Burkey v. Board of Zoning Appeals of the City of Moundsville ex rel. Thompson

584 S.E.2d 215, 213 W. Va. 581, 2003 W. Va. LEXIS 90
CourtWest Virginia Supreme Court
DecidedJuly 2, 2003
DocketNo. 31060
StatusPublished

This text of 584 S.E.2d 215 (Burkey v. Board of Zoning Appeals of the City of Moundsville ex rel. Thompson) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Burkey v. Board of Zoning Appeals of the City of Moundsville ex rel. Thompson, 584 S.E.2d 215, 213 W. Va. 581, 2003 W. Va. LEXIS 90 (W. Va. 2003).

Opinions

PER CURIAM.

This case is before this Court upon the appeal of Michael J. Burkey and Linda Bur-key from the final order of the Circuit Court of Marshall County entered on March 6, 2002. Pursuant to the order, the Circuit Court upheld a ruling of the Board of Zoning Appeals of the City of Moundsville which granted the appellees, Jeannie Church and Francis Tucker, a variance from the City’s zoning ordinances. Specifically, the variance allowed the appellees to seek a license from the State of West Virginia to sell nonintoxi-[583]*583eating beer at Jeannie’s Coffee Shop, located at 272 Jefferson Avenue in Moundsville.

This Court has before it the petition for appeal of the Burkeys, all matters of record and the briefs filed by the parties. As discussed below, the Board of Zoning Appeals failed to communicate or set forth any factual or legal basis concerning the granting of the variance to the appellees. Consequently, this Comí; is of the opinion that the Circuit Court was precluded from conducting a proper judicial review of the Board’s ruling. Therefore, the final order of the Circuit Court is reversed, and the variance issued in this case is set aside.

I.

FACTUAL AND PROCEDURAL BACKGROUND

The appellants, Michael J. Burkey and Linda Burkey, are practicing attorneys and own a two-story house on Third Street in Moundsville, West Virginia, which serves as their residence and law office. Along the western boundary of the property is a 9 foot alley which separates the Burkeys’ property from an establishment located at 272 Jefferson Avenue known as Jeannie’s Coffee Shop. The Coffee Shop is operated by appellee Jeannie Church and is owned by Mound City, Inc. The president of Mound City, Inc., is appellee Francis Tucker. According to the appellants, Jeannie’s Coffee Shop is open 24 hours pei- day, seven days per week.

Regulation 1381.18(a) of the Moundsville zoning ordinances states that it shall be unlawful for any liquor establishment (defined in the regulations as a business where “beer or intoxicating liquor” is sold) “to be located within 300 feet of any other liquor establishment, church or school.” Although never factually determined below, Jeannie’s Coffee Shop was apparently located within 300 feet of one or more liquor establishments in the City and within 300 feet of the Moundsville Presbyterian Church. Thus, desiring to obtain a license for the sale of nonintoxicating beer at the Coffee Shop “as an adjunct of their food service business,” the appellees first sought a zoning variance. See, W.Va. Code, 11-16-5 [1986], requiring a State license for the sale of nonintoxicating beer.

Following an initial denial in September 1998 by a municipal zoning officer, the appel-lees pursued their request for a variance before the Board of Zoning Appeals of the City of Moundsville. On February 3, 1999, the Board conducted a hearing at which the appellees, Jeannie Church and Francis Tucker, appeared and spoke in favor of the variance. The appellants, Michael J. Burkey and Linda Burkey, appeared in opposition to the variance. The appellants argued that the granting of the variance would exacerbate on-going problems associated with the 9 foot alley between the respective properties. Specifically, the Burkeys stated that the activities they observed in the alley over the years included illicit drug use, teenage drinking, sexual incidents and the use of the area as a public toilet. The appellants argued that the granting of the variance would only make those problems worse. In addition, the appellants asserted that the Board had failed to give proper notice of the February 3,1999, hearing to all persons owning property within 200 feet of the area in question, as required by Regulation 1337.05(e) of the Moundsville zoning ordinances.

At the conclusion of the hearing, the Board of Zoning Appeals voted 4 to 1 to grant the variance. No findings of fact or conclusions of law were set forth concerning the ruling of the Board. Nor does the record in this case contain a transcript of the hearing. Following the healing, the Board entered a written order granting the variance to the appellees. The order did not address the arguments of the Burkeys and did not set forth any factual basis concerning the granting of the variance or the issue concerning notice of the hearing.

The appellant Burkeys challenged the Board’s ruling by filing a petition for a writ of certiorari in the Circuit Court of Marshall County. W.Va.Code, 8-24-59 [1969]. In the petition, the Burkeys asked the Circuit Court to prevent the sale of nonintoxicating beer at Jeannie’s Coffee Shop by restoring the zoning limitations applicable to the appellees’ property. In that regard, the appellants alleged, inter alia that the Board of Zoning Appeals acted improperly: (1) by failing to [584]*584set forth any substantive facts concerning the granting of the variance and (2) by failing to give proper notice of the February 3, 1999, healing to all interested landowners. In September 2001, the Circuit Court denied the appellees’ motion to dismiss the case and directed the Board of Zoning Appeals to “present material to show the grounds of the decision or order appealed from [herein].” W.Va.Code, 8-24-63 [1969]. In response, the Board transmitted to the Circuit Court a number of letters and documents concerning the proceedings before the Board but did not submit any elaboration with regard to the granting of the variance.

Nevertheless, by final order entered on March 6, 2002, the Circuit Court upheld the ruling of the Board of Zoning Appeals. In so holding, the Circuit Court emphasized the usual informality of proceedings before the Board and stated:

In this case, although specific findings sufficient for this Court to conduct a judicial review are absent, this Court can infer findings because the intent of the Board is sufficiently implied. * * * The Board obviously felt the variance was proper, and in equity and fairness should be granted. The Court has considered all the arguments of the [Burkeys] and is of the opinion that the Board afforded [them] a fair hearing, and the Board’s decision should not be set aside.

In July 2002, the Burkeys filed an appeal to this Court. W.Va.Code, 8-24-65 [1969].

II.

DISCUSSION

The Burkeys challenged the ruling of the Board of Zoning Appeals by filing a petition for a writ of certiorari in the Circuit Court of Marshall County. See, W.Va.Code, 8-24-59 [1969], which provides that the rulings of a board of zoning appeals “shall be subject to review by certiorari.” In that regard, the filing of a return in circuit court by a board of zoning appeals is contemplated in W.VaCode, 8-24-63 [1969], Indicating that a board of zoning appeals must do more than simply restate its ruling, W.Va.Code, 8-24-63 [1969], requires that the return to the writ of certiorari by a board of zoning appeals “must concisely set forth such facts and data as may be pertinent and present material to show the grounds of the decision or order appealed from.” (emphasis added).

The duty of a board of zoning appeals to show the grounds of its decision or order, however, arises when the board makes its decision or enters its order, and not merely later in time when the case is on review upon a petition for a writ of certiorari. That duty takes the form of setting forth findings of fact and conclusions of law contemporaneous with the board’s ruling.

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584 S.E.2d 215, 213 W. Va. 581, 2003 W. Va. LEXIS 90, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burkey-v-board-of-zoning-appeals-of-the-city-of-moundsville-ex-rel-wva-2003.