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IN THE CIRCUIT COURT OF JEFFERSON COUNTY, WEST VIRGINIA

Case No. 02-C-2 17

Jan Cary Kletter, et al, Petitioners,

vs.

Jefferson County Board of Zoning Appeals, Respondent, and

Elmer Lee Roderick, et al, Interveners.

ORDER DENYING MOTION FOR A STAY

This matter came on for a decision this 16^th day of August, 2004 upon the papers and proceedings formerly read and had herein; upon the Motion of the Jefferson County Board of Zoning Appeals for a Stay of Judgment Pending Application for Appeal filed herein previously; upon the Motion of Intervenors for a Stay of Judgment Pending Application for Appeal; upon a hearing held herein on August 11, 2004, at which appeared the movants, by counsel, J. Michael Cassell, Esq., for Respondent and Peter L. Chakmakian, Esq. and Richard Gay, Esq., for Intervenors, upon the appearance of Petitioners by counsel, David Hammer, Esq. Only Respondent's motion had been officially set for hearing on August 1 1th, but all counsel agreed that Intervenor's motion should be heard at the same time.

The original Opinion Order in this case was entered on September 9, 2003; however, upon motion, the Court stayed the finality of that Order and agreed to conduct further proceedings within the context of Rule 60(b) motions in light of the decision of the Supreme Court of Appeals of West Virginia in Corliss et al vs. Jefferson County Board of Zoning Appeals, 214 W. Va. 535 (2003). The Opinion Order, which supplants the September 9, 2003 Order, reversed and remanded to the Board of Zoning Appeals. This case was decided under West Virginia law as it existed prior to the effective date of Senate Bill 454 (Passed March 13, 2004; in effect 90 days from passage).

The Court notes that it has issued rather lengthy decisions in this and in other land use/zoning cases. This was done in an effort to discuss the Court's analysis of the results of extensive research that was required of the Court because there is a paucity of case law on county zoning and land use issues in this jurisdiction. Few West Virginia counties have zoning and, consequently, the issues that arise in this county in the context of zoning have often not been previously litigated. It was hoped that such detailed analysis might be helpful to all parties and might aid in the review process should an appeal be desired by any party. However, it now appears that this detailed approach may actually create confusion about what the precise ruling of the Court is in a particular case, as opposed to what is analysis, discussion or dicta. Therefore, it appears that it would be helpful for the Court to identify its precise rulings in this case before determining if a stay should be granted.

The precise rulings of this Court in this case (i.e., the "law of this case") are as follows:

(1) Under West Virginia law, only the Board of Zoning Appeals has the quasi-judicial power necessary for certain aspects of zoning administration and a County Commission may not confer such powers upon other agencies or ministerial employees.

(2) Under West Virginia law, the Board of Zoning Appeals ~n~i only the Board of Zoning Appeals may adopt rules and regulations concerning the filing of appeals, applications for variances and exceptions, the giving of notice and the conduct of hearings.

(3) Under West Virginia law, the Board of Zoning Appeals has the mandatory duty to adopt rules and regulations concerning the filing of appeals, applications for variances and exceptions, the giving of notice and the conduct of hearings.

(4) The standard of review that the Board of Zoning Appeals is to apply to cases on appeal before it is non-deferential and de novo.

(5) Under West Virginia law, the Board of Zoning Appeals is to keep its records under its own control and not under that of the Zoning Administrator and, where certiorari is issued, such record must be certified to the reviewing court by a secretary of the Board of Zoning Appeals and must show the grounds for the decision of the Board.

(6) That the record as certified in this case by the Zoning Administrator was virtually unreviewable.

(7) That this case is remanded to the Board of Zoning Appeals without directions as to the ultimate rulings that it should make on the substantive issues.

At this point it is important for the Court to note that it is not the intent of this Court's Order to tell the Board of Zoning Appeals exactly what it would specifically require the rules and regulations under Code 8-24-54 to contain as to sufficiency because that is not an issue framed by this litigation.

At the hearing upon said motion, counsel for the Respondent represented to the Court that he was not certain that his client would even appeal the ruling, but that they desired time to further consider the question. Counsel for the Interveners indicated that it was the current intent of his clients to appeal.

The existence of legally cognizable prejudice to any of the movants should this Court not grant a stay was not established to the Court's satisfaction in the memoranda and argument of the movants. On the other hand, it seems clear that the Board and the County are in clear violation of West Virginia statutes in the following particulars: Code 8-24-54 (8A-8-9(6) under the new law) that requires the Board to promulgate its own hearing procedures; Code 8-24-54 (also 8A-8-9(6) under the new law) that requires the Board to develop the rules and regulations for the applications of variances and exceptions; Code 8-24-53 and 54 that requires the County to provide the Board with suitable offices for, among other things, the preservation of its records; Code 8-24-63 that requires that a return to a writ of certiorari must be verified by the secretary for the Board and that it must show the grounds for the decision of the Board. So, it appears to the Court that it is being asked to stay the effect of state law. All of this raises the question of how the Court could fashion a stay so as to protect the due process rights of not only the parties, but other landowners, developers and citizens who have cases moving through the system.

For all of these reasons, the Court is of the opinion that it ought not grant a stay pending appeal in this case.

AND IT IS SO ORDERED.

The Court notes the timely exception of all parties to any and all adverse rulings herein contained.

The Clerk shall enter the foregoing as and for the day and date first above written and forward attested copies hereof to all counsel of record.

T Steptoe
Judge of the Circuit Court