Clark v. Va. Dep't of Hous. & Cmty. Dev. State Bldg. Code Technical Review Bd. & Elizabeth Perry

JONATHAN CLARK AND CAROLYN CLARK v. VIRGINIA DEPARTMENT OF HOUSING& COMMUNITY DEVELOPMENT STATE BUILDING CODE TECHNICAL REVIEW BOARDAND ELIZABETH PERRY, PROPERTY MAINTENANCE CODE OFFICIAL FOR FAIRFAX COUNTY

Record No. 1537-16-4

COURT OF APPEALS OF VIRGINIA

AUGUST 15, 2017

UNPUBLISHED

Present: Judges AtLee, Malveaux and Senior Judge Annunziata

Argued at Fredericksburg, Virginia

MEMORANDUM OPINION^* BY JUDGE ROSEMARIE ANNUNZIATA

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY

Daniel E. Ortiz, Judge

Craig J. Blakeley (Kathleen M. McDermott; Alliance Law Group LLC, on brief), for appellants.

Justin I. Bell, Assistant Attorney General (Mark R. Herring, Attorney General; John W. Daniel, II, Deputy Attorney General; Kristina Perry Alexander, Senior Assistant Attorney General & Section Chief, on brief), for appellee Virginia Department of Housing & Community Development State Building Code Technical Review Board.

Cherie L. Halyard, Assistant County Attorney (Elizabeth D. Teare, County Attorney; T. David Stoner, Deputy County Attorney, on brief), for appellee Elizabeth Perry, Property Maintenance Code Official for Fairfax County.

Appellants Jonathan and Carolyn Clark, pursuant to the Virginia Administrative Process Act, challenge the decision of the circuit court affirming the ruling of the Technical Review Board (TRB). The TRB upheld the findings of the Fairfax County Department of Code Compliance (DCC), which had issued notice to appellants for seven violations of the UniformStatewide Building Code (USBC) at their property in Annandale, Virginia. Appellants contend the notice of violations (NOV) infringed their procedural due process rights because the notice was overbroad and contained inaccurate information about the alleged deficiencies.¹ We affirm the circuit court's ruling.

Background

On April 9, 2014, two DCC inspectors went to appellant's residence to investigate complaints of multiple occupancy and USBC violations. They took photographs of the property from the street and continued to take photographs as they entered the property via the driveway. Mr. Clark exited the house and began talking with the inspectors, who explained the reason for their visit. The inspectors discussed the condition and maintenance of the property with Mr. Clark and then left the premises.

The next day, DCC issued appellants the NOV, listing seven areas of concern. The NOV advised appellants a civil penalty of $700 would be assessed and informed them of their right to appeal. Appellants appealed to the Fairfax County Board of Building Code Appeals, which denied the appeal. They then appealed to the TRB, which held an informal fact-finding conference in preparation for the hearing to be held on June 19, 2015. At the conference, theinvestigators provided specific details about the cited violations, and after the conference, the TRB staff prepared a memo summarizing the clarifications, as follows:

VMC § 302.5 - This cited violation is for a hole in the siding on the gable end of the house that has the meter base and is to the right of the upper window.

VMC § 302.7 -This cited violation is for a section of fence on the ground on the right side (when facing the front) of the garage and for pickets in the section of the fence on the left side of the garage either missing or in disrepair.

VMC § 304.1 -This cited violation is for a hole in the right side (when facing the front) of the garage. In addition, this cited violation is for the following missing or deteriorated components: fascia board on the front of the house; trim on the door frame around the garage door; window sill on the upper window of the gable end of the house that has the meter base; siding under the front door sill; side trim and sills on both front dormer windows; and, soffit on back dormer (pulled away and hole).

VMC § 304.13 - This cited violation is for the same conditions specified under the cited violation for VMC § 304.1.

VMC § 304.2 - This cited violation is for the all the exterior wooden parts of the house and garage needing to be scraped and painted.²

VMC § 304.6 - This cited violation is for the same exterior walls conditions specified under the cited violation for VMC § 304.1.

VMC § 304.7 -This cited violation is for a hole in the roof of the garage which was covered by a tarp.³

The TRB issued its opinion on August 21, 2015. The TRB rejected appellants' claim that they had received inadequate notice of the violations, as the NOV cited the appropriate VMCsections and indicated the remedial work to be done. The TRB further stated that "any confusion" appellants had about the violations "was eliminated" at the informal fact-finding conference. The TRB noted that the violations did, "in fact, exist," as appellants had not provided any substantive arguments at the hearing to refute that finding.

Appellants appealed the TRB decision to the circuit court, which determined that appellants had received adequate notice of the violations and were afforded an opportunity to present their objections. The court further noted that appellants had not yet had "any punishment steps taken against them" as a result of the violations. The court affirmed the decision of the TRB, finding there was "no error of law" and that "substantial evidence" existed in the record to support the decision.⁴

Analysis

When a party appeals an agency action under the Virginia Administrative Process Act, he must demonstrate error subject to review. See Code § 2.2-4027. The role of the circuit court in such an appeal "is equivalent to an appellate court's role in an appeal from a trial court." Virginia Bd. of Med. v. Hagmann, 67 Va. App. 488, 499, 797 S.E.2d 422, 427 (2017) (quoting Comm'r v. Fulton, 55 Va. App. 69, 80, 683 S.E.2d 837, 842 (2009)). Code § 2.2-4027 provides that the reviewing court may examine the agency decision for "(i) accordance with constitutional right," "(ii) compliance with statutory authority," "(iii) observance of required procedures where any failure therein is not mere harmless error, and (iv) the substantiality of the evidentiary support for findings of fact."

Questions of law are reviewed de novo. See Code § 2.2-4027; see Va. Ret. Sys. v. Blair, 64 Va. App. 756, 763, 772 S.E.2d 26, 29 (2015). Subsidiary factual findings are reviewed "in the light most favorable to sustaining the agency's decision," Blair, 64 Va. App. at 770, 772 S.E.2d at 32, and deference is given to the "agency's expertise in a specialized field," Ga.-Pac. Corp. v. Robinson, 32 Va. App. 1, 4, 526 S.E.2d 267, 268 (2000) (quoting Metro. Cleaning Corp. v. Crawley, 14 Va. App. 261, 266, 416 S.E.2d 35, 38 (1992)). Determinations regarding credibility are assessed under the same standard. See Fulton, 55 Va. App. at 80, 683 S.E.2d at 842. The agency's factual findings may be rejected "only if, considering the record as a whole, a reasonable mind would necessarily come to a different conclusion." Blair, 64 Va. App. at 765, 772 S.E.2d at 30 (quoting Doctors' Hosp. of Williamsburg, LLC v. Stroube, 52 Va. App. 599, 607, 665 S.E.2d 862, 865 (2008)).

Appellants contend the NOV did not satisfy procedural due process because the notice was overbroad and contained inaccurate information. The right to due process guarantees "that no person shall be deprived of life, liberty or property without due process of law." Jackson v. W., 14 Va. App. 391, 405, 419 S.E.2d 385, 393 (1992). "Due process analysis involves a two-part inquiry. First, there must be a deprivation of a liberty or property interest. Then, 'once it is determined that due process applies, the question remains what process is due.'" Id. at 406, 419 S.E.2d at 393-94 (quoting Klimko v. Va. Emp't Comm'n, 216 Va. 750, 756, 222 S.E.2d 559, 565 (1976)); accord Carter v. Gordon, 28 Va. App. 133, 145, 502 S.E.2d 697, 703 (1998).

Appellants, however, cannot meet the first prong of the analysis. They did not raise the issue of deprivation of a protected interest in their opening brief.⁵ Rule 5A:20(e) provides thatthe opening brief must contain "the argument (including principles of law and authorities) relating to each assignment of error." Failure to comply with the rule "results in waiver of the arguments the party failed to make." John Crane, Inc. v. Hardick, 283 Va. 358, 376, 722 S.E.2d 610, 620 (2012).

Furthermore, when the issue of deprivation, or its absence, arose at oral argument, the parties acknowledged there was no enforcement action pending against appellants, but that such action was not foreclosed. Appellants argued that requiring enforcement of the notice before a challenge could be made would operate to the detriment of property owners who had to defend against violations. Potential deprivation does not establish a due process violation, as speculation of adverse consequences at some later date is insufficient to establish deprivation of a liberty or property interest. See Gordon, 28 Va. App. at 147, 502 S.E.2d at 704 (rejecting as speculative defendant's assertion that decision by local department of social services that allegation of child sexual abuse was a "founded" complaint would disqualify him from future employment as a teacher); Jackson, 14 Va. App. at 410-11, 419 S.E.2d at 396-97 (holding that defendant's speculation that a "founded" complaint of child abuse would possibly damage his reputation and employment opportunities was "not sufficient to trigger due process").

We note that even if appellants were entitled to due process, they received all the process they were due. See Gordon, 28 Va. App. at 147, 502 S.E.2d at 704 (finding that applicable administrative procedures had been followed and stating that "[i]f Gordon was entitled to due process, he received all that he was due"); Jackson, 14 Va. App. at 411-12, 419 S.E.2d at 397 (noting that "even if W. were entitled to due process, he has been given all the process he isdue," as he was given notice of the abuse allegations and the opportunity to be heard at an administrative hearing).

Appellants argue that...