Harrison v. Town of Eleanor

• Decision Date: 15 July 1994
• Docket Number: No. 21886,21886
• Citation: 447 S.E.2d 546,191 W.Va. 611
• Court: West Virginia Supreme Court
• Parties: Ray O. HARRISON, Plaintiff Below, Appellee, v. TOWN OF ELEANOR, a Municipal Corporation, Defendant Below, Appellant.

Page 546

447 S.E.2d 546

191 W.Va. 611

Ray O. HARRISON, Plaintiff Below, Appellee, v. TOWN OF ELEANOR, a Municipal Corporation, Defendant Below, Appellant.

No. 21886.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 12, 1994.

Decided July 15, 1994.

Syllabus by the Court

1. "A declaratory judgment action is a proper procedure for an adjudication of the legal rights and duties of parties to an actual, existing controversy which involves the construction or application of a statute or statutes." Syl. Pt. 1, Arthur v. County Court of Cabell County, 153 W.Va. 60, 167 S.E.2d 558 (1969).

2. "A motion for summary judgment should be granted if the pleadings, affidavits or other evidence show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Syllabus, Hanks v. Beckley Newspapers Corp., 153 W.Va. 834, 172 S.E.2d 816 (1970).

3. "The summary judgment procedure provided by Rule 56 of the West Virginia Rules of Civil Procedure does not infringe the constitutional right of a party to a trial by jury; it is not a substitute for a trial or a trial either by a jury or by the court of an issue of fact, but is a determination that, as a matter of law, there is no issue of fact to be tried." Syl. Pt. 7, Petros v. Kellas, 146 W.Va. 619, 122 S.E.2d 177 (1961).

4. Determinations involving questions of law are within the sole province of the court, while determinations of fact are within the province of the jury. Thus, the court must resolve questions of law and cannot delegate that responsibility to the jury. When a court permits a jury to make legal determinations, reversible error occurs.

5. "Land-use regulations will not constitute an impermissible taking of property under the Fifth Amendment to the United States Constitution and Section 9 of Article III of the West Virginia Constitution if such regulations can be reasonably found to promote the health, safety, morals, or general welfare of the public and the regulations do not destroy all economic uses of the property." Syl. Pt. 6, McFillan v. Berkeley County Planning Comm'n, 190 W.Va. 458, 438 S.E.2d 801 (1993).

6. "Zoning is concerned with whether a certain area of a community may be used for a particular purpose...." Syl. Pt. 1, in part, Kaufman v. Planning & Zoning Comm'n, 171 W.Va. 174, 298 S.E.2d 148 (1982).

7. A building ordinance enacted pursuant to West Virginia Code § 8-12-13 (1990) involves how the use of any given piece of property is undertaken, while a zoning ordinance enacted pursuant to West Virginia Code § 8-24-39 (1990) concerns whether a certain piece of property may be used for a particular purpose.

Harvey D. Peyton, Nitro, for appellee.

Christopher J. Heavens, McQueen & Brown, Charleston and Mark A. Sorsaia, Sorsaia & Garvin, Hurricane, for appellant.

WORKMAN, Justice:

This case is before the Court upon the appeal from the January 28, 1993, final order of the Circuit Court of Putnam County denying the Appellant, the Town of Eleanor (hereinafter referred to as Eleanor), its motion for new trial or judgment notwithstanding the verdict, following a jury award of $10,000 in damages to the Appellee, Ray O. Harrison. The Appellant argues that the following assigned errors were committed by the lower court: 1) the lower court was legally required to issue a summary judgment ruling on questions of law and committed plain error in allowing the civil action to be tried to a jury since all of the questions presented were questions of law; 2) the lower court committed plain error by not ruling on the constitutional validity of the subject ordinance; 3) the failure of the lower court to rule, as a matter of law, that the subject ordinance was a building ordinance passed in compliance with West Virginia Code § 8-11-4 (1990) constitutes plain error; 4) the Appellant was entitled to summary judgment on the Appellee's prayer for damages since it was based upon an invalid contract theory; 5) the Appellant was entitled to summary judgment or directed verdict on the issue of damages since the Appellee's prayer for damages was based upon an invalid contract theory and the evidence presented on this in discovery and at trial did not meet the legally-mandated standard of reasonable certainty; 6) an erroneous jury instruction given by the lower court is presumed to be prejudicial to the party it is offered against; 7) the lower court's refusal to grant the Appellant's special questions to the jury created a conflict in instructions to the jury which clearly constituted reversible error; and 8) the lower court's refusal to grant the Appellant's first jury instruction constitutes reversible error. ¹ Having reviewed the parties' briefs, arguments and all other matters submitted before the Court, we conclude that the lower court erred in allowing questions of law to be decided by the jury, and in failing to resolve the questions of law as to whether the disputed ordinance was either a building ordinance or a zoning ordinances. Accordingly, we reverse.

I.

On June 20, 1973, the Appellee and his wife purchased a .31 acre triangular parcel of land in Eleanor, West Virginia. The land was unimproved at the time of the purchase, but the Appellee planned to construct apartment units on the property.

On January 29, 1986, the Appellee began developing his property by applying for two building permits with the Appellant. Included in the application supplied by the Appellant was the following statement set forth in compliance with a 1984 amendment to Eleanor Ordinance 75-2 (also referred to as Ordinance No. 75-2), which essentially placed a twenty-foot setback requirement from the street and abutting properties on the construction of residential dwellings:

ALL STRUCTURES TO BE 10 FOOT (sic) FROM REAR AND SIDE PROPERTY LINES AND 20 FOOT (sic) FROM STREET RIGHT OF WAY ON PROPERTY WEST OF THE 10 FOOT EASEMENT ON F STREET. PROPERTY EAST OF THE 10 FOOT EASEMENT ON F STREET WILL COMPLY WITH THE 25 FOOT FRONT SETBACK AS SET FORTH BY THE DEEDS OR ANY OTHER AREA WHERE THE DEEDS SPECIFY OVER THE 20 FOOT MINIMUM SET BACK.

After submitting the applications, the Appellee's property was inspected by Mr. Ray McClanahan, the building inspector for Eleanor. Mr. McClanahan issued two separate building permits, dated January 29, 1986, for the Appellee's proposed construction. At the time the permits were issued, the Appellee tendered to the Appellant the required payment for the permits.

By letter dated February 4, 1986, Charles A. Jeffries, Mayor of Eleanor, advised the Appellee that the Appellant could not accept the applications or payment tendered by the Appellee for the building permits since the Appellee had "not complied with Ordinance No. 75-2." Mr. Jeffries enclosed a copy of said ordinance and advised the Appellee that he could appear before the Town Council if he had any questions. The Appellee appeared before the Town Council, but was unsuccessful in his attempts to rescind the revocation of the building permits.

The Appellee instituted a declaratory judgment action against the Appellant regarding the statutory and constitutional validity of Ordinance No. 75-2 on February 26, 1987. The Appellee maintained in the action that the ordinance prevented him from building garage apartments on his property. The Appellee further alleged an unconstitutional taking of his property and that the subject ordinance constituted a zoning ordinance which the Appellant had failed to publish notice of in violation of West Virginia Code § 8-24-18 (1990).

The Appellee's case remained in the circuit court for over four years until September 5, 1991, when the court granted the Appellee leave to amend his original complaint. Up until that time, the circuit court had not entered a ruling on the declaratory judgment action. On September 10, 1991, the Appellee amended the original complaint to include a claim for money damages for lost rents which he would have allegedly realized had he been permitted to build the garage apartments. The Appellee also alleged that the Appellant had entered into a contract with him when the Appellant mistakenly issued the building permits on January 29, 1986, only to revoke the permits a few days later on February 4, 1986.

The case proceeded to trial with the lower court never entering an order resolving the declaratory judgment action. Consequently, the legal issues were presented to the jury for resolution as indicated by the jury instructions given at trial. ² On May 20, 1992, a jury returned a verdict in favor of the Appellee, awarding damages in the amount of $10,000.

II.

The first issue before the Court is whether the circuit court erred in allowing legal issues to be decided by the jury. The Appellant argues that the lower court was legally required to make rulings on questions of law and committed plain error in allowing this civil action to be tried by a jury since all of the questions presented were questions of law. The Appellee concedes in his brief that "the status of 'Amendment to Ordinance 75-2' as a 'zoning ordinance' or a 'building ordinance' should have been determined by the trial court as a matter of law."

It is well-settled that questions of law should be determined by the court and not the jury. For instance, the whole purpose of the Uniform Declaratory Judgments Act, West Virginia Code §§ 55-13-1 to -16 (1981), is to enable courts to dispense quickly with legal questions which arise in litigation. West Virginia Code § 55-13-1 provides that "[c]ourts of record within their respective jurisdictions shall have power to declare rights, status and other legal relations whether or not further relief is or could be claimed." Further, "[a]ny person ... whose rights, status or other legal relations are affected by a ... municipal ordinance ... may have determined any question of construction or validity arising under the ... ordinance ... and obtain a declaration of...