Virginia Lawyers Weekly VA Lawyers Weekly
A Fairfax Circuit Court denies a homeowners association’s petition requesting the State Building Code Technical Review Board to review the HOA’s citations for local fire code violations following a final determination by a Local Board of Fire Prevention Code Appeals; although some groups charged with violating local fire code regulations have access to the TRB and others don’t, the controlling statutes and regulations indicate that is a policy choice by the General Assembly.
Petitioner HOA maintains the Statewide Fire Prevention Code (SFPC) – the regulations promulgated by the Virginia Board of Housing and Community Development pursuant to Va. Code § 27-97 – provides a right of appeal to the State Building Code Technical Review Board (TRB). Under Va. Code § 36-114, the TRB has jurisdiction to hear all appeals from decisions arising under application of the Fire Prevention Code adopted under the Statewide Prevention Code Act. After a final determination by the Local Board of Fire Prevention Code Appeals, any person who was a party to a local appeal may appeal to the TRB. Petitioners were cited with a county fire code violation, received a BCA decision, which is a decision from the applicable local board, and thereafter appealed to the TRB in a timely manner.
Respondent asserts that the TRB lacks jurisdiction to hear appeals from local boards regarding violations of local regulations, and Fairfax County agrees with this position. Respondent maintains that state law only allows the TRB to review cases involving local ordinances in one limited circumstance, namely, where a local jurisdiction lacks a local appeal process for reviewing the matter. Otherwise, its jurisdiction over fire codes is limited to review of state law violations.
TRB role
The TRB is charged with hearing appeals from decisions arising under the SFPC, which is the state fire prevention code adopted under Va. Code §§ 27-94 et seq. An appeal concerning the application of the SFPC by a local enforcement agency lies first with the applicable local board of appeals and then with the TRB. In contrast, an appeal from a State Fire Marshal’s decision regarding SFPC violations lies first with the TRB.
In 2010, the General Assembly amended Code § 27-98 to add that any local fire code may provide for an appeal to a local board of appeals, and if no local board of appeals exists, the TRB shall hear appeals of any local fire code violation. A review of the record indicates the catalyst for this legislative amendment was a TRB decision denying relief to a Fairfax homeowners association on jurisdictional grounds, holding that the TRB lacked authority to review the county fire marshal’s application of a local fire prevention regulation, as the violation involved a county code provision, not the SFPC.
The SFPC tracks the State Fire Prevention Code Act. Section 112.9, entitled “Appeal to the TRB,” read in conjunction with § 112.5, appears to refer to cases involving the application of the SFPC. Particular language tracks the Note beneath § 112.5, which was added to reflect the 2010 amendment to Code § 27-98. The 2010 amendment to Code § 27-98 specifically authorizes the TRB to hear appeals of any local fire code violation if no local board of appeals exists. It does not authorize the TRB to hear any appeal concerning the application of any local fire code violation following a final decision by a BFPCA.
The court recognizes that its interpretation of the relevant statutes and the SFPC affords some groups charged with violating local fire code regulations access to the TRB, while leaving others without such access to the TRB. Yet, fundamentally, the expansion of the TRB’s jurisdiction pursuant to the 2010 amendment to Va. Code § 27-98 reflected a policy decision by the General Assembly. The legislature can further expand the TRB’s jurisdiction, but that is not the role of this court when the rationale for doing so would be grounded in policy considerations.
Poplar Place HOA v. Virginia Dep’t of Housing and Community Development (Shannon) No. CL 2015-6813, Sept. 11, 2015; Fairfax Cir.Ct.; Patrick J. McDonald, Justin I. Bell, AAG; Paul T. Emerick, Ass’t County Att’y. VLW 015-8-108, 5 pp.
