Construction Law Insights

Owens v. City of Va. Beach, 2018 Va. App. 212, 2018 WL 3732420 (Va. Ct. App. Aug. 7, 2018)

In December of 2015, Cynthia and Richard Owens (the “Owens”) hired a contractor (“First Contractor”) to renovate their condominium’s roof and an engineering firm to create a plan for the proposed work. The First Contractor applied for and the City of Virginia Beach (the “City”) issued a building permit for the work, which included the plan prepared by the engineering firm. In January of 2016, the First Contractor began work, took pictures of the work, presented the pictures to the engineering firm, and requested an inspection by the City. The engineering firm reviewed the photos and submitted them to the City along with a report. Neither the City nor the engineering firm visited the site. Relying on the engineering firm’s report and the photos, the City gave the project a “final” passing inspection status.

Six months later, the Owens challenged the City’s inspection. The City acknowledged the Owens request, but informed the Owens on June 28, 2016 that it would not cite the First Contractor for building code violations. On July 13, 2016, the Owens appealed to the Virginia Beach Board of Building Code Appeals (the “Local Board”). After an August 2, 2016 hearing, the Local Board denied the appeal. On August 22, 2016, the Owens appealed to the State Building Code Technical Review Board (the “State Board”). While the appeal was pending and prior to any hearing before the State Board, the Owens hired a second engineering firm, obtained another permit for a different design, and hired a second contractor who performed the work described in the new design. Thus, none of the First Contractor’s work remained and the originally permitted project no longer existed. The State Board found that the change in circumstances regarding the original project rendered the enumerated issues in the Owens’ appeal moot. The Owens appealed the State Board’s decision to the circuit court. During a September 7, 2017 hearing, the Owens confirmed that original project and the First Contractor’s work no longer existed. The circuit court ruled that the Owens case was moot and the Owens appealed.

Given the change in factual circumstances over the course of the litigation, Virginia’s Court of Appeals determined that there was no longer a viable appellate claim and the Owens’ appeal was moot. A case is moot if the relief requested by a litigant can no longer be granted, rendering any determination by a court merely advisory. The Owens’s first request for an onsite inspection of the First Contractor’s work was moot because the First Contractor’s work was completely destroyed, leaving nothing to inspect. The Owens’ second request for the revocation of the original project’s permit was also moot because the original project ceased to exist when the second contractor built a new project, with a new design, in the same space where the original project was located. The Owens’ third request for the First Contractor to be cited for allegedly substandard work was moot because a contractor cannot be cited until after it is given an opportunity to cure the alleged deficiencies and the First Contractor was never given an opportunity to cure the deficiencies alleged by the Owens. Finally, the Owens’ challenge of the City’s practice of accepting inspection based on photos was moot because any practice effectuated by the City to inspect the First Contractor’s work was tied to the initial project, which no longer existed. Even if the Owens’ challenge to the City’s practice was not moot, the Owens lacked standing to challenge the City’s practice because the City’s practice would only involve hypothetical future projects.

PLDR Law Mark Burgin 1 PLDR Law Scott Kowalski 1 Thomas Wolf 002 Kenneth Stout 002

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