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IN
THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September
2003 Term
__________No.
31119__________
GREGORY
A. CORLISS, JANET STINE, PAUL BURKE,
ARCHIBALD
M. S. MORGAN, III, LILLIAN POTTER SAUM,
AND
SUELLEN MYERS, Petitioners Below, Appellees
v.
JEFFERSON
COUNTY BOARD OF ZONING APPEALS, Respondent Below, Appellee,
and
ARCADIA
DEVELOPMENT COMPANY,
WILLIAM
HENDERSON AND GINGER HENDERSON, Intervenors Below, Appellants
__________________________________________________
Appeal
from the Circuit Court of Jefferson County The Honorable Thomas W. Steptoe,
Jr., Judge
Civil
Action No. 01-C-139 REVERSED
__________________________________________________
Submitted:
September 9, 2003 Filed: October 10, 2003
Gregory A. Corliss,
Janet Stine, Paul Burke,
Archibald M. S. Morgan, III, Lillian Potter Saum
and Suellen Myers, Appellees
Pro Se
J. Michael Cassell
Assistant Prosecuting Attorney
Charles Town, WV
Attorney for the Appellee,
Jefferson County Board of Zoning Appeals
Peter L. Chakamakian
Alice Chakmakian
Charles Town, West Virginia
and
Richard G. Gay
Nathan P. Cochran
Berkeley Springs, WV
Attorneys for the Appellants
JUSTICE ALBRIGHT
delivered the Opinion of the Court.
CHIEF JUSTICE STARCHER
concurs and reserves the right to file a concurring opinion.
JUSTICE McGRAW
dissents and reserves the right to file a dissenting opinion.
SYLLABUS
1. “While on appeal there is
a presumption that a board of zoning appeals acted correctly, a reviewing court
should reverse the administrative decision where the board has applied an
erroneous principle of law, was plainly wrong in its factual findings, or has
acted beyond its jurisdiction.” Syl. Pt. 5, Wolfe v. Forbes, 159 W.Va.
34, 217 S.E.2d 899 (1975).
2. “In cases where the
circuit court has amended the result before the administrative agency, this
Court reviews the final order of the circuit court and the ultimate disposition
by it of an administrative law case under an abuse of discretion standard and
reviews questions of law de novo.” Syl. Pt. 2, Muscatell v. Cline,
196 W.Va. 588, 474 S.E.2d 518 (1996).
3. “Interpretations of
statutes by bodies charged with their administration are given great weight
unless clearly erroneous.” Syl. Pt. 4, Security Nat'l Bank & Trust Co.
v. First W. Va. Bancorp., 166 W.Va. 775, 277 S.E.2d 613 (1981).
4. “While the
interpretation of a statute by the agency charged with its administration
should ordinarily be afforded deference, when that interpretation is unduly
restrictive and in conflict with the legislative intent, the agency's
interpretation is inapplicable.” Syl. Pt. 5, Hodge v. Ginsburg, 172
W.Va. 17, 303 S.E.2d 245 (1983).
5. “To entitle a property
owner to certiorari to review the action of a city council in vacating and
closing a street, the petitioner must allege that his property abuts on that
part of the street vacated, or that he will suffer special or peculiar damage
or inconvenience not common to all.” Syl. Pt. 2, Barker v. City of
Charleston, 134 W.Va. 754, 61 S.E.2d 743 (1950).
6. A person qualifies as
“aggrieved” within the meaning of West Virginia Code § 8-24-59 (1969) (Repl.
Vol. 1998) and thereby has standing to challenge a decision or order of the
Board of Zoning Appeals as illegal where the individual demonstrates that, as a
result of the challenged ruling, he/she will uniquely suffer injury separate
and apart from that which the general citizenry might experience as a result of
the same ruling.
Albright, Justice:
Arcadia Building Company
(“Arcadia”) and William and Ginger Henderson (See footnote 1) appeal from
the February 14, 2002, decision of the Circuit Court of Jefferson County in
which the conditional use permit previously issued to them by the Jefferson
County Planning Commission (“Commission”) was vacated. Arcadia had sought and
obtained the permit for the purpose of developing a residential subdivision
known as Harvest Hills. Six individual landowners (See footnote 2) (hereinafter
referred to as “Landowners”) sought review by the circuit court of the
administrative decision to issue a specialized zoning permit for the Harvest
Hills development. (See footnote 3) The
Landowners objected to the proposed development based on concerns that residential
use of the land would negatively affect their agrarian use of neighboring
property. Arcadia (See footnote 4) argues
that, in reversing the decision of the Appellee Jefferson County Zoning Board
of Appeals (“Zoning Board”), the circuit court wrongly substituted its judgment
for that of the Zoning Board and circumvented established rules of review.
Having carefully reviewed this matter, we find
that the lower court erred in overturning the Zoning Board's decision by not
adhering to the limited scope of review applicable to this type of
administrative proceeding and by altering the established manner in which
adjacent property measurements are determined for purposes of evaluating a
conditional use permit application. Accordingly, we reverse.
I. Factual and Procedural Background
The property at issue which
Arcadia seeks to develop is located in the Rural District of Jefferson County.
Despite its “rural” designation, the Jefferson County Zoning and Development
Review Ordinance (hereinafter referred to as the “Ordinance”) provides for
twenty-two principal permitted uses, including low-density single-family
residential development and farming. The Ordinance sets forth a specified
maximum number of lots that are allowed in the Rural District as a matter of
right. Even though the maximum number of lots had been reached in this
district, (See footnote 5) the
Ordinance provides a mechanism whereby a “conditional use permit” application
may be filed to seek the Commission's permission for an already approved use of
the land. (See footnote 6) Seeking
such a permit, Arcadia submitted an application and the required support data
to the Commission on December 19, 2000, for the purpose of developing Harvest
Hills. According to the conditional use permit application, the subject real
estate contains 371 acres and Arcadia intends to subdivide this property into
approximately 392 single-family housing lots.
Pursuant to the
procedures known as the Development Review System (“DRS”), which are set forth in
the Ordinance, the Commission undertook an evaluation to determine whether the
requested conditional use permit should be issued. As part of that process, a
Land Evaluation and Site Assessment (“LESA”) was performed by the Zoning
Administrator, Paul Raco. The LESA evaluation utilizes a numeric rating scale
which involves two components: a soils assessment that accounts for 25% of the
LESA score and an amenities assessment that accounts for the remaining 75% of
the LESA score. Upon the conclusion of the LESA evaluation, the combined score
of these two components was 57.47. (See footnote 7) Only if
this score was 60 or less could the DRS process continue. Given the appropriate
range of the LESA score, the proposed development proceeded to the
Compatibility Assessment Meeting. This stage of the review process provides a
public forum for local citizens to voice their specific concerns about the
development under consideration.
Following proper notice, (See footnote 8) a
Compatibility Assessment Meeting was held on February 28, 2001. At this
meeting, which was attended by both the Landowners and other interested
citizens, numerous concerns were raised in connection with the proposed
development. (See footnote 9) Arcadia, as
reflected by the Staff Report prepared by the Commission, agreed to take
specific action with regard to seventeen enumerated concerns that were raised
at the meeting. (See footnote 10) Because
there were six unresolved issues (See footnote 11) that
surfaced during the meeting, a public hearing was scheduled for May 22,
2001, to address those specific issues.
Within a week of the
compatibility meeting, two of the Landowners (See footnote 12) jointly
filed two separate appeals with the Zoning Board. In the first appeal, they
averred that the Commission and/or the Zoning Administrator miscalculated the
LESA score. They argued that if the Ordinance been properly applied with regard
to the factors of adjacent development; proximity to schools; public water
availability; and public sewer availability, the LESA score would have exceeded
the maximum of 60. In a second appeal filed by these same Landowners, they
alleged that the data submitted by Arcadia in support of its conditional use
permit application was legally insufficient. After consolidating the two
appeals, the Zoning Board held a public hearing on these issues on April 19,
2001. The Board, following the presentation of argument, voted to deny the
appeal. (See footnote 13) On May 17,
2001, the Board issued Findings of Fact and Conclusions of Law in support of
both of its decisions to deny the Landowners' challenges. (See footnote 14)
The public hearing
previously scheduled by the Commission to address the unresolved
issues (See footnote 15) took place
on May 22, 2001. After hearing the proffers of Arcadia pertaining to these
issues, the Commission voted 8 to 3 to approve the issuance of the conditional
use permit. The Landowners utilized the statutory remedy of applying for a writ
of certiorari (See footnote 16) to obtain
judicial review of the Zoning Board's decision. Like the Zoning Board, the
circuit court consolidated the two appeals for purposes of its review. On
February 14, 2002, the lower court issued its decision in which it vacated the
Zoning Board's decision to issue the conditional use permit and remanded the
matter to the Commission for further proceedings consistent with the circuit
court's rulings. As support for its ruling, the lower court found error with
regard to the underlying administrative determinations concerning the adequacy
of the submitted support data and found the method by which the Zoning
Administrator measured adjacent development in conjunction with the amenities
component of the LESA score to be inconsistent with the Ordinance's purposes.
(See footnote 17) Arcadia
appeals from the lower court's decision to vacate the administrative decision
to issue the conditional use permit, a decision that was initially reached by
the Commission and subsequently affirmed by the Zoning
Board.
II. Standard of Review
As we explained in Webb v. West Virginia Board of Medicine, 212
W.Va. 149, 569 S.E.2d 225 (2002), “[o]n appeal, this Court reviews the
decisions of the circuit court under the same standard of judicial review that
the lower court was required to apply to the decision of the administrative
agency.” Id. at 155, 569 S.E.2d at 231; accord Martin v.
Randolph County Bd. of Educ., 195 W.Va. 297, 304, 465 S.E.2d 399, 406
(1995). The standard that applied to the circuit court's review of the
consolidated appeals from the Zoning Board was announced in syllabus point five
of Wolfe v. Forbes, 159 W.Va. 34, 217 S.E.2d 899 (1975): “While on
appeal there is a presumption that a board of zoning appeals acted correctly, a
reviewing court should reverse the administrative decision where the board has
applied an erroneous principle of law, was plainly wrong in its factual
findings, or has acted beyond its jurisdiction.”
We have further
recognized that “[i]n cases where the circuit court has amended the result
before the administrative agency, this Court reviews the final order of the
circuit court and the ultimate disposition by it of an administrative law case
under an abuse of discretion standard and reviews questions of law de novo.”
Syl. Pt. 2, Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996).
With these standards in mind, we proceed to consider the parties' arguments.
III. Discussion
Arcadia and the Zoning Board argue that the lower court
failed to conduct its review according to the three-pronged standard set forth
in Wolfe and further ignored a decision of this Court that addresses the
limited significance of a county's comprehensive plan (See footnote 18) when
compared to subsequently enacted zoning laws. See Singer v. Davenport,
164 W.Va. 665, 668, 264 S.E.2d 637, 640 (1980). They further contend that the lower
court merely substituted its judgment for that of the Commission and the Zoning
Board, as is evidenced by the circuit court's failure to identify the error
committed below within the parameters of Wolfe and by the lower court's
singular and selective emphasis throughout its order on the goal of farmland
preservation, one of multiple goals/purposes recognized in the
Comprehensive Plan and the Ordinance.
A. Inadequate Support Data
An applicant seeking a
conditional use permit is required to submit certain items of support data that
address each of twenty-three items, (See footnote 19) which
range from rudimentary information regarding the developer's name and address
to specifics about the soil conditions and the ability of the current
infrastructure to support the proposed development. In reviewing the support
data submitted by Arcadia, the lower court correctly recognized that “[t]he
responsibility for determining the 'adequacy' of the support data submitted
rests with the Zoning Administrator in the first instance, but his
determination of adequacy is reviewable by the BZA, in this Court, and in the
Supreme Court of Appeals.”
Despite the existence of written findings of fact and conclusions of law
prepared by the Zoning Board in the appeal related to the support data, the
lower court omitted any reference to those specific findings in its order.
Instead, the lower court cited a letter dated April 19, 2001, prepared by the Zoning
Administrator in which he stated his position regarding the adequacy of the
support data:
The Appellants have failed to
show how they have been aggrieved by alleged inadequacies of the support data.
Even if it was inadequate they were not injured by it because they addressed
the issues in their appeal.
Even so, this has been
addressed by this Board in the past. The Ordinance simply lists things to
address. It doesn't explain what is acceptable. In this case the developer
addressed them to the best of his ability. Unless it contains untrue statements
it should be adequate. (emphasis supplied)
Essentially dismissing the Board's recognition
that the Ordinance does not require specified levels of detail, the lower court
downplayed the significance of the Board's position in favor of “correcting” an
improper interpretation and application of the law.
In section 7.4(g), the
Ordinance squarely addresses who has responsibility for finding submitted
support data to be inadequate: “The Zoning Administrator shall determine if the
sketch plan and support data are adequate.” In this case, the submission of
Arcadia's support data did not prompt the Zoning Administrator to make a
finding of inadequacy. When this issue was presented on appeal, the Zoning
Board concluded:
that the Appellants fail to demonstrate that the Zoning
Administrator abused his discretion or failed to render his determination
regarding the adequacy of the plan and support data in conformity with Section
7.4. The Board rejects the Appellants['] contention that the support data
and sketch plan are wholly inadequate for an informed public discussion
regarding this project. (emphasis supplied)
Dismissing the value of the Board's finding, the
lower court determined in conclusory fashion that “no serious review of the
adequacy of the support data was made.”
Making its own findings
on the issue of adequacy, the lower court stated as follows:
The support data packet submitted by the Developers
failed to address the following specific items required by the Ordinance: type
and frequency of traffic; adequacy of existing transportation routes; locations
of signs; and did not contain a discussion of ground water or of the project's
effect upon wildlife populations. These omissions, and the abbreviated nature
of the support data narrative in general, are inconsistent with the purposes
for the requirement of providing support data set forth in the Ordinance, i.e.,
“public review” in preparation for a dialogue as to “compatibility” and as
material upon which the Commission will base, in part, its decision whether to
issue the conditional use permit.
Our review of the record discloses that Arcadia did in
fact address each of the twenty-three areas of required support data. For
example, as to the category of “effected wildlife populations,” Arcadia
responded: “There are no known rare or endangered species of wildlife
indigenous to this site. Two letters have been received from the DNR[;] they
are attached as exhibits. Wildlife populations will not be affected although
some nests or dens of individual animals may be displaced.” In similar fashion,
there was information supplied with regard to the category designated as
“ground water and surface water and sewer lines within 1320 feet: “Elk Branch
borders the northern property boundary. This stream is well defined with,
stable vegetated banks. There are no sewer lines within 1320 feet.” As to the
category of “traffic characteristics-type and frequency of traffic; adequacy of
existing transportation routes,” the support data supplied the following
information:
This site will generate the usual residential traffic.
It is anticipated that many of the home buyers, at least the ones who are
commuters, may take advantage of the proximity to the rail stop and commute to
their jobs by train. The developer has been talking to the West Virginia State
Highway Department for several months about removal of the curves to the south
of the property. The developer expects to share in the cost of this work.
Upon our review of the
support data, we can reach only one conclusion _ while the circuit court may
have been correct in its characterization of the support data as “abbreviated,”
there was no failure of Arcadia to provide information responsive to the
twenty-three categories and certainly there was no omission of information that
would rise to the level of inadequacy in terms of the Ordinance's purpose of
requiring the submission of support data. The Zoning Administrator was correct
in his observation that the Ordinance “simply lists things to address. It
doesn't explain what is acceptable.” In conducting its review on the issue of
adequacy, the lower court appears to have been overly focused on quantitative
concerns, given its observation that “for a project of this size, the intent of
the Ordinance's support data provisions is not served by the submission of four
pages of narrative containing a mere 103 lines of responsive material (aside
from the soils data) in addressing the 23 data points as to which information
is sought.”
That the lower court
recognized the objective underlying the support data requirement is clear from
its finding that “the purpose . . . is to reveal issues relating to
compatibility and to provoke discussion among the developer/landowner, the
interested public and the county's land use officials as to matters that would
be relevant to compatibility.” The Staff Notes from the Compatibility
Assessment Meeting make clear that a comprehensive and seemingly thorough
public review of the Harvest Hills development did take place and, as a result
of that public scrutiny, specific agreements were reached addressing the
majority of the concerns raised by the citizens who attended this
meeting. (See footnote 20) As
discussed above, those issues that could not be resolved during the first
public meeting were scheduled for further discussion at a subsequent public
hearing. On review, the DRS process appears to have worked in its intended
fashion by providing a public forum to address and seek resolution of pertinent
development-related issues. Accordingly, we cannot concur with the circuit
court's conclusion that the support data and its level of detail somehow
operated to thwart the Ordinance's objective of “public review.” (See footnote 21)
Based on the
broadly-worded categories of support data combined with the Ordinance's
unmistakable purpose of requiring this data to facilitate “an informed public
discussion,” we cannot conclude that a quantitative analysis of the support
data is the manner in which the standard of adequacy is to be determined under
the Ordinance. Neither are we able to hone in some fashion how much detail is
required with regard to examining support data for purposes of adequacy. In
this Court's opinion, the key to determining adequacy has to be based on
whether the support data was sufficient in terms of enabling the desired public
debate to occur with regard to the proposed development. Both the Zoning
Administrator and the Zoning Board found the support data submitted by Arcadia
adequate to enable the desired goal of public discourse on the proposed
development. Moreover, the record makes clear that a detailed public debate did
occur and furthermore, that Arcadia agreed to take specific action in response
to the bulk of public concerns raised at the Compatibility Assessment Meeting.
(See footnote 22) Given the
manner in which the public appeared, raised particularized concerns, and
action, or agreement to take action, resulted with regard to those concerns, it
appears that the DRS process worked in the fashion intended by the Ordinance's
drafters.
In discarding the
administrative determinations that the submitted support data was adequate, the
lower court appears to have wrongly substituted its judgment for that of the
administrative entities charged with handling zoning matters. It is axiomatic
that “[i]nterpretations of statutes by bodies charged with their administration
are given great weight unless clearly erroneous.” Syl. Pt. 4, Security Nat'l
Bank & Trust Co. v. First W. Va. Bancorp., 166 W.Va. 775, 277 S.E.2d
613 (1981). The record in this case suggests that the lower court overlooked
its duty to give the appropriate amount of deference to the administrative
decision and Zoning Board's affirmance of that decision regarding the adequacy
of the support data. While acknowledging on the one hand that “[m]atters that
are within the Commission's expertise . . . would be best left to the
Commission in the first instance” for purposes of determining the appropriate
support data that is required, the circuit court proceeded to make its own
findings on the issue and to further suggest that the Commission should
implement usage of forms containing questions that might prompt a more thorough
response to the support data categories.
Were the submission of
the support data an end in itself to the DRS process, we might be more inclined
to agree with the circuit court's suggestion that extensive detail is required
when such data is initially submitted as part of the conditional use permit
application. Importantly, that support data provides a launching point from
which the public can begin to participate in and the Zoning Administrator and
the Commission can conduct the multi-stage reviewing process that is involved
in any application for a conditional use permit. Given the clear purpose of the
support data to provide a mechanism for public debate relevant to such areas
and the undisputed evidence that such public debate did freely occur in this
matter, (See footnote 23) we cannot
agree with the circuit court's finding that the support data was “inadequate”
or that the determinations made by the Commission and the Zoning Board on this
issue were incorrect. Accordingly, we find that the lower court abused its
discretion in reversing the Zoning Board on this issue.
B. Incorrect Method of Land Measurement
As the second basis for vacating the Zoning Board's order, the circuit
court ruled that the Zoning Administrator erred by using the boundary or linear
method of land measurement in calculating that part of the LESA score which
pertains to adjacent development. In scoring the amenities assessment portion
of the LESA evaluation, there are nine separate items (See footnote 24) that are
scored, one of which is “adjacent development.” The Ordinance describes this
criterion as assessing
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.
Depending on the resulting percentage, a specified number of points are added
into the LESA score. (See footnote 25)
The lower court expressly found that “[t]he Ordinance
specifies no measurement method” and that “[t]he Zoning Administrator measured
the adjacent land by linear boundaries.” As to the longstanding practice of the
Zoning Administrator _ since the enactment of the Ordinance in 1988 to utilize
the linear method of land measurement _ the circuit court found: “The record
reflects that the Zoning Administrator has followed the linear boundary method
of measurement in this context for many years, and that it is also the method
he has utilized in evaluating land usage in the context of other conditional
use permit requests under the Ordinance.”
When this issue was
appealed by the Landowners to the Zoning Board, the Board found as follows:
5. The Board concludes that the assessment of points
for Adjacent Development should be calculated by measuring the boundaries of
adjacent parcels and then determining the uses of each adjacent parcel. The
Board rejects the Appellants' [Landowners] contention that the land area or
acreage of the adjacent parcels of land should be the proper method of
measurement.
6. The Board concludes that the operative language
contained in Section 6.4(b) is adjacent development and adjacent
land. The word adjacent is defined by Websters New World College
Dictionary, Fourth Edition, 1999, as that which is adjoining, i.e.: something
that touches something else at some point or along a line.
7. The Board concludes that Section 6.4(b) does not
specify land area or acreage as the proper measurement of adjacent land or
adjacent development. The Board would further note that specific definitions of
land area and lot area are contained in the Definition section of the
Ordinance.
8. Therefore, the Board concludes that the Zoning
Administrator's assessment of points of adjacent development is in conformity
with Section 6.4(b) and should be affirmed.
As its justification for replacing the established
linear method of measuring adjacent land for purposes of conditional use permit
applications with its preferred acreage method, the circuit court offered:
The Court has given this matter careful consideration
and is compelled to agree with Petitioners [Landowners] that while the
Ordinance fails to specify a method to be used, the land area method of
measurement appears, in this context, to be much more consistent with the
expressed purposes and intent of the Development Review System, Conditional Use
Permit process, the Comprehensive Plan, and the Code. The Court agrees with
Petitioners that the boundary method of measurement appears to disfavor
farmland preservation and to favor development. The Court believes this is
because the boundary method of measurement fails to take account of the depth
of adjacent parcels. The Court sees no reason that a method of measurement
should be used which, although it is simpler than measuring by land area,
ignores the true size of the adjacent parcels.
Just as the circuit court completely sidestepped the
Board's decision as to adequacy, the court similarly ignored the expertise the
administrative entities involved in this case have developed with regard to
land measurement and its consequent obligation to accord such
expertise/judgment a significant level of deference barring any clear error.
The lower court appears to have wholly disregarded its obligation to accord a
presumption of correctness with regard to the Board's long term approach to
this issue of measuring adjacent parcels of land for purposes of calculating
one aspect of the LESA score. See Wolfe, 159 W.Va. at 35, 217 S.E.2d at
900, syl. pt. 5. As justification for its decision to alter the established
method of land measurement, the lower court cited syllabus point five of Hodge
v. Ginsburg, 172 W.Va. 17, 303 S.E.2d 245 (1983), in which this Court held
that “[w]hile the interpretation of a statute by the agency charged with its
administration should ordinarily be afforded deference, when that interpretation
is unduly restrictive and in conflict with the legislative intent, the agency's
interpretation is inapplicable.” Given the absence of any explanation as to how
the lower court concluded that the linear method of land measurement was either
“unduly restrictive” or “in conflict with the legislative intent,” other than
indicating a preference for a method of measurement favoring farmland
preservation over development, the lower court appears to have simply
“rewritten” (See footnote 26) the
Ordinance to reach a different result in terms of the LESA score. (See footnote 27) See Syl.
Pt. 1, Consumer Advocate Div. v. PSC, 182 W.Va. 152, 386 S.E.2d 650
(1989) (holding that “[a] statute, or an administrative rule, may not, under
the guise of 'interpretation,' be modified, revised, amended or rewritten”).
Arcadia argues that the
lower court wrongly elevated the goals of the Comprehensive Plan (See footnote 28) over the
objectives of the Ordinance (See footnote 29) in its
effort to adopt a land measuring method that would favor farmland preservation.
In so doing, Arcadia suggests that the circuit court circumscribed this Court's
clear recognition in Singer that “the comprehensive plan is to be used
by the Planning Commission to aid them in drawing up their subdivision
ordinances” and that such plans were “never intended to replace definite,
specific guidelines; instead, it was to lay the groundwork for the future
enactment of zoning laws.” 164 W.Va. at 668, 264 S.E.2d at 640. We further
clarified that the comprehensive plan had no effect as a separate legal
instrument. Ibid.
Arcadia and the Zoning
Board argue that the lower court wrongly elevated the importance of the
Comprehensive Plan, observing that the court “selectively excised only those
portions of the Comprehensive Plan which pertain to the preservation of
agriculture.” Rather than placing the Comprehensive Plan in its proper context
_ as a reference for purposes of applying the Ordinance (See footnote 30) _ the
lower court declared the Plan and the Ordinance to be on equal footing for
purposes of resolving any issues involving interpretation. Evidence of the
weight accorded to the Comprehensive Plan by the circuit court is found in the
court's declaration that it “interprets the ordinances in pari materia
with the Comprehensive Plan and should, to the extent feasible, construe the
ordinances to be consistent with the Comprehensive Plan.” Following this
pronouncement in its order, the circuit court proceeded to set forth only those
goals or statements from the Comprehensive Plan which pertain to farm industry
preservation. Our review of the record suggests that the lower court did place
undue emphasis on the singular concern of agricultural preservation when in
fact this particular objective is but one of many goals identified in either
the Ordinance or the Plan. (See footnote 31)
Given the lower court's
emphasis on agricultural preservation, it is difficult to conclude that the
lower court's finding on the issue of land measurement was not affected by this
seemingly singular focus. In rather arbitrarily adopting an entirely new method
of land measurement _ one that significantly differs from that used by the
Commission for over thirteen years _ we are inclined to agree with the Zoning
Board's position that the lower court has usurped the legislative function
accorded to the Commission in whose responsibility the drafting of such zoning
ordinances is reposed. Critically, the lower court did not find error through
the use of the linear method of land measurement _ only that the method of
acreage measurement was more consistent with the Comprehensive Plan and the
goal of farmland preservation. Were farmland preservation the only interest
that was sought to be protected through both the Comprehensive Plan and the
Ordinance, we might be able to find some merit in the lower court's findings
relevant to land measurement. Since that is not the case, however, we are
compelled to reach the conclusion that the lower court committed error in
altering the established method of measuring adjacent land for purposes of
evaluating applications seeking a conditional use permit.
C. Standing of Landowners
Arcadia argued below and the lower court rejected its
contentions that the Landowners lacked the requisite standing to seek review of
the Board's actions pursuant to the provisions of West Virginia Code § 8-24-59.
That provision extends standing to “[a]ny person or persons jointly or
severally aggrieved by any decision or order of the board of zoning appeals . .
. .” Id. Maintaining that the term “aggrieved” connotes an injury that
is peculiar to the individual in a manner separate from that of other taxpayers
and residents, Arcadia contends that the Landowners fail to qualify as
“aggrieved” individuals entitled to review under the statute.
In challenging the
Landowners' standing, Arcadia posited that their “only interest in the Harvest
Hills project arises from concerns about residential growth, overcrowded
schools, inadequacy of essential public services such as sewer and water
service, a lowering water table, and increased and congested traffic.”
Submitting that these generalized concerns failed to differentiate these
particular citizens from any other Jefferson County landowners, Arcadia
contended that the Landowners could not meet the test established by this Court
in Barker v. City of Charleston, 134 W.Va. 754, 61 S.E.2d 743 (1950). In
syllabus point two of Barker, we held that
To entitle a property owner to
certiorari to review the action of a city council in vacating and closing a
street, the petitioner must allege that his property abuts on that part of the
street vacated, or that he will suffer special or peculiar damage or
inconvenience not common to all.
This Court observed in Barker that
the petition contained no allegation to the effect that
any of the properties of petitioners fronted or abutted on that part of the
street or alleys vacated and closed, or to the effect that the vacating and
closing of the same would in any way injure, prejudice or inconvenience petitioners,
or any of them, in any manner, except to the extent that such injury, prejudice
or inconvenience would be suffered by all others of the community wherein the
properties of petitioners are situated.
Id. at 756, 61 S.E.2d at 745.
In rejecting Arcadia's
standing arguments, the lower court found that “there is uncontroverted
evidence in the record that Myers, Stine and Corliss are farmers and residents of the area immediately
surrounding Duffields, where Harvest Hills would be located.” The circuit court
found further that “Myers, Stine and Corliss (or persons in their employ) of
necessity must upon occasion utilize Flowing Springs Road to traverse from one
portion of their farm to another with tractors and related implements.” Based
on their proximity to the proposed development and their occupation as farmers,
the lower court concluded that “Petitioners Myers, Stine, and Corliss have an
interest in this matter that is different from the interests of other citizens
at large.” Determining that the Landowners had “made the requisite factual
showing of alleged 'distinct' or 'peculiar' harm,” the circuit court found no
procedural impediment to the review sought by the Landowners. (See footnote 32)
In resolving the issue
of who qualifies as “aggrieved” within the meaning of West Virginia Code §
8-24-59, the circuit court concluded
that individuals such as petitioners who live in close
proximity to the project, who farm, and who demonstrate that their farming
activities are at risk of being deleteriously affected or even terminated by
conditions expected to be generated or worsened by the project, such as
increased traffic, a lowering ground water table, crowding, and the myriad
problems that would appear to attend the juxtaposition in close proximity of
farms and farmers with more or less suburban-style residents of single-family
houses (including, as has been suggested, liability exposure, nuisance
lawsuits, noise, dust and smell complaints, cut fences, and children enticed to
play with horses or other livestock), have standing to challenge the major
decisions of the county's local governing bodies approving a conditional use
permit. . . .(footnote omitted)
Notwithstanding Arcadia's strenuous protests on this
issue, we find no basis for finding error with regard to the lower court's
finding that the Landowners qualified as “aggrieved” persons who thereby had
standing to challenge the issuance of the conditional use permit. While the
Landowners involved did raise concerns that at first blush might appear to be
in common with all the citizens of Jefferson County, such as increased traffic,
water table lowering, and other growth-related effects on the existing infrastructure,
they proceeded to demonstrate how those concerns would bring about
particularized harm given their specific occupational needs as farmers.
Accordingly, we hold that a person qualifies as “aggrieved” within the meaning
of West Virginia Code § 8-24-59 and thereby has standing to challenge a
decision or order of the Board of Zoning Appeals as illegal where the
individual demonstrates that, as a result of the challenged ruling, he/she will
uniquely suffer injury separate and apart from that which the general citizenry
might experience as a result of the same ruling.
Based on the foregoing,
the decision of the Circuit Court of Jefferson County reversing the issuance of
the conditional use permit by the Jefferson County Board of Zoning Appeals is
hereby reversed and the matter is referred back to the Commission for the
express purpose of reinstating the conditional use permit that was previously
issued to Arcadia.
Reversed.
Mr.
and Mrs. Henderson are the owners of the property on which Arcadia plans to
develop residential home sites.
Those
individuals are: Gregory A. Corliss, Janet Stine, Paul Burke, Archibald M. S.
Morgan III, Lillian Potter Saum, and Suellen Myers.
Arcadia
and the Hendersons intervened in the review proceedings filed with the circuit
court.
Since
the positions of the Hendersons and Arcadia are essentially synonymous,
references to Arcadia are meant to denote the Hendersons as well.
The
Ordinance provides that for the Rural District a “property owner may create one
(1) lot for every ten (10) acres with a minimum lot size of three (3) acres.” There
are additional provisions regarding the subdivision of lots.
As
we explained in syllabus point one of Harding v. Board of Zoning Appeals, 159
W.Va. 73, 219 S.E.2d 324 (1975):
A
special exception or conditional use, unlike a variance, does not involve the
varying of an ordinance, but rather compliance with it. When it is granted, a
special exception or conditional use permits certain uses which the ordinance
authorizes under stated conditions.
The
property received a score of 19.47 for the soils assessment and a score of 38
for the amenities assessment.
The
details regarding the meeting's date, time, and location were published in a
local newspaper on February 8 and 15, 2001.
According
to the Staff Report prepared by the Commission following the compatibility
meeting the following concerns were raised: “restoration of historic train
station; density; water and sewer availability and service; buffers; traffic
problems; sharp curve on Route 17; lighting; soils; fencing of property;
preservation of farmland; impact on schools and services; stream and wetland
protection; noise buffers; stormwater management; maintenance of subdivision
roads; homeowner's association; impact on adjacent farms; voluntary impact
fees; surveys of liability of development on adjoining property owner;
trespassing on to adjoining properties from proposed subdivision; and []
incompatib[ility] with surrounding neighborhood.”
The
concerns which Arcadia agreed to address or resolve were as follows:
1 1. Cooperate with nonprofit
groups to preserve the historic train station with the permission of the record
owner of the property;
2 2. Execute a bond to fix the
curve on Route 17 (Flowing
Springs Road) if title
is obtained by the West Virginia Department of Highways to do so;
3 3. Install no street
lighting;
4 4. Disclose to potential
buyers the intensity of the train traffic;
5 5. Build a fence between the
development and the railroad tracks;
6 6. Discuss and encourage
telecommunications link-ups with utility companies;
7 7. Inform potential buyers of
farming activities in the area (i.e. smells, noises, animals, equipment) and
the farmers right to farm;
8 8. Prepare a traffic study;
9 9. Install a traffic light at
the intersection of Route 17 and Melvin Road if warranted by the West Virginia
Department of Highways;
10 10. Provide quality control
of storm water management to County standards;
11 11. Provide buffers to
lessen the impact of the development on the Duffield's historic area;
12 12. Not to increase the
density more than what is currently proposed;
13 13. Not to relinquish any
property they do not own;
14 14. Provide a fence between
the development and Sullen Myers property;
15 15. Provide economic study
to determine the cost of services versus tax collections;
16 16. Not locate a water tank
on the property;
17 17. Give the land earmarked
for the School Board to the Jefferson County Parks and Recreation Commission or
other sports organization if not used by the School Board.
The
unresolved issues were:
18 1. Pay voluntary impact
fees;
19 2. Change the subdivision
name;
20 3. Guarantee that Ms. Sullen
Myers will be held harmless from
any lawsuit if someone
from the development trespasses onto her property and is injured;
21 4. Provide economic study to
determine the cost of services versus tax collections and add that amount to the
sale of the lot as an impact fee;
22 5. Provide a historic and
archeological study of the property;
23 6. Reduce the density.
Ms.
Stine and Mr. Burke.
Separate
votes were taken with regard to each of the appeals. The Board voted 3 to 2 to
deny the appeal which challenged the LESA score and voted 4 to 1 to deny the
appeal challenging the sufficiency of the support data.
See
Harding, 159 W.Va. at 82, 219 S.E.2d at 329-30 (requiring preparation of
written findings of fact by zoning board upon decision to grant or deny
conditional use permit application).
See
supra note 10.
See
W.Va. Code § 8-24-59 (1969) (Repl. Vol. 1998).
The
court found no error with regard to the LESA calculations pertaining to school
proximity; public water availability; and public sewer availability.
A
comprehensive plan was adopted by Jefferson County in 1994, six years after the
County Commission enacted the Ordinance.
Pursuant
to § 7.4(d) of the Ordinance, the following items are enumerated for purposes
of submitting the requisite support data:
24 1. Name and address of
owner/developer.
25 2. Name and address of
contact person.
26 3. Type of development
proposed.
27 4. Acreage of original tract
and property to be developed.
28 5. General description of
surface conditions (topography).
29 6. Soil and drainage
characteristics.
30 7. General location and
description of existing structure.
31 8. General location and
description of existing easements or rights-of-way.
32 9. Existing covenants and
restrictions on the land.
33 10. Intended improvements
and proposed building locations including locations of signs.
34 11. Intended land uses.
35 12. Earth work that would
alter topography.
36 13. Tentative development
schedule.
37 14. Extent of the conversion
of farm land to urban uses.
38 15. Effected wildlife
populations.
39 16. Ground water and surface
water and sewer lines within 1320 feet.
40 17. Distance to fire and
emergency services that would serve the site.
41 18. Distance to the
appropriate elementary, middle, and high school.
42 19. Traffic characteristics
- type and frequency of traffic; adequacy of existing transportation routes.
43 20. Demand for school
services created by this development.
44 21. Proximity and
relationship to historic structure or properties within two hundred (200) feet.
45 22. Proximity to
recreational facilities.
46
23. Relationship of the project to the Comprehensive
Plan.
See
supra note 9.
Of
note is the fact that the best the lower court could offer on this point is the
suggestion that “attenuated” support data “could stifle discussion of important
issues and/or unfairly shift the burden of gathering data required for an
informed discussion.” Interestingly, the circuit court made no finding that the
intended public review was affected in such a potentially negative fashion; it
merely raised the possibility of such an occurrence.
See
supra note 10.
In
its memorandum submitted to the circuit court below, the Zoning Board observed
that “[t]he public participated fully and substantially throughout these
proceedings” and further that “[t]here is no evidence and no claim that the
public was excluded or that anyone was unable to fully develop their position
regarding this project.”
These
items are: (a) size of site; (b) adjacent development; (c) distance to growth
corridor; (d) comprehensive plan compatibility; (e) proximity to schools; (f)
public water availability; (g) public sewer availability; (h) roadway adequacy;
and (i) emergency service availability.
For
example, if 86 to 100% of the land is either farmed or not intensely developed,
then the award is ten points (the maximum award) and if 26 to 40% falls into
the
undeveloped category,
the award is only 1 point. Based on the land measurement calculations performed
by the Zoning Administrator in this case, the percentage of undeveloped land
was determined to be 72.4% based on the linear method, which resulted in a LESA
assessment of 6 for the adjacent development component.
The
Court further “rewrote” the Ordinance in declaring in its order that it would
“not enforce the Ordinance's provisions requiring an average to be taken in
subsection 6.4(b) because the Court perceives the taking of an average to run
counter to the purpose of that subsection and indeed all of Section 6.4 of the
Ordinance.”
The
lower court's willingness to alter the Ordinance's application on this issue is
certainly inconsistent with its position as to several of the other LESA
challenges in which the court indicated that “[t]o require more at this early
stage of the project would seem to require the Ordinance to be amended to be
more explicit” (referencing public sewer availability) and that “for the
Ordinance itself to operate with greater force with respect to the adequate
public facilities issues, it would need to be amended.”
The
goals included in the Comprehensive Plan are the following:
Encourage growth and development in areas where sewer,
water, schools and other public facilities are available or can be provided
without excessive cost to the community.
Insure that growth and development are both
economically and environmentally sound.
Promote the maintenance of an agricultural base in the
County at a level sufficient to insure the continued viability of farming.
Encourage and support commercial, industrial, and
agricultural activities to provide a healthy, diversified, and sound local
economy.
Promote the conservation of the natural, cultural, and
historical resources and preserve the County's scenic beauty.
Advocate the maintenance and improvement of the
transportation system so that people and goods can move safely and efficiently
throughout the County.
Provide safe, sound, decent housing for all residents
of the County.
Give citizens a chance to affect the course of planning
activities, land development, and public investment in Jefferson County.
Establish a planning framework within which the various
conflicting activities and objectives can coexist, while providing logical,
continuing, and far sighted guidance for the future of the community.
Support and defend private property rights while
ensuring overall public health, safety, and general welfare.
The purposes
of the Ordinance are enumerated as follows:
(a) Protect and encourage the
health, safety and general welfare of the present and future population of
Jefferson County.
(b) Help guide the future
growth and development of Jefferson County in accordance with the adopted
Comprehensive Plan.
(c) Encourage growth and
development in areas where sewer, water, schools, and other public facilities
are or will soon be available in order to provide services in the most cost
effective manner.
(d) Insure that growth and
development are both economically and environmentally sound.
(e) Encourage the maintenance
of an agricultural base in the County at a level sufficient to insure the
continued viability of farming.
f (f) Encourage and support
commercial, industrial, and
agricultural
activities while maintaining land use, order and compatibility.
g (g) Encourage an improved
appearance of Jefferson County with relationship to the use and development of
land and structures.
h (h) Encourage the
conservation of natural resources.
ix (i) Provide a guide for
public action in the orderly and efficient provision of public facilities and
services.
j (j) Provide a guide for
private enterprise in developing and building a strong economic community.
k (k) Encourage historic
preservation.
The
Legislature has declared that the “comprehensive plan shall be made with the
general purpose of guiding and accomplishing a coordinated, adjusted and
harmonious development of the area. . . .” W.Va. Code § 8-24-16 (1969) (Repl.
Vol. 1998).
See
supra notes 28, 29.
The
other three Landowners were permitted to proceed under the theory of “dependent
standing,” a doctrine unique to zoning matters whereby multiple parties are
permitted to bring such challenges, provided at least one petitioner has
standing. See Lindsey Creek Area Civic Assn. v. Consolidated Govt. of Columbus,
292 S.E.2d 61, 63 n. 4 ( Ga. 1982); accord Cohen v. Zoning Bd. of Appeals, 624
N.E.2d 119, 121 (Mass. App. 1993).