STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Andrew C. Smith, Petitioner Below, Petitioner FILED November 12, 2013 RORY L. PERRY II, CLERK vs) No. 13-0280 (Monongalia County 12-C-411) SUPREME COURT OF APPEALS OF WEST VIRGINIA
City of Morgantown Board of Zoning Appeals, Respondent Below, Respondent
MEMORANDUM DECISION
Petitioner Andrew C. Smith, appearing pro se, appeals the order of the Circuit Court of Monongalia County, entered February 28, 2013, upholding two decisions of the City of Morgantown Board of Zoning Appeals. 1 Respondent City of Morgantown Board of Zoning Appeals (“BZA”), by counsel Stephen R. Fanok, filed a summary response. Petitioner filed a reply.2
The Court has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate Procedure.
Petitioner owns business property at 426 Drummond Street, Morgantown, West Virginia. On June 28, 2012, petitioner filed a petition for a writ of certiorari that challenged two May 16, 2012 decisions of the BZA. In each decision, the BZA granted petitioner’s requested variance, but
1 Petitioner attempted an earlier appeal from the Board of Zoning Appeals’ decisions, however, the circuit court dismissed that appeal for procedural deficiencies. While petitioner appealed the dismissal to this Court, he also corrected the procedural errors and re-filed his appeal in the instant case. Accordingly, the Court dismissed as moot the earlier appeal from the circuit court as the procedural issues were no longer alive between the parties. See Smith v. City of Morgantown, No. 12-0793, 2013 WL 3388231 (W.Va. Supreme Court, July 8, 2013) (memorandum decision). 2 On September 5, 2013, petitioner also filed a motion to supplement his appendix with photos of his property taken during the week of August 5, 2013. Inasmuch as these photos were not before the BZA, this Court denies the motion to supplement. See W.Va. Code § 8A-9-6(b) (“[N]o such review [of a BZA decision] shall be by trial de novo.”).
1 only in the manner recommended by the Morgantown City Planner.3
On July 6, 2012, petitioner moved the circuit court to take testimony to supplement the evidence pursuant to West Virginia Code § 8A-9-6(b). The BZA responded that West Virginia Code § 8A-9-6 provided that a zoning appeal should ordinarily be decided on facts set forth in the petition and the return, and that supplemental testimony should be allowed only if the circuit court determines it is necessary.
The circuit court held a hearing on petitioner’s motion on October 18, 2012. By an order entered on October 22, 2012, the circuit court ruled, in accordance with West Virginia Code § 8A-9-6, that it would allow supplemental testimony only if it determined such testimony was necessary. The circuit court further ruled that (a) it was granting the writ of certiorari and directing the BZA to file a return to the writ by October 30, 2012, and (b) that petitioner’s reply would be due by November 19, 2012.
On January 14, 2013, the circuit held a final hearing at which the parties presented oral argument. In an order entered February 28, 2013, the circuit court addressed petitioner’s grounds for reversing the BZA’s two decisions regarding his requested variances: (1) whether the grading permit petitioner obtained from the City of Morgantown (“City”) allowed him to install a new asphalt parking lot; (2) whether BZA Chairperson Bossio had a conflict of interest that required him to abstain from participating in deliberations on petitioner’s requested variances; (3) whether the BZA violated its by-laws by not voting on petitioner’s requested variances within 120 days of its initial public hearing on the variances; (4) whether BZA Member Shaffer, after being absent from the December 11, 2011, hearing, violated the BZA’s by-laws by failing to state on the record that he had read the city planning department’s staff report and was familiar with it, prior to voting on the variances at the May 16, 2012, hearing; (5) whether either petitioner or his engineer received a memorandum from the city planner dated September 17, 2010, that summarized the zoning requirements that petitioner would need to address at his property; (6) whether the City’s zoning requirements conflicted with the “access permit” petitioner obtained from the West Virginia Division of Highways; (7) whether the city planning department properly interpreted §§ 1341.07 and 1367.02(B) of the City’s zoning ordinance; and (8) whether the City violated § 1383.06 of its zoning ordinance by not notifying affected property owners of petitioner’s appeal of the two decisions of the BZA on his requested variances. After addressing petitioner’s arguments in support of his appeal, the circuit concluded that (a) the BZA did not apply any erroneous principles of law, (b) did not make any plainly wrong findings, and (c) did not act beyond its jurisdiction. Accordingly, the circuit court upheld the BZA’s two decisions that granted petitioner’s requested variances, but only in the manner recommended by the city planner. Petitioner now appeals the circuit court’s February 28, 2013 order that upheld the BZA’s
3 On petitioner’s two requested variances, the city planner’s recommendations were as follows: (1) that the BZA grant a one-foot variance from the requirement that sidewalks be six feet in width, beginning at and measured from the back of the street curb; and (2) that the BZA grant a five-foot variance from the ten-foot minimum requirement for a landscape buffer, measured from the back of the sidewalk to a concrete curb at the back of the concrete parking lot to protect plant materials. 2 May 16, 2012 decisions on petitioner’s requested variances.4 It is well-established that we review the decision 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.” Webb v. West Virginia Board of Medicine, 212 W.Va. 149, 155, 569 S.E.2d 225, 231 (2002). With respect to the decisions of the BZA, there is a presumption that the BZA acted correctly and “a reviewing court should reverse the administrative decision [only] 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. 1, Far Away Farm, LLC, v. Jefferson County Board of Zoning Appeals, 222 W.Va. 252, 664 S.E.2d 137 (2008) (quoting Syl. Pt. 5, Wolfe v. Forbes, 159 W.Va. 34, 217 S.E.2d 899 (1975)).
On appeal, petitioner raises all but one of the same grounds the circuit court discussed in its order entered February 28, 2013. Petitioner does not raise the correct interpretation of §§ 1341.07 and 1367.02(B) of the City’s zoning ordinance. However, petitioner also raises two additional issues that were not addressed by the circuit court’s February 28, 2013 order.
This Court will now address the two issues that were not refuted by the February 28, 2013 order. First, in a single-sentence argument petitioner first makes in his reply, petitioner asserts that he was not allowed to have “complete testimony” in this case.
Free access — add to your briefcase to read the full text and ask questions with AI
STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Andrew C. Smith, Petitioner Below, Petitioner FILED November 12, 2013 RORY L. PERRY II, CLERK vs) No. 13-0280 (Monongalia County 12-C-411) SUPREME COURT OF APPEALS OF WEST VIRGINIA
City of Morgantown Board of Zoning Appeals, Respondent Below, Respondent
MEMORANDUM DECISION
Petitioner Andrew C. Smith, appearing pro se, appeals the order of the Circuit Court of Monongalia County, entered February 28, 2013, upholding two decisions of the City of Morgantown Board of Zoning Appeals. 1 Respondent City of Morgantown Board of Zoning Appeals (“BZA”), by counsel Stephen R. Fanok, filed a summary response. Petitioner filed a reply.2
The Court has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate Procedure.
Petitioner owns business property at 426 Drummond Street, Morgantown, West Virginia. On June 28, 2012, petitioner filed a petition for a writ of certiorari that challenged two May 16, 2012 decisions of the BZA. In each decision, the BZA granted petitioner’s requested variance, but
1 Petitioner attempted an earlier appeal from the Board of Zoning Appeals’ decisions, however, the circuit court dismissed that appeal for procedural deficiencies. While petitioner appealed the dismissal to this Court, he also corrected the procedural errors and re-filed his appeal in the instant case. Accordingly, the Court dismissed as moot the earlier appeal from the circuit court as the procedural issues were no longer alive between the parties. See Smith v. City of Morgantown, No. 12-0793, 2013 WL 3388231 (W.Va. Supreme Court, July 8, 2013) (memorandum decision). 2 On September 5, 2013, petitioner also filed a motion to supplement his appendix with photos of his property taken during the week of August 5, 2013. Inasmuch as these photos were not before the BZA, this Court denies the motion to supplement. See W.Va. Code § 8A-9-6(b) (“[N]o such review [of a BZA decision] shall be by trial de novo.”).
1 only in the manner recommended by the Morgantown City Planner.3
On July 6, 2012, petitioner moved the circuit court to take testimony to supplement the evidence pursuant to West Virginia Code § 8A-9-6(b). The BZA responded that West Virginia Code § 8A-9-6 provided that a zoning appeal should ordinarily be decided on facts set forth in the petition and the return, and that supplemental testimony should be allowed only if the circuit court determines it is necessary.
The circuit court held a hearing on petitioner’s motion on October 18, 2012. By an order entered on October 22, 2012, the circuit court ruled, in accordance with West Virginia Code § 8A-9-6, that it would allow supplemental testimony only if it determined such testimony was necessary. The circuit court further ruled that (a) it was granting the writ of certiorari and directing the BZA to file a return to the writ by October 30, 2012, and (b) that petitioner’s reply would be due by November 19, 2012.
On January 14, 2013, the circuit held a final hearing at which the parties presented oral argument. In an order entered February 28, 2013, the circuit court addressed petitioner’s grounds for reversing the BZA’s two decisions regarding his requested variances: (1) whether the grading permit petitioner obtained from the City of Morgantown (“City”) allowed him to install a new asphalt parking lot; (2) whether BZA Chairperson Bossio had a conflict of interest that required him to abstain from participating in deliberations on petitioner’s requested variances; (3) whether the BZA violated its by-laws by not voting on petitioner’s requested variances within 120 days of its initial public hearing on the variances; (4) whether BZA Member Shaffer, after being absent from the December 11, 2011, hearing, violated the BZA’s by-laws by failing to state on the record that he had read the city planning department’s staff report and was familiar with it, prior to voting on the variances at the May 16, 2012, hearing; (5) whether either petitioner or his engineer received a memorandum from the city planner dated September 17, 2010, that summarized the zoning requirements that petitioner would need to address at his property; (6) whether the City’s zoning requirements conflicted with the “access permit” petitioner obtained from the West Virginia Division of Highways; (7) whether the city planning department properly interpreted §§ 1341.07 and 1367.02(B) of the City’s zoning ordinance; and (8) whether the City violated § 1383.06 of its zoning ordinance by not notifying affected property owners of petitioner’s appeal of the two decisions of the BZA on his requested variances. After addressing petitioner’s arguments in support of his appeal, the circuit concluded that (a) the BZA did not apply any erroneous principles of law, (b) did not make any plainly wrong findings, and (c) did not act beyond its jurisdiction. Accordingly, the circuit court upheld the BZA’s two decisions that granted petitioner’s requested variances, but only in the manner recommended by the city planner. Petitioner now appeals the circuit court’s February 28, 2013 order that upheld the BZA’s
3 On petitioner’s two requested variances, the city planner’s recommendations were as follows: (1) that the BZA grant a one-foot variance from the requirement that sidewalks be six feet in width, beginning at and measured from the back of the street curb; and (2) that the BZA grant a five-foot variance from the ten-foot minimum requirement for a landscape buffer, measured from the back of the sidewalk to a concrete curb at the back of the concrete parking lot to protect plant materials. 2 May 16, 2012 decisions on petitioner’s requested variances.4 It is well-established that we review the decision 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.” Webb v. West Virginia Board of Medicine, 212 W.Va. 149, 155, 569 S.E.2d 225, 231 (2002). With respect to the decisions of the BZA, there is a presumption that the BZA acted correctly and “a reviewing court should reverse the administrative decision [only] 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. 1, Far Away Farm, LLC, v. Jefferson County Board of Zoning Appeals, 222 W.Va. 252, 664 S.E.2d 137 (2008) (quoting Syl. Pt. 5, Wolfe v. Forbes, 159 W.Va. 34, 217 S.E.2d 899 (1975)).
On appeal, petitioner raises all but one of the same grounds the circuit court discussed in its order entered February 28, 2013. Petitioner does not raise the correct interpretation of §§ 1341.07 and 1367.02(B) of the City’s zoning ordinance. However, petitioner also raises two additional issues that were not addressed by the circuit court’s February 28, 2013 order.
This Court will now address the two issues that were not refuted by the February 28, 2013 order. First, in a single-sentence argument petitioner first makes in his reply, petitioner asserts that he was not allowed to have “complete testimony” in this case. We note that this issue was addressed by the circuit court in its October 22, 2012 order where the court ruled that whether it took supplemental testimony was solely discretionary pursuant to West Virginia Code § 8A-9-6. West Virginia Code § 8A-9-6(b) further provides that “no such review [of a BZA decision] shall be by trial de novo.” Therefore, this Court concludes that this issue is without merit.
Second, in another argument petitioner makes first in his reply, petitioner complains that the circuit court’s February 28, 2013 order was prepared by opposing counsel. We have stated that “[a]s an appellate court, we concern ourselves not with who prepared the findings for the circuit court, but with whether the findings adopted by the circuit court accurately reflect the existing law and the trial record.” State ex rel. Cooper v . Caperton, 196 W.Va. 208, 214, 470 S.E.2d 162, 168 (1996). This Court finds that the twenty-three page February 28, 2013 order was very thorough and more than adequately refuted the many reasons petitioner alleged in support of reversing the BZA’s decisions on his requested variances. Therefore, this Court concludes that this issue is also without merit.
The respondent BZA addresses all the issues petitioner raised in his initial brief and argues that the circuit court did not err in upholding the BZA’s May 16, 2012 decisions. Having reviewed the circuit court’s “Order,” entered February 28, 2013, we hereby adopt and incorporate the circuit court’s well-reasoned findings and conclusions as to the assignments of error remaining in this appeal.5 The Clerk is directed to attach a copy of the circuit court’s order to this memorandum
4 On April 4, 2013, the circuit court issued a stay of its February 28, 2013 order pending the outcome of this appeal because the BZA did not object to a stay being granted. 5 Petitioner makes a third argument in his reply to which the respondent BZA, being unaware of the issue, could not respond; however, the argument, that the City violated § 1383.06 of its zoning ordinance by not notifying affected property owners of petitioner’s appeal of the 3 decision.
For the foregoing reasons, we find no error in the decision of the Circuit Court of Monongalia County and affirm its February 28, 2013 order upholding the BZA’s May 16, 2012 decisions that granted petitioner’s requested variances, but only in the manner recommended by the city planner.
Affirmed.
ISSUED: November 12, 2013
CONCURRED IN BY:
Chief Justice Brent D. Benjamin Justice Robin Jean Davis Justice Margaret L. Workman Justice Menis E. Ketchum Justice Allen H. Loughry II
BZA’s decisions, was addressed in the circuit court’s February 28, 2013 order. 4