Hole in the Wall Waterfront Grill has filed a response to the Mathews County Board of Supervisors’ petition requesting the circuit court reverse the Board of Zoning Appeal’s July 12 decision in favor of Hole in the Wall.
In a demurrer filed by attorney Thomas K. Norment Jr., Hole in the Wall claims that the evidence and testimony it presented to the BZA had satisfied all of the elements of vested rights relief (a vested right is one that’s unconditionally guaranteed, according to merriamwebster.com). The county’s issuance of a certificate of occupancy to Hole in the Wall “is prima facie evidence that a building permit was issued and that the structure was built in accordance with the building permit,” states the demurrer. Since the certificate of occupancy was issued, argues Hole in the Wall, it’s logical to conclude that the county performed a final inspection of the structure at some point during the preceding five business days and that the structure was in compliance with all the county’s code provisions.
“If the building had been non-compliant in any way, including if it had been built to different dimensions than those specified on the building permit, then the county would not have issued a certificate of occupancy,” says the demurrer.
The document states that Hole in the Wall had affidavits from former building official Jamie Wilks and former county administrator Mindy Conner affirming that the additions were made in accordance with the provisions of the Mathews County Zoning Ordinance and that all the permitting and approvals were in the county’s possession as of the dates they left county employment. Despite this, says the demurrer, “the County of Mathews Board of Supervisors was unable to produce any of the records confirming any modifications were made to the original building permit issued on March 27, 2017.”
Testimony given during the appeal “raises serious concerns and doubts about the accuracy and completeness of records maintained by Mathews County,” says the demurrer.
The demurrer points to testimony by county attorney Andrea Erard that “she became aware in 2022 that the county is missing both electronic files and physical documents within their records,” and by BZA member Peter Clendenin, who said that the Hole in the Wall appeal “was not the first time the BZA has been forced to resolve a case with missing records.”
Asserting that the BZA had to look beyond building and zoning records to determine what records existed at the time Hole in the Wall was constructed, the demurrer points to testimony by the county’s current building official, Jon Morr, on the procedures for issuing a certificate of occupancy, including the practice of comparing the completed structure to plans on file.
“Mr. Morr’s testimony implies that since the Hole in the Wall was issued a ‘CO,’ there were building plans on file when the final inspection was completed, and that the building was built in compliance with the plans on file,” says the demurrer.
The demurrer states further that “there is no allegation by any party to this matter that Hole in the Wall made any changes to the structure after the issuance of the certificate of occupancy” and that the record from the BZA hearing contains sufficient facts for a reasonable finder to conclude that a building permit was issued, “including, but not limited to,” the 44-foot by 20-foot deck.
As of Tuesday, no date had been set for a hearing on the matter.