Herbert W. Lux, Jr. v. County of Spotsylvania ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judge Annunziata and
Senior Judge Hodges
Argued at Richmond, Virginia
HERBERT W. LUX, JR.
v. Record No. 1353-93-2 MEMORANDUM OPINION *
BY JUDGE ROSEMARIE P. ANNUNZIATA
COUNTY OF SPOTSYLVANIA AUGUST 1, 1995
FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY
D. W. Murphey, Judge Designate
Nicholas A. Pappas (Nicholas A. Pappas & Associates, on
brief), for appellant.
Ronald M. Maupin (Gardner, Maupin & Sutton, on brief), for
appellee.
In a jury trial, appellant was convicted of two counts of
using water for which he had neither paid nor obtained a license
to use in violation of the Spotsylvania County Code § 22-7(4).
On appeal, he contends that the evidence was insufficient to
support his convictions. We disagree and affirm the convictions.
"On appeal, we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom." Martin v. Commonwealth,
4 Va. App 438, 443, 358 S.E.2d 415, 418 (1987). "The jury's
verdict will not be disturbed on appeal unless it is plainly
wrong or without evidence to support it." Traverso v.
Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988).
Appellant, as a licensed builder in Spotsylvania County (the
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
County), obtained temporary water service from the County in 1990
during the construction of a dwelling at 5602 Glen Eagles Drive,
Fredericksburg, Virginia. Generally, temporary water service was
supplied by the County during new home construction and only for
six months. 1 County ordinances require that the temporary water
service be converted to a permanent residential connection when
the house became occupied as a residence. 2
County officials learned that appellant was residing in the
house without having obtained an occupancy permit. Appellant had
not paid the required availability and connection fees of $5400
to convert the temporary water service to a permanent
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connection.
1
Section 22-78 of the Spotsylvania County Code provides in
pertinent part:
For water required in building construction, the
owner of the property upon which the building
construction is taking place may make application for
temporary water service upon filing an application and
paying a flat fee of one hundred fifty dollars
($150.00) per connection plus cost plus twenty-five
(25) percent. The period of temporary service shall be
limited to six (6) months from the date of temporary
water service installation.
2
Section 22-4(a) of the Spotsylvania County Code provides
in pertinent part:
(a) The owners of all houses, buildings or
properties used for human occupancy . . . shall be
required to install suitable toilet and other
disposable liquid waste facilitates therein, and to
connect such facilitates directly with the public
sewer, and to connect sources of water use to the
public main.
3
Section 22-67 of the Spotsylvania County Code provides in
pertinent part:
2
Due to appellant's failure to pay the fees and the
expiration of the temporary water service, the County
disconnected appellant's water connection on January 31, 1992.
When County employees returned to 5602 Glen Eagles Drive on March
18, 1992, they discovered that a device had been installed in
appellant's water barrel to permit the extraction of water. They
observed appellant removing the device from the water barrel
later that day. On April 29, 1992, county employees saw a water
hose connecting appellant's house to the water barrel of an
adjacent vacant lot. The hose was leaking, signaling officials
that water was being used at 5602 Glen Eagles Drive from the
water supply of the adjoining property. At no time did the
County reconnect appellant's temporary water service, nor did it
give appellant permission to use County water after the
disconnection.
Appellant was charged with violating § 22-7 of the
The availability and connection fees for water
service for single family residences are as follows:
(1) Existing residence already having well
system: An availability fee of one thousand nine
hundred dollars ($1,900.00) plus a connection fee of
three hundred dollars ($300.00), and an additional one
hundred dollars ($100.00) to install the meter barrel.
(2) New residence: An availability fee of
one thousand nine hundred dollars ($1,900.00) plus a
connection fee of three hundred dollars ($300.00), and
an additional one hundred dollars ($100.00) to install
the meter barrel.
(3) New residence in subdivisions (set meter
only): An availability fee of one thousand nine
hundred dollars ($1,900.00) plus a connection fee of
three hundred dollars ($300.00).
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Spotsylvania County Code by opening a water valve or pipe to use
County water when he had neither paid for nor obtained a license
to use the water. 4 From the evidence adduced at trial, the jury
could have concluded that appellant installed the device on the
water barrel at 5602 Glen Eagles Drive to extract water after the
County disconnected his temporary water service. He never paid
the County the fee required to convert his account into a
permanent residential service. Moreover, the jury could have
concluded that appellant obtained water from the water barrel of
the adjacent lot by connecting it to his house with a hose.
Thus, the evidence was sufficient to prove beyond a reasonable
doubt that appellant violated Spotsylvania County Code § 22-7(4)
on March 18 and April 29, 1992. Appellant's subsequent attempts
to pay for the water used did not absolve him of these
intentional violations.
Further, the appellant's convictions may not be reversed as
a result of his filing a Chapter 7 Bankruptcy Petition
immediately prior to the County's disconnection of his water.
Appellant argues that the discharge of the $5400 debt he owed to
the County entitled him to permanent residential water service
without having to pay for it.
4
Section 22-7 of the Spotsylvania County Code provides in
pertinent part: "It shall be unlawful for any person to: . . .
(4) Remove or injure any pipe, fire hydrant, or valve or open any
of them so as to waste the water or to use the water for a
purpose for which he has neither paid nor obtained a license to
use it."
4
However, without objection from appellant, the jury was
instructed: "If you find from the evidence that the Defendant
had only a temporary water account, then the Bankruptcy
proceedings have no applicability to this case and said
Bankruptcy proceedings shall be disregarded." Instructions given
without objection by appellant became the law of the case. See
Infant C. v. Boy Scouts of America, 239 Va. 572, 579, 391 S.E.2d
322, 326 (1990). As appellant has conceded, there was no
evidence that his water service was anything but temporary. When
we apply the law of the case to the evidence, therefore, the
bankruptcy proceedings have no relevance.
Furthermore, the discharge of the debt only prevented the
County from pursuing a judgment against appellant. It in no way
obligated the County to provide appellant the permanent
residential service for which he had not paid. See Arkansas Real
Estate Commission v. Veleto, 303 Ark. 475, 479, 798 S.W.2d 52, 55
(1990).
Finally, appellant's argument that the disconnection of his
water supply violated the automatic stay protection afforded by
Section 362 of the Bankruptcy Code is without merit. One of the
exceptions to the automatic stay protection is 11 U.S.C.
§ 362(b)(4), which permits a governmental unit to act pursuant to
its police or regulatory power during the pendency of the
automatic stay. Section 362(b)(4) lifts the restraints of the
automatic stay and permits governmental action to protect the
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public health and safety but not to protect a pecuniary interest
of the governmental unit. In re Lux, 159 B.R. 458, 460 (Bankr.
E.D. Va. 1992).
In cutting off appellant's water, the County acted to
protect the health and safety of its residents by enforcing its
ordinances. Appellant had not complied with the ordinance
requiring all persons to obtain an occupancy permit before
occupying a new residential dwelling. Therefore, the County was
not in violation of the automatic stay when it cut off
appellant's water.
For the reasons stated, we affirm appellant's convictions.
Affirmed.
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