Andrew C. Smith v. City of Morgantown Bd. of Zoning Appeals ( 2013 )

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.”).
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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.
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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.
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