          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                                  January 2019 Term
                                  _______________                           FILED
                                                                        March 15, 2019
                                                                            released at 3:00 p.m.
                                    No. 18-0182                         EDYTHE NASH GAISER, CLERK
                                  _______________                       SUPREME COURT OF APPEALS
                                                                             OF WEST VIRGINIA


                   CITY OF MARTINSBURG, WEST VIRGINIA,
                           Defendant below, Petitioner

                                         v.

                   THE BERKELEY COUNTY COUNCIL and
              THE BERKELEY COUNTY BUILDING COMMISSION
                        Plaintiffs below, Respondents

       ____________________________________________________________

                  Appeal from the Circuit Court of Berkeley County
                    The Honorable Christopher C. Wilkes, Judge
                                Case No. 17-C-461

                             ORDER VACATED
       ____________________________________________________________

                            Submitted: February 13, 2019
                               Filed: March 15, 2019


Floyd McKinley Sayre, III, Esq.               Christopher C. Luttrell, Esq.
J. Tyler Mayhew, Esq.                         Luttrell LC
BOWLES RICE LLP                               Martinsburg, West Virginia
Martinsburg, West Virginia                    Counsel for Respondents
Counsel for Petitioner
                                              Jerome Radosh
                                              Martinsburg, West Virginia
                                              Amicus Curiae
                                              Pro Se



CHIEF JUSTICE WALKER delivered the Opinion of the Court.
                            SYLLABUS BY THE COURT


             1.     “A circuit court’s entry of a declaratory judgment is reviewed de

novo.” Syllabus Point 3, Cox v. Amick, 195 W. Va. 608, 466 S.E.2d 459 (1995).



             2.     “In deciding whether a justiciable controversy exists sufficient to

confer jurisdiction for purposes of the Uniform Declaratory Judgment Act, West Virginia

Code §§ 55–13–1 to –16 (1994), a circuit court should consider the following four factors

in ascertaining whether a declaratory judgment action should be heard: (1) whether the

claim involves uncertain and contingent events that may not occur at all; (2) whether the

claim is dependent upon the facts; (3) whether there is adverseness among the parties; and

(4) whether the sought after declaration would be of practical assistance in setting the

underlying controversy to rest.” Syllabus Point 4, Hustead on Behalf of Adkins v. Ashland

Oil, Inc., 197 W. Va. 55, 475 S.E.2d 55 (1996).




                                            i
WALKER, Chief Justice:

              The Berkeley County Council and the Berkeley County Building

Commission (County) filed suit against the City of Martinsburg (City) seeking a ruling that

real property owned by the County but located within the City limits is not subject to the

City’s zoning ordinances. Problematically, the complaint reveals no actual, justiciable

controversy. There is no specific project, building or property identified by the County;

rather, the suit purports to apply generally and prospectively to all real property owned by

the County that may be involved in future but unspecified projects.                Under these

circumstances, the circuit court engaged in an academic exercise, and its order amounts to

an advisory opinion that has little practical use to the parties in the resolution of any dispute

that may arise if, and when, a project is undertaken by the County. Lacking a justiciable

controversy, the underlying complaint for declaratory relief was insufficient to confer

jurisdiction upon the circuit court under the Uniform Declaratory Judgements Act, and the

resulting order granting declaratory relief must be vacated.1



                I.      FACTUAL AND PROCEDURAL BACKGROUND

              The County filed suit in the Circuit Court of Berkeley County against the

City seeking declaratory judgment that various properties located within the City limits,

but owned by the County, are not subject to the City’s zoning ordinances. The complaint




       1
         We acknowledge the Amicus Curiae brief filed by Jerome Radosh, pro se, in
support of affirming the circuit court’s decision.

                                               1
lists twelve properties owned by the Berkeley County Council and six properties owned by

the Berkeley County Building Commission (collectively, the County Properties). The

County Properties include the Berkeley County Court House, the Berkeley County Judicial

Center, the Berkeley County Assessor’s Office, the Berkeley County Sheriff’s Department,

P.O. Faulkner Park, and other public buildings. At oral argument, counsel for the County

indicated that, to his knowledge, the complaint lists all of the properties owned by Berkeley

County located within the City’s limits.




                                             2
                The County’s complaint contended that West Virginia Code §§ 7-3-1,2 -2,3 -

5,4 and -75 support its position that the County has the specific authority, unrestricted by



       2
           In relevant part, West Virginia Code § 7-3-1 provides:

              [n]o words in any devise or conveyance of real estate to a county, or
       the county court [county commission] thereof, or in any contract for the
       conveyance of real estate to a county or the county court thereof, expressing
       the purpose for which such real estate is devised, conveyed or sold, or is to
       be used, shall limit or impair the power of such county court to dispose
       thereof absolutely or use the same for another purpose, unless it be expressly
       declared in such instrument that whenever the said real estate shall cease to
       be used for the purpose, or in the manner therein specified, it shall revert to
       the former owner, his heirs or assigns.
       3
           West Virginia Code § 7-3-2 provides, in pertinent part,

              [t]he county commission may also provide other necessary offices and
       buildings, and may, by purchase or otherwise, acquire as much land as may
       be requisite or desirable for county purposes, and may suitably enclose,
       improve and embellish the lands so acquired.

               Subject to the conditions hereinabove set forth with respect to the site
       of the courthouse, jail, and other offices, the commission may, from time to
       time, as may seem to it proper, provide, at the expense of the county, a new
       or other building or buildings to be used for the courthouse and jail, or for
       either, together with suitable offices, as aforesaid, and for that purpose may
       acquire, by purchase or otherwise, and hold any lands, or lands and buildings,
       which may be necessary, and may enclose, improve and embellish the same.
       4
           In relevant part, West Virginia Code § 7-3-5 provides that

              [t]he county commission of any county is hereby authorized and
       empowered to acquire real estate and to convey real estate and to enter into
       a contract, or lease, or both, with the United States government, or any
       federal agency authorized to make or enter into a contract, or lease, or with
       any bank or financial institution, or with any individual or persons for the
       erection, construction, equipment, leasing, and renting of a courthouse,
       hospital, other public buildings, or jail[.]


                                               3
the Legislature, to purchase property used for courthouses, hospitals, jails and other public

buildings, and therefore the County Properties are not subject to city ordinances that may

restrict the type or location of those public buildings in the county seat. The County then

alleges that the City had previously contended that the County Properties, including those

used for a courthouse, hospital, other public building, or jail are subject to its zoning

ordinances. Consequently, the County sought a declaratory judgment that the County

Properties were not subject to the City of Martinsburg’s zoning ordinances.



              The City filed a motion to dismiss or for summary judgment, contending that

its authority to enact land use regulations extends to all land within its jurisdiction pursuant

to West Virginia Code § 8A-7-1(a)(3), and, that under West Virginia Code § 8A-10-3(a),

the enacting body may enjoin “a person or a unit of government” from violating the enacted

land use ordinances. A “unit of government” as defined in § 8A includes “any federal,

state, regional, county or municipal government or governmental agency.” 6 So, the City



       5
         In relevant part, West Virginia Code § 7-3-7 provides that “[a]ny county
commission is likewise authorized and empowered to acquire real estate for, construct,
equip, furnish and maintain a courthouse, hospital or other public buildings or jail[.]”
       6
         We note that the parties also disagreed below as to whether this Court’s decision
in City of Charleston v. Southeastern Const. Co., 134 W. Va. 666, 64 S.E.2d 676 (1950) is
applicable to this case. In City of Charleston, we examined the countervailing interests of
the State versus the authority of the City of Charleston to regulate land use within city
limits. We held that the subject state-owned property was not subject to the city’s
ordinances as a matter of constitutional concern, and, in doing so, held that the word
“person” in a statute, in the absence of an express provision contrariwise, does not include
a State agency or a public corporation. Of course, the definition here does include “a unit
of government,” and would also require an analysis of the relationship between county and
                                               4
argues that the Legislature intended that county-owned properties would be subject to city

ordinances. That is, the City contends that although Chapter 7, Article 3 of the West

Virginia Code empowers a county to acquire property, that property is equally subject to

city zoning ordinances under West Virginia Code § 8A-7-1(a)(3). Finally, the City argues

that the declaration sought by Berkeley County would, in practice, apply to all county-

owned property, not just those designated for a courthouse, jail, or hospital due to the broad

“other public buildings” language included in statutes at issue.



              In response, the County reiterates the arguments made in the complaint to the

effect that the City’s ordinances could not be applied to the County-owned property used

for the County’s courthouse, hospital, jail or other public buildings consistent with the

provisions contained in Chapter 7, Article 3 of the West Virginia Code. The County further

argues that West Virginia Code § 8A-7-2, which lists the appropriate subjects for zoning,

does not include regulation of government-owned property.



              The circuit court denied the City’s motion, and granted summary judgment

in favor of the County, agreeing that “the City has no inherent power to adopt a zoning

ordinance that affects the properties of governmental entities, and that it is well-established

law in West Virginia that the County is afforded the power to purchase or lease real estate




city, as opposed to city and state. But, we need not reach that issue because we do not rule
on the merits of the underlying appeal.

                                              5
for the purpose of constructing or maintaining a courthouse, hospitals, jails, and other

public buildings.” This appeal followed.



                               II.    STANDARD OF REVIEW

                Petitioner appeals from a grant of summary judgment that resulted in entry

of a declaratory judgment. Accordingly, our review is de novo: “A circuit court’s entry of

a declaratory judgment is reviewed de novo.”7



                                      III.   DISCUSSION

                As an initial matter, the parties do not raise here, nor did they raise below,

whether the County’s declaratory judgment action implicates an actual, justiciable

controversy.8 But, insofar as the presence of a justiciable controversy in the declaratory

judgment context is a matter of jurisdictional authority,9 we consider it sua sponte.




       7
           Syl. Pt. 3, Cox v. Amick, 195 W. Va. 608, 466 S.E.2d 459 (1995).
       8
          The City argued below that the County did not have standing because the
complaint did not allege damage, which the circuit court analyzed using some authority
relating to justiciability. But, we find that analysis irrelevant to examining whether an
actual controversy exists.
       9
        See Syl. Pt. 4, Hustead on Behalf of Adkins v. Ashland Oil, Inc., 197 W. Va. 55,
475 S.E.2d 55 (1996) (enumerating factors for consideration to determine if justiciable
controversy exists sufficient to confer jurisdiction under Uniform Declaratory Judgments
Act).

                                               6
                In West Virginia Utility Contractors Association v. Laidley Field Athletic and

Recreational Center Governing Board,10 this Court outlined the basic requirement of

justiciability, consisting of a legal right claimed by one party and denied by the other:

                “While the Uniform Declaratory Judgments Act, W. Va. Code,
                55-13-1 et seq. (1941) does not expressly require a justiciable
                controversy as a condition precedent to its application, we have
                held that the issue to be determined must be potentially
                justiciable at some future time when the things sought to be
                avoided by the declaratory judgment action will have occurred.
                Robertson v. Hatcher, 148 W.Va. 239, 135 S.E.2d 675 (1964).
                Simply stated, for the purposes of a declaratory judgment
                action, a justiciable controversy exists when a legal right is
                claimed by one party and denied by another.”[11]

                Later, in Hustead on Behalf of Adkins v. Ashland Oil, Inc.,12 we confirmed

the need for an actual, existing controversy:

                        [b]efore a circuit court can grant declaratory relief
                pursuant to the provisions of the Uniform Declaratory
                Judgment Act (“Act”), West Virginia Code §§ 55-13-1 to -16
                (1994), there must be an actual, existing controversy. See Cox
                v. Amick, 195 W.Va. 608, 618, 466 S.E.2d 459, 469 (1995)
                (Cleckley, J., concurring); Mongold v. Mayle, 192 W.Va. 353,
                358, 452 S.E.2d 444, 449 (1994). “To be clear, if there is no
                ‘case’ in the constitutional sense of the word, then a circuit
                court lacks the power to issue a declaratory judgment.” Cox,
                195 W.Va. at 618, 466 S.E.2d at 469. The rationale behind the
                justiciable controversy requirement is that the Act [ ] “is




       10
            164 W. Va. 127, 260 S.E.2d 847 (1979).
       11
         Id. at 131, 260 S.E.2d at 850 (quoting Trail v. Hawley, 163 W. Va. 626, 627-28,
259 S.E.2d 423, 425 (1979)).
       12
            197 W. Va. 55, 475 S.E.2d 55.

                                                7
                designed to enable litigants to clarify legal rights and
                obligations before acting upon them.” Id. (emphasis added).[13]



                 Expanding on those considerations, in Hustead we outlined four factors for

circuit courts to consider in this context:

                       In deciding whether a justiciable controversy exists
                sufficient to confer jurisdiction for purposes of the Uniform
                Declaratory Judgment Act, West Virginia Code §§ 55–13–1 to
                –16 (1994), a circuit court should consider the following four
                factors in ascertaining whether a declaratory judgment action
                should be heard: (1) whether the claim involves uncertain and
                contingent events that may not occur at all; (2) whether the
                claim is dependent upon the facts; (3) whether there is
                adverseness among the parties; and (4) whether the sought after
                declaration would be of practical assistance in setting the
                underlying controversy to rest.[14]



                Applying that framework to the allegations made in the County’s complaint,

it is plain to this Court that there is no actual, existing justiciable controversy sufficient to

confer jurisdiction under the Declaratory Judgments Act. Specifically, the complaint does

not allege any proposed or potential project that might implicate an analysis of the County’s

apparent authority to acquire real estate as it relates to the City’s apparent authority to zone

land within its jurisdiction. There has been no legal right claimed by the County to acquire

particular real estate for or to construct a particular type of public building—or any building

for that matter—and, consequently, there has been no right denied by the City based on


       13
            Id. at 61, 475 S.E.2d at 61.
       14
            Syl. Pt. 4, Hustead, 197 W. Va. 55, 475 S.E.2d 55.

                                               8
one or more of its zoning ordinances. We are therefore asked to resolve an issue that has

not, and indeed may not, ever arise.



                We recognize that declaratory judgments provide certainty for parties as to

the extent of their legal rights before undertaking enormous expense or legal obligation.15

But, as we have discussed, “[t]he crux of the actual controversy requirement . . . is that the

facts must be known and existing at the time of the filing of a declaratory judgment

proceeding[.]”16 The parties here seek an advisory opinion in the total absence of factual

circumstances and real controversy, and ask us to interpret and apply statutes that

necessarily require factual inquiry. Further, there is no proposed project apparent from the

complaint or the parties’ briefs that gives any indication that this declaratory judgment was

sought for the purpose of avoiding an expense or undertaking an obligation.



                As to the third Hustead factor, the parties are undoubtedly adverse, in that

they take different legal positions, but that level of adverseness is considerably different

from that required in the context of avoiding issuance of advisory opinions. We have

discussed that “one problem with ‘friendly,’ or ‘test case’ lawsuits is that the nominally


       15
           See W. Va. Inv. Management Bd. v. Variable Annuity Life Ins. Co., 234 W. Va.
469, 476, 766 S.E.2d 416, 423 (2014) (“Clarification of legal rights and obligations before
a party is forced to act upon those rights and obligations is the ideal which the Act seeks to
promote. See Cox v. Amick, 195 W. Va. 608, 618, 466 S.E.2d 459, 469 (1995) (Cleckley,
J., concurring).”).
       16
            Id. (citing Hustead, 197 W. Va. at 61-62, 475 S.E.2d at 61-62).

                                               9
adverse parties are not truly at each other’s throats. The parties do not have the gut-level

adversarial incentive that causes a litigant to bring forward all possibly meritorious

arguments that might defeat their opponent’s claims.”17 Again, because we have no

specific project or ordinance to analyze, there may be additional arguments unknown to

the parties specific to a particular project or ordinance that might influence analysis of the

parties’ competing authority, be it additional statutory or regulatory authority or some

matter of balancing public policy interests. For a similar reason, this case does not present

an actual, justiciable controversy under the fourth Hustead factor. Any opinion rendered

by this Court would be a blind reconciliation and application of statutes, and could be

wholly inapplicable to a proposed future project, or its intended use, depending on the

factual circumstances. For that reason, the sought-after declaration is of little use to settle

any potential future dispute even if it were to eventually arise.



              To the extent the County seeks to ascertain its legal rights prior to embarking

on a project to construct a building for a particular public use in a particular location that

could arguably be subject to the City’s zoning ordinances, we invite the County to amend

its complaint to reflect that. As it stands, however, we are unable to define the County’s

authority as opposed to the authority of the City because we have no context with which to

evaluate the statutes implicated, and are unable to render a judgment capable of resolving


       17
         State ex rel. W. Va. Deputy Sheriff’s Ass’n, Inc. v. Sims, 204 W. Va. 442, 446, 513
S.E.2d 669, 673 (1998) (citing Alsop v. McCartney, 159 W. Va. 829, 228 S.E.2d 278
(1976)).

                                              10
such a general and wide-ranging dispute.18 As we have long held, “[c]ourts are not

constituted for the purpose of making advisory decrees or resolving academic disputes[,]”19

and we decline to do so here. Although the question of a justiciable controversy was not

raised in this context before the circuit court, we find that the order issued by the circuit

court was advisory in that it lacked a justiciable controversy sufficient to confer jurisdiction

under the Uniform Declaratory Judgment Act, and, for that reason, must be vacated.



                                      IV.    CONCLUSION

                For the reasons set forth above, we vacate the January 29, 2018 order of the

Circuit Court of Berkeley County.

                                                                               Order vacated.




       18
         In the meantime, we invite the Legislature to clarify if it intended to elevate either
the county’s or the city’s authority over the other in the context of West Virginia Code
Chapter 7, Article 3 and Chapter 8A.
       19
            Syl. Pt. 2, in part, Harshbarger v. Gainer, 184 W. Va. 656, 403 S.E.2d 399 (1991).

                                               11
