Strawbridge's statement of
facts. The County attorney represented the County in the
proceeding, presented an opening statement, and had the
opportunity to cross-examine witnesses. Indeed, Strawbridge
appealed the case to the Review Board because of the action of
officials acting on behalf of the County.
Finally, the County was "aggrieved" by the ruling. "'The
word "aggrieved" in a statute . . . refers to a substantial
grievance, a denial of some personal or property right, . . . or
the imposition upon a party of a burden or obligation.'"
D'Alessio v. Lukhard, 5 Va. App. 404, 408, 363 S.E.2d 715, 718
(1988) (citations omitted). The Review Board's decision denied
the County the right to "summarily reject any future engineering
reports made by . . . Strawbridge." Before this ruling, the
County, by its appointed official, adopted a policy to reject any
reports submitted by Strawbridge. Obviously, the Review Board's
decision forced the County to change its policy. By ordering the
County to consider Strawbridge's reports, the Review Board
imposed an obligation on the County and, thus, the County was
aggrieved. Therefore, we find that the County met the
requirements to appeal the Review Board's decision.
IV.
The County argues that Strawbridge did not have standing to
appeal Dupler's decision. However, the regulations provide as
follows:
The owner of a building, the owner's agent,
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or any other person, firm or corporation
directly involved in the design and/or
construction of a building or structure may
appeal to the local Building Code Board of
Appeals within 90 calendar days from a
decision of the building official when it is
claimed that:
1. The building official has refused
to grant a modification which
complies with the intent of the
provisions of the USBC; or
2. The true intent of the USBC has
been incorrectly interpreted; or
3. The provisions of the USBC do not
fully apply; or
4. The use of a form of construction
that is equal to or better than that
specified in the USBC has been denied.
§ 116.7 (currently § 116.5, as amended).
The County claims that Strawbridge cannot be classified as
an "owner of a building, the owner's agent, or any other person,
firm or corporation directly involved in the design and/or
construction of a building or structure." That argument lacks
merit because the inspections were an integral part of the
construction process. The evidence proved that the builder
requested Strawbridge to perform the inspection and paid for his
services. In addition, Strawbridge's inspection was a critical
prerequisite to the construction of the home because the USBC
requires the inspection of concrete pours. Strawbridge directly
contributed to the construction because without his test the
building would not have complied with USBC standards.
The County also contends that the appeal does not involve
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the "design and/or construction of a building" because
Strawbridge appealed the decision to bar him from future projects
and not the rejection of his inspection report. That contention
is not supported by the record. As evidenced by the Review
Board's ruling, Strawbridge appealed both the rejection of the
specific inspection report and the rejection of any future
reports. Furthermore, the County ignores the substance of
Dupler's action. In his letter to Strawbridge, Dupler rejected
the inspection report and also refused to accept any further
concrete inspection reports. These decisions were intertwined.
Strawbridge's initial letter to the County Board of Appeals
properly raised the issue and stated as follows:
I am writing to request a review and
reversal of the Building Official's decision
to stop my firm from making concrete pour
inspections for house footings in
Chesterfield County. His decision was based
on circumstances which occurred in connection
with [my inspection of a residence on May 11,
1993].
The propriety of Dupler's decision to bar Strawbridge from making
future inspections turned on the inadequacy of the May 11 report.
If Dupler erred in refusing to accept that report, he also erred
in using that report as grounds to bar Strawbridge from making
future reports. Obviously, the County Board of Appeals was
required to examine both of Dupler's decisions together. We
hold, therefore, that Strawbridge meets the regulation's
requirement of "any other person . . . directly involved in the
. . . construction" and had standing to appeal Dupler's decision.
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V.
Strawbridge and the Review Board claim that the circuit
court judge erred in ruling that the Review Board lacked
jurisdiction to decide the merits of Strawbridge's appeal. The
Code states that "no appeal to the . . . Review Board shall lie
prior to a final determination by the local board of Building
Code Appeals." Code § 36-105.
At a hearing on July 20, 1993, the County Board of Appeals
voted "that we do not hear . . . Strawbridge's appeal based upon
Sec. 116.7 [§ 116.5 as amended] of the Virginia Uniform Statewide
Building Code." In addition, the letter from the local board to
Strawbridge contained the following language, now required by
USBC § 116.8.1: "Upon receipt of this decision, any person who
was a party to the appeal may appeal to the . . . Review Board by
submitting an application to the State Board . . . ." The County
Board of Appeals clearly intended its dismissal to constitute a
final and appealable determination. Cf. Marchant & Taylor v.
Mathews Co., 139 Va. 723, 733, 124 S.E. 420, 423 (1924) ("[T]he
order by its very terms is not final.").
Furthermore, the County Board of Appeals determination "that
[Strawbridge's] appeal was not within the confines of . . . Sec.
116.0 of the USBC" was the equivalent of a dismissal order and
was a final determination of the appeal. See Daniels v. Truck &
Equip. Corp., 205 Va. 579, 585, 139 S.E.2d 31, 35 (1964) ("A
final order is one which disposes of the whole subject, gives all
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the relief contemplated, . . . and leaves nothing to be done in
the cause . . . ."). In deciding not to hear the case, the
County Board of Appeals decided to take no further action
regarding the case. That ruling was a final determination.
The County cites no authority for its argument that, after
the Review Board determined that the County Board of Appeals
erred in dismissing Strawbridge's appeal, the Review Board was
required to remand the case to the County Board of Appeals for a
ruling on the merits. Neither the Code nor the USBC requires the
Review Board to remand in such an instance. We hold, therefore,
that the Review Board did not err in conducting a hearing and
issuing a ruling on the merits of Strawbridge's appeal.
VI.
The County argues that the Review Board erred in ruling that
Dupler acted arbitrarily. The principle is well established,
however, that in reviewing proceedings governed by the APA,
"agency action is presumed valid on review, and the burden rests
'upon the party complaining' to overcome this presumption."
Environmental Defense Fund, Inc. v. Virginia State Water Control
Bd., 15 Va. App. 271, 277, 422 S.E.2d 608, 611 (1992) (quoting
Code § 9-6.14:17). On review of an agency's decision, the sole
question regarding "factual issues is whether substantial
evidence exists in the agency record to support the agency's
decision." Johnston-Willis, Ltd. v. Kenley, 6 Va. App. 231, 242,
369 S.E.2d 1, 7 (1988). "The court may reject the agency's
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findings of fact 'only if, considering the record as a whole, a
reasonable mind would necessarily come to a different
conclusion.'" Atkinson v. Virginia Alcoholic Beverage Control
Comm'n, 1 Va. App. 172, 176, 336 S.E.2d 527, 530 (1985) (citation
omitted).
The evidence at the Review Board hearing created a question
of fact -- whether the testing performed by Strawbridge met the
standards of the USBC -- uniquely suited for the Review Board's
expertise. Robert A. Hill and Edward C. Drahos, professional
engineers, attested to the accuracy of visual slump tests.
Strawbridge testified concerning the events of that day and
explained that a professional could measure slump accurately
without a slump cone. Thus, the record contained credible
testimony that visual inspection by an engineer can be an
accurate and effective means of testing the slumping of concrete.
Furthermore, tests conducted after the concrete pour confirmed
the accuracy of Strawbridge's visual test. The Review Board
found that Dupler acted arbitrarily in rejecting Strawbridge's
report and ruled that the County could not summarily reject any
future reports filed by Strawbridge. We find no evidence that
would justify overturning the Review Board's findings.
For these reasons, we reverse the trial judge's decision.
Reversed.
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