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171
W.Va. 174, 298 S.E.2d 148
Supreme
Court of Appeals of West Virginia.
Harry
KAUFMAN & Gold Construction Co.
v.
The
PLANNING & ZONING COMM. OF the CITY OF FAIRMONT, et al. RSPD. Below,
Suzanne
Kennedy, et al.
No.
15496.
Nov.
24, 1982.
Syllabus
by the Court
1.
Zoning is concerned with whether a certain area of a community may be used for
a particular purpose while planning involves how that use is undertaken.
2.
The term "harmonious development" found in W.Va. Code § 8-24-30(4) lacks the specificity necessary
to adequately notify persons seeking plat approval of what they must
demonstrate before a planning commission.
3.
"A subdivision regulation enacted by a planning commission must be
reasonable and the regulation must sufficiently restrain the discretion of the
commission to insure fair administration and must sufficiently inform the
property owner to insure adequate guidance in the preparation of plans."
Syllabus, Singer v. Davenport, 164 W.Va. 665, 264 S.E.2d 637 (1980).
4.
Because of the lack of specificity found in W.Va.Code § 8-24-30(4), and the absence of more specific
guidelines in the applicable city ordinance, the planning commission is not
authorized by law to consider property values, the rental nature of projects or
the economic background of renters in reviewing plat applications.
5.
Planning commissions may consider only evidence presented for the record which bears
on the grounds authorized by statute for plat approval or disapproval. W.Va.Code §
8-24-30.
6.
Planning commission decisions are administrative rather than legislative
actions.
7.
In a case involving a planning commission decision, this Court may disturb a
decision "where the board has applied an erroneous principle of law, was
plainly wrong in its factual findings, or acted beyond its jurisdiction."
Syllabus Point 5, in part, Wolfe v. Forbes, 159 W.Va. 34, 217 S.E.2d 899
(1975).
8.
When an applicant meets all requirements, plat approval is a ministerial act
and a planning commission has no discretion in approving the submitted
application.
Philip
C. Petty, Rose, Southern & Padden, Fairmont, for appellant.
George
R. Higinbotham, Higinbotham & Higinbotham,
J.
Scott Tharp, Tharp, Liotta & James, Fairmont, for appellees.
McGRAW,
Justice:
The
appellants appeal an order of the Marion County Circuit Court affirming the
Fairmont Planning and Zoning Commission's rejection of a subdivision plat submitted
for its approval. The appellants are
Harry Kaufman, the owner of 44 acres of land located in the southern part of
Fairmont known as Watson Hill, and Gold Construction Co. [Gold], the firm which
submitted the plat to the Zoning and Planning Commission [Commission], the
appellee. Additionally, residents of
the Watson Hill area intervened in this case in the lower court and
participated in the argument before this Court.
Sometime
prior to June, 1980, Kaufman entered into an agreement to sell 12 acres of land
to Gold. The land fronts U.S. Route
250, a major throughfare, and is located between that roadway and the Tygart
River. At the time of the agreement, a
portion of the property was zoned for single-family residences only, while the
remaining tract was zoned for multi-family use. Gold planned to construct eight single-family houses in the area
restricted to such use, and to build 26 duplexes in the multi-family area. In all, the company planned to construct 60
housing units. When construction was
complete, the company intended to sell the houses to the Fairmont Housing
Authority. That agency would purchase
the development with funds provided by the United States Department of Housing
and Urban Development. The Fairmont
Housing Authority would manage the development and would select occupants from
low-income applicants.
In
June, 1980, Gold submitted a request for preliminary plat approval to the
Fairmont Zoning and Planning Commission as prescribed by W.Va.Code § 8-24- 28 (1976 Repl.Vol.).[1] The plat detailed the location of the
proposed subdivision, the size of individual lots, the location and width of
streets and other specifications required by Fairmont City Ordinance No. 425,
the city's subdivision control ordinance.
The
Commission held a public meeting October 8, 1980, on Gold's proposal. Watson Hill residents, particularly those
living in two middle-class developments near the Kaufman property, attended the
meeting. They vehemently opposed the
proposed subdivision. Various individuals
claimed that renters would not care for property as well as owners, and that
this lack of care would reduce the value of their property. They also argued that the subdivision would
place a strain on U.S. Route 250, already a high-volume, two-lane highway. Additionally, they protested that schools
would be adversely affected by the influx of children from the
subdivision. Remarks also were made
about the unattractive nature of the low-income residents of the proposed
subdivision.
After
receiving these comments, the Commission unanimously denied preliminary plat
approval. The Commission cited several
technical flaws in the plat as grounds for denying the proposal. Commission members also professed their
belief that a rental project would not be harmonious with the existing
developments.
Gold
subsequently redesigned the plat and resubmitted it to the Commission. At a second public hearing, held January 21,
1981, Gold presented expert testimony concerning claimed traffic problems on
U.S. Route 250, ground subsidence caused by prior coal mining, and the
subdivision's overall design. The
company also presented information which indicated that area utilities could
provide the necessary services, and that the county school superintendent
foresaw no problem with children from the subdivision burdening local
schools. Further, area residents
presented various letters from the Department of Highways concerning traffic on
U.S. Route 250. One letter indicated
that the accident rate on that roadway was below the state average for similar
throughfares.
Subdivision
opponents again voiced their feelings.
Some speakers made derogatory remarks about the intrinsic nature of
renters and the susceptibility of public housing developments to deterioration. A local realtor expressed his opinion that
property values would decrease in the existing neighborhoods because of the
development's presence. Increased
highway traffic and overcrowded schools were cited again as reasons for denying
approval of the subdivision. Opponents
presented no empirical evidence or expert testimony to substantiate any of
these claims.
At
the conclusion of the hearing, the Commission again voted unanimously to deny
Gold's application. The Commission
admitted that it found no technical flaws in the plat proposal. It justified its action by finding that the
development would not be in harmony with other subdivisions in the area, that
construction would depreciate local property values, and that the influx of new
residents would burden highway and school systems.
Gold
then petitioned the Circuit Court of Marion County on a writ of certiorari,
asking it to review the Commission's decision. In its petition, Gold argued that the Commission had no
jurisdiction over the plat because the city had failed to file a certified copy
of ordinance 425 with the county clerk.[2] The construction company also contended that
the Commission had exceeded its jurisdiction by considering property value
depreciation, traffic flow and overcrowding, and the public-housing nature of
the development. Alternatively, Gold
argued that the evidence did not support the Commission's findings even if
consideration of such factors was proper.
Gold also argued that the evidence did not support the Commission's
findings even if consideration of such factors was proper. Gold also argued that the Commission's
action constituted a taking of property in violation of the fifth and
fourteenth amendments to the United States Constitution.
Before
reaching its decision, the lower court allowed Watson Hill residents to
intervene in the case. The lower court
also permitted the city to supplement the record developed before the
Commission by taking testimony from Richard Pyles, the Commission's
chairman. His testimony concerned the
basis of the Commission's action, including the fact that individual Commission
members had considered personal experiences and utilized information obtained
outside the hearings in making their decision. These experiences and information included traffic accidents on
U.S. Route 250, perceived problems in the local schools, and problems
experienced elsewhere with public-housing developments.
The
lower court issued an opinion July 21, 1981, affirming the denial of plat
approval by the Commission. The court
found that the city's failure to comply with the statute did not preclude the
Commission from asserting jurisdiction over Gold's request.[3] Further, it held that the Commission could
properly consider matters other than the technical requirements set forth in
ordinance 425. Thus, the lower court
held that property value depreciation, the rental nature of the project, and
the impact of the proposed development on local highways and schools were legitimate
concerns which the Commission could consider independently of information
required by statute and ordinance. The
court found that the evidence supported the Commission's findings with regard
to these factors and that approval of the plat would not result in harmonious
development with existing subdivisions.
It further held that the Commission's action had not taken private
property in violation of the federal constitution.
I.
This
case presents a variety of conflicting rights and societal goals. Kaufman seeks to convey his property to
Gold, presumably in order to make money.
Without plat approval, Gold cannot construct the subdivision. Therefore,
its interest in the property as a site for development will likely
disappear. The company presumably
wishes to construct houses in order to make money. On the other side, the City of Fairmont wishes to regulate
community growth. The intervening
neighborhood residents wish to prevent what they perceive to be a threat to
their investments in land and homes and to the nature of their community. The Fairmont Housing Authority and the
federal Department of Housing and Urban Development hope to provide decent
housing to the less fortunate members of our society.
Beneath
this mass of conflicting rights and goals, or perhaps obscured by it, is the
relationship between zoning and planning, and the matters which a planning
commission may consider in reviewing subdivision plats. A municipality or county planning commission's
authority derives from statute. W.Va.Code §
8-24-1 authorizes municipal and county governing bodies to establish
planning commissions and sets out broad goals.[4] W.Va.Code §
8-24-30 lists the permissible considerations which a planning commission
may use in reviewing subdivision plats.[5] W.Va.Code §
8- 24-28 authorizes governing bodies to enact ordinances concerning
subdivision control and plat approval.[6]] Pursuant to this statute, the City of
Fairmont enacted ordinance 425.
Fairmont, W.Va., Ordinance 425 (June 7, 1976).
We
have considered the relationship of zoning and planning and the extent of a
planning commission's authority previously in Singer v. Davenport, 164 W.Va.
665, 264 S.E.2d 637 (1980). There, we
observed that the "purpose of zoning is to provide an overall comprehensive
plan for land use, while subdivision regulations govern the planning of new
streets, standards for plotting new neighborhoods, and the protection of the
community from financial loss due to poor development." Id., 164 W.Va. at 669, 264 S.E.2d at 640. Thus, in Singer we attempted to delineate
the cloudy boundary between zoning and planning, recognizing that zoning is
concerned with whether a certain area of a community may be used for a
particular purpose, while planning involves how that use is undertaken.
The
issue in Singer was "the extent to which the planning commission is
accorded general authority to oversee the location of subdivisions or their
desirability, rather than the way they are constructed." Id., 164 W.Va. at 669, 264 S.E.2d at 641. Put another way, the issue was the extent
to which a planning commission may make zoning rather than planning
decisions. In Singer we sustained the
lower court's reversal of the Jefferson County Planning Commission's denial of
a subdivision plat for two reasons.
First, the planning commission attempted to zone via its decisions even
though county residents had consistently rejected zoning ordinances. Id., 164 W.Va. at 669, 264 S.E.2d at
640. Second, the regulations adopted
for subdivision control by the planning commission did not sufficiently detail
the grounds for which the plat was denied.
Id., 164 W.Va. at 670, 264 S.E.2d at 641.
The
present case differs from Singer in that the residents of Fairmont have
approved a zoning ordinance which specifically allows multi-family housing in
the Watson Hill area. Thus, the
factual situation is reversed from Singer.
This case involves whether a planning commission may "rezone"
property by denying plat approval for uses permitted by the zoning ordinance.
Additionally, we must examine whether state law, city ordinance or Commission
regulation authorized the Commission to consider the factors cited as
justification for plat denial.
II.
The
appellant has presented several assignments of error. Of these claimed errors, we find it necessary to discuss the
following issues: (1) whether the
Commission properly considered such matters as property depreciation, traffic
safety, school overcrowdedness, the rental nature of the development and the
economic class of its occupants; (2)
whether members of the Commission properly referred to their own observations
and experiences in reaching their decision;
(3) what standard of judicial review applies to decisions made by
planning agencies; and (4) whether the
evidence supports the Commission's decision under that standard of review.[7]
II.
The
appellants contend that the Commission exceeded its jurisdiction by considering
subjective factors such as property depreciation, the nature of renters,
traffic safety and school overcrowdedness.
The appellants argue that the Commission may consider only the technical
requirements contained in the plat proposal as required by ordinance 425. The plat must detail street length and
width, lot sizes and frontages, and plat approval procedures. The ordinance does not enumerate the
considerations listed by the Commission as grounds for denying plat approval.[8]
The
city and intervenors admit that the ordinance goes to technical considerations
rather than subjective judgments. However, they point to W.Va.Code § 8-24-30[9]
as authority to consider non-technical matters. That statute lists five considerations which may form the basis
of the Commission's decision. The
first three relate to the types of matters contained in ordinance 425. The Commission relies on W.Va.Code § 8-24- 30(4) as giving it specific authority
to consider factors not contained within the plat proposal. That provision requires the Commission to
determine whether the plat provides for "[d]istribution of population and
traffic in a manner tending to create conditions favorable to health, safety,
convenience and the harmonious development of the municipality or county
...."
This
provision expressly authorizes the Commission to consider the effect of the subdivision's
population and traffic. Therefore, we
conclude that the Commission acted properly in considering the effect of the
development on traffic on U.S. Route 250.
The taking of evidence on this point was not in error.
There
remains, however, the factors of property depreciation, the development's
rental nature, the economic class of the proposed occupants, and the effect on
local schools. The last factor may be
dismissed since the lower court found that the evidence did not support the
Commission's finding in this regard.
See generally Baltimore Planning Comm. v. Victor Development Co., 261
Md. 387, 275 A.2d 478 (1971) (school impact not authorized by statute).
Property depreciation and the nature of renters are proper considerations, in
the Commission's view, because they relate to the "harmonious development
of the municipality or county ...."
W.Va.Code § 8-24-30(4). We disagree.
The
term "harmonious development" found in W.Va.Code § 8-24- 30(4) lacks the specificity necessary
to adequately notify persons seeking plat approval of what they must
demonstrate before a planning commission. See generally Smith v. City of
Mobile, 374 So.2d 305 (Ala.1979).
"A subdivision regulation enacted by a planning commission must be
reasonable and the regulation must sufficiently restrain the discretion of the
commission to insure fair administration and must sufficiently inform the
property owner to insure adequate guidance in the preparation of
plans." Syllabus, Singer v.
Davenport, supra.
The
city attempts to fit property depreciation, the rental nature of the project
and the type of potential occupants under the "harmonious
development" label. This is not
permissible in this instance since the city failed to adequately specify what
considerations may be encompassed under such a requirement. Because of the lack of specificity found in
W.Va.Code § 8- 24-30(4), and the
absence of more specific guidelines in the applicable city ordinance, the
planning commission was not authorized to consider property values, the rental
nature of projects or the economic background of renters in reviewing plat
applications.
Our
ruling makes it clear that municipalities must specify in their subdivision
ordinances what factors fall within the "harmonious development"
category. If municipalities wish to
avail themselves of the protection provided by W.Va.Code § 8-24-30(4), they must have ordinances which
put subdividers on notice of what factors must be satisfied in order to gain
commission approval.[10] Failure by municipalities to specify these
considerations means that such factors are not authorized by law to be
considered in the plat approval process.
A
similar issue is whether Commission members are limited to considering only the
evidence produced at the public hearings or whether they may utilize past
experiences and their own observations in reaching a decision. This question
becomes important when examining the testimony of Richard Pyles, the
Commission's chairman, taken before the lower court. His testimony makes it
evident that Commission members used their own observations of traffic on U.S.
Route 250 and their perceptions about local schools in reaching their
decision. More importantly, his
testimony clearly indicates that Commission members considered the public
housing status of the development as well as its rental nature. The appellants argue that members may not
refer to their own observations. Their
position is that the Commission is limited to considering material presented to
them in connection with the specific plat proposal.
W.Va.Code
§ 8-24-5 specifies who may be appointed
to planning commissions and their qualifications. Appointees "shall be qualified by knowledge and experience in
matters pertaining to the development of the municipality ...." W.Va.Code §
8-24-5.[11] Such qualifications are necessary to ensure
that planning commissions fulfill their responsibilities regarding municipal
development. This provision, however,
does not authorize planning commission members to consider matters not
presented to them concerning a particular subdivision plat.
When
a planning commission approves or disapproves a plat proposal, it must do so on
the basis of the evidence presented to it and for the reasons authorized by
law. This allows plat applicants to
submit evidence on factors which they know will form the basis of a planning
commission's decision. Consideration of matters outside the record, such as
members' own life experiences in an area, would prevent plat applicants from
knowing what matters they would need to refute in order to gain commission
approval. Without knowing what
information they must show in order to gain commission approval, plat
applicants would not be able to obtain a fair and impartial hearing. Therefore,
planning commissions may consider only evidence presented for the record which
bears on the grounds authorized by statute for plat approval or
disapproval. W.Va.Code § 8-24-30.
III.
Although
the Commission did consider factors not authorized by law, it also based its
denial on matters expressly authorized by statute. Therefore, it is necessary to determine whether these legitimate
considerations justify the Commission's rejection of the proposed subdivision. Prior to examining the evidence, however,
we must determine the applicable scope of our review in this case.
In
reaching its decision, the lower court concluded that the Commission had made
no errors of law and that the evidence supported the denial of plat
approval. Our review is likewise
limited. It is important, however, to
explore the differences in this case and one which involves enactment or
application of zoning ordinances.
The
Commission is charged with overseeing community development. In Fairmont, this entity handles both zoning
and planning. Much of the argument in
this case has treated the decision as a zoning matter. However, planning and zoning are not
identical, as we pointed out in Singer v. Davenport, supra. "Certainly, there is a distinction
between regulating the manner in which a subdivision can be constructed and
regulating where land can be devoted to subdivision use. The former is the province of a planning
commission, while the latter is exclusively the province of a zoning
commission." 164 W.Va. at 672,
264 S.E.2d at 642. This distinction is
also contained in the statute which authorizes formation of planning
commissions. Local governing bodies
may establish such agencies to "promote the orderly development of its
governmental units and its environs."
W.Va.Code § 8-24-1. Local planning agencies may "improve
the health, safety, convenience and welfare of their citizens" and may
"plan for future development of their communities." Id. To accomplish that end, planning units
must carefully plan highway systems and see "that new community centers
grow only with adequate highway, utility, health, educational and recreational
facilities ...." Id. Planning commissions must take into account
the future needs of agriculture, industry and business and must see that
"residential areas provide healthy surroundings for family life
...." Id.
The
city urges that we apply the "fairly debatable" standard of review to
this case. Under that approach,
"if the decision of the zoning authorities is fairly debatable the courts
will not interfere with such decisions."
Anderson v. City of Wheeling, 150 W.Va. 689, 698, 149 S.E.2d 243, 249
(1966). Under the fairly debatable
standard courts will not substitute their judgment for that of zoning
authorities as long as such decisions are supported by the evidence.
This
case, however, does not involve zoning.
When the Commission denied Gold's plat request, it acted in a planning
rather than a zoning capacity.
Therefore, the "fairly debatable" rule does not apply to this
case. Planning commission decisions
are administrative rather than legislative actions. Boulder Corp. v. Vann, 345 So.2d 272 (Ala.1977); RK Development
Corp. v. City of Norwalk, 156 Conn. 369, 242 A.2d 781 (1968); cf. State ex rel. Ammerman v. City of
Philippi, 136 W.Va. 120, 65 S.E.2d 713 (1951) (city council's denial of
building permit must be governed by reasonable rules).
Given
the administrative nature of this action, the scope of review should not be more
than that applied in Wolfe v. Forbes, 159 W.Va. 34, 217 S.E.2d 899 (1975). Although that case dealt with a decision by
a zoning appeals board, we believe that the scope of review applied in that
case is applicable here. Therefore, in
a case involving a planning commission decision, "this Court may disturb a
decision where the board has applied an erroneous principle of law, was plainly
wrong in its factual findings, or acted beyond its jurisdiction." Id., 159 W.Va. at 45, 217 S.E.2d at 906.
The
commission clearly erred in its denial after the improper considerations
previously discussed are removed.
Elimination of these factors leaves only adverse traffic impact as
justification for plat denial. The
evidence introduced by both Gold and the intervenors refutes this finding. The
evidence shows that the accident rate on U.S. Route 250 is below the state
average for such roads. Moreover, the
developer provided expert testimony regarding its plan to construct
acceleration and deceleration lanes along the highway leading to the
development. The commission members'
own experiences are not sufficient to overcome the evidence presented by Gold.
Additionally,
the city does not contest the fact that the comprehensive plan called for
multi-family development in the Watson Hill area. The proposed use of the property complied with the zoning
ordinance enacted by the City of Fairmont pursuant to the comprehensive plan.
The Commission admitted at the second public hearing that the plat complied
with technical requirements contained in ordinance 425. From the foregoing we hold that the denial
of the plat submitted by Gold is not supported by the evidence.
IV.
In
conclusion, we reverse the Commission's denial of plat approval. The Commission improperly considered several
factors. The record indicates that
although the city and the Commission listed various reasons for its denial,
perhaps the real reason was the fact that low-income persons were going to live
in the publicly-funded development.[12] By attempting to use the planning commission
as a vehicle to "plan" out persons of low income, the Commission's
action parallels cases elsewhere involving exclusionary zoning. See generally 1
P. Rohan, Zoning and Land Use Controls, chapters 2-3 (1982). Such action is no
more legal when taken by a planning commission than when implemented via a
zoning ordinance.
As
noted previously, this case presents the reverse of the situation found in
Singer. There, the Commission
attempted to use the planning commission's plat approval power as de facto
zoning. The economic status of
prospective inhabitants who will occupy the proposed subdivision is no more a
legitimate consideration than would be the occupants' sex, race, creed, color,
or national origin. Just as the planning
commission in Singer could not use a planning decision to implement zoning, a
planning commission may not use its authority to effectively rezone property by
denying approval of a subdivision plat.
The Commission's action was an attempt to prevent multi-family
development in an area zoned for that purpose because the subdivision would not
be in "harmonious development" with nearby single-family
residences. While that phrase might
justify a planning commission requiring a development's architectural style to
be in conformance with the surrounding neighborhood, such as colonial
architecture in colonial Williamsburg, the law does not permit planning to be
used as an economic barrier.
The
separation of powers between a planning commission and a zoning commission is
not always clear. The freedom of
individuals to live where they want and with whom they desire is not the only
consideration in this case. While the intervenors seek to prevent their
neighborhood from changing, they also seek to prevent a property owner from
using his property in a reasonable manner.
Although the concerns expressed by the intervenors may be legitimate,
the fact remains that Gold complied with every statute and ordinance enacted by
the state and the city. When an
applicant meets all requirements, plat approval is a ministerial act and a
planning commission has no discretion in approving the submitted
application. Knutson v. State, 239 Ind.
656, 157 N.E.2d 469, aff'd on rehearing, 239 Ind. 656, 160 N.E.2d 200
(1959). Since the Commission found
that Gold has complied with all technical requirements of the statute and
ordinance, it is entitled to have the plat approved as submitted.
Reversed
and remanded.
[1] The statute provides:
After a comprehensive plan and an ordinance containing provisions for subdivision control and the approval of plats and replats have been adopted by the governing body of the municipality or by the county court and a certified copy of the ordinance has been filed with the clerk of the county court (being in the case of a municipal plan and ordinance the county court of the county in which the municipality is located), a plat of a subdivision shall not be recorded by the clerk of such county court unless it has first been approved by the planning commission having jurisdiction over the area. If in the case of a municipal plan and ordinance, the municipality is located in more than one county, a certified copy of the ordinance shall be filed with the clerk of the county court of each such county.
[2] See footnote seven, infra.
[3] See footnote seven, infra.
[4] W.Va.Code § 8-24-1 provides:
The
governing body of every municipality and the county court of every county may
by ordinance create a planning commission in order to promote the orderly
development of its governmental units and its environs. It is the object of this article to
encourage local units of government to improve the present health, safety,
convenience and welfare of their citizens and to plan for the future
development of their communities to the end that highway systems be carefully
planned; that new community centers
grow only with adequate highway, utility, health, educational and recreational
facilities; that the needs of
agriculture, industry and business be recognized in future growth; that residential areas provide healthy
surroundings for family life; and that
the growth of the community is commensurate with and promotive of the efficient
and economical use of public funds.
In accomplishing this objective, it is intended that the planning commission shall serve in an advisory capacity to the governing body of a municipality or a county court, that certain regulatory powers be created over developments affecting the public welfare and not now otherwise controlled, and that additional powers and authority be granted to the governing bodies of municipalities and to counties to carry out the objective and overall purposes of this article.
[5] W.Va.Code § 8-24-30 provides:
In
determining whether an application for approval shall be granted, the
commission shall determine if the plat provides for:
(1)
Coordination of subdivision streets with existing and planned streets;
(2)
Coordination with and extension of facilities included in the comprehensive
plan;
(3)
Establishment of minimum width, depth and area of lots within the projected
subdivision;
(4)
Distribution of population and traffic in a manner tending to create conditions
favorable to health, safety, convenience and the harmonious development of the
municipality or county; and
(5)
Fair allocations of areas for streets, parks, schools, public and semipublic
buildings, homes, utilities, business and industry.
As
a condition of approval of a plat the commission may specify:
(1)
The manner in which streets shall be laid out, graded and improved;
(2)
Provisions for water, sewage and other utility services;
(3)
Provision for schools;
(4)
Provision for essential municipal services;
and
(5) Provision for recreational facilities.
[6] See footnote one, supra.
[7] The appellants also argue that the city's failure to file a certified copy of its subdivision ordinance with the county clerk, as required by W.Va.Code § 8-24-28 (1976 Repl.Vol.), precluded the Commission from acting on its plat proposal. The record indicates that the appellants made good-faith attempts to comply with the ordinance's technical requirements since all parties apparently believed the Commission had jurisdiction in this case. Since the appellants have complied with the ordinance and are receiving relief on the merits, we do not find it necessary to decide this question.
[8] Although not relied upon by
the appellee, ordinance 425 does mention harmony in its statement of
purpose. "[A]ll proposed lots
shall be laid out and of such size as to be in harmony with the development
pattern of the neighboring property ...."
Fairmont, W.Va. Ordinance 425, §
1.200 (June 7, 1976). This
statement clearly relates only to the physical aspects of lot size, not the
type of development and the economic class of renters. The city does not contest the fact that
Gold has complied with all technical requirements.
[9] See footnote five, supra.
[10] The following testimony by
the planning commission's chairman illustrates the need for specificity.
MR.
PETTY: There is still no way for me as
a developer or land owner to figure out what a proper plat would be to conform
with the harmonious development other than to present it to you and let you all
tell me?
MR. PYLES: I would say that would be very difficult.
[11] The statute provides:
A
municipal planning commission shall consist of not less than five nor more than
fifteen individuals, the exact number to be specified in the ordinance creating
such commission, all of whom shall be freeholders and residents of the
municipality, who shall be qualified by knowledge and experience in matters
pertaining to the development of the municipality, who shall include
representatives of business, industry and labor, and who shall be nominated by
the administrative authority and confirmed by the governing body of the
municipality or appointed by the governing body where the administrative
authority and governing body are the same.
At least three fifths of all of the members must have been residents of
the municipality for at least ten years prior to nomination and confirmation or
appointment. One member of the
commission shall also be a member of the governing body of the municipality and
one member shall also be a member of the administrative department of the
municipality, the term of these two members to be coextensive with the term of
office to which they have been elected or appointed, unless the governing body
and administrative authority of the municipality at the first regular meeting
of the commission each year designate others to serve as the municipality's
representatives. The remaining members
of the commission first selected shall serve respectively for terms of one
year, two years and three years, divided equally or as nearly equally as
possible between these terms. Thereafter, members shall be selected for terms
of three years each. Vacancies shall be filled for the unexpired term only, in
the same manner as original selections are made. Members of the commission shall serve without compensation, but
shall be reimbursed for all reasonable and necessary expenses actually incurred
in the performance of their official duties.
[12] The following exchange
summarizes the Commission's attitude.
MEMBER SUTTON: Now, does a low-income housing or a housing development of this type conform to the surrounding development?
CHAIRMAN PYLES: That's the question, I would imagine. MEMBER SUTTON: Well, I'm sitting here in fear, because I figure if I say what I want to say I'll have a law suit on my hands. I'm going to say--I move it does not conform to the surrounding development; it is definitely not harmonious with the surrounding development, and I say let's deny it.