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.
- 13 -
 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
- 16 -
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
- 17 -
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

- 19 -
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.

- 23 -
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.
- 24 -
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

- 25 -
"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]
- 26 -
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

- 27 -
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
- 28 -
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

- 29 -
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
- 30 -
 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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