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11/5/03 Hearing before Judge Steptoe in the Circuit Court of Jefferson County
(click for court order & Zoning Board minutes)

THE COURT: 03-C-134. Brown Shop Road, LLC vs. Jefferson County Commission, et al. You are here on behalf of the Plaintiff?

MR. CAMPBELL: I am, your Honor.

THE COURT: Mr. Cassell, you're here on behalf of the Defendants?

MR. CASSELL: Yes, your Honor.

THE COURT: Are you here for all the Defendants?

MR. CASSELL: Yes, Judge.

THE COURT: Okay.

MR. CAMPBELL: There is also a second case which is 03-C-111 which is a certiorari petition. [Appeal by Blackford/Brown Shop Road against a Zoning Board decision they lost]

THE COURT: Is that still pending?

MR. CAMPBELL: That's still pending as well.

MR. CASSELL: Yes, sir.

THE COURT: 03-C-111?

MR. CAMPBELL: That's right.

THE COURT: Is that set for status today too?

MR. CAMPBELL: We intend that today, yes, sir.

MR. CASSELL: If it wasn't we should probably talk about that one as well.

THE COURT: Gentlemen, I guess I should start off by inquiring of you as to your perceptions as to the status, where we should go from here.

MR. CASSELL: Your Honor, I believe Mr. Campbell and I are fairly close to agreeing upon an order to present to your Honor to sign to remand the certiorari case for proceedings before the Board again pursuant to the Supreme Court's decision in the Corliss case.

MR. CAMPBELL: I think it makes sense to send it back there and let them deal with it again.

THE COURT: 03-C-111?

MR. CASSELL: Yes, your Honor. In that regard I'm not sure what Mr. Campbell's intentions or wishes on the declaratory relief action might be, so I will let him speak to you on that.

MR. CAMPBELL: We wish no action at this moment, your Honor. We would like to remand this to the BZA. Perhaps we could be before the BZA as soon as December or January.

THE COURT: On the cert matter?

MR. CAMPBELL: The cert matter. That may resolve the necessity of hearing the declaratory judgment action. The Court might perhaps give us perhaps a status date on the dec action in January. I believe the proceedings below might allow us to voluntarily dismiss that declaratory judgment action.

THE COURT: Okay. And how old is the dec action?

MR. CAMPBELL: Probably 6 months I believe.

MR. CASSELL: I think, your Honor, it is younger than the cert action. I believe it's 03--C--134.

THE COURT: Gentlemen, do you have your calendars with you?

MR. CASSELL: Yes, Judge.

MR. CAMPBELL: Yes, your Honor.

THE COURT: How about Thursday, January the 8th at 11:00 am. status hearing?

MR. CASSELL: Your Honor, I'm going to say that my prediction is that the Board of Zoning Appeals will have this matter on its January docket.

THE COURT: Oh. When do they meet in January?

MR. CASSELL: The third Thursday. So if you could give us a status in early February that would probably work out.

MR. CAMPBELL: We have no objection to that, your Honor.

THE COURT: Alright. Let's do it then on, how about 11:00 a.m. on Thursday, February 5th?

MR. CASSELL: That's fine, Judge. Thank you.

MR. CAMPBELL: That's agreeable, your Honor.

THE COURT: It's 03-C-134?

MR. CAMPBELL: That's correct, your Honor.

THE COURT: Okay. I guess, could I have a volunteer to prepare the order from today?

MR. CAMPBELL: I would be happy to, your Honor.

THE COURT: Would you submit it under the 14 day hold procedure?

MR. CAMPBELL: I would be happy to, your Honor.

MR. CASSELL: It would be an agreed order, Judge, on both of these cases I'm sure, so I'll sign it, Judge, before.

THE COURT: Well, the order in 134 would set simply the first status hearing over until February.

MR. CAMPBELL: Right.

THE COURT: The other matter I understand you're going to address by an agreed order?

MR. CAMPBELL: I'll have Mr. Cassell endorse both orders.

MR. CASSELL: I'll sign them and bring them over, Judge, so we can get them both. Thank you, Judge.

THE COURT: Alright.

Whereupon the proceedings were recessed. Later -back on the record -- parties by counsel.

THE COURT: Mr. Cassell, Mr. Campbell, before we go to this other matter, you gentlemen have submitted 2 orders in the Brown Shop Road versus Zoning Board of Appeals case. One is a scheduling order that simply sets up a status hearing in February on the dec action.

MR. CAMPBELL: That's correct.

THE COURT: The other one is on the cert action, 03-C--111 and you have submitted a consent order for remand to the Board of Zoning Appeals and it causes the Court grave concern. The language that you gentlemen have inserted in this order I think would purport to direct the Board of Zoning Appeals to take a certain action that they're not required to take.

The Corliss decision as I remember, did not mandate the use of the linear method. All the Supreme Court decision says was when the Board of Zoning Appeals decided to apply a particular case, the Circuit Court did not have the authority to tell them they were wrong, simply because the Court felt there was a better method.

The way I read the Corliss decision, the Board of Zoning Appeals does have the right to review the findings and recommendations of the Zoning Administrator. The way this order is written I think it would convey a different impression.

At one point in the order you say, "It appearing that Corliss reversed the authority relied upon by the Zoning Board of Appeals in the underlying proceeding". I don't know if that's true or not. Then it goes on further to say that, "The Zoning Administrator shall recalculate the LESA evaluation consistent with the authority mandated by the West Virginia Supreme Court of Appeals and forward such evaluation to the Petitioner on or about November 15th".

There is nothing in the Corliss decision in the Court's opinion that mandates that. And I think it would, the concern I have is that that would give the, in my opinion, the Board an incorrect opinion of what their responsibilities are.

Now I have no problem in theory with the idea of this case being remanded, but it seems to me that it should be, if it's going to be remanded with instructions, they should be accurate instructions. And it should be clear that the Board does have the authority to review the methodology of the Zoning Administrator.

MR. CAMPBELL: Your Honor, I think all we've asked is to remand consistent with Corliss.

THE COURT: Well, not really.

MR. CAMPBELL: Your Honor's determined what Corliss mandates.

THE COURT: You have interpreted Corliss one way. I think I'm interpreting it another.

MR. CAMPBELL: I'm certain of that from our conversations with your Honor. All -- I think all we've asked, your Honor, to be done to return to them for decision consistent with Corliss. That's all we've said.

THE COURT: Well, you say,"Zoning Administrator shall recalculate the LESA evaluation consistent with the authority mandated by the Supreme Court of Appeals". You're having this Court telling them basically to go back and use the linear method. That's a matter that's discretionary with the Zoning Board.

MR. CASSELL: Okay.

THE COURT: That would be my opinion.

MR. CASSELL: The Corliss decision does not mandate the linear method and we are saying --

THE COURT: The Corliss decision again -- the Corliss decision, do you recall what happened in Corliss? The linear method was used. It was this Court's impression, because this argument has been consistently made before the Board to the effect that they had no discussion or challenge or review of the findings and recommendations of the Administrator. That apparently is the theme of proceedings before the Board that has gone on for some time.

This Court when it reviewed the Corliss decision, overruled the use of the linear method and said that the acreage method would have been better, if I recall correctly.

Now this went up to the Supreme Court and the Supreme Court said, "Judge, when the Board of Zoning Appeals makes the determination that the linear method is appropriate in a given situation, you do not have the right to disturb that because it's not clearly wrong". Somehow this is getting translated into telling them in this case, a different case they're going to have to go back and recalculate it using the linear method.

The Supreme Court never said that the linear method was the only method that the Board can consider.

MR. CAMPBELL: I think I understand your position, your Honor. The record of this case, the Zoning Administrator indicated that he disagreed with the methodology in the underlying Corliss case, but was mandated to use that methodology mandated by this Court. And the BZA or ZBA affirmed that.

THE COURT: Right.

MR. CAMPBELL: Adopted this language almost verbatim that they have no choice but to employ the methodology we think the Supreme Court has reversed.

THE COURT: Right. I don't see it as they reversed the methodology. I see it as having reversed the Circuit Court or reversing the Zoning Board in second guessing the Zoning Board.

MR. CAMPBELL: If we simply say remand the proceedings consistent with the decision of the Supreme Court is that satisfactory to the Court?

MR. CASSELL: Perhaps if we could delete the sentence that says,"It appearing that Corliss reversed the authority" and so forth, because we don't know that is in fact what was in their mind, although the Board followed the previous case. If we delete that sentence that would -- that sentence doesn't do anything anyway.

MR. CAMPBELL: That would be the next to the last sentence on page 1.

MR. CASSELL: Delete that sentence. "Appearing that we agree that it be remanded" and then ordering it to be remanded in what fashion?

THE COURT: Well, okay. Mr. Cassell, you represent the Zoning Board, correct?

MR. CASSELL: Correct.

THE COURT: Is it your position, has it ever been your position either before the Corliss decision or after the Corliss decision that the Board is bound by the findings of the Administrator?

MR. CASSELL: Bound by, that is, that they cannot review them?

THE COURT: That they cannot meaningfully review them.

MR. CASSELL: Well, we have disagreed with the Zoning Administrator on occasion and made a different decision so I would have to say, no, we don't take that position. I think ---

THE COURT: Well, when you're representing them are you representing the Zoning Administrator as well or just the Board of Zoning Appeals?

MR. CASSELL: Just the Board of Zoning Appeals.

THE COURT: Who's representing the Administrator?

MR. CASSELL: The Administrator appears on his own behalf. That's why you see him appear as a party when his decision is being appealed.

THE COURT: Well, apparently a theme that has run through a lot of these things is that your argument is made by other counsel to the Board and there's some concern that the Board may believe that they have no right to review the recommendations of the Administrator.

MR. CASSELL: The only time I've ever heard that argument made was in the context of the Administrator's decision on whether or not supplemental or support information was adequate. The argument on that issue was that if he made the decision it was adequate then someone would have to show that he abused his discretion in making that decision.

THE COURT: Do you agree that that's the law?

MR. CASSELL: I agree that the Zoning Administrator must make that decision in the first instance.

THE COURT: Yes, sir.

MR. CASSELL: Since then --

THE COURT: But is it --

MR. CASSELL: And as the cases have developed, the Board has reviewed its decision and has in a number of cases disagreed with the finding of sufficiency and remanded those cases for filing supplemental information. So --

THE COURT: After the Corliss decision from the Supreme Court do you believe that they still have the right to do that?

MR. CASSELL: Still have the right to review his decision? Yes.

THE COURT: Yes?

MR. CASSELL: Yes. I believe that --

THE COURT: For adequacy?

MR. CASSELL: For adequacy. I believe that the Supreme Court decision stands for the proposition that it's not just the Zoning Administrator's decision that is made by a person or a body charged with enforcing and regulating under that particular. I believe that the decision stands for the proposition that the Zoning Administrator, Planning Commission and Board of Zoning Appeals are all persons, so to speak, who are charged with enforcement of the land use ordinance and they are the administrative bodies who will interpret the ordinance.

THE COURT: But what if they have different interpretations? Doesn't the Board have the right to second guess the Administrator?

MR. CASSELL: The Board has the right to review his decision.

THE COURT: And do you believe that is a principle of law that remains intact?

MR. CASSELL: I believe so.

THE COURT: Well, let me, so you all are offering to delete the paragraph?

MR. CASSELL: I think that sentence that we described as the next to the last sentence on page 1 is fine. That really doesn't --

MR. CAMPBELL: That can be deleted.

MR. CASSELL: That's not of any substance. I think we just added that. The question we had, Judge, let me pose the question I want, I don't want to make this too complicated, the question we had was remanded for what? And we selected the word "remanded for rehearing" to leave it to the Board to decide how to deal with it from there.

We didn't want to qualify that any more. That was the problem we had drafting this was, how do we describe what it's being remanded to do? So we selected the word remanded for rehearing. And if the Court would think about that as well, I think that describes with enough leeway for the Board to hear it on the issues and take evidence and so forth. For a rehearing we felt that was the best way to do it. Then the Board can take a look and see what it needs to do.

Now for the Board to do anything, for the Board to do anything and here may be what the Court's concern is, it was our impression, Mr. Campbell and I, that Mr. Raco would have to revisit his LESA calculation.

And for us to have any hope of having a hearing in January, that all has to be done this month so it can be advertised in December. That's why we called him and told him or asked him, "When do you think you can do this, because we have to be able to know that we can advertise the case in early December for a hearing in the middle of January?" So that we can have some kind of scheduling to follow. That's why he selected November 25th.

That gives him 20 days to do what he needs to do so that we can proceed. If we don't and he takes 60 days, then we won't see this case at the Board of Zoning Appeals until February or March easily because of our advertising requirement.

THE COURT: But is he required to recalculate?

MR. CASSELL: Well, Judge, that's a good question, you know.

THE COURT: The ordinance does not indicate, if I recall correctly, the ordinance does not indicate -does not require the linear method or the acreage method.

MR. CASSELL: That's correct.

MR. CAMPBELL: I believe Mr. Raco's position is that given what Corliss means, he has an opportunity to recalculate and I believe that he intends to.

THE COURT: But you would have me mandate that he recalculate it.

MR. CASSELL: Only to the extent that he would be required to do so consistent with Corliss.

THE COURT: But Corliss, you know, unless I'm totally misreading Corliss, Corliss doesn't endorse either the linear or acreage method. It just says, "Circuit Court where the Board is not acting illegally by adopting the linear method". You cannot say that the acreage method is better.

MR. CAMPBELL: I think the difference between our perceptions here, your Honor, is that as I understand it, the Administrator believes that his linear methodology was appropriate.

THE COURT: We don't know that.

MR. CAMPBELL: I'm representing what I understand.

THE COURT: Well, that's not evidence before the Court.

MR. CAMPBELL: And I also believe that if he issued a calculation in this particular case, in the Brown Shop Road case, based on what was said in Corliss, I believe that if he has the opportunity to review this, he will issue a different report than he did before.

THE COURT: Maybe he will, but you're having me mandate that he do it.

MR. CASSELL: The way I read the Supreme Court's decision, Judge, is that they were persuaded by the Zoning Administrator having made the decision to use the linear method, having used it historically. I think that was very persuasive to them.

So in my view the Zoning Administrator's historical use of it tells me that's his interpretation. That was his interpretation of that particular portion of the ordinance. His interpretation was required to be changed, because we had decisions here.

THE COURT: Right.

MR. CASSELL: That required a separate result.

THE COURT: Yes.

MR. CASSELL: So for us to say -- to stand before you and say, "I don't think he would choose the linear method", I can't tell you that because I think that's exactly his interpretation, changed by the Court's decision.

THE COURT: The form of this order concerns me, because it suggests to me several things that I do not think are necessarily followed from the Supreme Court's decision. I'm not inclined to sign this order.

MR. CAMPBELL: May I confer? Could we delete the last paragraph of the second page, the next to the last paragraph on the first page, would the order conform with the Court's interpretation of Corliss?

MR. CASSELL: And, Judge, the only reason the last paragraph's in there, again there's a timing problem so that we can have some kind of schedule to operate under. So the deletion of the last paragraph does not affect what we're trying to accomplish which is a remand for rehearing.

We can leave it with your Honor. Would your Honor like the draft? That would be fine with us.

MR. CAMPBELL: I would appreciate having an opportunity to leave with an order today. Perhaps we can redraft it while I'm here, your Honor. If those 2 edits will get us back on track with the ZBA, ZBA. There is a looming deadline so this would put us back on the time frame Mr. Cassell and I have agreed to.

THE COURT: Well, are you all -~ what about the paragraph that says or the sentence that says, "It appearing that Corliss reversed the authority relied upon by the Zoning Board of Appeals"?

MR. CAMBPELL: We're going to delete that.

MR. CASSELL: We're going to delete that.

THE COURT: And then the last paragraph on the second page?

MR. CAMPBELL: That's correct.

MR. CASSEL: We can delete that as well. That's only there --

THE COURT: Okay.

MR. CASSELL: For the purposes -- Judge, we can give you a better order. Delete that and bring it back to you.

THE COURT: Shouldn't the Court also say that, "This matter is hereby remanded for rehearing before the Jefferson County Zoning Board of Appeals consistent with the West Virginia Supreme Court of Appeals in the case of Corliss vs. The Jefferson County Board of Zoning Appeals, Number 331119 plus the Kletter decision to the extent that it is not inconsistent with Corliss"?

MR. CASSELL: Sure. Judge, that's going to be, when we come back on the Kletter case, it's going to be very interesting for us to discuss those 2 decisions and conform them. That's -- we're looking forward to doing that.

THE COURT: There are parts of the Kletter decision that are deeply affected by the Corliss decision and others parts that ---

MR. CASSELL: That aren't.

THE COURT: May or may not be.

MR. CASSELL: There's one particular issue that's subject here to the issue of what was --

THE COURT: I'm not even sure Kletter's coming back here. I reserved the right to consider that one, specifically because I didn't know what the Supreme Court was going to do in Corliss.

MR CASSELL: We're going to have to get together and format. I think we're going to have the Kletter decision --

THE COURT: Well, let me discuss this with --

MR. CASSELL: Sure.

THE COURT: My zoning expert.

MR. CASSELL: Sure. And we can get a better order printed for you, Judge.

THE COURT: Alright. Hang on.

MR. CASSELL: From out of my office.

THE COURT: Thank you, gentlemen.

19MR. CASSELL: To whom, Judge?

Whereupon the proceedings went temporarily off the record.

Back on the record in the courtroom.

THE COURT: Gentlemen, I would be -- I have made some interlineations on this order and I wanted to check with you to see if it was still acceptable to counsel, and if so I would go ahead and enter it. On page 1 I deleted the sentence which is in paragraph form would read as follows: "It appearing that Corliss reversed the authority relied upon by the Zoning Board of Appeals in the underlying proceeding". I have drawn a line through that.

And also the first paragraph on the second page, I've amended it towards the end where it would have said, "; and it further". I struck the language, "It is further" and it's going to read now, "; in Kletter vs. Jefferson County Board of Zoning Appeals, 02-C-217 to the extent that Kletter is not inconsistent with Corliss supra".

And then delete the final paragraph that has me mandating that the Zoning Administrator recalculate the LESA evaluation. The only other change I would make on it is I would want a copy of this order to go not only to the attorneys, but also to the parties including individual copies to members of the Zoning Board of Appeals.

MR. CASSELL: To whom, Judge?

MR. CAMPBELL: To the individual members of the Zoning Appeals.

MR. CASSELL: Judge, we would be glad to reprint the order as amended

THE COURT: I'm satisfied.

MR. CASSELL: I'm right here down the street.

THE COURT: It looks fine to me.

MR. CASSELL: Okay.

THE COURT: Is that order acceptable in substance?

MR. CAMPBELL: It is, your Honor.

MR. CASSELL: Thanks, Judge.

THE COURT: Today is the 5th.

MR. CASSELL: You might want to correct, Judge, the typographical error, "This is ordered entered". You might want to fix it.

MR. CAMPBELL: This is ordered. We attorneys type dangerously.

THE COURT: Which one?

MR. CASSELL: Right above your signature line it says "This ordered entered". Would you fix that for us please?

THE COURT: Yes, sir. It's a minor thing, but it looks better. This looks like an order now that Judge Sencindiver used to do. It looks like what Judge Sencindiver used to do my orders, but anyway, usually with good reason in my case. Okay. And then we're coming back in February on this matter.

MR. CAMPBELL: That's correct.

MR. CASSELL: That should work.

THE COURT: It's my position, gentlemen, that it's up to the Zoning Board to decide whether to have Mr. Raco recalculate it.

MR. CASSELL: That's fine.

THE COURT: I'm remanding it to the Board. I'm not remanding it to Mr. Raco. It's just a procedural thing, but it's up to the Board then to decide how they wish to proceed.

MR. CAMPBELL: Very well.

THE COURT: Okay. Gentlemen, have a good day.

MR. CAMPBELL: You too, your Honor.

MR. CASSELL: Thank you, Judge.

THE COURT: Just give it to the Clerk.

MR. CAMPBELL: Take it across the street so I can make copies of it?

THE COURT: You might want to have something to stick it in.

MR. CASSELL: Pouring down rain.

THE COURT: It's raining. However you wish to handle it.

MR. CAMPBELL: The Clerk can mail it to me.

THE CLERK: You want us to send it to you?

MR. CAMPBELL: Good day, your Honor.

MR. CASSELL: Judge, I'll go out and get them now.

Whereupon the proceedings in the matter were terminated for the day.