COURT OF APPEALS OF VIRGINIA
Present: Judge Benton, Senior Judges Cole and Hodges
Argued at Richmond, Virginia
THOMAS LEWIS HARLOW, JR.
v. Record No. 2073-93-2 MEMORANDUM OPINION * BY
JUDGE WILLIAM H. HODGES
CITY OF RICHMOND MAY 9, 1995
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Thomas N. Nance, Judge
Gary R. Hershner (Morrissey, Hershner &
Jacobs, on brief), for appellant.
(Michele Anne Gillette, Assistant City
Attorney, on brief), for appellee.
Appellee submitting on brief.
The appellant, Thomas Lewis Harlow, Jr., contends that the
trial court erred in refusing to strike the evidence on charges
that he violated Richmond city ordinances in (1) failing to
obtain a Certificate of Zoning Compliance for property at 4302
Patterson Avenue on February 11, 1993, (2) failing to obtain a
Certificate of Zoning Compliance for property at 3533 Grove
Avenue on October 1, 1992, and (3) for engaging in construction
work without a valid Building Permit at the Patterson Avenue
property on February 11, 1993. He argues that the City failed to
prove that he was the owner of the two parcels of property and
that it failed to prove a building permit issued in 1985 was not
valid. We agree with appellant and reverse.
"In reviewing the sufficiency of the evidence . . . the
evidence [must] be viewed in the light most favorable to the
*
Pursuant to Code § 17-116.010, this opinion is not
designated for publication.
Commonwealth . . . granting to it all reasonable inferences, and
the judgment of the trial court must be affirmed unless it
appears plainly wrong, or without evidence to support it."
Beavers v. Commonwealth, 245 Va. 268, 281-82, 427 S.E.2d 411, 421
(1993).
The evidence revealed that on February 5, 1994, Todd Stoudt,
a Building Inspector for the City of Richmond, saw the appellant
exiting premises known as 4302 Patterson Avenue. Harlow was
dressed in work clothes covered with dust and wearing a dust
mask. Stoudt could see the interior of the premises and observed
that the building was gutted with no plaster or sheetrock on the
walls. After some discussion, Stoudt advised Harlow that the
building permit displayed in the window on the property was
invalid and requested that he obtain a new one. At the same time
Stoudt issued a Stop Work Order.
Later Stoudt researched the records of the Bureau of Permits
and Inspections to ascertain the status of Harlow's permit. He
found that a permit had been issued in 1987. Stoudt testified
that building permits are only valid for a period of six months
unless construction is commenced or an extension is granted. The
records further disclosed that no extensions were requested or
granted for the permit. His testimony was that the holder of a
permit is required to request inspections at certain stages of
the construction and that none had been requested by Harlow.
The evidence further disclosed that by deed of R. Kenneth
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Luck dated December 27, 1984, the appellant and his wife were
vested with title to the Patterson Avenue property. On four
occasions the appellant was notified of the necessity to obtain a
Certificate of Zoning Compliance but made no response. In either
1985 or 1987 he did obtain the building permit in question.
The Grove Avenue property was deeded to the appellant on
September 11, 1973, and he was notified on three occasions of the
necessity to obtain a certificate. He made no apparent effort to
obtain the certificate but at an undisclosed time, Harlow applied
or offered to apply for a variance.
In its prosecution of the appellant on the two charges of
failing to obtain the Certificate of Zoning Compliance, the City
was required to prove that the appellant was the owner of the
property in question. On these charges, the appellant's sole
defense is the sufficiency of the City's evidence to prove this
element. Appellant argues that proof of the recordation of a
deed, in one instance almost nineteen years before the date of
the alleged offense and in the other more than eight years prior
to the alleged offense, does not sufficiently establish ownership
to meet the City's burden.
The City counters that the recordation of the deeds coupled
with the evidence that the appellant applied or offered to apply
for a variance on one parcel and the fact that he obtained a
building permit and was seen exiting the building wearing a dust
mask and dusty clothes on the other is sufficient to prove beyond
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a reasonable doubt that appellant was the owner of the property.
We disagree. Except for the observation of the appellant
exiting the building, the other evidence was either indefinitive
or too remote in time to prove ownership. Because ownership was
an essential element of the violations, we reverse the two
convictions for failure to obtain the Certificates of Zoning
Compliance.
Next, the appellant contends that the trial court erred in
refusing to strike the City's evidence on the charge of engaging
in construction work without a valid permit. He argues that the
City introduced no evidence to show that the work did not
commence within six months of the issuance of the permit and that
there was no evidence to show that the project was discontinued
or abandoned. The evidence discloses that the appellant did in
fact obtain a permit and that work was commenced. We agree with
the appellant that there is no evidence to show cessation of
activities.
Patrick Murphy, the Chief Electrical Code Administrator for
the City of Richmond, was called as an expert on the Uniform
Statewide Building Code by the City. On cross-examination he
testified as follows concerning the code section on which the
City relied:
Q. Could you show me one of the code sections
upon which you are relying?
A. The underlined one, sir.
Q. Could you read 109.9 that you have
highlighted?
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A. 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
commencing the work. Upon written request
the building official may grant one or more
extensions of time not to exceed six months
per extension.
Q. Does it say anywhere in that what you just
read that the owner is to call for
inspections?
A. Not in this section; no.
The evidence discloses a permit was issued and work was
commenced. There is no evidence to show cessation or that the
construction reached a stage that required an inspection.
Accordingly, we hold that the City has failed to sustain its
burden to show the invalidity of the building permit.
For the reasons stated, the convictions are
Reversed and dismissed.
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