Opinion
No. COA14–82.
2014-11-18
David C. FAUSTIN, Petitioner v. NORTH CAROLINA BUILDING CODE COUNCIL, Respondent.
Safran Law Offices, by Brian J. Schoolman and Ashley L. Felton, for petitioner-appellant.Attorney General Roy Cooper, by Special Deputy Attorney General Daniel Snipes Johnson, for respondent-appellee North Carolina Department of Insurance.
Appeal by petitioner from order entered 14 October 2013 by Judge Paul G. Gessner in Wake County Superior Court. Heard in the Court of Appeals 7 May 2014. Safran Law Offices, by Brian J. Schoolman and Ashley L. Felton, for petitioner-appellant. Attorney General Roy Cooper, by Special Deputy Attorney General Daniel Snipes Johnson, for respondent-appellee North Carolina Department of Insurance.
CALABRIA, Judge.
David C. Faustin (“petitioner”) appeals from the superior court's order affirming the decision of the North Carolina Building Code Council (“NCBCC”). We affirm.
I. Background
Petitioner is the owner of a tract of land in the “Black Forest on Lake James” development located in McDowell County, North Carolina (“Black Forest” or “the development”). The development emphasized a rustic environment which focused on environmental sustainability. Beginning in 2007, petitioner raised concerns to the development's property owners' council and to the developer of Black Forest concerning what he considered improperly constructed roads, site infrastructures, and common use facilities in the development. After the developer declined to address petitioner's concerns to his satisfaction, petitioner contacted the North Carolina Department of Insurance (“NCDOI”) to ensure that the development complied with the 2006 North Carolina Building Code (“NCBC”), the 2002 North Carolina Accessibility Code (“NCAC”), and the North Carolina Fire Code (collectively “the Codes”).
On 18 September 2009, NCDOI Deputy Commissioner Christian Noles (“Noles”) visited the site in response to petitioner's request and met with petitioner as well as other stakeholders to determine the applicability of the Codes to the common areas of Black Forest. Noles assessed the applicability of and compliance with the Codes to many structures in Black Forest, including, inter alia, areas known as the “River Camp Pavilion” (“the Pavilion”) and the “Treehouse,” as well as a storage shed.
On 13 November 2009, Noles issued an NCDOI order (“Order 1”), which found that the pathway between the Pavilion and the restroom violated the NCAC, which required fixed and firm, nonslip surfaces, and handrails, thus requiring remedial measures. Noles also determined that the Treehouse violated the NCAC due to the steep incline of its walking surface. Additionally, he noted a violation of the NCBC because of missing handrails. Noles did not find any violations in the storage shed. Petitioner did not agree with all of Noles's interpretations of various NCAC and NCBC provisions and appealed Order 1 to the NCBCC.
On 13 June 2011, the NCBCC issued an order which affirmed Noles's Order 1 with some modifications (“Final Order 1”). The NCBCC found that the Codes permitted alternative designs such as establishing golf carts in place of traditional automotive parking. NCBCC concluded that, given the unique nature of Black Forest, it was reasonable for the use of golf carts to access the area connecting the parking to the facilities and the path between the Pavilion and the restroom. With respect to the Treehouse, the NCBCC affirmed the Order 1 findings, including that the Treehouse steps and the lower landing were required to be equipped with handrails. Finally, the NCBCC affirmed Noles's findings pertaining to the storage shed. The NCBCC's Final Order 1 was not appealed.
Petitioner remained unsatisfied with the development's remedial actions because he believed they still failed to bring the development into full compliance with the Codes. As a result, Noles revisited Black Forest on 18 October 2011, in response to another complaint from petitioner. On 13 January 2012, Noles issued a new NCDOI order (“Order 2”) confirming that the development had taken sufficient remedial measures pursuant to Final Order 1. Specifically, Noles found that the development had tightened the gravel and fixed loose stones on the path to the River Camp, creating a “fixed and firm,” non-slip surface. As to the Treehouse, Noles climbed the structure and observed that it was best characterized as children's play equipment. Based upon his observations, Noles concluded that the Treehouse was “within tolerances for the [i]ntended construction to provide the expected level of safety for such play equipment.” Finally, Noles addressed petitioner's new complaint that the storage shed violated the wind load provisions of the NCBC. Noles found that “[a] general examination of the three-sided shed appears to be within tolerances for the intended construction.” On 3 February 2012, petitioner appealed Order 2 to the NCBCC.
On 21 March 2013, the NCBCC entered an “Appeal Decision” which affirmed Noles's Order 2 (“the Appeal Decision”). On 24 April 2013, petitioner filed a petition for judicial review of that decision in Wake County Superior Court. After a hearing on the petition, the superior court entered an order affirming the Appeal Decision on 14 October 2013. Petitioner appeals.
II. Standard of Review
“In cases appealed from administrative tribunals, we review questions of law de novo and questions of fact under the whole record test.” Diaz v. Division of Soc. Servs., 360 N.C. 384, 386, 628 S.E.2d 1, 2 (2006). “When reviewing a superior court order concerning an agency decision, we examine the order for errors of law. The process has been described as a twofold task: (1) determining whether the trial court exercised the appropriate scope of review and, if appropriate, (2) deciding whether the court did so properly.” Poarch v. N.C. Dep't of Crime Control & Pub. Safety, ––– N.C.App. ––––, ––––, 741 S.E.2d 315, 318 (2012) (internal quotations and citations omitted).
III. Findings of Fact
Petitioner argues that the trial court erred by concluding that the Appeal Decision was not made upon an improper procedure. Petitioner contends that the Appeal Decision did not comply with N.C. Gen.Stat. § 143–141, which requires that after a hearing, the NCBCC “shall within a reasonable time give a written decision setting forth its findings of fact and its conclusions.” N.C. Gen.Stat. § 143–141(a) (2013). However, it is clear from the Appeal Decision that the NCBCC adopted the findings and conclusions of Noles's Order 2, which is sufficient to comply with the statute. This argument is overruled.
IV. Alternative Construction
Petitioner argues that the trial court erred in affirming the decision of the NCBCC. Specifically, petitioner contends that the NCBCC exceeded its statutory authority by allowing alternative construction when the evidence did not support a finding that the alternatives complied with applicable Code provisions. We disagree.
An agency is entitled to judicial deference in interpreting the purpose and meaning of the statute or code it administers. Hensley v. N.C. Dep't of Env't & Natural Res., 364 N.C. 285, 294, 698 S.E.2d 41, 47 (2010). Pursuant to N.C. Gen.Stat. § 143–138(a) (2013), the NCBCC is the administrative agency with statutory authority to promulgate and modify the Building Code. The 2006 North Carolina Building Code: Administrative Code and Policies (“the Administrative Code”) is a document adopted by the NCBCC pursuant to this statutory authority. Pursuant to N.C. Gen.Stat. § 143–139(b) (2013) the NCDOI is responsible for interpreting and enforcing the building codes.
Petitioner contends that the NCBCC's decision approving the development's remedial measures violated the plain language of the Codes. However, section 105.1 of the Administrative Code states that the use of an alternate material, design or method of construction is permitted provided that the alternate has been approved by the code enforcement official. The comments to this provision further elaborate that “[t]he fact that a material, product, or method of construction is not addressed in the technical codes is not an indication that such material, product, or method is intended to be prohibited. Ultimately, “[t]he code enforcement official is responsible for determining if a requested alternative provides the equivalent level of protection of public health, safety, and welfare as required by the code.” Similarly, section 104.11 of the NCBC provides that “[t]he provisions of this code are not intended to prevent the installation of any material or to prohibit any design or method of construction not specifically prescribed by this code. An alternative material, design, or method of construction shall be approved where the building official finds that the proposed design is satisfactory and complies with the intent of the provisions of this code....”
In the instant case, Noles relied upon these “alternative” Code provisions in determining that the development's remedial measures were satisfactory. In relying upon these provisions, Noles noted that Black Forest was a unique environment that was certified by the Audubon Society and that it was the developer's intent to retain the rustic nature and environmental sustainability of the area when it constructed the development. The NCBCC Appeal Decision further acknowledged the uniqueness of the development by concluding that “[t]his Appeal Decision is based upon the specific facts and circumstances of this appeal and is not to be considered precedent for any future cases.”
Petitioner first argues that Noles erroneously approved an unsuitable material for the River Camp access path. In order to comply with the NCAC's requirement that such a path be “fixed and firm,” the development removed stone steps and flat stepping stones and replaced them with densely packed crushed stone. Noles specifically found that this new material was a “tight pack and was difficult to disturb,” such that it complied with the intent of the “fixed and firm” requirement. He also noted that he observed a local resident negotiate a wheelchair on the path without issue. The resident further informed Noles that he used the path in his wheelchair on a regular basis. Noles's observations were sufficient to support his conclusion that the path was sufficiently fixed and firm to comply with the intent of the NCAC.
Petitioner next contends that Noles erroneously concluded that the Treehouse was children's play equipment, such that the handrails, installed by the development in response to Final Order 1, were sufficient. However, Noles's Order 2 specifically noted that when he examined the Treehouse, he used a “set of stairs that accessed an open Treehouse platform and a ‘ship's ladder’ that accessed a higher platform....” Based upon his observations, Noles determined that the Treehouse amounted to “little more than what could be described as children's play equipment.” Noles then concluded that “a general examination of the stairs and guards appear[ed] to be within tolerances for the [i]ntended construction to provide the expected level of safety for such play equipment.” In light of these findings, which were based upon Noles's personal examination of the Treehouse, the NCBCC properly concluded that the handrails installed by the development were sufficient to comply with the intent of the NCAC.
Petitioner finally contends there was no evidence of any application of objective criteria or mathematical requirements by Noles to support his conclusion that the storage shed complied with the applicable wind load requirements. However, Noles specifically found that he examined the storage shed and determined it complied with all requirements. Petitioner presented no evidence to the contrary other than his own speculation. Accordingly, the NCBCC properly adopted Noles's conclusion that the storage shed met all NCBC requirements. Petitioner's arguments are overruled.
V. Conclusion
Based upon the unique nature of the Black Forest development as reflected in the findings by Noles and the NCBCC, as well as taking into consideration the deference the NCBCC is afforded in interpreting the Codes, we hold that the NCBCC properly affirmed Noles's Order 2, which allowed the use of alternate materials or design as part of the remedial measures instituted by the development in response to Noles's Order 1. Consequently, we find that the superior court properly affirmed the NCBCC's Appeal Decision. The trial court's order is affirmed.
Affirmed. Judges BRYANT and GEER concur.
Report per Rule 30(e).