[Ord. of 7-27-1987; Ord. of 6-23-1997(1)]
The following words and phrases, when used in this article, shall have the meanings ascribed to them in this section:
CODE OFFICIAL
The Building Official.
ENFORCING AGENCY
The Building Department or Building Official.
MUNICIPALITY
The City of Franklin.
[Ord. of 7-27-1987]
The enactment of this article is deemed necessary in order to preserve the health, safety and general welfare of the citizens of the City and to assure the proper construction, alteration, additions, repair, removal, demolition, use, location, occupancy and maintenance of all buildings and structures and their service equipment within the City.
[Ord. of 7-27-1987; amended by Ord. No. 89-5, 4-24-1989; Ord. No. 91-11, 7-22-1991; Ord. of 11-28-1994; Ord. of 6-23-1997(1)]
(a) 
There is hereby adopted by reference the 1996 edition of the Virginia Uniform Statewide Building Code and supplements thereto as adopted and promulgated by the State Board of Housing and Community Development. The provisions of such code shall control all matters concerning the construction, alteration, addition, repair, removal, demolition, use, location, occupancy and maintenance of all buildings and structures in the City as set forth therein except as otherwise provided in § 6-1 of this chapter. The provisions of such code shall also control all other functions which pertain to the installation of systems vital to all buildings and structures and their service equipment, as defined by such code, and shall apply to existing and proposed buildings and structures in the City.
(b) 
All construction, alteration or repair of buildings or structures, or the installation of plumbing, piping and wiring, mechanical or electrical equipment in or upon such buildings, structures or premises shall be reasonably safe to persons and property and in conformity with the provisions of such code and all orders, rules and regulations issued by authority thereof. Conformity of construction or installations of equipment with regulations set forth in such code shall be prima facie evidence that construction or installations are reasonably safe to persons and property.
(c) 
Pursuant to Code of Virginia, § 1-13.39:2, it is intended that any future amendments of the provisions of the Virginia Uniform Statewide Building Code made applicable within the City by this article shall be deemed to be incorporated into this article on the effective date of such amendments.
[1]
Editor's Note: Former § 6-24, which pertained to the adoption of the Building Maintenance Code, adopted by the Ord. of 7-27-1987, as amended, was repealed by the Ord. of 6-23-1997.
[Ord. of 7-27-7; amended by Ord. No. 89-5, 4-24-1989; Ord. No. 91-11, 7-22-1991; Ord. of 11-28-1994; Ord. of 6-23-1997(1)]
Ordinances or parts thereof in force at the time this article shall take effect, which are inconsistent with this article, are hereby repealed; provided, that the zoning ordinance of this Code shall in no way be nullified by the provisions of this article, except as may be specifically required by the Virginia Uniform Statewide Building Code, as amended from time to time.
[Ord. of 7-27-1987]
Copies of the Virginia Uniform Statewide Building Code are available to members of the public in the office of the state department of housing and community development and shall be offered for sale, when available, at the office of the Building Official during regular business hours.
[Ord. of 7-27-1987; amended by Ord. No. 2004-13, 5-24-2004; Ord. No. 2005-11, 5-23-2005]
(a) 
Fee for appeal from decision of Building Official or code official. The fee for an appeal from the decision of the Building Official or code official under § 6-30 shall be $100.
(b) 
Fee for application for modification of provisions of Virginia Uniform Statewide Building Code. The fee for an application for modification of a provision or provisions of the Virginia Uniform Statewide Building Code shall be $100.
(c) 
Permit not issued until fees paid. On all buildings, structures, alterations or repairs requiring a building permit, including plumbing, electrical, and mechanical installation, as defined in the building code, plumbing code, electrical code and mechanical code as adopted by this commonwealth and entitled the Virginia Uniform Statewide Building Code (VUSBC), no permit to begin work shall be valid until the fees prescribed in this schedule shall have been paid to the bureau of inspections except for structures, buildings, equipment, machines and infrastructure improvements made exempt from permit fees by the VUSBC as it is amended from time to time.
(d) 
Exceptions to exemptions above. Notwithstanding the provisions of Subsection (c) above a building or portion of a building located on a farm that is operated as a restaurant as defined in Code of Virginia, § 35.1-1, and licensed as such by the Board of Health under Code of Virginia, Title 35.1, Ch. 2, shall require payment of building, plumbing, electrical and mechanical installation permit fees, and farm buildings otherwise exempt from permit fees which lie within a flood plain or in a mudslide-prone area shall be subject to flood proofing or mudslide regulations, as applicable.
(e) 
Additional fee for special plan review.
(1) 
An additional fee shall be paid by the applicant when plans of special design are filed with the department of community development, and the determination of the Building Official is that, in order to satisfy safety and liability issues, such plans need to be forwarded to the International Code Council (ICC) or other approved agency for review. The fee for this review shall be the fee charged by the ICC or other approved agency and shall be in addition to any other fees required by this section.
(2) 
Plan reviews conducted by the local Building Department. The fees shall be as follows based on gross floor area. Gross floor area shall be the floor area within the perimeter of the outside walls of the building under construction without deduction for hallways, floor openings, closets, and thickness of walls, columns or other features.
[Amended 4-28-2014]
Building Area Per Floor
(square feet)
Fee
2,499 or less
$50
2,500 to 5,000
$75
5,001 to 10,000
$100
10,001 to 30,000
$200
30,001 to 40,000
$300
Every additional 10,000 or a portion thereof
$100
(3) 
Accessory structures (including but not limited to garages, carports, sheds, swimming pools, spas and decks): $25.
(4) 
Fees for repeated reviews. Plans requiring a third review due to missing construction documents will be charged a new review fee: fee based on the schedule above.
(f) 
Permit applications.
(1) 
Applications for permits shall be made by the owner or lessee of the building or agent of either, or by the licensed professional engineer, architect, contractor, or subcontractor, or their respective agents, employed in connection with the proposed work. Once issued, permits shall not be transferable to another owner, lessee, licensed professional or agent thereof.
(2) 
Applications for permits shall be accompanied by a drawing showing to scale the size, use and location of all existing structures and improvements; the proposed construction and the distances of proposed construction from existing structures and improvements, from lot lines and from private and public easements and rights-of-way. Construction within easements and rights-of-way shall be prohibited unless the applicant provides evidence that the owner or beneficiary of the easement or right-of-way has authorized the construction.
(g) 
Penalty for stop-work orders. When the Building Official finds that work on any building is being performed contrary to the provisions of the VUSBC or in a manner endangering the general public, he or she shall issue a stop-work order immediately. The penalty for stop-work orders issued by the bureau of inspections shall be $20 and must be paid by the person(s) responsible for the faulty performance of such work before the stop-work order is lifted.
(h) 
Reinspection fees. Whenever the Building Official shall determine that a second or additional inspection trip is necessary due to the failure of an owner, contractor or subcontractor to properly correct faulty work or whenever an inspection has been requested before the work to be inspected has been completed to the degree required; or whenever the inspector cannot obtain reasonable access to the work to be inspected, the inspector shall assess a service charge of $20. Such charge shall be chargeable to the holder of the permit covering such work and shall be paid prior to inspection or reinspection of such work.
(i) 
Permit extension and suspension. Any permit issued shall become invalid if the authorized work is not commenced within six months after issuance of the permit; or if the authorized work is suspended or abandoned for a period of six months after the time of commencement of the work; the failure to complete enough work to schedule an inspection during any six-month period may be grounds for finding that work has been abandoned or suspended; however, permits issued for building equipment such as plumbing, electrical and mechanical work shall not become invalid if the building permit is still in effect. Upon written request, and for good cause shown, the Building Official may grant one or more extensions of time not to exceed six months per extension. Such request shall be in writing and submitted prior to the permit becoming invalid. The fee shall be $20 per extension.
(j) 
Fees based on construction valuation. Where the provisions of this section require the payment of a fee based on the current value of all services, labor and material, the Building Official may require that a detailed cost estimate be submitted for review and approval as a prerequisite to the issuance of any permit.
(k) 
Refunds of fees. The Building Official may authorize the refunding of any permit fee paid pursuant to this section upon application by the person who paid such fee under the following conditions:
(1) 
If an applicant requests in writing the cancellation of a permit prior to the start of construction or requests for inspections, the permit fees, less a service charge of $20 and the plan review fee, if applicable, shall be refunded.
(2) 
If an applicant requests in writing the cancellation of a permit after the work authorized by the permit has begun and inspections have been made, the permit fees, less a $20 service charge, a $20 charge for each inspection made and the plans review fee, if applicable, shall be refunded.
(3) 
The above provisions notwithstanding, no refund shall be made if six months have expired since the issuance of the permit(s).
(l) 
Fee for appeal. For each appeal to the Building Code Board of Appeals, the fee shall be $100.
(m) 
Building permits. A building permit shall be required for the following types and classes of activities. Electrical, plumbing and mechanical work is not covered by a building permit and, if such work is to be performed, separate permits shall be obtained, and the applicable fees shall be paid. No building permit shall be issued unless and until a certificate of zoning compliance, as required by the City code, has been obtained from the zoning administrator. Fees for building permits shall be as follows:
[Amended 4-28-2014]
Type
Fee
(1)
For new construction (including additions in all use groups). Fee based on square feet of gross floor area. Includes manufactured (HUD) homes, modular industrialized building units, garages, sheds, decks and porches, etc.
Gross floor area shall be the floor area within the perimeter of the outside walls of the building under construction without deduction for hallways, floor openings, closets, thickness of walls, columns, or other features.
0 — 500 square feet
$50
501 — 1,000 square feet
$80
1,001 — 1,500 square feet
$110
1,501 — 2,000 square feet
$160
2,001 — 2,500 square feet
$200
2,501 — 3,000 square feet
$250
3,001 — 3,500 square feet
$290
3,501 — 4,000 square feet
$340
4,001 — 4,500 square feet
$380
4,501 — 5,000 square feet
$430
5,000+ square feet
$450, plus $40 for each 500 square feet or fraction thereof in excess of 5,000 square feet
(2)
(Reserved)
(3)
For the alteration or repair of any building or structure; the construction or erection of piers, bulkheads, towers, swimming pools, or pool systems; the installation of fire alarm systems; the installation of security or energy systems; the installation of site illumination; the removal of asbestos; and any other additions or alterations to these or similar structures or systems. Fee based on current value of all service, labor, and material
0 — $1,000
$25
$1,001 — $5,000
$45
Greater than $5,000
$50, plus $20 for each $5,000 or fraction thereof, of value in excess of $5,000
(4)
For the installation or erection of a manufactured home or industrialized building unit
Same as Subsection (1) above
(5)
For the placing of tents or movable structures, each
$25
(6)
Annual permit as defined in VUSBC
$50
(7)
For the demolition or razing of any building or structure, each
$25
(8)
For the removal and placement of an existing building or structure, in part or in whole, from one location to another to another new location, whether or not the new location is on the same lot or parcel of land
$50
(9)
For the installation of walls or fencing, whether wood, metal, masonry, or other material, each
$25
(10)
For construction not covered by any of the above, the permit fee shall be assessed and collected at the rate of 1% of the retail value or current market value of the work being done, provided that the minimum permit fee shall be
$25
(n) 
Plumbing permits. A plumbing permit shall be required for any work which includes but is not limited to the installation or alteration of plumbing fixtures or water supply systems, and connections to any building drain, public or private sanitary sewage system, or manufactured or mobile home hookup.
Type
Fee
(1)
New residential — R-3 and R-4 use groups (including water and sewer lateral), per dwelling unit
$50
(2)
Additions, alterations and repairs — R-3 and R-4 use groups (including additions), per dwelling unit
$25
(3)
New commercial (including additions)
$50, plus $15 per bathroom group as defined in the National Plumbing Code
(4)
Alterations and repairs (all use groups)
$25
(5)
Water, sewer, and/or gas lines
$25
An additional fee of $20 will be charged if the septic tank is abandoned.
(6)
Fire suppression systems
0 — $1,000 in value
$25
$1,001 — $2,000
$40
Over $2,000
$40, plus $5 for each additional $500, or fraction thereof, of value in excess of $2,000
(o) 
Electrical permits. An electrical permit shall be required for the following types and classes of activities. Fees for said permits shall be as indicated.
[Amended 4-28-2014]
Type
Fee
(1)
Residential R-4 and R-5 use groups
Temporary service for construction (temporary pole)
$25
0 — 200 amperes, per dwelling unit
$50
Greater than 200 amperes, per dwelling unit
$50, plus $25 for each additional 100 amperes, or fraction thereof, in excess of 200 amperes
(2)
Commercial and industrial
0 — 200 amperes
$50
Greater than 200 amperes
$50, plus $25 for each additional 50 amperes, or fraction thereof, in excess of 200 amperes
(3)
Service upgrades, including panel change-out
0 — 200 amperes, per dwelling unit
$50
Greater than 200 amperes, per dwelling unit
$50, plus $25 for each additional 100 amperes, or fraction thereof, in excess of 200 amperes
(4)
Electrical additions and alterations of branch circuits; provided, however, that no additional fee shall be assessed where service has been upgraded
$25, plus $5 for each additional $500, or fraction thereof, of value in excess of $2,000
(5)
Temporary electrical service
$25
(p) 
Mechanical permits. A mechanical permit shall be required for the following types and classes of activities. Fees for said permits shall be as indicated.
Type
Fee
(1)
For the installation, replacement, repair, or alteration of mechanical systems or equipment, or freestanding fireplaces, solid fuel stoves, elevators, dumbwaiters, moving stairs and walks, manlifts, hoisting or conveying equipment, amusement devices, and other mechanical installations or alterations
a.
New residential (R-3 and R-4 use groups) per dwelling unit
$50
b.
Alterations, repairs, additions (R-3 and R-4 use groups) per dwelling unit
$25
c.
New commercial, including additions
0 — 1,000 square feet
$25
1,001 — 3,000 square feet
$50
Greater than 3,000 square feet
$50, plus $10 for each additional 500 square feet in excess of 3,000 square feet
d.
Alterations and repairs
$25
(2)
L.P.G. (i.e., butane, propane, etc.) tanks and associated piping (total water capacity in gallons)
0 — 500 gallons
$25
501 — 2,000 gallons
$30
Over 2,000 gallons
$40
(3)
Tanks and associated piping for flammable and combustible liquids (capacity in gallons per tank)
0 — 10,000 gallons
$25
10,001 — 20,000 gallons
$30
20,001 — 50,000 gallons
$40
Over 50,000 gallons
$50
(4)
Removal of underground storage tanks (UST)
Removal of fuel storage tanks (minimum)
$25
Multiple tanks, each
$15
(5)
Commercial cooking hoods
$25
(6)
Hood suppression systems
$25
(q) 
Sign permits.
Type
Fee
(1)
A sign permit shall be required for the erection, relocation, or structural alteration of all signs. No sign permit shall be issued unless and until a certificate of zoning compliance, as required by the City Code, has been obtained from the zoning administrator. The fee for such permits shall be as follows.
Base fee
$35
In addition to the main sign for the address, the base fee includes all signs with a total aggregate square footage sign face area of 10 square feet or less for each sign (includes entrance, exit, and directional signs).
For erection and/or relocation of signs; fee is determined by base fee plus area fee. Area fee shall be determined by total square footage area of all sign faces of each sign.
Area of Sign Faces
Additional Fee
0 — 50 square feet
$10
51 — 100 square feet
$20
101 — 300 square feet
$30
Over 300 square feet
$40
(2)
For structural alterations
$20 plus the applicable amount from the above table matching the increase, if any, in sign area. In addition to the permits for material installation, if the sign is illuminated, an electrical permit shall be required.
(r) 
Miscellaneous permits.
Type
Fee
(1)
Annual operating permits for other than landscape irrigation systems for R-4 and R-5 (backflow devices, elevators, fire suppression systems, etc.) The owners/operators of establishments having such facilities shall be responsible for obtaining the permits, and for paying the requisite fee, at least 30 days prior to the expiration of the then-in-effect annual permit. The applicant shall have the inspection performed by a certified individual in the presence of an inspector and shall submit the inspection report to the Building Official not later than 30 days after the inspection has been conducted.
[Amended 4-28-2014]
Annual inspection
$40
(2)
In addition to permits for material installation, all amusement devices and rides shall be subject to an annual permit and inspection, as required in the amusement device regulations of the USBC, prior to each seasonal opening. The owner/operator of an establishment having such facilities shall be responsible for obtaining the permit and paying the requisite fee, at least 30 days prior to the expiration of the then-in-effect annual permit. In addition, all of the above shall be subject to the operation inspection as required in the amusement device regulations of the USBC.
Each ride, annual inspection
$35
Operation inspection-entire park or facility
$75
When a third-party inspector (not an employee of the City of Franklin) is utilized by the owner/lessee to make the required amusement device inspections, an administrative fee of $75 shall be paid by such owner or lessee.
(3)
A permit and inspection shall be required for rides that consist principally of portable devices temporarily situated at a site, and as defined in Section 600.6.1 of the 1987 edition of the Virginia Amusement Device Regulations, as amended, 1990.
Amusement Device (As defined in the Virginia Uniform Statewide Building Code)
a.
Kiddie ride, per ride
$15
Definition: An amusement ride designed primarily for use by children up to 12 years of age that requires simple reassembly procedures prior to operation, and that does not require complex inspections prior to operations. Examples of kiddie rides include, but are not limited to the following:
Airplane Swing
Alligators
Amtrak Train
Bear in the Air
Bulgy the Whale
Bumble Bees
Caterpillar Train
Clown-A-Round
Clown Pillow
Convoy
Flying Saucer
Giant Slide
Go-Gator Coaster
Italian Kiddie Swings
Jolly Caterpillar
Kiddie Boats
Kiddie Car
Kiddie Ferris Wheel
Kiddie Motorcycles
Kiddie Train
Kiddie Tubs-O-Fun
Merry-Go-Round
Mini Bumper Cars
Mini Scrambler
Moon Walk
Motorcycle Jumps
Red Baron
River Canoes
Sky Fighter
Space Castle
Turnpike Autos
b.
Major ride, per ride
$25
Definition: Major ride means "flat ride" or "circular ride", as defined by ASTM Standards on Amusement Rides and Devices,* not classified as "spectacular ride" or "kiddie ride", that may be inspected principally from the ground (i.e., inspector remains within a height not greater than 20 feet off the ground or loading platform). Examples of major rides include, but are not limited to the following:
All "Dark Rides"
Astro Liner
Bumper Boats
Bumper Cars
Double Loop
Far Out
Gravitron
Hurricane
Jules Vern
Rock-O-Plane
Round-Up
Scrambler
Side Winder
Spider
Tempest
Tilt-A-Whirl
Tip Top
Tub-O-Fun
Twister
c.
Spectacular ride, per ride
$45
Definition: Spectacular ride means "high ride," "flat ride," or "circular ride," as defined by ASTM Standards on Amusement Rides and Devices,* which because of their height, size, length, capacity, or complexity of assembly and operation require a greater amount of inspection effort. Examples of spectacular rides include but are not limited to the following:
Armour
Cortina Bobs
Ferris Wheel
Flying Bobs
Galactica
Giant Wheel
Himalaya
Log Flume
Looping Star
Music Express
Music Fest
1001 Nights
Paratrooper
Pirate Ship
Roller Coasters
Galaxy
High Rise
Loch Ness Monster
Ranger
Rebel Yell
Shock Wave
Toboggan
Wild Mouse
Sky Diver
Sky Wheel
Super Cat
Super Himalaya
Super Loop
Super Roundup
Swiss Bobs
Viking Ship
Wave Swinger
Yo Yo
Zipper
*ASTM Definitions (ASTM Designation: F 747-86)
Circular ride: An amusement ride whose motion is primarily rotary in a fixed or variable plane from horizontal to 45° above horizontal.
Flat ride: An amusement ride that operates on a single level whether over a controlled, fixed course or tract, or confined to a limited area of operation.
High ride: An amusement ride whose motion is in a fixed or variable plane from horizontal or vertical.
[Ord. of 7-27-1987; amended by Ord. of 11-28-1994; Ord. of 6-23-1997(1); Ord. of 2-22-1999(3)]
(a) 
There is hereby established a Building Code Board of Appeals consisting of five members in accordance with the Virginia Uniform Statewide Building Code.
(b) 
Members shall be selected by City Council on the basis of their ability to render fair and competent decisions regarding the Uniform Statewide Building Code and § 6-1 of this chapter, and to the extent such persons are available the Building Code Board of Appeals shall consist of the following:
(1) 
Registered design professional who is a registered architect or a builder or superintendent of building construction with at least 10 years' experience, five of which shall have been in responsible charge of work.
(2) 
Registered design professional with structural engineering or architectural experience.
(3) 
Registered design professional with mechanical or plumbing engineering experience or a mechanical or plumbing contractor with at least 10 years' experience, five of which shall have been in responsible charge of work.
(4) 
Registered design professional with electrical engineering experience or an electrical contractor with at least 10 years' experience, five of which shall have been in responsible charge of work.
(5) 
Registered design professional with fire protection engineering experience or a fire protection contractor with 10 years' experience, five of which shall have been in responsible charge of work.
(c) 
City Council shall also appoint a secretary to the Building Code Board of Appeals to maintain a detailed record of all proceedings.
[Ord. of 7-27-1987; amended by Ord. of 12-11-1995(1)]
Members of the Building Code Board of Appeals shall first be appointed by the City Council as follows: two members for four-year terms, one member for a three-year term, one member for a two-year term and one member for a one-year term. Subsequent appointments shall be for terms of four years each. No member shall serve more than two consecutive four-year terms.
[Ord. of 7-27-1987; amended by Ord. of 11-28-1994]
The Building Code Board of Appeals shall hear appeals from decisions of the Building Official or Code Official based on any of the following claims:
(1) 
Incorrect application of the Virginia Uniform Statewide Building Code.
(2) 
Incorrect interpretation of the Virginia Uniform Statewide Building Code or rules adopted thereunder.
(3) 
Incorrect application or interpretation of § 6-1 hereinabove involving unsafe buildings, walls or other structures.
(4) 
Refusal to grant a modification to the Virginia Uniform Statewide Building Code covering the manner of construction, maintenance, use or materials to be used in the erection, alteration, maintenance or repair of a building or structure when it is asserted that such a modification is an equally good or better way to accomplish the work to be performed.
[Ord. of 7-27-1987; amended by Ord. of 11-28-1994; Ord. of 6-23-1997(1); Ord. of 2-22-1999(3)]
(a) 
The owner of a building or structure, the owner's agent or any other person involved in the design or construction of the building or structure may appeal a decision of the Building Official or code official on any of the grounds set forth in § 6-30 hereinabove.
(b) 
Appeals relating to construction shall be submitted within 30 calendar days of the decision of the Building Official. Appeals relating to maintenance shall be submitted within 21 days of the decision of the Building Official. Appeals relating to § 6-1 shall be submitted within 21 calendar days of the later of the return of the receipt or the second publication of the decision of the Building Official required by Subsection (b) of § 6-1 above.
(c) 
Any person filing an application for a hearing before the Building Code Board of Appeals shall pay a nonrefundable fee with the application in an amount provided for by ordinance of the City Council from time to time.
[Ord. of 7-27-1987; amended by Ord. of 11-28-1994; Ord. of 6-23-1997(1)]
(a) 
After final determination by the Building Code Board of Appeals, any person who was a party to an appeal involving the Virginia Uniform Statewide Building Code may further appeal to the State Building Code Technical Review Board by submitting an application to the board within 21 calendar days from receipt of the decision of the Building Code Board of Appeals.
(b) 
Decisions of the Building Code Board of Appeals involving § 6-1 of this chapter and decisions of the State Building Code Technical Review Board involving the Virginia Uniform Statewide Building Code may be appealed to the Southampton County Circuit Court by filing a notice of appeal and petition for review with the court within 30 calendar days after the date of the final order or final decision and by delivering a copy of the notice and the petition to the Building Official or the Code Official. In the event that the appeal is from the State Building Code Technical Review Board or any of its divisions the notice of appeal shall also be filed with the secretary of that board. The filing of the appeal shall not act to stay the order or effect of the decision from which the appeal is taken. Within five working days after receipt of the notice, the Building Official or Code Official in cases involving § 6-1 of this chapter, and the secretary of the State Building Code Technical Review Board in all other cases shall file in the record of the suit a statement of the reason, including any findings of fact and/or conclusion of law, upon which the order or decision appealed from was based. Further proceedings shall be in accordance with equity jurisdiction and procedure. The court may render its judgment upon the record or it may hear any additional evidence it deems appropriate.
(c) 
The court may affirm the final order or decision from which the appeal has been taken, it may remand the matter for further proceedings or it may reverse or modify the order or decision on appeal if the substantial rights of the appellant have been prejudiced because the order or decision was:
(1) 
In violation of any constitutional provision;
(2) 
In excess of lawful authority or jurisdiction;
(3) 
Made upon unlawful procedure;
(4) 
Affected by other error of law;
(5) 
Unsupported by the evidence on the record considered as a whole; or
(6) 
Arbitrary capricious or an abuse of discretion.