School Board of Stafford County v. Sumner Falls Run, LLC (ORDER)

VIRGINIA:
In the Supreme Court of Virginia held at the Supreme Court Building in the
City of Richmond on Wednesday the 3rd day of July, 2024.
SCHOOL BOARD OF STAFFORD COUNTY, 	PETITIONER,
against 	Record No. 240352
Circuit Court No. CL23003313-00
SUMNER FALLS RUN, LLC, ET AL., 	RESPONDENTS.
and
VIRGINIA DEPARTMENT OF TRANSPORTATION, 	PETITIONER,
against 	Record No. 240353
Circuit Court No. CL23003313-00
SUMNER FALLS RUN, LLC, 	RESPONDENT.
UPON PETITIONS FOR REVIEW UNDER CODE § 8.01-670.2
Justices McCullough, Russell, and Mann
Upon consideration of the petitions filed pursuant to Code § 8.01-670.2, the Court is of
opinion that the judgment below should be reversed.
Stafford County is in the process of building two new schools. A nearby property owner,
Sumner Falls Run, LLC (“Sumner”), is concerned about the adverse effects this construction will
have on an easement it owns and on the value of property it owns. Sumner filed a declaratory
judgment action against the School Board of Stafford County and the Virginia Department of
Transportation seeking the following relief: (1) a declaration that the School Board can access
its site through a private easement and/or county-owned and maintained road; (2) a declaration
that Sumner has a vested right to maintain the existing intersection of Village Falls Drive and
Stafford Plaza Drive under Code § 15.2-2307; (3) a declaration that the existing entrance of the
same two roads is exempt from VDOT’s Access Management regulations under
24 VAC 30-70-120(C)(3)(a); and (4) a declaration that any taking of property beyond extending

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the current easement violates the doctrine of necessity and is forbidden by Article I, § 11 of the
Virginia Constitution.
The School Board and VDOT filed a plea of sovereign immunity, contending that the
doctrine barred Sumner’s declaratory judgment action. The circuit court held that the declaratory
judgment action was not barred by sovereign immunity. Relying on Code § 8.01-670.2, which
allows an interlocutory appeal from a granted or denied plea of sovereign immunity, the School
Board and VDOT appeal this decision. We entered a stay and now reverse the judgment below.
We “review de novo a trial court’s ruling on a plea of sovereign immunity.” Pike v.
Hagaman, 292 Va. 209, 214 (2016).
I. 	T HE DECLARATORY JUDGMENT ACT DOES NOT ABROGATE SOVEREIGN IMMUNITY
ACROSS THE BOARD .
As a general proposition, the common law did not permit an action unless a wrong had
actually been committed. As a consequence, it was “impossible to know for certain whether a
proposed act or course of action was legally permissible. The only thing which could be done
was to plunge ahead as if in the dark, and hope that one’s attorney was correct in his conclusion
as to the applicable law.” Stanley H. Mervis, Declaratory Judgments in Virginia, 1 Wm. &
Mary Rev. Va. 32, 32 (1950). To overcome this obstacle, the Commission on Uniform State
Laws recommended the enactment of the Uniform Declaratory Judgment Act in 1921. Virginia
adopted its Declaratory Judgment Act in 1922. See Chick v. MacBain, 157 Va. 60, 66 (1931)
(“The manifest intention of the legislature . . . was to provide for a speedy determination of
actual controversies between citizens, and to prune . . . the dead wood attached to the common
law rule of ‘injury before action.’”).
Although the Declaratory Judgment Act abrogates the common law’s injury-before-
action barrier, it does “not create or change any substantive rights, or bring into being or modify
any relationships, or alter the character of controversies, which are the subject of judicial
power.’” Williams v. Southern Bank of Norfolk, 203 Va. 657, 662 (1962).
In its current form, the Declaratory Judgment Act, Code § 8.01-184, provides:
In cases of actual controversy, circuit courts within the scope of
their respective jurisdictions shall have power to make binding
adjudications of right, whether or not consequential relief is, or at
the time could be, claimed and no action or proceeding shall be
open to objection on the ground that a judgment order or decree
merely declaratory of right is prayed for. Controversies involving

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the interpretation of deeds, wills, and other instruments of writing,
statutes, municipal ordinances and other governmental regulations,
may be so determined, and this enumeration does not exclude other
instances of actual antagonistic assertion and denial of right.
The interpretation of the Declaratory Judgment Act is a question of statutory
interpretation, “a pure question of law which we review de novo.” Conyers v. Martial Arts
World of Richmond, Inc., 273 Va. 96, 104 (2007).
The language of the Declaratory Judgment Act itself does not expressly waive sovereign
immunity.1 We have never held that the Declaratory Judgment Act waives sovereign immunity.
To the contrary, we have held that sovereign immunity can bar a declaratory judgment action
against the Commonwealth unless the General Assembly has made its intent clear that sovereign
immunity is waived and, therefore, a declaratory judgment action can proceed against the
Commonwealth. For example, in Virginia Board of Medicine v. Virginia Physical Therapy
Ass’n, 245 Va. 125 (1993) (aff’g 13 Va. App. 458 (1991)), we approved the Court of Appeals’
holding that the Virginia Administrative Process Act (“VAPA”) waived sovereign immunity to
permit judicial review of an agency’s regulations, but only in the manner provided by the VAPA.
In that instance, the VAPA did not permit a declaratory judgment action. Consequently, a
declaratory judgment action, which fell outside the procedure contemplated by the act, was
barred by sovereign immunity. Id. In Afzall v. Commonwealth, 273 Va. 226 (2007), we
similarly concluded that a statute governing Medicaid liens did not provide a waiver of sovereign
immunity that would permit a court to entertain a declaratory judgment action against the
Commonwealth and, therefore, sovereign immunity barred the action.
In short, the Declaratory Judgment Act, by itself, is not an across-the-board waiver of
sovereign immunity. We reverse the circuit court’s judgment to the contrary.
II. 	S OVEREIGN IMMUNITY DOES NOT BAR A DECLARATORY JUDGMENT ACTION IF THE
CLAIM IS BASED ON A SELF-EXECUTING PROVISION OF THE VIRGINIA CONSTITUTION; A
1 The holding in Pritchett v. Petersburg City Council, 103 Va. Cir. 270 (Petersburg
2019), upon which the circuit court relied, cannot be reconciled with our precedent. The court in
Pritchett concluded that Code § 8.01-184 waived sovereign immunity in any declaratory
judgment action seeking the interpretation of a municipal ordinance. Although Code § 8.01-184
allows a declaratory judgment action in certain kinds of cases, it does not by its plain language
abrogate sovereign immunity in any declaratory judgment action.

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DECLARATORY JUDGMENT IS PROPER , HOWEVER, ONLY IF THE CASE PRESENTS A JUSTICIABLE
CONTROVERSY UNDER THE DECLARATORY JUDGMENT ACT .
When a constitutional provision is self-executing, “sovereign immunity does not preclude
declaratory and injunctive relief.” DiGiacinto v. Rector & Visitors of George Mason Univ., 281
Va. 127, 137 (2011). In addition, self-executing provisions “are enforceable in a common law
action.” Gray v. Va. Sec’y of Transp., 276 Va. 93, 106 (2008). The takings provisions of the
Virginia Constitution are self-executing. Kitchen v. City of Newport News, 275 Va. 378, 392
(2008). That, however, does not end the inquiry here. A declaratory judgment action, even one
based on a self-executing provision of the Virginia Constitution, must be justiciable under
longstanding principles that govern the Declaratory Judgment Act.
Under the Declaratory Judgment Act, the circuit courts have the authority to make
“binding adjudications of right” in cases of “actual controversy” when there is “antagonistic
assertion and denial of right.” Code § 8.01-184. Treacy v. Smithfield Foods, 256 Va. 97, 103
(1998). “To be ‘justiciable,’ the controversy must involve specific adverse claims that are based
on present, not future or speculative, facts that are ripe for judicial assessment.” Id. at 103-04.
The Declaratory Judgment Act, however, “does not give trial courts the authority to render
advisory opinions, decide moot questions, or answer inquiries that are merely speculative.” Id.
at 104. Compare City of Fairfax v. Shanklin, 205 Va. 227, 229 (1964) (declaratory judgment
action dismissed as not justiciable) with Reisen v. Aetna Life & Cas. Co., 225 Va. 327, 331
(1983) (declaratory judgment action was appropriate).2
As to VDOT, the declaratory judgment sought by Sumner does not implicate a self-
executing provision of the Virginia Constitution. Therefore, the circuit court should grant
VDOT’s plea of sovereign immunity.
With respect to the School Board, the answer is more complex. For many constitutional
rights, particularly those contained in the Bill of Rights, a declaratory judgment is proper to
prevent those rights from being infringed. For example, the government has no right to abridge
free speech rights or to conduct searches under a general warrant. In contrast, the government
2 We also note that while Code § 8.01-187 plainly authorizes declaratory judgment
actions in eminent domain proceedings, see Sheffield v. Dep’t of Highways & Transp., 240 Va.
332 (1990), that statute does not contemplate a declaratory judgment that is based on future or
speculative facts. Rather, it permits a declaratory judgment once a taking or damaging of
property has occurred.

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can take or damage private property, provided that the taking or damaging is for a public use and
that just compensation is paid. There is no dispute here that a taking would be for a public
purpose. Sumner does not allege that the Commonwealth or the School Board is on the cusp of
damaging its property within the intendment of Article I, § 11. No taking has yet occurred.
Therefore, Sumner’s declaratory judgment action is premature with respect to its takings claim.
Sumner further claims that the School Board plans to take more of its property than is necessary.
It is not clear on the record before us whether this aspect of Sumner’s declaratory judgment
action is premature or whether it is justiciable. Further evidence may be needed to resolve this
point.
We remand the case for further proceedings consistent with this order and with
longstanding principles that govern the justiciability of declaratory judgment actions.
This order shall be published in the Virginia Reports and certified to counsel for the
Petitioners, counsel for the Respondents, and the Circuit Court of Stafford County.
A Copy,
Teste:
Clerk