THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH James C.
Gaines (The Gaines Law Firm, P.L.L.C., on briefs), for
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,
J. HUMPHREYS, JUDGE
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
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.
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.
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."
Gaineses appealed the Review Board's decision to the
circuit court. 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. This appeal follows.