Stop & Shop, Inc. v. Board of Zoning Appeals of Westover

399 S.E.2d 879, 184 W. Va. 168, 1990 W. Va. LEXIS 213
CourtWest Virginia Supreme Court
DecidedNovember 29, 1990
DocketNo. 19197
StatusPublished
Cited by2 cases

This text of 399 S.E.2d 879 (Stop & Shop, Inc. v. Board of Zoning Appeals of Westover) 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
Stop & Shop, Inc. v. Board of Zoning Appeals of Westover, 399 S.E.2d 879, 184 W. Va. 168, 1990 W. Va. LEXIS 213 (W. Va. 1990).

Opinion

NEELY, Chief Justice:

This is an appeal from an order of the Circuit Court of Monongalia County denying appellant, Stop and Shop, a writ of mandamus to compel the City of Westover to issue a building permit for Stop and Shop to build a parking lot and driveway on a residential lot adjoining its premises. The proposed parking lot at issue would be located on land now zoned residential and the driveway would send traffic onto Crowl street, a residential street.

On 27 August 1934, Stop and Shop’s predecessors acquired from the Prudential Insurance Company the original grocery store site at the intersection of Fairmont Road and Riverview Avenue, as part of a larger tract of land. Stop and Shop acquired the real estate on the which its current supermarket stands in four transactions, two in 1943, and two in 1948.1

In 1942, the Housing and Home Finance Agency (HHFA) acquired by condemnation certain tracts of land in Grant District, Monongalia County, for a defense housing project. Out of this land, the HHFA created the Morgan Heights Subdivision. Lot 7 of the Morgan Heights Subdivision is the residential lot that Stop and Shop would like to use as a driveway and parking lot.

On 20 February 1967, the City of West-over adopted zoning ordinances creating [169]*169zoning districts. The strip of land along Fairmont Road where the Stop and Shop’s supermarket is located was zoned for business use. More specifically, all the land used by Stop and Shop for its business, before the recent purchase of Lot 7, was zoned for business. Thus, when the zoning ordinances were passed in 1967, Stop and Shop’s use of its commercial land conformed to zoning ordinances. However, Lot 7 of the Morgan Heights Subdivision, which lot Stop and Shop now wants to use as a parking lot for its supermarket, was zoned residential.

On 3 July 1986, Stop and Shop bought Lot 7 of Morgan Heights Subdivision, a lot zoned R-l, residential, but which happens to be adjacent to Stop and Shop’s commercial premises. On 15 February 1988, Stop and Shop applied for a building permit to demolish a house on Lot 7. Stop and Shop received the permit and demolished the house.

Stop and Shop’s desire then, as now, was to replace the house with a parking lot and driveway to serve the supermarket. When some question was raised as to the validity of Stop and Shop’s building permit for the. work intended, Stop and Shop submitted a new application for a building permit in which it explicitly stated its intention to make a gravel parking lot and build a driveway onto Crowl Street.

According to Stop and Shop, Francis Tet-er, acting Mayor of Westover, advised Stop and Shop that no building permit was necessary for the improvements intended. Stop and Shop then continued work on its improvements, until 20 April 1988, when Stop and Shop was served with an order signed by Mayor Teter requiring it to cease all work on the vacant lot because it lacked the required building permit.

On 25 May 1988, after being asked by Stop and Shop to render a decision on the building permit, Mayor Teter denied Stop and Shop the building permit. Stop and Shop then appealed the Mayor’s decision to the Westover Board of Zoning Appeals. On 7 July 1988, the Board of Zoning Appeals affirmed the Mayor’s denial of the building permit. On 29 July 1988 Stop and Shop filed a petition for a Writ of Certiora-ri in the circuit court of Monongalia County. Several residents of the Crowl Street area sought to intervene in the matter, and on 1 September 1988, the circuit court granted their motion to intervene.

At the suggestion of the circuit court, the proceeding was converted to a proceeding in mandamus to compel the City of Westover to grant a building permit to Stop and Shop. On 11 November 1988, the trial court conducted a hearing in which it made findings of fact and denied the writ of mandamus on the grounds that Stop and Shop had failed to prove a clear right to the writ under the facts of the case.

We agree that Stop and Shop is not entitled to a writ of mandamus. Lot 7 of the Morgan Heights Subdivision, which Stop and Shop seeks to use for commercial purposes, has been zoned residential ever since the City of Westover zoned the land in 1967. We also know that Lot 7 does not qualify as commercial land oh the grounds of any nonconforming use “grandfather exception” to the zoning ordinances, because we know that in 1988 Stop and Shop demolished a dwelling unit then standing on Lot 7.

Apparently, Stop and Shop feels that its desire to compete for the growing traffic in the area gives it the right to expand onto residential land. Stop and Shop paints for us a picture of commercial growth in its general vicinity, as if that growth justifies violations of the zoning ordinances. Its appeal is simply that Stop and Shop could be squeezed out of the supermarket business because it does not have enough parking to accommodate the increased traffic and business it seeks. Its proposed solution is to route many customers onto residential Crowl Street. Its proposed driveway onto Crowl Street would make its store attractive to customers who want to avoid approaching the supermarket from the relatively busy Fairmont Road.

If the traffic on Fairmont Road makes it dangerous to get in and out of the supermarket’s current parking lot, will not sending the store traffic onto Crowl Street make that residential street more crowded [170]*170and dangerous? The encroachment of a commercial use into a residential neighborhood is one of the occurrences that zoning laws are enacted to prevent. We understand that the shortage of parking space may prevent Stop and Shop from operating the largest, most profitable supermarket imaginable, but we cannot find that the zoning ordinances deny Stop and Shop a viable use of its land.

Stop and Shop appears to believe that W. Va. Code, 8-24-50 [1984], which protects nonconforming uses from immediate destruction at the hands of zoning authorities, gives it the right to expand its commercial operations onto residential land. Its reliance on the statute is misplaced. In the first place, Stop and Shop’s grocery store was a conforming use when the zoning ordinances were enacted in 1967, so W. Va. Code, 8-24-50 [1984], which provides a grandfather exception for nonconforming uses existing at the time of a zoning enactment is unavailing to Stop and Shop. However, Stop and Shop argues that if the statute protects nonconforming uses, why should not conforming uses be similarly protected?

Let us look at just how little protection the statute gives nonconforming uses. W. Va. Code, 8-24-50 [1984] provides:

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Related

Poole v. Berkeley County Planning Commission
488 S.E.2d 349 (West Virginia Supreme Court, 1997)
McFillan v. Berkeley County Planning Commission
438 S.E.2d 801 (West Virginia Supreme Court, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
399 S.E.2d 879, 184 W. Va. 168, 1990 W. Va. LEXIS 213, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stop-shop-inc-v-board-of-zoning-appeals-of-westover-wva-1990.