                            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[.]”



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         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).


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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.


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           (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.



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        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

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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




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