Douglas L Miller v. State Building Code Technical ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Humphreys and Senior Judge Overton
DOUGLAS L. MILLER AND
DEBORA A. MILLER
MEMORANDUM OPINION *
v. Record No. 0365-03-2 PER CURIAM
JULY 22, 2003
STATE BUILDING CODE TECHNICAL
REVIEW BOARD AND KING GEORGE COUNTY
FROM THE CIRCUIT COURT OF KING GEORGE COUNTY
Horace A. Revercomb, III, Judge
(Douglas L. Miller; Debora A. Miller, pro se,
on briefs).
(Jerry W. Kilgore, Attorney General;
Richard B. Zorn, Senior Assistant Attorney
General; Deborah Love Feild, Assistant
Attorney General; Matthew J. Britton,
Commonwealth's Attorney, on brief), for
appellees.
Douglas and Debora Miller contend the trial judge erred in
finding their appeal moot and upholding the decision of the State
Building Code Technical Review Board. Upon reviewing the record
and briefs of the parties, we conclude that this appeal is without
merit. Accordingly, we summarily affirm the decision of the trial
court. See Rule 5A:27.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
I.
In April 2000, the Millers obtained building and zoning
permits to construct a two-family dwelling on the property
designated on Tax Map 22, Parcel 103, and located at 5022/5024
Igo Road in King George County. Those applications contained a
sketch detailing the placement of a new well, which was required
to support the dwelling. To build the well, the Millers had
obtained from the Department of Health the necessary permit,
which indicated the well's location and mandated a "Health Dept
Operation Permit & Well Inspection Report . . . prior to
occupancy."
In early 2001, the Millers requested final inspections
necessary to obtain a certificate of occupancy. On February 28,
2001, the Millers received a letter from the county's Zoning
Administrator notifying them that they had violated the county's
zoning ordinance. The notice advised the Millers that by
"connecting the dwelling currently under construction . . . to
the [pre-existing] well that currently serves [other] dwellings"
they had "brought the total number of potable water connections
served by this well up to three," in violation of the zoning
ordinance. The notice further advised that, "[i]n order that
the dwelling . . . may continue to be constructed and may be
occupied in the future," the Millers were required to comply
with the local zoning ordinance or obtain a special exception.
The notice informed the Millers "this decision shall be final
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and unappealable if not appealed within the thirty days" to the
Board of Zoning Appeals.
By letter dated March 12, 2001, the Millers sent a letter
to the county's Board of Building Code of Appeals objecting to
the denial of temporary and final occupancy certificates. After
perfecting the appeal, the Millers wrote to the Zoning
Administrator to express their disagreement with his opinion
that their remedy was to appeal to the Zoning Board of Appeals.
On April 3, 2001, the county's Building Official notified
the Millers that the Zoning Administrator had voided the
Millers' zoning permit for the dwelling. The letter also
explained that "[t]he original approval of [the Millers'
building] permit was based on the issuance of a zoning permit
and installation of a well as stated on [thei]r signed
application." The letter notified the Millers that their
building permit had been revoked pursuant to the Uniform
Statewide Building Code "until such time as [the Millers] can
obtain a zoning permit."
The Board of Building Code of Appeals held a public hearing
to consider the Millers' appeal. By resolution dated April 19,
2001, the Board of Building Code of Appeals "found that the
appeal was based on a zoning administrator's decision" and that
the Board "does not have jurisdiction or authority over a zoning
administrator's decision and no adverse decision made by the
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Building Official had been properly appealed." It, therefore,
dismissed the Millers' appeal.
The Millers then appealed to the State Building Code
Technical Review Board, which conducted a hearing on the
Millers' appeal. The Millers advised the Technical Review Board
that the "appeal was based on the Certificate of Inspection not
the letter from [the Zoning Administrator]." The Technical
Review Board found that "the revocation of [the Millers'
building] permit . . . render[ed] the appeal of the refusal to
issue the [certificate of occupancy] moot because no dispute of
whether to issue a [certificate of occupancy] can be considered
if there is no valid [building permit]." The Technical Review
Board also found that the Millers "failed to raise the
revocation of the [building] permit as an issue for the . . .
Board [of Building Code of Appeals] to consider" and had failed
to timely file an appeal from the revocation decision. Thus,
the Technical Review Board ruled that "the appeal of the
revocation of the [building] permit is not properly before the
Review Board" and ordered the Millers' "appeal of the code
official's refusal to issue a [certificate of occupancy] to be
. . . dismissed as moot."
The Millers appealed to the circuit court. After
considering "the arguments by the parties, the pleadings and the
record of the . . . Technical Review Board," the trial judge
dismissed the appeal.
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II.
Code § 15.2-2311 provides, in pertinent part, that "[a]n
appeal to the board [of zoning appeals] may be taken by any
person aggrieved . . . by any decision of the zoning
administrator or from any order, requirement, decision or
determination made by any other administrative officer in the
administration or enforcement of this article." In addition,
the statute further provides as follows:
[A]ny written notice of a zoning violation
or a written order of the zoning
administrator dated on or after July 1,
1993, shall include a statement informing
the recipient that he may have a right to
appeal the notice of a zoning violation or a
written order within thirty days in
accordance with this section, and that the
decision shall be final and unappealable if
not appealed within thirty days.
Code § 15.2-2311.
The record establishes that the Millers neither appealed
the Zoning Administrator's decision, which determined that the
Millers were in violation of the zoning ordinance, nor sought a
special exemption from the zoning requirements. As the Supreme
Court held in Gwinn v. Alward, 235 Va. 616, 621, 369 S.E.2d 410,
412 (1988), "the decision by the zoning administrator that [the
land owner] was operating . . . on the property in violation of
the zoning ordinance was a thing decided and was not subject to
attack by [the land owner] . . . because [the land owner] never
appealed the various decisions in which he was declared in
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violation of the zoning ordinance." See also Guinn v. Collier,
247 Va. 479, 484, 443 S.E.2d 161, 163-64 (1994).
As a result of the zoning violation, which is not now
subject to judicial review, see id., the building permit was
revoked. As manifested by the following provision, a building
permit is a necessary basis for the issuance of an occupancy
permit. "A certificate of occupancy, indicating completion of
the work for which a permit was issued in accordance with this
code and any pertinent laws and ordinances shall be obtained
prior to any occupancy of a structure . . . ." 13 VAC 5-61-95
(emphasis added).
By focusing solely on appealing the denial of the
certificate of occupancy, the Millers failed to appeal the
revocation of their building permit, or to appeal the Zoning
Aadministrator's ruling, or to seek a special exemption from the
zoning requirements. Absent a valid building permit, however,
the Millers could not complete the dwelling and, consequently,
could not obtain a certificate of occupancy.
"'The duty of this court as of every other
judicial tribunal, is to decide actual
controversies by a judgment which can be
carried into effect, and not to give
opinions upon moot questions or abstract
propositions . . . .'" Dismissal is the
proper remedy if "an event occurs which
renders it impossible for [a] court, if it
should decide the case in favor of the
plaintiff, to grant him any effectual relief
whatever . . . ."
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Jackson v. Marshall, 19 Va. App. 628, 635, 454 S.E.2d 23, 27
(1995) (citations omitted). "'[C]ourts are not constituted
. . . to render advisory opinions, to decide moot questions or
to answer inquiries which are merely speculative.'"
Commonwealth v. Harley, 256 Va. 216, 219-20, 504 S.E.2d 852, 854
(1998) (quoting City of Fairfax v. Shanklin, 205 Va. 227,
229-30, 135 S.E.2d 773, 775-76 (1964)).
The trial judge did not err in finding the issue moot.
Accordingly, we summarily affirm the decision. See Rule 5A:27.
Affirmed.
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