Gregory G. Hall v. City of Clarksburg

• Court: West Virginia Supreme Court
• Decided: November 20, 2015
• Docket: 14-0928
• Status: Published

Opinion

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Gregory G. Hall, N. Levi Hall, E.M.T. Properties, Inc., Old Home Properties, LLC, Elizabeth’s Realty, LLC, FILED Hall Brothers Properties, LLC, and Hallsey’s Realty, LLC November 20, 2015 Plaintiffs Below, Petitioners RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA vs) No. 14-0928 (Harrison County 12-C-254-3)

The City of Clarksburg Defendant Below, Respondent

MEMORANDUM DECISION Petitioners Gregory G. Hall, N. Levi Hall, E.M.T. Properties, Inc., Old Home Properties, LLC, Elizabeth’s Realty, LLC, Hall Brothers Properties, LLC, and Hallsey’s Realty, LLC, by counsel Brett Offutt, appeal the August 13, 2014, order of the Circuit Court of Harrison County granting respondent summary judgment. Respondent, The City of Clarksburg, by counsel Boyd L. Warner, filed a response in support of the circuit court’s order. Petitioners filed a reply.

This Court has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 of the Rules of Appellate Procedure.

In 1988, the West Virginia State Fire Commission, under the authority granted in West Virginia Code § 29-3-5b, promulgated the West Virginia State Building Code, with an effective date of April 28, 1989. At the same time, the West Virginia Legislature enacted West Virginia Code § 8-12-13, which voided all existing municipal building codes one year after the promulgation of the State Building Code and required a municipality, if it desired thereafter to enact a building code, to adopt the rules and regulations promulgated by the State Fire Commission under West Virginia Code § 29-3-5b.

On April 5, 1990, the City of Clarksburg adopted the West Virginia State Building Code with its passage of Ordinance No. 90-6. In September of 2003, the City of Clarksburg passed Ordinance No. 03-16 to “reflect changes to the State Building Code,” “further incorporate procedural details” of the State Building Code into the administrative section of the City Building Code; and to “increase penalty amounts for subsequent citations for the same violation of the City’s Building Code[.]”

In September of 2008, the City of Clarksburg passed Ordinance No. 08-15, which provided the City additional power and greater flexibility, through West Virginia Code § 8-12­ 16, to recover “costs expended in demolishing buildings and structures declared to be fire hazards, dilapidated and/or unsafe for human habitation[.]” The passage for Ordinance No. 08-15 resulted in the deletion of Article 1705.10(c) of the City Building Code and its reenactment to state, in part, the following:

If the owner of a structure fails to comply with a notice of violation, demolition order or other order under this Article, within the time prescribed, the building inspector or his designated representative shall cause the structure to be demolished and removed, either through City forces, any available public agency or by contract or arrangement with a private demolition contractor licensed to do business in West Virginia, and in the event that any cost or expense is incurred by the City in connection with such demolition, the said owner or owners of the real property upon which the said structure is situate shall reimburse and pay the City for all cost and expense incurred, and the City shall have the right to file a lien against the said real property in question for an amount that reflects all costs incurred by the City . . . in connection with the repairing, alternation, improvement, vacating, closing removing and/or demolishing such building or structure and may, in addition thereto, institute a civil action in a court of competent jurisdiction against the landowner or other responsible party for all costs incurred by the City with respect to the property and for reasonable attorney fees and court costs incurred in the prosecution of this action, in the manner prescribed by Section 16, Article 12, Chapter Eight of the West Virginia Code of 1931, as amended.

In 2006, petitioners owned a number of residential properties within the City of Clarksburg. Petitioners contend that they improved many of these properties with new roofs, windows, siding, and paint, as well as interior improvements including new plumbing, fixtures, and carpet. In 2006, respondent, through its City Code Enforcement Department, issued citations, condemnation orders, and demolition orders for three of petitioners’ properties: 1) 419/421 Washington Avenue; 2) 439/441 East Pike Street; and 3) 346 Hickman Street. Petitioners appealed respondent’s enforcement actions to the BOCA1 Code Appeal Board (“Board”).

With respect to the property located at 419/421 Washington Avenue, petitioners were granted continuances, up to August 31, 2008, to make the necessary repairs to the property. At its September 17, 2008, meeting, the Board voted to uphold the demolition order in effect for 419/421 Washington Avenue, as the necessary repairs had not been made. With regard to petitioners’ property located at 439/441 East Pike Street, petitioners were granted multiple extensions and given until August 31, 2008, to bring the property in compliance with the applicable building codes, and to obtain a Certificate of Occupancy from the City Code

1 BOCA refers to the “Building Officials & Code Administrators International,” as defined in W.Va. C.S.R. § 87-4-2.6 (1989).

Enforcement Department. At the Board’s September 17, 2008, meeting, it found that the required work on 439/441 East Pike Street had not been completed (and what work that was completed was substandard). Accordingly, the Board voted to uphold the demolition order in effect at that property. At its September 16, 2009, meeting, the Board voted to uphold the demolition order for 346 Hickman Street, finding that, despite multiple extensions to complete the necessary repairs to the property, the repairs had not been completed.2

In June of 2012, petitioners filed suit against respondent in Harrison County Circuit Court alleging that Ordinance Nos. 03-16 and 08-15 were

unlawful, illegal and of no legal force and effect and are void ab initio because they are, in whole or in part, (a) in violation of the lawfully adopted and promulgated West Virginia State Building Codes in effect at the relevant time periods; (b) in violation of [West Virginia Code § 8-11-2; and, (c) were prepared, adopted and passed in violation of West Virginia Code § 8-11-4.

Petitioners further alleged that the subject ordinances were in excess of respondent’s “lawful powers as defined by the West Virginia State Building Code,” the 2003 and 2009 International Property Maintenance Codes (adopted in West Virginia Code §§ 8-12-13 and 29-3­ 5b). Petitioners argued that respondent was required to notify, send, and file a copy of its ordinances and building code within thirty days of adoption with the State Fire Commission and had not properly done so.

In their Complaint, petitioners sought the circuit court’s declaration that

(a) Article 1705.10, entitled, “Demolition,” subsection (c), “Failure to Comply,” of the Codified Ordinances of Clarksburg – (Ordinance 08-15, adopted and passed on June 19, 2008) is unlawful, invalid and void ab initio;

(b) Article 1705.10, entitled, “Demolition,” subsection (a), “General,” of the Codified Ordinances of Clarksburg – (Ordinance 03-16, adopted and passed on September 19, 2003) is unlawful, invalid and void ab initio;

(c) Since enactment, [respondent] has failed to comply with the mandatory requirements of Article 1705.06(b), entitled, “Notice of Violation,” and Articles 1705.07(a), (b) and (c), entitled, “Notices and Orders,” concerning notices of violation and the required information to be included in the same;

2 Based upon the Board’s decisions upholding the demolition order for petitioners’ properties, petitioners sought writs of certiorari from the Harrison County Circuit Court seeking relief from the Board’s demolition orders. These writs did not challenge the validity of respondent’s ordinances and were each denied by the circuit court. Petitioners did not appeal the circuit court’s denial of the petitions for writs of certiorari to this Court.

(d) Article 1705.04, entitled, “Right of Entry and Inspection,” of the Codified Ordinances of Clarksburg – (Ordinance 03-16, adopted and passed on September 18, 2003) is unlawful, invalid and void ab initio;

(e) All citations, notices of violation, condemnation and demolitions issued, ordered and conducted under the Codified Ordinances of Clarksburg as a result of official action taken on behalf of [respondent, by its agent] Jonathan R. Davis during the period of time he was engaged in the unlicensed practice of building code enforcement because he was not certified to do so by the West Virginia State Fire Marshal’s Office be held unlawful, invalid and void.

Petitioners contend that after challenging the demolition orders issued by respondent, and losing each challenge, they lacked the financial resources to continue with additional appeals. As respondent continued to issue condemnation and demolition orders for petitioners’ properties, petitioners were unable to rent said properties. Without rental income to pay the mortgages on the properties, many were lost to foreclosure. Some properties were demolished by respondent and more are currently on respondent’s demolition list.

On October 7, 2013, respondent filed a motion for summary judgment as to petitioners’ claims. Respondent argued that it was entitled to summary judgment on three different grounds: (1) petitioners’ declaratory judgment action challenging the validity of Ordinance Nos. 03-16 and 08-15 is barred by the doctrine of laches; (2) public policy bars petitioners’ challenge to the validity of respondent’s ordinances; and (3) respondent complied with applicable law in enacting Ordinance Nos. 03-16 and 08-15. In response, petitioners argued that (1) laches is generally a fact question and not subject to summary judgment; (2) public policy favors petitioners where respondent’s actions deprived petitioners of property and caused them injury; and (3) whether respondent complied with West Virginia law in enacting the challenged ordinances presents questions of material fact.

The circuit court heard arguments on respondent’s motion for summary judgment on February 7, 2014. On August 13, 2014, the circuit court entered its final order granting summary judgment against petitioners and denied the declaratory judgment sought by petitioners. In granting summary judgment to respondent, the circuit court ruled that, as a matter of law, respondent’s building code was properly enacted, and further, that the doctrine of laches barred petitioners’ procedural challenges to respondent’s Ordinances 06-13 and 08-15. The circuit also ruled that petitioners’ procedural challenges with regard to respondent’s adoption of the City Building Code were barred as a matter of public policy.

As to petitioners’ remaining challenges to Ordinance Nos. 03-16 and 08-15 (that the ordinances were void because they deviate from the State Building Code and because they are in “excess” of respondent’s powers as defined by the State Building Code), the circuit court cited West Virginia Code § 29-3-5b, which provides what such determinations must be made by the State Fire Commission. As such, the circuit court ruled that it did not have jurisdiction to determine if the subject ordinances impermissibly deviated from the State Building Code.

With respect to petitioners’ arguments that Ordinance Nos. 03-16 and 08-15 - were prepared, adopted and passed in violation of West Virginia Code § 8-11-4 - the circuit court ruled that petitioners did not satisfy their burden in establishing this fact. Petitioners did not specify how the ordinances failed to comply with West Virginia Code § 8-11-4(b), and failed to identify any facts supporting their allegations such violations.

With regard to petitioners’ contention that respondent failed to notify the State Fire Commission within thirty days of adopting Ordnance Nos. 03-16 and 08-15, the circuit court ruled that these arguments have no “legal effect” because respondent did notify the State Fire Commission within thirty days of adoption of each of the ordinances. The circuit court reasoned that even if respondent had failed to notify the State Fire Commission within thirty days, such failure was cured by later providing the ordinance to the State Fire Marshal.

Finally, the circuit court concluded that the State Fire Commission had authority to determine what portions, if any, of respondent’s City Building Code are inferior to the State Building Code and, until that matter is submitted to the State Fire Commission, there cannot be a ruling with regard to an abuse of discretion by respondent of an alleged unidentified abuse of discretion in enforcing respondent’s City Building Code. It is from the circuit court’s August 13, 2014, order that petitioner now appeals.

We review the entry of summary judgment de novo. See Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).

Summary judgment is appropriate if, from the totality of the evidence presented, the record could not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on an essential element of the case that it has the burden to prove.

Syl. Pt. 2, Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995).

On appeal, petitioner raises four assignments of error. First, petitioners allege that the circuit court erred in finding that petitioner’s claims were barred by laches. Next, petitioners contend that the circuit court erred in finding that petitioners’ claims were barred by public policy. Third, petitioners argue that the circuit court erred in determining that it lacked jurisdiction as to petitioners’ claims that respondent’s ordinances impermissibly deviated from the State Building Code. Last, petitioners contend that the circuit court erred when it failed to find that Ordinances 03-16 and 08-15 were used in a discriminatory or arbitrary manner.

Finding no error in the circuit court’s granting of respondent’s motion for summary judgment, or its ruling on any of the issues which comprise petitioners’ assignments of error herein, we fully incorporate and adopt the circuit court’s “Final Order Granting Summary Judgment Against the Plaintiffs for Laches, Public Policy, and Alleged Violations of West Virginia Code § 8-11-4 And Denying Declaratory Judgment Relief On Whether The Subject Ordinances Impermissibly Deviate From The State Building Code, Whether The Ordinances Were Used In A Discriminatory Or Arbitrary Manner, and Whether The City Complied with

Notice Requirements” entered August 13, 2014. The Clerk is directed to attach a copy of the Circuit Court’s Order to this decision.

For the foregoing reasons, we affirm.

Affirmed.

ISSUED: November 20, 2015

CONCURRED IN BY:

Chief Justice Margaret L. Workman Justice Robin Jean Davis Justice Brent D. Benjamin Justice Menis E. Ketchum Justice Allen H. Loughry II