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IN THE CIRCUIT COURT OF JEFFERSON COUNTY
BROWN SHOP ROAD L.L.C., Petitioner,
v. ----------- Case No. 03-C-134
JEFFERSON COUNTY COMMISSION, A Body Politic, Respondent.
PRE-TRIAL MEMORANDUM OF BROWN
SHOP ROAD L.L.C.
IN RELATION TO ITS COMPLAINT FOR DECLARATORY JUDGMENT
COMES NOW, Petitioner Brown Shop Road L.L.C. ("Brown Shop") and files this Pre-Trial Memorandum in Relation to its Complaint for Declaratory Judgment, and states as follows:
I. SUMMARY OF FACTS
Brown Shop is the land owner of Blackford Farms (hereinafter "Blackford"). This real property is a 325-acre parcel which fronts on Route 9 in northwestern Jefferson County. Blackford adjoins Fox Glen on its northwestern boundary. Fox Glen is perhaps Jefferson Countys most dense single-family use having approximately 310 single-family homes. The southeast boundary of Blackford is Brown Shop Road. Across Brown Shop Road from Blackford is the Burr Industrial Park, which is an industrial subdivision containing approximately sixty (60) individual industrial lots. To the immediate south of Blackford is a 500-acre parcel upon which is located the United States Department of Agriculture Appalachian Fruit Research Station. To the north of Blackford are located several existing single-family homes, which appear to be a subdivision of more than five (5) lots, and a portion of Jefferson Orchard.
Blackford made application for a Conditional Use Permit for residential development pursuant to Jefferson County's Zoning Ordinance. Following a LESA Points Assessment by the Jefferson County Zoning Administrator of 59.3 points, Blackford pursued an appeal of the Zoning Administrators LESA Evaluation to the Jefferson County Zoning Board of Appeals ("ZBA"). The ZBA affirmed the Zoning Administrators conclusions on April 17, 2003.
The Petitioner thus has filed its Petition for Writ of Certiorari with respect to the ZBA's determination that the Zoning Administrator should be affirmed with respect to the LESA determination. However, as noted by this Court in other cases, specifically Knott v. Meyers, et al., Civil Action No. 99-C-59 (Order dated May 16, 2003), a Petitioner on appeal may not ordinarily challenge the constitutionality of provisions of the zoning ordinance which are the subject of an appeal to a board of zoning appeals. The West Virginia Supreme Court of Appeals has clearly distinguished between the courts limited authority in cases reviewing actions of administrative zoning officials, as opposed to a courts authority to invalidate ordinance provisions in a declaratory judgment action. Carter v. City of Bluefield, 132 W.Va. 881 (1949). See also Board of Zoning Appeals of James City County v. University Square Associates, 246 Va. 290 (1993). Therefore, the Petitioner has brought this Declaratory Judgment action in order to challenge certain provisions of the Jefferson County Zoning Ordinance as constitutionally infirm..
As noted in a scheduling conference before this Honorable Court, the parties believe that they will enter into a stipulation of facts. The relevant facts that Petitioner anticipates will be the subject of a stipulation are as follows:
1. The Jefferson County Zoning Administrator assessed a LESA score assessment of 59.3 points.
2. The Zoning Administrator assessed ten (10) points, citing Section 6.4(b) of the Zoning Ordinance, that relates to adjacent development, concluding incorrectly that 93% of the property adjacent to Blackford is undeveloped notwithstanding the Fox Glen subdivision, the Burr Industrial Park, and the industrial/office use at the USDA facility.
3. The Zoning Administrator assessed four (4) points, citing Section 6.4(d) of the Zoning Ordinance, that relates to "proximity" to "highway problem areas."
4. The Zoning Administrator assessed three (3) points, citing Section 6.4(f) of the Zoning Ordinance, relating to public water availability.
5. In an opinion issued by the Honorable Thomas W. Steptoe, Jr., in Corliss v. Jefferson County Board of Zoning Appeals, Case No. 01-C-139 (February 14,2002), this Honorable Court applied Section 6.4(b) of the Jefferson County Zoning Ordinance in reviewing a LESA score assessment of the Zoning Administrator and the Zoning Board of Appeals.
6. Prior to the decision in Corliss, the Jefferson County Zoning Administrator interpreted the criteria provided for in Section 6.4(b) of the Zoning Ordinance relating to adjacent properties by making calculations based on linear boundaries to adjacent properties.
7. The LESA calculation in relation to adjacent properties in this case was based upon the methodology established in Corliss.
8. The ZBA affirmed the Zoning Administrators points assessment with respect to adjacent properties based in part upon the decision in Corliss.
9. The ZBA, in affirming the Zoning Administrators points assessment, similarly considered only the first row of single-family lots in the Fox Glen Subdivision for the purpose of the calculation mandated by Section 6.4(b) of the Zoning Ordinance.
10. The ZBA, in affirming the Zoning Administrators points assessment, considered only the lots fronting on Brown Shop Road within the Burr Industrial Park for the purpose of the calculation mandated by Section 6.4(b) of the Zoning Ordinance, even though the USDA most certainly has an industrial and office use.
11. The ZBA, in affirming the Zoning Administrators points assessment, considered the USDA Fruit Research Center to be an agricultural use for the purpose of the calculation mandated by Section 6.4(b) of the Zoning Ordinance.
12. Section 6.4(b) of the Jefferson County Zoning Ordinance provides as follows:
(b) Adjacent Development (10 points)
This criterion assesses a combination of the percentage of land in actual agricultural use (including timber or pasture land) and percentage of adjacent land that does not indicate that there is development pressure. Intense development pressure includes more than a 5 lot subdivision and commercial or industrial uses. An average of the two will yield a percentage of land adjacent to the property that is either farmed or not intensely developed.
Percent of Land . . . Points
86-100% . . . 10
76-85% . . . 8
61-75% . . . 6
51-60% . . . 4
41-50% . . . 2
26-40% . . . 1
0-25% . . . 0
13. Section 6.4(d) of the Jefferson County Zoning Ordinance provides as follows:
(d) Comprehensive Plan Compatibility (8 points)
This criterion shall determine whether site development is supportive or has a negative impact on the following elements of the Comprehensive Plan: Proximity of the site to the Highway Problem Areas (4 points), Compatibility of site development with designed parks, historical and recreational areas (2 points), and land use pdlkies and recommendations (2 points).
Points
Site development has a negative impact on element . . . 2+
Site development is not supported or against element of the Plan .
. . 1+
Site development has a supportive effect on element . . . 0+
+ Points value awarded should be doubled for Highway Problem Area Element.
14. Section 6.4(f) of the Jefferson County Zoning Ordinance provides as follows:
(f) Public Water Availability (11 points)
This criterion assesses the availability of existing public water service with available capacity that is approved by the County Health Department and/or Public Service District to the site at the time of the development proposal application.
If there is no public water available, a central water system or private well/wells can be used. The value for a proposed central water system is assigned to the development application recognizing that the system with adequate capacity to serve the development will be approved by the Public Service District, County Health Department and the Department of Natural Resources before preliminary plat or site plan approval occurs. If neither a public or central water system is available, the point value for a private well/wells must be assigned.
AVAILABILITY . . . POINTS
Existing Public Water is
Available or public Water will be built to the site . . . 0
Central Water is Proposed . . . 3
Private Well/Wells must be Utilized . . . 11
II. DECLARATORY JUDGMENT IS THE APPROPRIATE PROCESS TO CHALLENGE THE CONSTITUTIONAL VALIDITY OF VAGUE OR INDEFINITE SECTIONS OF THE JEFFERSON COUNTY ZONING ORDINANCE
This Declaratory Judgment action seeks to declare certain sections of the Jefferson County Zoning Ordinance as unconstitutionally enforceable by virtue of the vague and indefinite terms provided therein.
A. A Presumption of Validity Applies to Legislative Functions such as Zoning Ordinances
It is well settled that a presumption of validity that attaches to such regulations such as zoning Ordinances. Town of Stonewood v. Bell, 165 W. Va. 653, 657, 270 S.E.2d 787, 790 (1980). "The enactment of a zoning ordinance of a municipality, being a legislative function, all reasonable presumptions should be indulged in favor of its validity." Syll. Pt. 3, G-MRealty, Inc. v. City of Wheeling, 146 W. Va. 360, 120 S.E.2d 249 (1961).
A zoning ordinance is an exercise of the broad police power of the state, as delegated to the local governing body. Par-Mar v. City of Parkersburg, 183 W. Va. 706, 709, 398 S.E.2d 532, 535 (1990). Although it has been said that the police power is not susceptible of precise definition, it is generally accepted that it is the power to enact laws, within constitutional limits, to promote and preserve the peace, security, safety, morals, health and general welfare of the community. State ex rel. West Virginia Dept. of Natural Resources v. Cline, 200 W. Va. 101, 488 S.E.2d 376 (1997); State v. Ivey, 196 W. Va. 571, 474 S.E.2d 501 (1996); State ex rel. City of Princeton v. Buckner, 180 W. Va. 457, 377 S.E.2d 139 (1988). The validity of a zoning ordinance, therefore, requires that the restrictions imposed not be "arbitrary or unreasonable and bear a substantial relation to the public health, safety, morals, or the general welfare of the municipality." Syll. Pt. 7, in part, Carter v. City of Bluefield, supra. Of course, courts will not declare invalid, in whole or in part, any ordinance where the question of whether the restrictions are arbitrary or unreasonable is fairly debatable. Town of Stonewood v. Bell, 165 W. Va. 653, 657, 270 S.E.2d 787, 790 (1980), citing Anderson City of Wheeling, 150 W. Va. 689, 149 S.E.2d 243 (1966).
A court considering the constitutionality of a zoning ordinance need also remember that an ordinance "may be valid in its general scope and broad outline but invalid to the extent that the restrictions imposed are clearly arbitrary and unreasonable in their application to particular property." Syll. Pt. 8, in part, Carter v. City of Bluefield, supra.
Accordingly, the presumption of validity that attaches to a properly-enacted zoning ordinance "is not to be applied in a vacuum. Questions concerning a particular ordinance should be examined in the context of the facts of the case at bar." Town of Stonewood v. Bell, 165 W. Va. 653, 659, 270 S.E.2d 787, 791 (1980), citing State ex rel. Cobun v. Town of Star City, 197 S.E.2d 102 (1973).
B. Zoning Regulations are in Derogation of the Common Law and Must Be Strictly Construed
Regulations or ordinances in derogation of the common law must be strictly construed. Kilgore 's Adm 'r v. Hanley, 27 W. Va. 451 (1886). Zoning regulations are in derogation of the common law. Accordingly, the reach of any zoning provision is bounded by its express terms, without the aid of liberal construction. See, e.g., Coppola v. Zoning Bd. of Appeals, 23 Conn. App. 636, 583 A.2d 650 (1990)("Zoning regulations, as they are in derogation of common law property rights, cannot be construed to include or exclude by implication what is not clearly within their express terms." Id. at 640-4 1 583 A.2d at 652). See, also, 1 Yokley, Zoning Law and Practice, Section 1-4, p. 1-6 (4th ed. 2000). That which is not explicitly stated in a zoning ordinance may not be provided by a Court evaluation. Petitioner respectfully insists, however, that is what happened here; the Court supplanted its understanding for the vague terms in the Ordinance.
III. SECTIONS OF A ZONING ORDINANCE THAT ARE NOT CLEAR AND DEFINITE IN THEIR TERMS ARE INVALID
An ordinance must be clear, precise, definite, and certain in its terms, and an ordinance vague as to the extent of its meaning cannot be ascertained as valid. McQuillen, The Law of Municipal Corporations, 3d Ed., Section 15.24. It has long been the law in West Virginia that an ordinance that lacks certainty is void. Pence v. Bryant, 54 W.Va. 263 (1903).
In Pence, the Town Council of Bramwell purported to vacate a portion of a public right of way by ordinance. The language of the ordinance indicated that the former 45-foot-wide right-of-way was being reduced to a width of 15 feet, but it was not possible to discern from the ordinance where the 15-foot right-of-way remaining after the vacation was located, or which portion of the 45-foot right-of-way had been vacated. The Court therefore declared the ordinance void for uncertainty.
An ordinance in the City of Phillippi was also declared void for its failure to specif~ rules and regulations to govern the decisions of the citys Council in granting or denying permission to erect buildings, in that it did not accord with due process of law. State ex rel. Ammermanv. City of Phillippi, 136 W.Va. 120 (1951).
A. Vague Provisions of Ordinances Are Constitutionally Infirm and Void
In Grayned v. City of Rockford, 408 U.S. 104, 108 (1972), the United States Supreme Court articulated the concerns that are associated with the "void for vagueness doctrine." First, in its failure to provide reasonable notice of what the law prohibits and allows, an ordinance that is uncertain in its terms gives no fair warning, and can trap the innocent. Second, an ordinance uncertain in its terms impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc or subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third, if the uncertainty of the terms of an ordinance abut on First Amendment rights, then the ordinance is likely to chill First Amendment activity. Grayned v. City of Rockford, supra. See also, West Virginia Citizens Action Group, Inc. v. Daley, 174 W. Va. 299 (1984). Thus, it is well established that an ordinance must be certain and definite. Michie '5 Jurisprudence, Vol. 13B. Municipal Corporations, Section 59.
While this standard applies to all ordinances, Courts exercise a heightened scrutiny in addressing definiteness and certainty of ordinances with penal consequences. Similarly, stricter scrutiny has emerged in cases involving restrictions dn First Amendment rights and activities. In State of West Virginia v. Flinn, 158 W. Va. 111 (1974), the West Virginia Supreme Court of Appeals embraced the U.S. Supreme Courts doctrine of vagueness in the context of penal statutes. Morever, Flinn and other West Virginia cases recognize that if the regulation at issue involves freedom of speech the statute must meet the highest standard of clarity. West Virginia Citizens Action Group, supra; Garcelon v. Rutledge, 173 W.Va. 572 (1984).
The West Virginia Supreme Court of Appeals has extended the reach of this doctrine to instances of economic regulation. The West Virginia Supreme Court of Appeals has also employed the U.S. Supreme Courts "less restrictive test" for economic regulations in which penal statutes are not involved, reasoning that in matters of economic regulation, "the consequences of imprecision are qualitatively less severe," and "because businesses, which face economic demands to plan behavior carefully, can be expected to consult relevant legislation in advance of action." Hartsock-Flesher Candy Co., 174 W. Va. 538 (1985), citing Village of Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, reh 'g denied 456 U.S. 950 (1982). See also, Shannondale, Inc. v. Jefferson County Planning and Zoning Commission, 199 W.Va. 494 (1997).
Despite varying degrees of scrutiny applied in these different contexts, courts will still demand a degree of definiteness in the terms of an ordinance that will enable a person of ordinary intelligence to understand what activity is allowed or proscribed and to govern their actions accordingly. Equivalent standards for definiteness and certainty are the minimum standards that have been applied in cases involving zoning ordinances. Unconstitutional vagueness arises when a zoning ordinance is so unclear as to what conduct is applicable, that persons of common intelligence must necessarily guess at its meaning and differ as to its application; in order to satisfy minimal due process considerations, the terms of a zoning ordinance must be sufficiently clear for persons of common or ordinary intelligence to understand their meaning. Rectory Park, L. C., v. City of DeiRay Beach, 208 F. Supp.2d 1320 (2002), citing United States v. Gilbert, 130 F.3d 1422 (11th Cir. 1998).
B. By Their Very Nature, Zoning Ordinances Affect Constitutionally Protected Property Rights
Courts must apply a more stringent vagueness test where the ordinance affects a constitutionally protected right. McQuillen, The Law of Municipal Corporations, 3d Ed., Section 15.24. The greater leeway afforded an ordinance regulating mere economic interests, as seen in Hartsock-Flesher Candy Co., supra, is not tolerable in the review of an ordinance affecting constitutionally protected property rights. It is well settled in American jurisprudence that a person has a constitutionally protected interest in his property rights, which may not be deprived without due process of law. Palazzolo v. Rhode Island, 533 U.S. 606 (2001). The West Virginia Supreme Court of Appeals has arbitrary or unreasonable restrictions upon the use of private property or the pursuit of useful activities. Carter v. City of Bluefield, supra. Thus, the Court should apply a stricter scrutiny to the standards of definiteness and certainty when addressing zoning ordinances that restrict the use of property.
In Andrews v. Board of Supervisors of Loudoun County, 200 Va. 637 (1959), the Supreme Court of Virginia held that even though zoning is a legislative function, due process c~nsiderations demand that uniform rules of action must be established in a zoning ordinance, stating:
It is well settled in Virginia and elsewhere that zoning is a legislative power residing in the State, which may be delegated to cities, towns and counties. However, when a local municipal authority delegates, or attempts to delegate, such power, ... it must establish standards for the exercise of the authority delegated. There must be provided un?form rules of action, operating generally and impartially, for enforcement cannot be left to the will or unregulated discretion of subordinate officers or boards.
It is requisite that there be a sufficient basic standard -- a definite, certain policy and un~fonn rule of action --for the guidance of the agency organized to administer the law. It must not permit administrative officers to pick and choose as to who may or may not enjoy a particular use in a certain district.
Id., at page 447-448.
Declaring that Loudoun Countys provisions were too general and wholly vague, the Court in Andrews struck down a section of the Zoning Ordinance, partly because it did not define terms that constituted the standards for approval of a use permit, "community" and "neighborhood."
The Supreme Court of Virginia adhered to a similar standard when it refused to enforce a zoning ordinance, stating that to be valid, a zoning ordinance must specify with reasonable certainty and definiteness the conduct which is commanded or prohibited, so that a person of ordinary intelligence may know what is thereby required of him. In Wiley v. County of Hanover, 209 Va. 153 (1968), the Court characterized this standard as an "elementary requirement," and held that because the zoning ordinance at issue did not inform a resident whether the keeping of homing pigeons would be permitted or prohibited, the ordinance was unenforceable. While this opinion addressed the enforcement of an ordinance in a penal context, it is nevertheless instructive in its reasoning. The Court pointed out that a zoning ordinance requirement should be set out in a simple and direct provision so that its purpose is evident; further, that when the matter is left in doubt by the language employed in the ordinance, the ordinance is legally deficient. Id., at 157.
In a decision that was later affirmed on other grounds, the U.S. District Court for the Eastern District of Virginia held that a zoning ordinance that isso vague as to convey no definite meaning to those whose duty it is to execute it, either ministerially or judicially, it is necessarily inoperative. Potomac Greens Associates Partnership v. City Council of the City ofAlexandria, 761 F. Supp. 416 (U.S.D.C., Eastern District of Alexandria 1991).(1)
Despite the discretionary nature of zoning classifications, zoning ordinances require some elements of certainty and definiteness, especially in relation to the approval of conditional use permits.
As this Honorable Court recognized in its decision in Corliss
In the terms of zoning law, a "conditional use" is a "use authorized by ordinance by requiring specific approval by a body of the local government. The use is permitted by ordinance when conditions are met." Yokley, Zoning Law and Practice, Vol. 1, Section 2-6, text at notes 5 5-59 (Lexis, 4th ed., 2000 Revision); see generally Anderson, American Law of Zoning Section 14.03. A "conditional use" stands in contrast to a "variance" because it does not involve a departure from the terms of an Ordinance, but rather, compliance with it, under conditions stated in the ordinance. See Harding v. Board of Zoning Appeals of City of Morgantown, 159 W. Va. 73, 219 S.E.2d 324 (1975) (identifying W. Va. Code Section 8-24-55 as a source of authority for consideration and issuance of conditional use permits).
Corliss v. Jefferson County Board of Zoning Appeals, supra. at paragraph 17.
It is clear that a property owner can achieve compliance under a conditional use only if the conditions under that use will be legitimate are established with certainty and definiteness.
C. Pursuant to Kaufman, Land Use Ordinances Must Contain Acceptable Levels of Specificity in Order to be Enforceable
This Court must be mindful of the guidance provided by the West Virginia Supreme Court of Appeals in Kaufman v. Planning & Zoning Commission of the City of Fairmont, 171 W.Va. 174 (1982). The Kaufman case involved the applicability of standards for approval of a plat of subdivision in a subdivision ordinance. Citing the statutory grant of authority in W.Va. Code Section 8-24-30 for a local government to include in its subdivision ordinance certain provisions, including provisions for "harmonious development of the municipality or county," the Court proceeded to ascertain the requisite specificity for such "non-technical" provisions. In order to achieve acceptable levels of specificity, said the Court, a subdivision ordinance must sufficiently restrain the discretion of the planning commission to insure fair administration, and must sufficiently inform the property owner to insure adequate guidance in the preparation of plans. Id., at page 185. Further, the Court explained,
Municipalities must have ordinances which put subdividers on notice of what factors must be satisfied in order to gain commission approval. Failure by municipalities to spec~fy these considerations means that such factors are not authorized by law to be considered in the plat approval process. Id. at page 181.
The Court therefore refused to apply the vague provisions of the ordinance at issue, and ordered approval of the plat despite the Planning Commissions determination that the plat did not conform with these standards.
Similarly, in the Potomac Greens case cited above, the U.S. District Court pointed out that the terms of the zoning ordinance in question failed to elucidate the meanings of the terms employed as standards in the ordinance. As such, the ordinance set forth merely permissive, non-binding suggestions that failed to guide the City Council in its consideration of a special use permit. Accordingly, the ordinance was held to be unconstitutionally vague, because it was unclear to the special use applicant how the City would calculate the requirements, and because those requirements could be applied arbitrarily by the City. Potomac Greens Associates Partnership, supra, at page 419.
In Todt, 197 W.Va. at 345, 475 S.E2d at 437, the West Virginia Supreme Court of Appeals concluded that the United States Supreme Court has best expressed the standard which should be applied when laws are vague because they fail to set forth explicit standards for those who apply them, see Grayned, supra. The West Virginia Supreme Court of Appeals thus held that "[t]he due process clause found in Article III, Section 10 of the Constitution of West Virginia requires that laws provide explicit standards for those who apply them so as to prevent arbitrary and discriminatory enforcement of the laws."
In restricting the use of property, zoning ordinances necessarily involve constitutionally protecied property rights. The "void for vagueness doctrine" is derived from basic notions of due process. Thus, Courts have adopted a stricter scrutiny in applying this doctrine to the provisions of zoning ordinances.
IV. SECTION 6.4(b) OF THE JEFFERSON COUNTY ZONING ORDINANCE LACKS CERTAINTY, IS VAGUE AND IS THEREFORE INVALID
This Court has previously struggled with difficulties created by sections of the Jefferson County Zoning Ordinance in the context of appeals from the Jefferson County Zoning Board of Appeals. As noted above, in Corliss, this Court analyzed and interpreted Section 6.4(b) of the Ordinance. The following discussion will address the extent to which it is clear that Section 6.4(b) lacks precision such that "men of common intelligence and understanding must guess at its meaning." See Connally v. General Construction Co., 289 U.S. 385, 391 (1926).
A. Prior to the Decision in Corliss, the Zoning Administrator and the Development Community Applied a Different Method to Determine Percentages of Adjacent Development
It is clear from the record of the ZBAs hearing on Blackfords appeal that the ZBA simply followed the guidance in Corliss in determining the issues of "adjacent development" for Blackford. However, prior to Corliss, for a period of many years, the ZBA and the Zoning Administrator had a different understanding of the method of calculation for adjacent development given the mandate of Section 6.4(b) of the Jefferson County Zoning Ordinance. This fact alone makes it clear that men of common intelligence and understanding, following years of experience in applying the Ordinance, reached objective conclusions different from those drawn by the Court in Corliss.
Further, it is important to recall that in Corliss, this Courts obligation was to decide a matter on Writ of Certiorari in a circumstance where neither party questioned whether or not the Ordinance at issue was or was not unconstitutionally vague. Indeed, the statutory construction performed by the Court in Corliss necessarily became a prediction of what the legislative body must have meant in adopting the language in Section 6.4(b). On a Writ of Certiorari, this was the obligation of the Court. On a direct challenge related to unconstitutional vagueness, the Court has wider latitude to appropriately apply the law.
Simply stated, in Corliss, this Court was not asked to invalidate Section 6.4(b) on constitutional grounds, nor could it have done so as neither party sought such relief.
B. In Corliss, this Honorable Court Acknowledged the Imprecision, Lack of Definitive Terms and Vagueness of the Jefferson County Zoning Ordinance
In the Corliss decision, this Honorable Court specifically acknowledged the difficulty of resolving the issue of "adjacent" development. In fact, in paragraph 84 of the Corliss Order, the Court noted the following:
84. The Court has wrestled with this issue at some length and has found the Ordinance's terms somewhat difficult to interpret. (Emphasis added.)
Later in the decision, the Court felt it necessary to explain how it applied Section 6.4(b) because of its imprecision and vagueness:
86. Since this is an issue that has drawn the Court into an exposition of the meaning of this subsection of the Ordinance, it would appear advisable to explain what the Courts conclusions are with respect to the meaning of the subsection 's terms. This is necessary because: first, the Petitioners challenge on this issue is that the Ordinance 's plain terms are controlling; and second, the Ordinance is drafted imprecisely in some respects. (Emphasis added.)
After explaining how the Court determined that the calculation should be performed pursuant to Section 6.4(b), the Court explained why it declined to give meaning to the last textual sentence of Section 6.4(b):
99. The Court finds that the final textual sentence in the Ordinance -- "An average of the two will yield afinal percentage of land adjacent to the property that is either farmed or not intensely developed. "-- is inconsistent with the clear purpose of the Ordinance and the Adjacent Development criterion, because taking an average of the two overlapping percentages merely depresses the percentage and does not accurately reflect what is sought to be measured, i.e., the percentage of adjacent land (a) in actual agricultural use and/or (b) not indicating intense development pressure. (Emphasis added.)
As addressed in the memorandum relating to the Writ of Certiorari and in the next section of this Memorandum, the Petitioner notes that, taken in isolation, the final textual sentence of Section 6.4(b) is readily defined and precise. However, in the context of Section 6.4(b), the precision in the final sentence does not resolve the vagueness of the preceding paragraph of that section as is illustrated in the discussion that follows herein.
C. The Ordinance Itself Does Not Identify the Method to Determine the Underlying Percentages
As noted above, the Zoning Administrator previously considered the linear length
of boundaries to determine the underlying percentages, while the Court in the Corliss opinion, used the land mass area of adjacent properties. Clearly, the fact that neither of these methods is set forth in Section 6.4(b) or in any other section of the Ordinance required those charged with the legal authority to apply the Ordinance to guess at its 'meaning and resulted in differing applications. Paragraph 102 of the Corliss decision recognizes that, "the Ordinance specifies no measurement method."
What the section does mandate specifically is as follows:
• This section establishes a threshold standard against which a zoning application is measured. The standard is based on (1) "a percentage of land" that is "in actual agricultural use" (hereinafter "AAU"), and (2) "a percentage of adjacent land that does not indicate that there is development pressure." (hereinafter "NDP") (Emphasis supplied).
Let us consider the core problem in Section 6.4(b).
• A "percentage" necessarily means that measurement can be expressed in a number having both a numerator and a denominator. If we consider a parcel of land that is 4 Acres in "actual agricultural use (AAV)," then what is the denominator in Acres that determines the "percentage of land" that is in "actual agricultural use"? The terms of the Ordinance do not lead one to know the answer to that question.(2)
• If one does not know what constitutes the "adjacent land," then how can one possibly figure out what the denominator is for the land that is in "agricultural use."
• Logic suggests that the "adjacent land" that constitutes the denominator is whatever expanse of land is adjacent to the parcel under consideration for the conditional use permit, and thus one may know the "percentage of land" that is in "actual agricultural use."
• More than that, while it is true that logic suggests this interpretation, we have no guidance as to whether this is what the drafters intended; indeed there very well may be another logical alternative that is consonant with the drafters intent.
In sum, the Ordinance gives us no guidance as to how we should appropriately resolve this matter.
Nor are any of these difficulties cured by the effort to discern in the same Section 6.4(b), what is "[i}ntense development pressure," that is, presumably, the contrasting use of land that is to be compared to agricultural use and to land that "enjoys" the absence of "[i]ntense development pressure."
There is "intense development" surrounding Blackford Farms. To the northwest is Fox Glen, with 310 single-family homes, which by common meaning would most certainly a subdivision in excess of five (5) lots. To the southeast, across Brown Shop Road, is the Burr Industrial Park, comprising sixty (60) industrial lots. Plainly, that is in excess of five (5) lots, but the requisite number of lots is irrelevant in that case, because it would appear that the Burr Industrial Park should be classified as "commercial or industrial" without regard to how intensely the site was devoted to that use, based upon the plain meaning of the language in this section. Again, however, the Ordinance offers no guidance as to what denominator should be utilized in measuring the percentage of adjacent land that does not indicate intense development pressure. Furthermore, it remains open to the question whether it is the classification of the property as an industrial park, or the current actual use of each lot in the industrial park that would result in counting and adjacent parcel in this measurement.
D. The Final Sentence of Section 6.4(b) is Precise but Illustrates the Vagueness of the Section as a Whole
As noted above, and in the Writ of Certorari Memorandum, this Court in Corliss declined to give meaning to the last full textual sentence of Section 6.4(b) which states specifically as follows:
An average of the two will yield a percentage of land adjacent to the property that is either farmed or not intensely developed.
This sentence, which must be given meaning as a matter of law, compounds the vagueness problem and illustrates why Section 6.4(b) should be declared to be void.
• The only "two" percentages discussed in that same section are: (1) "the percentage of land in actual agricultural use" and (2) "the percentage of adjacent land that does not indicate that there is development pressure." (Emphasis supplied).
• Irrespective of the denominator used when calculating these percentages, it is manifest that when these two percentages are added together, however they are calculated, they will never exceed 100%.
• If adjacent property demonstrates development pressure, such as Fox Glen or the Burr Industrial Park, the resulting percentages for agricultural or undeveloped property will be less than 100%.
• The average of the two percentages mandated by this section, arrived at by dividing the total percentage (no greater than 100%) by 2 (the population being averaged), could never exceed 50%, and will be less than 50% in circumstances where any of the adjacent property demonstrates development pressure (i.e., Fox Glen and the Burr Industrial Park).
The last sentence of Section 6.4(b) specifically mandates an arithmetic calculation applied to a vague algebraic formula. It is an arithmetic certainty that in every instance the average of actual agricultural use (AAU) and property not showing development pressure (NDP) would be less than 100%. This result is apparently what led this Honorable Court in Corliss to ignore the entire sentence and forego the averaging mandated by its provisions. One could never derive a percentage exceeding 50%, if the sentence is given meaning evident from the language in the last textual sentence. In the Blackford Farms situation, the average percentage would be less than 50% because of the existence of Fox Glen and the Burr Industrial Park in relation to Blackford. Simple illustrations of this concept demonstrate the problem:
Example: [AAU% + NDP%] ÷ 2 = % applied to table in Section 6.4
On page 35 of the hearing transcript before the ZBA on April 17, 2003, Zoning Administrator Paul Raco testified before the ZBA that he determined the total percentage of property in actual agricultural use (AAU) and property not experiencing development pressure (NDP) was 93%. See ZBA hearing transcript at page 42.
Although Raco did not tell us exactly which portion was considered to be AAU and which portion was considered to be NDP, it is clear that the average of the two is 46.5%. Giving meaning to the last sentence of Section 6.4(b) would result in the Blackford points calculation being two (2) points.
Blackford agrees that the impact of the last sentence of Section 6.4(b) is to substantially reduce the resulting point assessment -- a result that we must presume was the intent of the legislative body which adopted Section 6.4(b). Accordingly, the appropriate application of the precise terms of this last sentence of Section 6.4(b) dictates that Blackford should be allowed to develop because of the resulting LESA points assessment of 51.3
This analysis creates a quandary. A Court is not permitted to guess as to the meaning of elements of the Zoning Ordinance. Given the language in Section 6.4(b) it is as logical to apply the methodology used by the Zoning Administrator prior to Corliss as it is to use the methodology employed by the Court in Corliss. Were this action a certiorari proceeding, the Court could arguably apply a fairly debatable standard and conclude that a decision by the ZBA is reasonable. This action, however, tests the definiteness and certainty of the standards established by the Ordinance, and by Section 6.4(b) in particular. Neither methodology, however, is specifically identified, thus the constitutional infirmity. In the concept of this action asserting unconstitutional vagueness, electing to simply ignore the precise direction in the final textual sentence of Section 6.4(b) clearly compounds, rather than simplifies, the problem.
V. SECTION 6.4(d) OF THE JEFFERSON COUNTY ZONING ORDINANCE LACKS CERTAINTY, IS VAGUE AND IS THEREFORE INVALID
Section 6.4(d), as relevant to Blackford, relates to the Zoning Administrators assessment, which the ZBA affirmed on April 17, 2003, of a score of four (4) points in relation to highway problem areas. This section likewise is vague, uncertain and constitutionally infirm.
A. Proximity is Simply Not Defined in the Zoning Ordinance
Section 6.4(d) of the Ordinance seeks to establish criteria to determine the compatibility of proposed development of a site is compatible with the comprehensive plan, whether it: (1) suffers because of "proximity" to a "Highway Problem Area" and otherwise (2) enjoys "compatibility" with "designated parks, historical and recreational areas and land use policies and recommendations."
The precise language in the Ordinance relevant here is as follows:
This criterion shall determine whether site development is supportive or has a negative impact on the following elements of the Comprehensive Plan: Proximity of the site to the Highway Problem Areas (4 points), Compatibility of site development with designated parks, historical and recreational areas (2 points), and land use policies and recommendations (2 points).
In the case at bar, the critical issue that prompted Petitioners attention to this Section was the measure of "proximity" to a "Highway Problem Area." Without knowing anything about the facts of this case, reading that criterion and applying common meaning to its terms, one might assume that "proximate" means "nearness," "adjacent", "propinquity," or some other synonym that conveys the sense and "ordinary" meaning of the term "proximate."
One might have concluded, before this case, that a "Highway Problem Area" was "proximate" if it existed at or was adjacent to the site of development, for example, at an intersection near the proposed development.
The manner in which the Jefferson County Zoning Administrator applied this term in the Blackford conditional use permit application illustrates the arbitrary interpretation that is possible given the indefiniteness of the term as used in Section 6.4(d). The Zoning Administrator concluded that the term "proximate" relates to the ability for one to travel from the Blackford property to the City of Charles Town, and whether the route selected by the Zoning Administrator would pass through one of the highway problem areas identified in the Zoning Ordinance. In the case at hand, it is clear that there are at least three (3) possible routes to travel from Blackford to the City of Charles Town. The Zoning Ordinance gives absolutely no guidance as to the definition of the word "proximate", and certainly no guidance for any objective analysis that should be undertaken by the Zoning Administrator in applying this criterion. Thus, again, an applicant such as Blackford is left to guess as to the meaning of this section of the Ordinance.
Interestingly, evidence was presented before the ZBA that the shortest route from Blackford to Charles Town, and thus the most "proximate" by one common definition, did not, in fact, pass through any highway problem area. The Zoning Administrator, however, determined that Blackford was "proximate" to a "Highway Problem Area" in downtown Charles Town approximately eight (8) miles away because it was "possible" to drive from the Blackford property to the City of Charles Town and to pass through "a Highway Problem Area."
If the definition of "proximate" is the ability to reach any other "possible" location that is "a Highway Problem Area," then surely the term "proximate" is vague and incomprehensible.(3)
The absence of any certainty regarding the term "proximate" in this section of the Ordinance is sharply contrasted by the provisions in Section 6.4(e). In that section, scores based upon proximity are specified in one-mile increments, as measured from a fixed location.
Acáordingly, this Section of the Ordinance is void for its vagueness.
VI. THE DIFFERENT CONSTRUCTIONS GIVEN THE ORDINANCE BY THOSE CHARGED WITH ITS ADMINISTRATION AND BY THE COURTS DEMONSTRATE THE INDEFINITENESS OF THE ORDINANCE
Chief among the reasons for requiring definiteness and certainty in legislative enactments is the concern, as expressed by the U.S. Supreme Court in its decision cited above in the Grayned case, that absent clear standards, an ordinance is susceptible to arbitrary and discriminatory application. Under the Jefferson County Zoning Ordinance, the Zoning Administrator applies the criteria in Section 6.4 in the first instance, and the ZBA applies those criteria should there be an appeal. As seen in Corliss, the Court has the statutory authority to apply the same criteria in a certiorari proceeding when the ZBAs decision is in dispute. Corliss is a striking example of how an uncertain and indefinite ordinance can and will lead to differing applications. Left in the hand of administrative officers, a vague ordinance can lead to arbitrary and discriminatory results. The legality of zoning ordinances is tested not only by what has been done under its provisions, but what may be done thereunder. Andrews v. Board of Supervisors of Loudoun County, supra., 200 Va. 637 at 640, citing City of Winchester v. Glover, 199 Va. 70 (1957).
VII. SECTIONS 6.4(b) AND 6.4(d) OF THE ZONING ORDINANCE VIOLATE THE CONSTITUTIONAL GUARANTEES OF EQUAL PROTECTION
Sections 6.4(b) and 6.4(d) of the Zoning Ordinance are irrational and unreasonable regulations which necessarily are arbitrarily applied. Because of the vague provisions, the resulting application violates Blackfords equal protection guarantees under the United States and West Virginia Constitutions.
The West Virginia Supreme Court of Appeals has long confirmed the level of scrutiny required to analyze equal protection challenges that involve economic rights was articulated in Gibson v. West Virginia Department of Highways, 185 W.Va. 214,406 S.E.2d 440 (1991):
'Where economic rights are concerned, we look to see [1] whether the classification is a rational one based on social, economic, historic or geographic factors, [2] whether it bears a reasonable relationship to a proper governmental purpose, and [3] whether all persons within the class are treated equally. Where such classification is rational and bears the requisite reasonable relationship, the statute does not violate Section 10 of Article III of the West Virginia Constitution, which is our equal protection clause., [as mod~fled,] Atchinson v. Erwin, [172] W. Va. [8], 302 S.E.2d 78 (1983).," as mod~fled, Hartsock-Flesher Candy Co. v. Wheeling Wholesale Grocery Co., 174 W. Va. 538, 328 S.E.2d 144 (1984). (Bracketed material added for clarity and emphasis).
Sections 6.4(b) and 6.4(d) of the Zoning Ordinance necessarily violate constitutional guarantees of equal protection as the classifications are irrational (to the extent meaning can be reasonably derived) and the relationship to governmental purposes unreasonable. Given the uncertainty in the Ordinance it follows that the Ordinance is thereafter arbitrarily applied. Because of the vagueness in the Ordinance, applicants within the scope of the Ordinance are treated unequally.
The Court's decision in Corliss (Paragraph 96) relates that in performing the LESA assessment on the Harvest Hills application, the Zoning Administrator followed a shortcut, circumventing the Ordinances precise terms. There can hardly be a more vivid illustration of the arbitrariness that a vague ordinance breeds.
Federal law similarly subjects equal protection challenges involving economic interests to the "rational relationship" test. See San Antonio Indep. Sch. Dist. v.Rodriguez, 411 U.S. 1,93 S.Ct. 1278,36 L.Ed.2d 16(1973); accord FCC v. Beach Communications, Inc., 508 U.S. 307, 313, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993).
Blackford incorporates by reference the analysis of the Ordinances defects and offers that analysis (set forth above) in support of the proposition that the zoning classification applied to Blackford by this Ordinance was "irrational." Of course, Blackford relies upon the vague reference to "adjacent," the calculation of the percentages, the scoring, and the meaning of the term, "proximate." The most dramatic example of the irrationality of the Ordinance is the requisite calculation favoring no growth (the lowest score being the best) that achieves the lowest score when there is the most growth or intense development. For the same reason the standard applied is unreasonable, and, since no two persons can expect the same result, persons will necessarily be treated unequally.
For these reasons, Section 6.4(b) and Sections 6.4(d) must be struck down for they deny Blacklord and others similarly situated the constitutional guarantees of equal protection, provided for by the United States Constitution and the Constitution of West Virginia.
VIII. CONCLUSION
Brown Shop Road L.L.C. respectfully predicts the evidence that will be the subject of a stipulation, and/or of evidence at trial on August 25, 2003. Even in the event of a dispute in the evidence, it is predicted that the elements disputed will be minor, as the existence of these sections of the Ordinance is clear, as is the manner in which the Zoning Administrator applied the Ordinance prior to Corliss and after.
In Corliss, this Honorable Court was forced to reconcile provisions of the Jefferson County Zoning Ordinance, when simply invaliding those sections was not an option available to the Court. The facts of this case and the nature of a direct challenge in relation to the constitutionality of Section 6.4(b) and Section 6.4(d) permits this Honorable Court to apply the void for vagueness doctrine, rather than attempt to figure out what the legislature body meant when it adopted the Ordinance. By way of example, the Corliss decision is fifty (50) pages in length because of the extent to which the Court had to reach to make sense of Ordinance provisions not subject to common understanding. This Courts acknowledgement of imprecision in Corliss was the only option available to the Court in Corliss. The lessons imported by Carter v. City of Bluefield were unavoidable in the Corliss certiorari proceeding. Based upon the relief requested by Blackford in this action, however, the application of the law to these facts cries out for the appropriate result. Judges and lawyers should not be left to guess about how calculations should be performed based upon terms not defined. The arithmetic is clear, but the solutions to the integers required for the algebraic formulas mandated by Section 6.4(b) are simply not identified in the Ordinance. Supplying such answers is not the province of judges.
Finally, the issue of proximity to problem highway areas is most troubling given any common understanding or definition of the word "proximity." Again, when judges and lawyers are left to guess and speculate the intention of the legislative body, important objectives of due process and equal protection are at serious risk.
Brown Shop acknowledges the limited review on Writ of Certiorari by this Court in Corliss, and the reasons the Court had to reach out and attempt to determine the intent of the legislative body in that context. However, in the context of Declaratory Judgment, this Honorable Court may now confirm that the underlying provisions of the Jefferson County Zoning Ordinance are void because they are vague, indefinite, uncertain and thus unconstitutional.
1. 'On appeal to the Fourth Circuit, the Fourth Circuit certified questions of state law to the Supreme Court of Virginia for resolution; the Supreme Court of Virginia decided one of those questions , and determined that since that issue was dispositive of the case, the remaining questions were moot. The Fourth Circuit adopted the determination of the Supreme Court and affirmed the decision of the District Court on that ground, vacating the remainder of the District Court's decision.
2. Petitioners acknowledge that the ZBA did formerly employ a one-dimensional standard (in feet) along a single boundary of the land, in the absence of any language justifying that approach; the trial court in Corliss v. Jefferson County Board of Zoning Appeals, Case No. 0l-C-139 (2001) rejected that approach perhaps, in part, because, at least in its idealized form, "land" exists, by definition, in two dimensions, in square feet; the trial courts efforts to construct another means of calculating this percentage, however, only underscore the fact that this provision is not understandable.
3. If "possible" is a necessary modifier of "proximate," then this section is also overbroad. By way of example, every road within Jefferson County is connected to every other road, making it "possible" to drive from any location in the County to and through every highway problem area, no matter how remote. Certainly, no governmental interest is properly served by an Ordinance provision that is so broad.