If a Virginia locality passes an ordinance requiring smoke detectors in buildings with dwelling units, do existing buildings have to be retrofitted with them?

Plain-English summary

The Virginia Beach city attorney asked whether a local ordinance requiring smoke detectors under Va. Code § 15.2-922 forced retrofit of existing buildings to meet the current Uniform Statewide Building Code (USBC).

The AG answered no. Section 15.2-922 allows a locality to require smoke detectors in any building containing dwelling units, but the statute deals with installation going forward and maintenance afterward. It does not, by itself, demand a wholesale retrofit of buildings constructed under older codes.

Two related questions came along with it. First, when smoke detectors are installed under the ordinance, the installation has to comply with the then-current provisions of the USBC. Second, once installed, the USBC's maintenance code (the Virginia Maintenance Code, or VMC) governs upkeep and replacement.

The AG read the building code as having three parts. The Virginia Construction Code (Part I) governs new buildings. The Virginia Rehabilitation Code (Part II) governs rehabilitation of existing buildings. The Virginia Maintenance Code (Part III) governs maintenance of existing structures and generally does not require alterations unless the building meets the definition of unsafe or unfit for human occupancy.

The opinion noted one notable exception to the no-retrofit rule. Under the USBC's smoke-detector maintenance provision, if a building official inspects a dwelling and finds that the responsible party has not maintained battery-powered smoke detectors in working condition, AC-powered detectors with battery backup (or an equivalent device) must be installed to replace the defective ones. The opinion also noted that the USBC contains explicit retrofit requirements for several other types of buildings where habitation occurs, such as college and university dormitories, juvenile care facilities, assisted living facilities, hotels and motels, and adult day care centers. The absence of similar retrofit language for ordinary dwelling units was treated as deliberate.

Currency note

This opinion was issued in 2013. 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.

Common questions

Did the AG say smoke detectors were optional?
No. The opinion was about retrofitting of existing buildings. Local ordinances under § 15.2-922 can require smoke detectors in dwelling buildings, and any installation done after the ordinance is in place has to comply with the current USBC. The point of the opinion was that the statute itself doesn't snap older buildings into immediate compliance.

When does the retrofit exception kick in?
When a local building official inspects and finds that the responsible party (owner or landlord) has failed to keep existing battery-powered smoke detectors in working condition. At that point, AC-powered detectors with battery backup (or equivalent) must replace the defective ones.

Are there building types where the USBC does require retrofit?
Yes. The opinion identified several: college and university dormitories, juvenile care facilities, assisted living facilities, hotels and motels, and adult day care centers. For these, the USBC requires smoke detectors regardless of when the building was built.

What does "responsible party" mean for ongoing maintenance?
Under the VMC, once detectors are in, maintenance is governed by the USBC and the responsible party (typically the owner or landlord) has to keep them functional. The building official can step in if the maintenance fails, as described above.

Background and statutory framework

Virginia's Uniform Statewide Building Code is adopted by the Board of Housing and Community Development. It "shall supersede the building codes and regulations of the counties, municipalities and other political subdivisions and state agencies." The code is structured in three parts:

• Part I, the Virginia Construction Code (VCC), regulates the construction of new buildings and structures.
• Part II, the Virginia Rehabilitation Code (VRC), regulates rehabilitation of existing buildings.
• Part III, the Virginia Maintenance Code (VMC), regulates maintenance of existing structures.

The VMC states that buildings shall be maintained in accordance with the code under which they were originally constructed and that no provision shall require alterations to existing buildings unless conditions meet the definition of an unsafe structure or a structure unfit for human occupancy.

Section 15.2-922 lets a locality, by ordinance, require smoke detectors in any building containing one or more dwelling units. Installation must conform to the USBC, and maintenance must follow a uniform set of standards established in the USBC.

Citations

• Va. Code § 2.2-505 (Attorney General opinions)
• Va. Code § 15.2-922 (local smoke detector ordinance authority)
• Va. Code § 36-97 (USBC equipment definitions)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2013/12-035_Stiles.pdf

Original opinion text

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

July 26, 2013

Mark D. Stiles, Esquire
City Attorney, City of Virginia Beach
Municipal Center, Building 1
2401 Courthouse Drive
Virginia Beach, Virginia 23456-9004

Dear Mr. Stiles:
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 regarding certain legal consequences of a locality's adoption of an ordinance as enabled by, and described in § 15.2-922 of the Code of Virginia, which authorizes a locality to require that smoke detectors be installed in "any building containing one or more dwelling units." Specifically, you ask whether § 15.2-922 necessitates the retrofit of those buildings for compliance with the current provisions of the Uniform Statewide Building Code ("USBC").

Response
It is my opinion that when a locality, acting pursuant to § 15.2-922, adopts an ordinance to require installation of smoke detectors in "any building containing one or more dwelling units," that enactment does not necessitate the retrofitting with smoke detectors of existing buildings containing dwelling units. It is my further opinion that at such time as smoke detectors may be installed in any building containing dwelling units, the installation must comply with the then-current provisions of the Uniform Statewide Building Code. Finally, it is my opinion that, to remain in compliance with the ordinance, once the smoke detectors are initially installed, the terms of the Uniform Statewide Building Code govern the maintenance or replacement of the smoke detectors.

Applicable Law and Discussion
The General Assembly, "to provide comprehensive protection of the public health and safety," has "directed and empowered [the Board of Housing and Community Development] to adopt and promulgate a Uniform Statewide Building Code." Generally,

The Building Code shall prescribe building regulations to be complied with in the construction and rehabilitation of buildings and structures, and the equipment therein as defined in § 36-97, and shall prescribe regulations to ensure that such buildings and structures are properly maintained, and shall also prescribe procedures for the administration and enforcement of such regulations, including procedures to be used by the local building department in the evaluation and granting of modifications for any provision of the Building Code, provided the spirit and functional intent of the Building Code are observed and public health, welfare and safety are assured. The provisions of the Building Code and modifications thereof shall be such as to protect the health, safety and welfare of the residents of the Commonwealth[.]

Moreover, the General Assembly has provided that "[s]uch building code shall supersede the building codes and regulations of the counties, municipalities and other political subdivisions and state agencies."

Consistent with these overarching legislative policy considerations, § 15.2-922 provides that "[a]ny locality . . . may by ordinance require that smoke detectors be installed in . . . any building containing one or more dwelling units . . . ." The statute further provides that "[s]moke detectors installed pursuant to this section shall be installed in conformance with the provisions of the Uniform Statewide Building Code . . . , and any locality with an ordinance shall follow a uniform set of standards for maintenance of smoke detectors established in the [USBC]."

"When construing a statute, our primary objective is to 'ascertain and give effect to legislative intent,' as expressed by the language used in the statute." "Under basic rules of statutory construction, we determine the General Assembly's intent from the words contained in the statute." In addition, generally, "statutes may be considered as in pari materia when they relate to ... the same subject or to closely connected subjects or objects. Statutes which have the same general or common purpose or are parts of the same general plan are also ordinarily considered as in pari materia."

The USBC, as adopted in Virginia, generally is divided into three parts. Part I, the Virginia Construction Code ("VCC"), governs the construction of new buildings and structures. Part II, the Virginia Rehabilitation Code ("VRC"), contains regulations specific to the rehabilitation of existing buildings. Part III, the Virginia Maintenance Code ("VMC"), contains regulations specific to the maintenance of existing structures.

By the express terms of § 15.2-922, upon a locality's adoption of an ordinance requiring the installation of smoke detectors, subsequent installations of smoke detectors should comply with the provisions of the then-applicable edition and subdivision of the USBC for a particular building that is to contain one or more dwelling units. Once initially installed into a building containing such dwelling units, § 15.2-922 requires only that they be maintained in accordance with the USBC. Thus, the applicable provisions of that code, as they may be revised from time to time and applicable to smoke detectors, will govern all post-installation matters.

With respect to the maintenance of existing buildings and structures, the VMC currently provides that

[b]uildings and structures shall be maintained and kept in good repair in accordance with the requirements of this code and when applicable in accordance with the USBC under which such building or structure was constructed. No provision of this code shall require alterations to be made to an existing building or structure or to equipment unless conditions are present which meet the definition of an unsafe structure or a structure unfit for human occupancy.

Thus, the VMC generally does not require alteration of existing buildings, structures, or equipment to comply with periodic maintenance-related revisions in the USBC. Nevertheless, there is a notable exception to this rule with respect to smoke detectors, dependent upon a specific, inspection-based determination of a locality's building official:

Smoke detectors in buildings containing dwelling units. AC-powered smoke detectors with battery backup or an equivalent device shall be required to be installed to replace a defective or inoperative battery-powered smoke detector located in buildings containing one or more dwelling units or rooming houses offering to rent overnight sleeping accommodations, when it is determined by the building official that the responsible party of such building or dwelling unit fails to maintain battery-powered smoke detectors in working condition.

You specifically ask whether the adoption of an ordinance pursuant to § 15.2-922 "requires the retrofit of ... [existing] ... buildings for compliance with the current provisions of..." the USBC. In my examination of the USBC, I find only the above-quoted provision that is specifically directed to smoke detectors in buildings containing dwelling units; its language does not generally require the retrofitting of existing buildings with such detectors. This absence of language distinctly differs from USBC provisions relating to smoke detectors in several other types of existing structures where human habitation occurs, such as those specific to college and university dormitories, juvenile care facilities, assisted living facilities, hotels and motels, and adult day care centers. For each of these facilities, the USBC requires installation of smoke detectors regardless of when the building was constructed. Based upon these differences in wording within the USBC regarding the requirement to retrofit existing buildings with smoke detectors, I conclude that local ordinances adopted pursuant to § 15.2-922 do not require the retrofit of existing buildings that contain one or more dwelling units so as to require the immediate installation of smoke detectors.

As noted above, following a locality's adoption of an ordinance pursuant to § 15.2-922, and according to that statute's express language, any installation of smoke detectors in buildings containing dwelling units should be in accordance with the then-current provisions of the USBC. Moreover, with respect to post-installation maintenance or replacement of smoke detectors in such a building, one must refer to the applicable sections of the Code of Virginia, to smoke detector-specific provisions of the USBC, and to any responsible party-specific determinations of the local building official for appropriate guidance.

Conclusion

Accordingly, it is my opinion that when a locality, acting pursuant to § 15.2-922, adopts an ordinance to require installation of smoke detectors in "any building containing one or more dwelling units," that enactment does not necessitate the retrofitting with smoke detectors of existing buildings containing dwelling units. It is my further opinion that at such time as smoke detectors may be installed in any building containing dwelling units, the installation must comply with the then-current provisions of the Uniform Statewide Building Code. Finally, it is my opinion that, to remain in compliance with the ordinance, once the smoke detectors are initially installed, the terms of the Uniform Statewide Building Code govern the maintenance or replacement of the smoke detectors.

With kindest regards, I am

Kenneth T. Cuccinelli, II
Attorney General