COURT OF APPEALS OF VIRGINIA
Present: Judges O’Brien, Russell and Retired Judge Bumgardner* UNPUBLISHED
Argued at Norfolk, Virginia
CYNTHIA M. OWENS AND RICHARD L. OWENS MEMORANDUM OPINION** BY v. Record No. 1707-17-1 JUDGE WESLEY G. RUSSELL, JR. AUGUST 7, 2018 CITY OF VIRGINIA BEACH AND STATE BUILDING CODE TECHNICAL REVIEW BOARD
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH William R. O’Brien, Judge
Cynthia M. Owens for appellants.
Justin I. Bell, Assistant Attorney General; Tobias Eisenlohr, Assistant City Attorney (Mark R. Herring, Attorney General; Heather Hays Lockerman, Senior Assistant Attorney General; Mark D. Stiles, City Attorney; Beverly K. Wilson, Deputy City Attorney; Gregory D. Surber, Associate City Attorney, on brief), for appellees.
Cynthia and Richard Owens (“appellants”) appeal, pursuant to the Virginia Administrative
Process Act (“VAPA”), an order of the circuit court dismissing on mootness grounds their appeal
from a decision of the State Building Code Technical Review Board (“State Board”). The State
Board had dismissed as moot appellants’ appeal of the local board’s decisions related to a roofing
project at appellants’ condominium that was performed under a permit issued by the City of
Virginia Beach (“City”). Because there is no relief currently available to appellants related to the
project at issue, we affirm the judgment of the circuit court.
* Judge Bumgardner participated in the hearing and decision of this case in his capacity as a senior judge of this Court prior to July 1, 2018 and thereafter by designation pursuant to Code § 17.1-400(D). ** Pursuant to Code § 17.1-413, this opinion is not designated for publication. BACKGROUND
In December 2015, appellants hired a licensed Class A contractor (“first contractor”) to
renovate part of their condominium roof. The project entailed demolishing a small, flat portion of
the existing roof and then replacing it with a new pitched roof. Appellants hired a structural
engineering firm (“first engineering firm”) to create an engineering plan for the proposed work.
The first contractor applied for a building permit for the work from the City. The application
included the plan generated by the first engineering firm, which subsequently was revised. The City
issued a permit and work commenced.
In January 2016, the first contractor “demolished the existing flat roof; fastened the new
rafters to the ledger boards; framed a soffit; and installed plywood and fire retardant OSB roof
sheathing.” Prior to the roof being completely installed, the first contractor took pictures of the
work and presented them to the first engineering firm. The first contractor requested an inspection
from the City. The first engineering firm reviewed the photos and submitted them to the City with a
report indicating that “the ledger and rafter connections . . . appear to be installed according to the
plans prepared by [this] office.” Neither the City nor the first engineering firm visited the site. The
City accepted the first engineering firm’s report based on its written policy allowing for third-party
inspections and gave the project a “final” passing inspection status. The City subsequently agreed at
the hearing before the local review board that the passing status should have reflected “framing”
rather than “final.”
Six months after the initial passing inspection, appellants challenged the inspection and
requested “an onsite inspection of the roof deficiencies” as noted in an attached report prepared by
another roofing consultant hired by appellants. On June 28, 2016, the City responded by letter
stating it acknowledged appellants’ request to cite the first contractor and informing them that upon
its review of its records and information submitted by appellants that the City “will not cite the
-2- [first] contractor for building code violations.” Appellants then sent a letter seeking confirmation
that the City’s response constituted implied denials of requests for further inspection and to revoke
the passing inspection.
On July 13, 2016, appellants submitted a notice of appeal to the Virginia Beach Board of
Building Code Appeals (“local board”). The appeal to the local board specifically requested three
things: an order requiring that “an onsite inspection of the [first] contractor’s work” be performed;
that “the passing inspection of the work” done by the first contractor be “revoke[d]”; and that the
first contractor be cited “for violating the statewide building code.” In their request for relief,
appellants expressly requested that, for any remedial work required to bring the project to code, they
be allowed to use another contractor.
The local board held its review hearing on August 2, 2016. After much discussion of the
potential deficiencies in the inspection, the permitted design, and the first contractor’s work, the
local board asked appellants explicitly, “What do you want from here?” Appellants responded that
they wanted “the passing inspection [to] be revoked.” The local board then asked, “[I]f it is
revoked, what do you want?” Appellants indicated that they sought “revocation of that inspection.”
Appellants indicated that they did not wish for the first contractor to rip off the whole roof.
During the hearing, it was discussed that, when a notice of violation is issued, the deficient
contractor is given a period in which to cure the deficiency. Appellants reiterated their desire for the
first contractor to do no further work on the project and indicated that they were withdrawing their
request that the first contractor be cited. When it was reiterated that “[i]n order to cite a contractor
for a violation . . . the contractor has to have an opportunity to abate and correct the situation . . . ,”
appellants responded by indicating that they were no longer “asking for a citation of a violation” and
that they wished “to make this clear . . . .”
-3- The local board deliberated whether “to deny the appeal and uphold the decision of the
Building Code Official.” After the hearing, the local board issued a resolution denying the appeal.
On August 22, 2016, appellants filed an application of appeal of the resolution to the State Board.
While the appeal to the State Board was pending, appellants had a second structural
engineering firm (“second engineering firm”) review the plans for the project and visit the project
site to look at then-current conditions. The second engineering firm also reviewed photographs and
videos from prior construction and demolition. The second engineering firm prepared written
reports of their findings and opinions. Specifically, they opined that some of the new roof
construction had not been properly connected to the roof’s existing framing, per the plan. The
record also contains a letter from a third structural engineering firm that observed the project site as
it existed on September 27, 2016. This firm concluded that the soffit addition appeared to conform
with the original design and that the ceiling joists were within prescribed limits.
The State Board conducted its review hearing on January 20, 2017. At the hearing, the
City stated it had looked at new information and had decided to accept the letters from the other
roofing experts “as cause to reject the prior third-party inspection . . . dated January 6, 2016.”
The City noted that “the roof in question has been removed and destroyed.” The City stated that
it accepted the second engineering firm’s analysis as a third-party inspection under its policy.
The City further stated that, in accordance with the new inspection, it would issue a notice of
violation to the first contractor.
However, in the time intervening between their appeal to the local board and the State
Board hearing, appellants had obtained another permit for a different design. They hired a new
contractor (“second contractor”), who performed the work described in the new design. Thus, no
portion of the original work by the first contractor remained, and the roof put on by the second
contractor occupied the space where the original design was to be located. In short, the
-4- originally permitted project that was at issue in the appeal no longer existed and could no longer
be performed.
In the course of the hearing, the State Board asked appellants what was left to be done
given the concessions made by the City. Appellants responded:
[W]hat’s hanging out there judicially, in terms of an adjudication, is that there is no ruling and nothing to prevent [the City] from continuing in this practice . . . [because] there’s no ruling on whether or not . . . the local appellate board [] ruled properly[] that this third-party inspection was acceptable under the . . . code. If it was contrary to law, that’s something that is justiciable. It’s an issue that can and should be adjudicated. This could happen again.[1]
In its February 17, 2017 decision, the State Board addressed appellants’ contention
regarding the possible application of the City’s practice of accepting inspections based on
photographs. After noting that appellants contended that the practice was flawed and required
reevaluation, the State Board concluded that it did “not have any statutory authority over local
government policies” and declined to reach that issue. The State Board found that changed
circumstances regarding the original project and the City’s concessions rendered the enumerated
issues in appellants’ appeal to the local board moot.
Appellants then appealed the State Board’s decision to the circuit court pursuant to
VAPA. Appellants’ petition for appeal recited that the appeal before the local board concerned
the City’s “refusals to conduct an onsite inspection of work performed by a contractor[,] to
revoke the passing inspection of the contractor’s . . . work[, and] to cite the contractor for
violating the Uniform Statewide Building Code.” The petition then asserted that such “refusals
were based on the [City’s] approval of a so-called third-party inspection report (in lieu of an
1 Appellants recognized that third-party inspections were permissible; they objected to the City accepting an inspection, whether performed by a third-party or by the City, that was based only on photographic review as opposed to a site visit. -5- inspector performing an inspection), which appellants . . . argued was unlawful.” In response,
the City and State Board separately sought dismissal on the grounds that appellants failed to
“designate and demonstrate an error of law” as recognized under VAPA. The City further
contended the matter was moot.
The circuit court held a hearing on September 7, 2017. During argument, appellants
confirmed that the original project and the work done on it by the first contractor no longer
existed, conceding that “there’s nothing to inspect now.” Appellants insisted that, despite this,
they were entitled to a ruling on whether the City’s practice regarding acceptance of
photographic third-party inspections was valid because they might seek to have additional work
done on the condominium in the future.
The circuit court issued a verbal ruling from the bench at the conclusion of the hearing. It
granted the various motions filed by the City and the State Board, finding that the case was moot.
The circuit court memorialized its ruling in a September 29, 2017 order, which appellants now
appeal to this Court.
ANALYSIS
Appeals taken from the State Board are governed by VAPA. Code § 2.2-4026 provides that
“[a]ny . . . party aggrieved by and claiming unlawfulness of a case decision . . . shall have a right to
the direct review thereof by” the appropriate circuit court, whose judgment is further subject “to
appeal to or review by higher courts as in other cases . . . .” As provided by Code § 17.1-405, an
appeal from a circuit court’s decision in a VAPA appeal may be brought to this Court by “[a]ny
aggrieved party[.]”
However, before we can reach the issues raised in such an appeal, we must first determine
whether, although falling within our subject matter jurisdiction, the matter is otherwise properly
before us. Other considerations, such as the doctrines of mootness and standing, can prohibit us
-6- from addressing the merits of an appeal. Applying these doctrines to the issues raised by appellants,
we determine that, given the changed factual circumstances over the course of the litigation, there is
no longer a viable appellate claim that we can adjudicate on the merits.
I. Mootness
A case is moot if the relief requested by a litigant can no longer be granted, rendering any
determination by a court merely advisory. In describing the mootness doctrine, the Supreme Court
has observed, “‘[w]henever it appears . . . that there is no actual controversy between the
litigants, or that, if it once existed it has ceased to do so, it is the duty of every judicial tribunal
not to proceed to the formal determination of the apparent controversy, but to dismiss the case.’”
McCarthy Holdings LLC v. Burgher, 282 Va. 267, 275, 716 S.E.2d 461, 465 (2011) (quoting
Hankins v. Town of Virginia Beach, 182 Va. 642, 643, 29 S.E.2d 831, 832 (1944)).
The controversy here is framed by appellants’ initial pleading, the appeal they filed with
the local board. That appeal asserted that the decision of the local officials was in error and
entitled appellants to relief in three enumerated ways: (1) an onsite inspection of the work
performed by the first contractor; (2) revocation of the permit for the project undertaken by the
first contractor; and (3) that a citation be issued to the first contractor for allegedly substandard
work done while working on the project subject to that permit. The circuit court determined that
the changes in circumstances during the course of the litigation below had resulted in a situation
where no order of the circuit court could provide appellants with the requested relief, and
therefore, the case was moot. Reviewing each item of requested relief, we agree with the circuit
court.
A. Onsite Inspection of the Work Performed by the First Contractor
Appellants acknowledged before the circuit court and in argument before this Court that
all of the work performed on the project by the first contractor had been destroyed when
-7- appellants elected to have another contractor, operating under a different permit and set of plans,
build a new roof. Specifically, when questioned by this Court, appellants confirmed that there
was “no more work by [the first contractor] that could be subject to an onsite inspection.” Given
the concession that an onsite inspection of the work performed by the first contractor is
impossible, no order of this or any other court can grant appellants the relief requested.
Accordingly, the circuit court did not err in finding this claim for relief moot.
B. Revocation of the Original Permit
Appellants’ second request for relief was for an order compelling City officials to revoke
the passing inspection that allowed the initial project to go forward. As noted above, it is
undisputed that the project that was subject to the inspection no longer exists. The work that was
given a passing inspection has been destroyed, and the project subject to the initial permit ceased
to exist when the second contractor built a new project with a new design in the space where the
initial project was to be. Because the inspection at issue inextricably is tied to the initial work
and the initial project which no longer exist, whether the work received a passing inspection or
not is an irrelevancy. Accordingly, the circuit court did not err in finding this claim for relief
moot.
C. Citation of the First Contractor2
The third specific request for relief was a demand that the first contractor receive a citation
for its alleged violations of the building code. Although, from the record, it appears that
appellants unequivocally withdrew their request for this relief in the proceeding before the local
board, it also appears that the local board, the State Board, and the circuit court all considered it
2 Given our resolution of this issue, we do not consider whether the first contractor was a necessary party to proceedings that, if appellants were successful, could have resulted in it being cited for a violation. -8- and issued rulings related to it. Accordingly, we will assume without deciding that it was
properly before each of those entities, and thus, is before us.
There is a disagreement among the parties as to whether the first contractor received a
notice of violation for its work on the initial project. Although no evidence of such a notice of
violation is included in the record before us, the City represented at the hearing before the State
Board that it issued or would issue such a notice. Based on this representation, the State Board
found this request for relief moot. Appellants argue that the City never issued such a notice of
violation.
Given all of the circumstances, resolution of the factual dispute is unnecessary to
resolution of this issue. It was undisputed in the proceedings below that, before a citation could
issue, the first contractor would need to receive a notice of violation and be provided an
opportunity to cure any deficiencies. Appellants made clear at the hearing before the local board
that the first contractor would not be allowed to undertake an attempt at remedying any
deficiencies. Even if they experienced a change of heart during the intervening proceedings, the
possibility of any such remedial work was destroyed when appellants abandoned the project and
the work undertaken by the first contractor was destroyed so that appellants could proceed with
their new project. Accordingly, the circuit court did not err in finding this claim for relief moot.3
D. Declaration Regarding City’s Practice Regarding Photographic Inspections
Although appellants specifically did not request additional relief in the appeal to the local
board, they argue that an additional issue, which underlay all of their complaints, was
sufficiently presented in the proceedings below to be before us. Specifically, appellants claim
they are entitled to a ruling on whether the City’s practice of accepting inspections based on
3 Additionally, at oral argument, appellants affirmatively represented that, as a result of the passage of time, the first contractor could no longer be cited for work performed on the initial project. If this representation is accepted, the claim for relief is moot for that reason as well. -9- photographs complies with statutory requirements. Assuming without deciding that the issue
was sufficiently raised below to survive as an issue on appeal, we find that any such request is
Much like the inspection itself, any practice implemented by the City to effectuate the
inspection of the first contractor’s work on the initial project is inextricably intertwined with that
project. Once the project ceased to exist, any potential issues with the inspection of that project
ceased to exist. See, Section I(B) above. Necessarily, that includes any legal issues regarding
how the City performed that inspection or, in the case of a third-party inspection, allowed it to be
performed. If we were to agree that a different practice was required for the inspection of the
initial project, our conclusion would be a nullity because no new inspection can be undertaken
regarding a project that no longer exists. Because it is no longer possible for any decision of this
or any other court to affect the manner in which the inspection of the initial project was
conducted, appellants’ claims regarding the practice utilized by the City in this matter are moot.4
In an attempt to save their claim regarding the City’s practice, appellants argue the issue
is not moot because of potential permits that they may seek in the future. They reason that, if
they seek additional permits for new projects, they would be adversely affected if the City
utilized the same practice. However, as will be discussed below, appellants lack standing to seek
relief regarding this prospective claim of hypothetical future injury.
4 Appellants ask us to find that this claim falls within the “capable of repetition yet evading review” exception to the mootness doctrine. See generally, Ingram v. Commonwealth, 62 Va. App. 14, 22, 741 S.E.2d 62, 66 (2013) (acknowledging the doctrine, but recognizing that it “should be used sparingly” and in “exceptional situations”) (internal quotation marks and citations omitted). We decline to do so based on our conclusion that the mootness doctrine does not prevent a person allegedly aggrieved by the application of the City’s practice to an existing project from bringing the claim. We offer no opinion as to whether such a claim otherwise would be cognizable in a VAPA appeal. - 10 - II. Standing
“Standing to maintain an action is a preliminary jurisdictional issue having no relation to
the substantive merits of an action.” Andrews v. Am. Health & Life Ins. Co., 236 Va. 221, 226,
372 S.E.2d 399, 402 (1988). “The point of standing is to ensure that a person who asserts a
position has a substantial legal right to do so and that his rights will be affected by the disposition
of the case.” Grisso v. Nolen, 262 Va. 688, 693, 554 S.E.2d 91, 94 (2001). The doctrine
requires that a litigant have a “sufficient interest in the subject matter of the case so that the
parties will be actual adversaries and the issues will be fully and faithfully developed.” Cupp v.
Board of Supervisors, 227 Va. 580, 589, 318 S.E.2d 407, 411 (1984).
In addition to these general standing requirements, a litigant pursuing an appeal under
VAPA must be a “party aggrieved by and claiming unlawfulness of a case decision.” Code
§ 2.2-4026. The Supreme Court has made clear that “the word “aggrieved” . . . contemplates a
substantial grievance and means a denial of some personal or property right, legal or equitable,
or imposition of a burden or obligation upon the petitioner different from that suffered by the
public generally.” Va. Marine Res. Comm’n v. Clark, 281 Va. 679, 687, 709 S.E.2d 150, 155
(2011) (emphasis added) (citation omitted). Absent such a direct, non-generalized interest, a
party lacks standing under VAPA.
Although appellants may have had such a direct interest regarding the application of a
City inspection practice to the initial project, any such direct interest evaporated when the project
ceased to exist. Regarding any hypothetical future projects to which the practice may or may not
be applied, appellants are situated no differently than any other member of the general public
who may undertake such a project in Virginia Beach in the future. Accordingly, appellants lack
standing to assert a claim for hypothetical, future injuries that might occur.
- 11 - CONCLUSION
Because no order of this or any other court can grant appellants the relief they sought related
to the initial project that was the subject of the case decision that underlies this VAPA appeal, the
circuit court correctly concluded that the matter was moot. Accordingly, the judgment of the circuit
court is affirmed.
Affirmed.
- 12 -