COURT OF APPEALS OF VIRGINIA
Present: Judges Clements, Kelsey and Senior Judge Annunziata
Argued at Alexandria, Virginia
BOARD OF SUPERVISORS OF CULPEPER
COUNTY, VIRGINIA, AND ROBERT P. ORR, III
OPINION BY
v. Record No. 2725-07-4 JUDGE D. ARTHUR KELSEY
JULY 29, 2008
THE STATE BUILDING CODE TECHNICAL
REVIEW BOARD, RANDOLPH W. GRIFFITH
AND GRIFFITH GROUP, LTD.
FROM THE CIRCUIT COURT OF CULPEPER COUNTY
John R. Cullen, Judge
Roy B. Thorpe, Jr. (John D. Maddox; Office of the Culpeper
County Attorney, on briefs), for appellants.
Eric A. Gregory, Assistant Attorney General (Robert F.
McDonnell, Attorney General; Steven P. Jack, Assistant
Attorney General; Thomas W. Nesbitt, Assistant Attorney
General, on briefs), for appellee The State Building Code
Technical Review board.
No brief or argument for appellees Randolph W. Griffith and
Griffith Group, Ltd.
In this administrative appeal, the Culpeper County Board of Supervisors argues that the
circuit court erroneously affirmed a case decision by the State Building Code Technical Review
Board. The Technical Review Board held that the Board of Supervisors had no authority to set
qualifications standards for third-party inspectors under the Virginia Uniform Statewide Building
Code (USBC). Agreeing that the circuit court erred, we reverse its judgment and remand the
case for entry of a final order vacating the Technical Review Board’s case decision.
I.
In 1991, the Culpeper County Board of Supervisors adopted a resolution requiring all
private inspectors retained by the county (referred to as third-party inspectors) to perform
inspections on behalf of the county’s local building official to be qualified engineers or architects
licensed by the Commonwealth. William R. Myers became the County Building Official in
1998. Unaware of the county’s resolution, Myers authorized third-party inspectors to perform
work for the county without being qualified as licensed engineers or architects. In 2003,
Randolph W. Griffith (a former county building official, but not a licensed engineer or architect)
requested that Myers certify him as a third-party inspector. Griffith knew of the county’s 1991
resolution but did not advise Myers of it.
After he had certified Griffith, Myers learned of the county’s certification requirements.
Myers asked the Board of Supervisors to again review its certification policy. In response, the
Board of Supervisors reaffirmed its existing policy of requiring all third-party inspectors for the
county to be licensed engineers or architects. Myers independently researched the issue and
discovered that, of the six Virginia localities using third-party inspectors, each locality had a
similar policy. Myers adopted the certification policy and decertified Griffith as a third-party
inspector.
Griffith appealed his decertification to the local board of building code appeals, which
affirmed Myers’s decision to decertify Griffith. Griffith then appealed to the Technical Review
Board. Griffith argued that the Board of Supervisors had no authority to set certification policies
for third-party inspectors. Only Myers could make that decision, Griffith contended. While it
might look like Myers made his own decision in this regard, Griffith added, in fact Myers merely
followed the directive of the Board of Supervisors. In its final case decision, the Technical
Review Board agreed with Griffith and set aside his decertification.
The Board of Supervisors and Myers appealed the Technical Review Board’s case
decision to the circuit court under the Virginia Administrative Process Act (VAPA), Code
§ 2.2-4000 et seq. The circuit court dismissed the petition for appeal and affirmed the Technical
Review Board’s decision.
II.
The Board of Supervisors and Robert P. Orr, III (Myers’s successor as Building Official)
appeal the circuit court’s decision to us on the ground that the circuit court, like the Technical
Review Board, erred as a matter of law in concluding the Board of Supervisors had no authority
to establish the certification policy for third-party inspectors doing work for the county. 1
We begin our analysis by examining the structure of the governing law. In 1972, the
General Assembly directed the State Board of Housing, now the Board of Housing and
Community Development (the Housing Board), to adopt a Uniform Statewide Building Code
(USBC). Avalon Assisted Living Facilities v. Zager, 39 Va. App. 484, 496, 574 S.E.2d 298, 304
(2002) (citing Code §§ 36-98, 36-131 & 36-135); see 1972 Va. Acts, ch. 829. The legislature
intended the Housing Board to give due regard to “generally accepted standards” recommended
by nationally recognized organizations. Code § 36-99(B).
Under its enabling legislation, the Housing Board may modify, amend, or repeal any
USBC provision after complying with the notice and hearing requirements of Code § 36-100.
See Code § 36-102. These requirements include notice to every “building official” in the
Commonwealth and, “where none, the local governing body of every city or county in the
Commonwealth.” Code § 36-100. “At any such hearing all persons desiring to do so shall be
afforded an opportunity to present their views.” Id. 2
1
Given our holding, we need not decide whether the Technical Review Board improperly
entertained the appeal from the local board of building code appeals. Cf. Board of Sup. of
Fairfax County v. Miller & Smith, Inc., 222 Va. 230, 234-35, 279 S.E.2d 158, 160-61 (1981),
with Strawbridge & State Bldg. Code Tech. Rev. Bd. v. County of Chesterfield, 23 Va. App.
493, 498, 477 S.E.2d 789, 792 (1996).
2
In 2006, the General Assembly amended Code § 36-100 (along with Code
§ 2.2-4006(A)(13)) to exempt the process from the Virginia Administrative Process Act, Code
§ 2.2-4000 et seq. See 2006 Va. Acts, ch. 719.
The General Assembly delegated responsibility for enforcement of the USBC to the
“local building department,” Code § 36-105(A), defined as “the agency or agencies of any local
governing body charged with the administration, supervision or enforcement” of the USBC.
Code § 36-97. Each local government must establish a local building department along with a
“local board of Building Code Appeals” (the local appeals board) or enter into an agreement with
some other locality or state agency to perform these roles. Code § 36-105(A). A party
dissatisfied with a local department’s application of the USBC may appeal to the local appeals
board. Id. A further appeal may be taken from the local appeals board to the Technical Review
Board. See Code §§ 36-105, 36-114.
In promulgating the USBC, the Housing Board “incorporated by reference the majority
of the BOCA National Building Code,” Avalon Assisted Living Facilities, 39 Va. App. at 497,
574 S.E.2d at 304 (citations omitted), and has since incorporated the technical provisions of the
International Building Code. 3 One of the USBC’s administrative provisions recognizes that the
local building code official may outsource some of his duties to private third parties. “The
building official is permitted to delegate duties and powers subject to any limitations imposed by
the locality and shall be responsible for assuring that delegated duties and powers are carried out
in accordance with the USBC.” USBC § 109.3 (2000 ed.). 4 Section 104.2.2 also recognized the
locality’s authority to “establish additional qualification requirements” for county employees
assisting the building official.
3
In 2003, the Housing Board repealed the USBC and used the International Code
Council’s 2000 International Building Code (IBC) to form the USBC (2000 ed.). 13 Va. Admin.
Code § 5-62-10 et seq. The USBC has since been repealed and recodified based on the ICC’s
2006 IBC. See 13 Va. Admin. Code § 5-63-10 et seq. General section references contained in
this opinion refer to the 2000 edition of the USBC made effective October 1, 2003.
4
This provision is currently codified at USBC § 106.2 (2006 ed.). Under the current
provision: “The building official may delegate powers and duties except where such authority is
limited by the local government. . . .” 13 Va. Admin. Code § 5-63-60(B) (emphasis added).
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In our case, the Technical Review Board considered these provisions but nonetheless
held the Board of Supervisors had no authority under USBC § 109.3 to impose certification
qualifications on third-party inspectors. Despite the clause in USBC § 109.3 subjecting the
building official’s delegation of duties to “any limitations imposed by the locality,” the Technical
Review Board held that language could not be taken at face value because it would conflict with
USBC § 115.8.1. That regulation authorized the building official to “accept reports of
inspections and tests from approved individuals or approved inspection agencies, which satisfy
qualifications and reliability requirements.” USBC § 115.8.1 (2000 ed.).
We find the Technical Review Board’s reasoning, as well as the circuit court’s
endorsement of it, to be plainly wrong. USBC § 109.3 authorized the locality to impose “any
limitation” it chose on the delegation by its building official of his duties to third-party
inspectors. The Board of Supervisors chose to limit the delegation to certified engineers and
architects. USBC § 115.8.1 merely authorized the county building official to accept inspection
reports from “approved” inspectors satisfying the necessary “qualifications and reliability
requirements.” Nothing in § 115.8.1 contradicted § 109.3. To be sure, the two provisions
complemented each other. Section 109.3 gave the locality the ultimate authority to establish
criteria for who may act as a delegate of the building official’s authority. Section 115.8.1, on the
other hand, merely confirmed that the building official may accept inspection reports from
approved inspectors and said nothing about delegating his authority to any third party.
The circuit court nonetheless deferred to the Technical Review Board’s reasoning,
correctly noting that courts give “great deference” to an agency’s interpretation of its own
regulations. See Holtzman Oil Corp. v. Commonwealth, 32 Va. App. 532, 539, 529 S.E.2d 333,
337 (2000). This deference stems from Code § 2.2-4027, which requires that reviewing courts
“take due account” of the “experience and specialized competence of the agency” promulgating
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the regulation. Va. Real Estate Bd. v. Clay, 9 Va. App. 152, 160-61, 384 S.E.2d 622, 627 (1989)
(interpreting former Code § 9-6.14:17). Even so, “deference is not abdication, and it requires us
to accept only those agency interpretations that are reasonable in light of the principles of
construction courts normally employ.” EEOC v. Arabian American Oil Co., 499 U.S. 244, 260
(1991) (Scalia, J., concurring).
No matter how one calibrates judicial deference, the administrative power to interpret a
regulation does not include the power to rewrite it. When a regulation is “not ambiguous,”
judicial deference “to the agency’s position would be to permit the agency, under the guise of
interpreting a regulation, to create de facto a new regulation.” Christensen v. Harris County, 529
U.S. 576, 588 (2000). Though agencies may be tempted to adjudicate their way around
unwanted regulations, such overreaching undermines the notice and public hearing procedures of
the rulemaking process — thereby putting in jeopardy the “enhanced political accountability of
agency policy decisions adopted through the rulemaking process” and the democratic virtue of
allowing “all potentially affected members of the public an opportunity to participate in the
process of determining the rules that affect them.” 1 Richard J. Pierce, Jr., Administrative Law
Treatise § 6.8, at 369, 372 (4th ed. 2002); see generally 1 Charles H. Koch, Jr., Administrative
Law & Practice § 2.12, at 53 (2d ed. 1997).
Here, the Technical Review Board interpreted USBC § 115.8.1 to wholly preclude the
Board of Supervisors from imposing what § 109.3 plainly permitted — the imposition of “any
limitation” the Board of Supervisors chose to impose upon the delegation by its building official
of his duties to private third-party inspectors. Nothing in the text or the logical context of either
regulation supports this interpretation. 5 In effect, the Technical Review Board excised the
5
During the hearing before the circuit court, the court added an additional rationale for
the Technical Review Board’s decision: “There is nothing in [section 109.3] that tracks the
language in section 104, that says the locality may establish additional qualification requirements
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phrase “any limitations imposed by the locality” from USBC § 109.3 without complying with the
notice and hearing procedures designed to protect the public’s interest in participating in the
lawmaking task of administrative agencies.
III.
In sum, the circuit court erred in deferring to the Technical Review Board’s unreasonable
interpretation of USBC § 109.3. We reverse the circuit court’s dismissal of the VAPA petition
for appeal and remand with instructions to vacate the Technical Review Board’s case decision
holding that the Board of Supervisors had no authority to establish qualifications for third-party
inspectors under the USBC.
Reversed and remanded.
for delegated duties.” We acknowledge, but are unpersuaded by, this observation. Section
109.3’s reference to “any limitations” is broad enough to need no further amplification.
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