CAV: Self-help moots remedies sought for deficient roof work

No remedy existed for condo owners who, unhappy with a roof renovation, wanted the city to inspect the work and cite the roofer.  After a second contractor made fixes, there was nothing for the city to inspect and no opportunity for the first roofer to cure.

Background

In December 2015, Appellants Cynthia and Richard Owens hired a Class A contractor to renovate part of their condo roof. A structural engineering firm created a plan for the proposed work, and the contractor obtained a permit from the City of Virginia Beach. Before the work was complete, the contractor took progress photos and requested an inspection by the City. Based on the engineering firm’s assessment that installations were consistent with the plan it had prepared, the City gave the project a “final” passing inspection status.

Six months later, the Owenses requested an onsite inspection of roof deficiencies, as noted in a report prepared by a second roofing consultant. The City said that, upon review, it would not cite the first contractor for building code violations.

Before the Virginia Beach Board of Building Code Appeals, the Owenses again asked for an onsite inspection, revocation of the initial “passing inspection,” and a citation of the first contractor. They expressly requested that, for any work required to bring the project to code, they be allowed to use another contractor. The local board denied the appeal.

While an appeal to the State Board was pending, the Owenses obtained another permit for a different design. A second contractor performed the work described therein. Thus, no portion of the original work remained. When the State Board inquired what was left to be done, the Owenses responded that there was nothing to prevent the City from continuing in the practice that allowed the problems with the first roof installation.

The State Board, and then the circuit court, held that the matter was moot. The Owenses appeal.

Mootness

Given the changed factual circumstances over the course of this litigation, there is no longer a viable appellate claim that this court can adjudicate on the merits. Specifically, because no court order can grant the Owenses the relief they sought related to the initial project, the circuit court correctly concluded that the matter was moot.

The controversy here is framed by the appeal the Owenses filed with the local board. There, they asserted that the local officials’ decision was in error. For relief, they sought: (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) a citation issued to the first contractor for allegedly substandard work. The circuit court correctly held that it could not issue any order could provide the requested relief and, therefore, the case was moot.

Onsite inspection. The Owenses have acknowledged that all the work the first contractor performed had been destroyed when they had another contractor build a new roof, with a different permit and different set of plans. They conceded that no work by the first contractor still exists that can be subject to an onsite inspection. Accordingly, no court order can grant this relief.

Permit revocation. The initial project that initially passed the City’s inspection no longer exists. The work that was given a passing inspection was destroyed 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 is inextricably tied to the initial work and the initial project that no longer exists, whether the work received a passing inspection or not is irrelevant. Thus, this claim for relief is moot.

Citation. Before a citation could issue, the first contractor must receive a notice of violation and be given an opportunity to cure any deficiencies. But the Owenses made clear before the local board that the first contractor would not be allowed to undertake an attempt to remedy the deficiencies. Even if they experienced a change of heart, the possibility of cure was destroyed when the Owenses proceeded with the new project.

Declaration. The Owenses also now request a ruling on whether the City’s practice of accepting inspections based on photographs, without a site visit, complies with statutory requirements. This request is also moot.

Much like the inspection itself, any City practice to effectuate inspection is inextricably intertwined with the first contractor’s work. Once the project ceased to exist, so did any potential legal issues regarding how the City performed that inspection or allowed it to be performed. Because it is no longer possible for any court decision to affect the manner in which the inspection was conducted, the Owenses claims as to the City’s practice in this matter are moot.

Standing

Although the Owenses may have had 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, the Owenses are situated no differently than any other member of the public who may undertake such a project in Virginia Beach in the future. Thus, they lack standing to assert a claim for hypothetical, future injuries.

Affirmed.

Owens v. City of Va. Beach, Record No. 1707-17-1, Aug. 7, 2018. CAV (Russell), from Va. Beach Cir. Ct. (O’Brien). Cynthia M. Owens for Appellants; Justin I. Bell & Tobias Eisenlohr for Appellees. VLW No. 018-7-204, 12 pp.