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Gaines v. Department of Housing & Community Development State Building Code Technical Review Board

Court of Appeals of Virginia

January 7, 2020

JOSHUA GAINES AND MAKIBA GAINES
v.
DEPARTMENT OF HOUSING & COMMUNITY DEVELOPMENT STATE BUILDING CODE TECHNICAL REVIEW BOARD AND CITY OF NORFOLK

          FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH James C. Lewis, Judge

          Makiba Gaines (The Gaines Law Firm, P.L.L.C., on briefs), for appellants.

          Elizabeth B. Myers, Assistant Attorney General (Mark R. Herring, Attorney General; Donald D. Anderson, Deputy Attorney General; Heather Hays Lockerman, Senior Assistant Attorney General & Section Chief; Justin I. Bell, Assistant Attorney General; Andrew Fox, Deputy City Attorney, on brief), for appellees.

          Present: Judges Humphreys, Huff and AtLee Argued at Norfolk, Virginia

          OPINION

          ROBERT J. HUMPHREYS, JUDGE

         Joshua and Makiba Gaines ("the Gaineses") appeal an order entered by the Circuit Court of the City of Virginia Beach ("circuit court"), upholding the State Building Code Technical Review Board's ("Review Board") decision that the Virginia Maintenance Code ("VMC") requires the installation of a heating system and that the lack of a heating system in the Gaineses's rental property rendered the property unfit or unsafe for habitation. On appeal, the Gaineses raise two assignments of error:

I. The circuit court erred in concluding "the Review Board correctly interpreted sections 105, 202, 603.1, and 605.1 of the Virginia Maintenance Code."
II. The circuit court erred in affirming the City of Norfolk's citation of Appellants' property because Appellants are not required by the Virginia Maintenance Code to furnish a heating appliance to the property.

         I. BACKGROUND

         The Gaineses own a rental property located at 2410 West Avenue in the City of Norfolk. The property was constructed in 1965, prior to the adoption of the Uniform Statewide Building Code ("USBC"). On February 7, 2017, a code official for the City inspected the property and issued a notice of violation after determining that the property's defective heating facility violated Sections 603.1 and 605.1 of the VMC. On February 15, 2017, the City issued a second notice of violation, "identifying the property as unsafe or unfit for human habitation for the lack of a functioning heating system" and placarded the property. The tenants who lived at the property relocated sometime between the issuance of the first and second notices of violation. However, the Gaineses intended to lease the property to occupants in the future. In March 2017, the Gaineses obtained a permit from the City to install a gas space heater. The City inspected the property on March 20, 2017, but did not approve the installation due to the use of an unvented heater as the property's sole source of heat. The Gaineses then removed the defective heating system and have yet to install an operable heating system in the property.

         The Gaineses appealed to the City of Norfolk Local Board of Building Code Appeals ("local appeals board"). After conducting a hearing on the merits of the appeal, the local appeals board denied the Gaineses's appeal. The Gaineses then appealed to the Review Board. On October 12, 2018, the Review Board entered an order upholding the City's decision to placard the property as uninhabitable, holding that "violations of Section[s] []603.1 and 605.1 of the VMC exist[] and that the installation of a heating system is required." Moreover, the Review Board agreed with the City that the property was "unfit" or "unsafe" according to Section 202 and that the City was obligated to placard the property, pursuant to Section 105.6, once it was found unsafe or unfit. The Review Board also found that "the violations cannot be satisfied by the removal of the existing heating system and that a heating system is required to be in place according to the VMC."

         The Gaineses appealed the Review Board's decision to the circuit court.[1] The circuit court entered an order on June 6, 2019, holding that the Review Board "correctly interpreted Sections 105, 202, 603.1, and 605.1" of the VMC. The circuit court affirmed the Review Board's finding that violations of the VMC existed "due to Appellants' removal of the property's heating facility and refusal to install a functioning heating facility in the property as required by the VMC." Accordingly, the circuit court affirmed the Review Board's decision.[2] This appeal follows.

         II. ANALYSIS

         A. Stand ...


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