City of Fairfax v. Shanklin

Decision Date27 April 1964
Docket NumberNo. 5735,5735
Citation205 Va. 227,135 S.E.2d 773
CourtVirginia Supreme Court
PartiesCITY OF FAIRFAX, ET AL. v. JAY E. SHANKLIN. Record

John H. Rust, for the appellants.

Jay E. Shanklin, for the appellee.

JUDGE: CARRICO

CARRICO, J., delivered the opinion of the court.

On May 2, 1962, Jay E. Shanklin, the plaintiff, filed a 'Motion for Declaratory Judgment and Other Relief' (Code, § 8-578) against the city of Fairfax and the Board of Zoning Appeals of the city, the defendants.

The motion sought an adjudication that certain sections of the city's zoning ordinance were invalid insofar as they purported to confer upon the Board of Zoning Appeals the authority to issue special use permits for the construction of apartments in the city. The motion prayed that the city be restrained, 'from issuing any building or construction permit pursuant to any 'special use permit' issued by the Board.'

The defendants filed a 'Motion to Strike' the motion for declaratory judgment on the grounds that, 'no controversy is shown to exist' between the plaintiff and the defendants and that the plaintiff, 'has no standing in Court to protest local practices unless there is a direct injury to him, and that mere apprehension and speculation that he will in fact be injured is insufficient grounds for the maintenance of this action.'

On May 28, 1962, the trial court, after hearing argument, ruled that there was 'an actual controversy' between the parties and that the plaintiff, because he was a taxpayer of the city, 'has an interest which might be injuriously affected by an illegal decision' of the Board of Zoning Appeals. The defendants' motion to strike was overruled.

The defendants then filed their answer and grounds of defense, affirming the authority of the Board of Zoning Appeals to issue special use permits for the construction of apartments, and reasserting their claim of lack of controversy between the parties.

Thereafter, on March 15, 1963, in its final order, the trial court ruled that the city's zoning ordinance was invalid, insofar as it related to the authority of the Board of Zoning Appeals to grant special use permits for apartments. The defendants were granted an appeal.

The defendants assigned error to the actions of the trial court in ruling:

1. That an actual controversy existed between the parties and that the plaintiff had standing to maintain the declaratory judgment action.

2. That the disputed provisions of the city's zoning ordinance were invalid.

The plaintiff sought, by his motion for declaratory judgment, to have declared invalid certain portions of the zoning ordinance of the city. That ordinance, in section 11, permitted the construction of apartments and apartment houses in zone R-3 upon the granting of special use permits by the Board of Zoning Appeals, under the authority of section 5.08, 'subject to conditions in section 5-12.'

It was the plaintiff's contention that section 5.08 of the ordinance, insofar as it related to the authority of the Board of Zoning Appeals to grant special use permits for apartments, was invalid because it was at variance with Code, § 15-831, which authorized the city, in its zoning ordinance, to confer upon the board the power, 'to hear and decide special exceptions.' The gist of the plaintiff's argument was that statutory authority for the board to hear and decide special exceptions did not bestow power to grant special use permits for apartments.

In the view which we take of the case, however, we do not reach the question of the alleged invalidity of the special use permit provisions of the ordinance. We are of opinion that the trial court should not have taken jurisdiction of the declaratory judgment action in the first instance.

Code, § 8-578 is the statutory authority for declaratory judgment proceedings in this Commonwealth. From it stem the jurisdiction of the courts of record to entertain applications for declaratory relief and the power to make binding adjudications of the rights of the parties involved.

But the same Code section also imposes limitations upon the exercise of such jurisdiction and power. It must appear that there is an 'actual controversy' existing between the parties, based upon an, 'actual antagonistic assertion and denial of right', before the application can be entertained and an adjudication made. Code, § 8-578; Williams v. Bank of Norfolk, 203 Va. 657, 661-663, 125 S.E.2d 803; Yukon Pocahontas Coal Co. v. Ratliff, 175 Va. 366, 368, 8 S.E.2d 303; Chick v. MacBain, 157 Va. 60, 66, 160 S.E. 214; Burks Pleading and Practice, 4th Ed., Sec. 194, p. 310; Annotation, 174 A.L.R. 853.

The controversy must be one that is justiciable, that is, where specific adverse claims, based upon present rather than future or speculative facts, are ripe for judicial adjustment. Schroder v. City of Lincoln, 155 Neb. 599, 52 N.W.2d 808, 813; 26 C.J.S., Declaratory Judgments, § 27, p. 99, § 28, p. 101; 16 Am. Jur., Declaratory Judgments, § 26, p. 298; Annotation, 114 A.L.R., 1361, 1363.

The reason for these rules is that the courts are not constituted, and the declaratory judgment statute was not intended to vest them with authority, to render advisory opinions, to decide moot questions or to answer inquiries which are merely speculative. Patterson's Ex'rs v. Patterson, 144 Va. 113, 119, 120, 131 S.E. 217; 26 C.J.S., Declaratory Judgments, § 30, p. 107.

In the case before us, the plaintiff alleged in his motion for judgment that an application on behalf of Leon Johnson and Bennett W. King was pending before the Board of Zoning Appeals seeking a special use permit to erect apartments. However, the trial court did not rely upon that...

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    ...moot questions, or to answer inquiries which are merely speculative.") (alteration omitted) (quoting City of Fairfax v. Shanklin , 205 Va. 227, 229–30, 135 S.E.2d 773, 775–76 (1964) ).2 Following the tradition of English jurists, see William H. Rehnquist, The Supreme Court 40 (2d ed. 2001),......
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