Randall A. Strawbridge v. Chesterfield Co.

• Court: Court of Appeals of Virginia
• Decided: November 19, 1996
• Docket: 2438952
• Status: Published

Opinion

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

- 2 - 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

- 3 - 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,

- 4 - 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

- 5 - 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

- 6 - 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,

- 7 - 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

- 8 - 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.

- 9 - 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

- 10 - 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

- 11 - 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.

- 12 -