Must a Virginia county enforce the Property Maintenance Code (Part III of the USBC) in a small town that adopted Part III but did not designate anyone to enforce it?

Plain-English summary

The Virginia Uniform Statewide Building Code (USBC) comes in three parts: Part I (new construction), Part II (rehabilitation), and Part III (maintenance of existing structures). Enforcement of Parts I and II is mandatory, but enforcement of Part III is discretionary; a locality can elect to enforce maintenance or not.

The Tazewell County Attorney asked the AG about a specific scenario. A small town within the county (population under 3,500) had adopted Part III of the USBC, but the town had not appointed or contracted with anyone to enforce the code. Question: did the county have to step in and enforce Part III on the town's behalf?

The AG said no. Section 36-105(A) requires the county to enforce Parts I and II in a small town that hasn't elected to enforce them itself. That requirement is a specific statutory mandate. Section 36-105(C), which addresses Part III, is silent about county obligations when the town hasn't designated an enforcement official. The AG read the silence intentionally.

The AG read "section" as "the smallest distinct subdivision of a legislative act," so subpart (A)'s county-obligation rule does not automatically migrate to subpart (C). And the AG noted that a county could not, "absent an agreement or a statutory mandate," administer maintenance code rules inside a town's boundaries.

Practical answer: if a small town wants Part III enforced, the town needs to designate an enforcement agency or department. Failing that, the county is not obligated to fill the gap, though the opinion leaves open that an agreement between the town and county could let the county do it.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The USBC has been amended multiple times since 2010. Section 36-105 has been amended. Specific population thresholds, election procedures, and maintenance code enforcement provisions have changed. Anyone working with a current code enforcement dispute should look at the current text.

Common questions

What's the difference between Parts I, II, and III of the USBC?
Part I covers new construction, Part II covers rehabilitation of existing structures, and Part III covers maintenance of existing structures.

Why are Parts I and II mandatory but Part III discretionary?
Section 36-105(A) makes enforcement of construction and rehabilitation requirements mandatory for the local building department. Section 36-105(C) gives localities discretion to enforce maintenance. The General Assembly drew that line; the AG doesn't second-guess it.

Why is the county on the hook for Parts I and II in small towns?
Section 36-105(A) covers the case where a town with population under 3,500 has not elected to administer or enforce the USBC. In that case the surrounding county must do so.

Could the county voluntarily enforce Part III in the town?
The opinion notes a county "could not, absent an agreement or a statutory mandate," administer Part III within a town's boundaries. So an agreement between the town and county could authorize the county to enforce it. Absent such an agreement, the county lacks unilateral authority.

Why can't a county just enforce Part III inside town limits anyway?
Because the opinion reads the county's enforcement responsibility as limited to the "section" of § 36-105 dealing with Parts I and II. For Part III, the AG says a county could not administer maintenance rules within a town's boundary without an agreement or a statutory mandate.

What happens to residents of the town who want maintenance code enforcement?
They have to push the town to designate an enforcement official, or they have to push the town and county to enter an agreement. Until then, the maintenance code is on the books but unenforced.

Background and statutory framework

The USBC is adopted in three parts: Part I (new construction), Part II (rehabilitation), and Part III (maintenance of existing structures).

Section 36-105 sets out enforcement authority and responsibility:

• § 36-105(A). Enforcement of construction and rehabilitation is mandatory. For small towns (population under 3,500), if the town doesn't elect to administer and enforce, the surrounding county must do so.
• § 36-105(C). Enforcement of Part III (maintenance) is discretionary. When a town chooses to enforce, the inspection and enforcement is carried out by an agency or department designated by the local governing body.

The interpretive method: the opinion reads the term "section" as "the smallest distinct subdivision of a legislative act." So subpart (A)'s county-obligation rule is confined to subpart (A); it does not migrate to subpart (C) without legislative text saying so.

Citations

• Va. Code § 2.2-505
• Va. Code Ann. § 36-105(A) (Supp. 2010)
• Va. Code Ann. § 36-105(C)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2010/10-076-Young.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

December 10, 2010

C. Eric Young, Esquire
Tazewell County Attorney
108 East Main Street
Tazewell, Virginia 24651

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

Dear Mr. Young:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You inquire whether a County is required to enforce the Property Maintenance Code portion of the Uniform Statewide Building Code in a town with a population of less than 3,500 within that County, where the town has adopted the Property Maintenance Code but has not appointed, nor contracted with, an official to enforce the Uniform Statewide Building Code.

Response

It is my opinion that a County is not required to enforce the Property Maintenance Code portion of the Uniform Statewide Building Code in a town with a population of less than 3,500 within that County, where the town has adopted the Property Maintenance Code but has not appointed, nor contracted with, an official to enforce the Uniform Statewide Building Code.

Applicable Law and Discussion

As you note, the Virginia Uniform Statewide Building Code ("USBC") is adopted in several parts: Part I covering new construction, Part II covering rehabilitation, and Part III covering maintenance of existing structures. Enforcement by a locality of the provisions of the USBC for construction and rehabilitation is mandatory.

With respect to Parts I and II of the USBC, when a town with a population of less than 3,500 has not elected to administer or enforce them, the county in which the town is situated must administer and enforce those parts of the USBC for that town. A county is required to administer and enforce the USBC in a town only if the town "does not elect to administer and enforce" the USBC. If a town does elect to enforce Parts I and II, then the obligation otherwise imposed on the surrounding county by § 36-105(A) does not apply.

While the administration and enforcement of Parts I and II of the USCB are mandatory, § 36-105(C) grants localities the discretion to elect to administer and enforce Part III, which relates to the maintenance of existing structures. When a town chooses to enforce Part III, the "inspection and enforcement shall be carried out by an agency or department designated by the local governing body."

Where a town has chosen to enforce the maintenance provisions of the Building Code, but has not designated an agency or department of the Town to fulfill this role, the county surrounding the town is not responsible for administering the maintenance component of the USBC. The text of the statute limits the county's responsibility for the enforcement of the USBC in a town to the "section" of the statute dealing with Parts I and II, the mandatory construction and rehabilitation components, of the USBC. The term "section" "is generally defined as the smallest distinct subdivision of a legislative act." Unlike subpart (A), subpart (C) of § 36-105, which is a separate "section" of the statute, does not contain a requirement that the county administer Part III of the USBC in the situation where a town elects to enforce its maintenance provisions, but has failed to designate an agency or department to fulfill this responsibility. Indeed, a county could not, absent an agreement or a statutory mandate, administer the maintenance of existing structures component of the USBC within the boundary of a town.

Conclusion

Accordingly, it is my opinion that a County is not required to enforce the Property Maintenance Code portion of the Uniform Statewide Building Code in a town with a population of less than 3,500 where the town has adopted the Property Maintenance Code but has not appointed, nor contracted with, an official to enforce the Uniform Statewide Building Code.

With kindest regards, I am

Very Truly Yours,

Kenneth T. Cuccinelli, II
Attorney General