COURT OF APPEALS OF VIRGINIA
Record No. 1191-25-2
THE SIERRA CLUB, ET AL.
v.
VIRGINIA BOARD OF HOUSING AND COMMUNITY DEVELOPMENT
Present: Judges Callins, Duffan and Senior Judge Clements
Argued at Richmond, Virginia
Opinion Issued August 25, 2026
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
C. N. Jenkins, Jr., Judge
Evan Dimond Johns (Claire Marie Horan; Appalachian Mountain Advocates, on briefs), for appellants.
Justin I. Bell, Assistant Attorney General, for appellee.
PUBLISHED OPINION BY
JUDGE DOMINIQUE A. CALLINS
The Sierra Club, Don Burke, Judith Sandler Gayer, and William Penniman (collectively,
Sierra Club) appeal the circuit court’s judgment sustaining the Board of Housing and Community
Development’s demurrer. Sierra Club argues that the circuit court erred by concluding it did not
have “affected by” standing under the Virginia Administrative Process Act (VAPA). We hold that
the circuit court misconstrued the VAPA’s “affected by” standing, reverse the circuit court’s
judgment, and remand for further proceedings.
BACKGROUND1
Concluding its 2021 development cycle, the Board adopted amendments to the Uniform
Statewide Building Code in 2023. By statute, the Board must promulgate regulations for the
“construction and rehabilitation of buildings and structures” and the maintenance thereof. Code
§ 36-99(A); see also Code § 36-98 (mandating the promulgation of such regulations). The Board
also regulates the enforcement of the Building Code. Code § 36-99(A). The General Assembly
has vested the Board with discretion to “modify, amend or repeal” the Building Code “from time
to time.” Code § 36-102. Accordingly, the Board updates the Building Code triennially based
on amendments to the International Code Council’s model standards. Code Development
Process, Va. Dep’t of Hous. & Cmty. Dev., https://perma.cc/F2EB-TBW2; 2024 Code
Development Cycle, Va. Dep’t of Hous. & Cmty. Dev., https://perma.cc/XG34-G9FT. In fact,
the Board must give “due regard” to “standards of the International Code Council.” Code
§ 36-99(B). The General Assembly strengthened this requirement in 2021, requiring the Board
to “consider adopting Building Code standards that are at least as stringent as those contained in”
subsequent versions of the International Energy Conservation Code (IECC). 2021 Va. Acts
Spec. Sess. I ch. 425.
The Sierra Club “was an active participant throughout the Board’s 2021 Code
Development Cycle.” It is an advocacy organization interested in “enhancing public health and
the environment and practicing and promoting the responsible use of the Earth’s ecosystems and
resources.” To advance its interest in energy efficiency, the Sierra Club “advocates for robust
1
We review the facts pleaded in the light most favorable to the complainants. Coward v. Wellmont Health Sys., 295 Va. 351, 358 (2018). We take as true facts alleged in the pleadings and reasonable inferences to be had. Harris v. Kreutzer, 271 Va. 188, 195 (2006). But we disregard inferences that are “strained, forced, or contrary to reason” and conclusions of law contained in the pleadings. Coward, 295 Va. at 359 (quoting County of Chesterfield v. Windy Hill, Ltd., 263 Va. 197, 200 (2002)).
-2-building codes.” It also conducts business out of buildings subject to the Building Code in
Virginia. Absent heightened energy-efficiency standards, the Sierra Club avers it shoulders
“higher utility bills and difficulty in finding energy-efficient housing and commercial space.” In
support of its interests, the Sierra Club presented testimony and submitted technical comments
and 16 separate amendment proposals for the Board’s consideration in its development cycle.
Consistent with the Board’s statutory mandates and discretion and following the
promulgation of the 2021 IECC, the Board issued a Notice of Intended Regulatory Action on
November 22, 2021. Alongside other proponents, the Sierra Club submitted three proposals for
the Board’s consideration. First, it proposed adopting the 2021 IECC standards in full, which
would have resulted in cost savings for consumers but marginally increased the burden on
builders. Then, in two separate proposals, it proposed updated wall insulation and air leakage
standards to comply with the 2021 IECC standards that had been frozen since 2012 at the
benchmark set by the 2009 IECC standards. Builders opposed the proposals, citing costs. The
Board ultimately rejected all three proposals for a lack of unanimous support. In their place, the
Board adopted a non-consensus proposal that would reduce certain energy-efficiency standards
to reflect the requirements of the 2006 IECC. After a public hearing, the Board adopted its final
regulation, reflecting rolled-back energy-efficiency standards.
The Sierra Club, Burke, Gayer, and Penniman timely petitioned the circuit court for
review of the Board’s new Building Code. Burke pleaded that he had an economic interest in
heightened energy-efficiency standards beyond the advocacy interests he shared with the Sierra
Club. Burke suffers from facioscapulohumeral muscular dystrophy and is preparing for a future
where he would be wheelchair-bound. In his search for accessible housing, Burke has prioritized
energy-efficient features, in part to lower his utility costs, reduce his environmental footprint,
and improve resilience to natural disasters. Despite having viewed hundreds of potential homes,
-3-he asserts that Virginia’s outdated Building Code artificially limits his ability to secure housing
that meets his accessibility and energy-efficiency needs. Alongside his co-petitioners, Burke
argued that the Board acted arbitrarily and capriciously by rejecting Sierra Club’s proposals and
by adopting the proposal that the Board did. The petitioners claimed that the Board’s decision
lacked evidentiary support. And, separately, they argued that the Board failed to comply with
statutory procedural requirements, including that it hold public hearings before publication and
that it make certain findings of fact and conclusions of law.
The Board demurred to Sierra Club’s petition, arguing that the petitioners failed to
establish standing. The circuit court sustained the Board’s demurrer with prejudice. The court
agreed with Sierra Club that “claims arising by statute reduce the question of standing to
statutory interpretation,” obviating the need for constitutional standing. But it concluded that
Sierra Club and its co-petitioners lacked statutory standing under the VAPA since none of them
could allege “a negative departure from their present circumstances.” This appeal follows.
ANALYSIS
Sierra Club argues that the circuit court’s standing ruling runs contrary to the legislature’s
intent reflected in the VAPA. Reviewing the matter de novo, Friends of the Rappahannock v.
Caroline Cnty. Bd. of Supervisors, 286 Va. 38, 44 (2013), we agree.
Established principles govern our interpretation of statutes. Our objective is to “ascertain
and give effect to legislative intent” as determined from the statute’s words. Berry v. Bd. of
Supervisors, 302 Va. 114, 127 (2023). We prefer “plain, obvious, and rational” interpretations
over “curious, narrow, or strained” ones. Taylor v. Commonwealth, 298 Va. 336, 342 (2020)
(quoting Lawlor v. Commonwealth, 285 Va. 187, 237 (2013)). If the statute’s language is clear
and unambiguous, we rely “on the plain words, and no interpretation is necessary.” Tanner v.
-4-Commonwealth, 72 Va. App. 86, 99 (2020). Dictionary definitions and precedent clarify the
plain meaning of a statute’s language. Perry v. Commonwealth, 84 Va. App. 165, 170 (2025).
Under Code § 2.2-4026(A), “[a]ny person affected by and claiming the unlawfulness of
any regulation” has a “right to the direct review thereof.” The statute’s language is clear and
unambiguous. A person is “affected by” a regulation if the regulation “act[s] upon,” “produce[s]
an effect upon,” or “produce[s] a material influence upon or alteration in” the person’s interests.
Affect, Webster’s Third New International Dictionary (2002). Virginia appellate courts have not
opined on the scope of the VAPA’s “affected by” standing. The most analogous authority
interpreting the phrase “affected by” is Continental Baking Co. v. Charlottesville, 202 Va. 798
(1961).2 There, our Supreme Court considered whether a trial court properly denied more than a
thousand residents’ motions to intervene in the City of Charlottesville’s petition to annex
territory in Albemarle County. Cont’l Baking, 202 Va. at 800. Under the relevant statute, “any
persons affected by the proceeding” could appear as “parties defendant” in the action. Id. at 804.
Because the movants were “residents and taxpayers in areas directly affected by the proposed
annexation,” our Supreme Court concluded the trial court erred. Id. at 805. That the movants
did not own property being annexed was of no moment. Id. at 804.
Federal decisions interpreting § 702 of the Administrative Procedure Act provide only
limited guidance. True, the General Assembly modeled Virginia’s former General
2
Without controlling authority, however, the parties turn to one of our unpublished opinions for guidance. In Kwiatkowski v. State Board for Community Colleges, No. 1292-22-4 (Va. Ct. App. Sept. 5, 2023), concerned citizens challenged a regulation directing certain community colleges to consider changing their names in accordance with a naming policy. Id., slip op. at 2-3. Reasoning that “affected by” standing requires more than “generalized grievances,” the Court held the citizens lacked standing since they “failed to allege any interest in th[e] suit, even as basic as alumni status.” Id. at 4-5. Although unpublished and therefore nonbinding, Kwiatkowski correctly recognized that a generalized disagreement with governmental action, untethered from any personal interest, is insufficient to establish that a person is “affected by” a regulation.
-5-Administrative Agencies Act in response to the federal regime, which governed from the 1940s
until the VAPA’s adoption. See Va. Code Comm’n, Administrative Process Act, H. Doc. No. 26,
at 703 (1975). But the VAPA materially departs from the Administrative Procedure Act’s
language, reflecting a distinct statutory scheme that achieves similar objectives through
comparable procedural frameworks. This matters because the Court presumes “the General
Assembly chose, with care, the words it used in enacting the statute.” PKO Ventures, LLC v.
Norfolk Redevelopment & Hous. Auth., 286 Va. 174, 183 (2013) (quoting Kiser v. A.W.
Chesterton Co., 285 Va. 12, 19 n.2 (2013)). The General Assembly certainly is capable of
adopting, wholesale, language from federal statutes when doing so is advantageous. Compare,
e.g., 18 U.S.C. § 3553(f)(2)-(5) (setting forth fact findings predicate to the invocation of a
sentencing safety valve in the Controlled Substances Act), with Code § 18.2-248(C)(3)(b)-(e)
(providing, nearly verbatim, the same predicate fact findings to invoke the sentencing safety
valve to Virginia’s Drug Control Act). And when the General Assembly chooses to do so,
federal cases may be “highly persuasive.” NAACP (Hanover Cnty. Chapter) v. Commonwealth
ex rel. Va. State Water Control Bd., 74 Va. App. 702, 716-17 (2022) (per curiam) (quoting
Fernandez v. Comm’r of Highways, 298 Va. 616, 619 (2020)). Not so here.
At bottom, the classes of litigants who may challenge an agency’s rulemaking action
under the VAPA versus the Administrative Procedure Act differ in scope. Under the
Administrative Procedure Act, any “person suffering legal wrong because of agency action, or
adversely affected or aggrieved by agency action within the meaning of a relevant statute, is
entitled to judicial review thereof.” 5 U.S.C. § 702. The United States Supreme Court has
interpreted this language to confer standing on those who “have suffered a sufficient
injury[-]in[-]fact” such that “the interest sought to be protected by the complainant [must be]
arguably within the zone of interests to be protected or regulated by the statute.” Nat’l Credit
-6-Union Admin. v. First Nat’l Bank & Tr. Co., 522 U.S. 479, 488 (1998) (third alteration in
original) (quoting Ass’n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153
(1970)), superseded by statute on other grounds, Credit Union Membership Access Act,
Pub. L. No. 105-219, 112 Stat. 913, as recognized in Am. Bankers Ass’n v. Nat’l Credit Union
Admin., 271 F.3d 262, 265 (D.C. Cir. 2001). Whatever the precise source of those federal
standing requirements, they arise in a statutory and constitutional framework materially different
from the one the General Assembly enacted in Code § 2.2-4026(A).
In contrast, the VAPA grants judicial review to any “person affected by and claiming the
unlawfulness of any regulation or party aggrieved by and claiming unlawfulness of a case
decision.” Code § 2.2-4026(A). Unlike its federal analogue, the VAPA expressly differentiates
between those challenging agency adjudicatory actions from those challenging agency
rulemaking actions. See Va. Marine Res. Comm’n v. Clark, 281 Va. 679, 688 n.4 (2011),
overruled on other grounds by Woolford v. Va. Dep’t of Tax’n, 294 Va. 377, 390 n.4 (2017).
By choosing the phrase “affected by” for regulation challenges while requiring a party to be
“aggrieved” to challenge a case decision, the General Assembly established different thresholds
for obtaining judicial review in the two contexts. See Va. Beach Beautification Comm’n v. Bd. of
Zoning Appeals, 231 Va. 415, 419 (1986) (holding that the term “aggrieved” requires “some
direct interest in the subject matter of the proceeding that he seeks to attack”). Accordingly,
Code § 2.2-4026(A) does not require a challenger to satisfy the federal “injury-in-fact” and
“zone-of-interests” tests developed under § 702 of the Administrative Procedure Act. Rather, the
statute asks whether the challenged regulation affects the person’s interests. Make no mistake:
this requirement nevertheless demands more than a mere ideological disagreement with the
regulation; the challenger must allege that the regulation affects some personal interest. Reading
-7-more into the statute would “add a material provision to the statute rather than to give effect to it
as written.” Cont’l Baking, 202 Va. at 804.
We conclude then that the circuit court applied the wrong standard when evaluating
whether Sierra Club had statutory standing under the VAPA. Therefore, we remand this matter
to the circuit court for it to consider, in the first instance, whether the Sierra Club petitioners,
individually or collectively, meet the “affected by” threshold under the VAPA. See
Commonwealth v. Holland, 304 Va. 34, 38 (2025) (“Appellate courts are courts of review, not
first view.”).
CONCLUSION3
Accordingly, we reverse the judgment of the circuit court and remand for further
proceedings consistent with this opinion.
Reversed and remanded.
3
Both parties raise arguments about whether Sierra Club satisfies the strictures of common-law or constitutional standing. Sierra Club analyzes this issue as distinct from statutory standing, maintaining that it need only establish the latter. The Board collapses the inquiry with statutory standing, concluding that Sierra Club’s allegations fail to establish an injury-in-fact. But the circuit court ruled that “claims arising by statute reduce the question of standing to statutory interpretation.” Neither party assigned error to this conclusion. Therefore, because “the scope of argument on appeal is limited by the assignments of error,” Dudley v. Est. Life Ins. Co., 220 Va. 343, 348 (1979), we are not permitted to consider these constitutional standing arguments. Cf. Amazon Logistics, Inc. v. Va. Emp. Comm’n, 304 Va. 107, 112 (2025) (holding arguments are waived “when the argument on brief, even if carefully crafted and legally persuasive, nonetheless has little, if anything, to do with the assignment of error” (quoting AlBritton v. Commonwealth, 299 Va. 392, 412 n.12 (2021))). We leave open the question of whether a party who satisfies VAPA’s statutory standing requirements must also establish constitutional standing.
-8-