DeCoals, Inc. v. Board of Zoning Appeals of City of Westover

• Decision Date: 02 December 1981
• Docket Number: No. 14568,14568
• Citation: 284 S.E.2d 856,168 W.Va. 339
• Court: West Virginia Supreme Court
• Parties: , 12 Envtl. L. Rep. 20,428 DeCOALS, INC. v. BOARD OF ZONING APPEALS OF CITY OF WESTOVER Francis Teter, etc., et al.

Page 856

284 S.E.2d 856

168 W.Va. 339, 12 Envtl. L. Rep. 20,428

DeCOALS, INC. v. BOARD OF ZONING APPEALS OF CITY OF WESTOVER Francis Teter etc., et al.

No. 14568.

Supreme Court of Appeals of West Virginia.

Dec. 2, 1981.

Syllabus by the Court

1. A board of zoning appeals has power to rescind a building permit. W.Va.Code, 8-24-55.

2. "[A] municipality may enact a zoning ordinance which restricts the use of property in designated districts within the municipality if the restrictions imposed by the ordinance are not arbitrary or unreasonable and bear a substantial relation to the public health, safety, morals, or the general welfare of the municipality." Carter v. City of Bluefield, 132 W.Va. 881, 54 S.E.2d 747 (1949), Syllabus Point 7.

3. Zoning by pollution performance standards is a reasonable exercise of police power.

4. Courts are not disposed to declare an ordinance invalid in whole or in part where it is fairly debatable as to whether the action of the municipality is arbitrary or unreasonable.

Steptoe & Johnson, Susan S. Brewer and Robert M. Steptoe, Jr., Clarksburg, Haden & Heiskell and Charles H. Haden, Morgantown, for appellant.

Solomon & Solomon and David L. Solomon, Morgantown, for appellees.

HARSHBARGER, Chief Justice:

DeCoals, Inc. asked us to reinstate its building permit that was rescinded by the Board of Zoning Appeals of Westover, Monongalia County.

In 1976, Westover's mayor approved DeCoals' application for a permit to construct a coal tipple on its "industrial" zoned Monongahela riverside property, in which zone another tipple has operated for many years. DeCoals had previously received permits from the West Virginia Department of Natural Resources, West Virginia Air Pollution Control Commission, Department of the Army Corps of Engineers, and the City of Morgantown (Morgantown is across the river from DeCoals' property). Citizens' from a neighboring residential area appealed their mayor's action to the board, claiming they would be adversely affected by dust, noise and property devaluation; and by a 3-2 decision, after a hearing, that board rescinded the permit. DeCoals' writ of certiorari to Monongalia County's circuit court was granted, but that court affirmed the board's decision that DeCoals could not meet Westover zoning ordinance performance standards.

West Virginia Code, 8-24-55, empowers a board of zoning appeals to "(1) [h]ear and determine appeals from and review any order, requirement, decision or determination made by an administrative official or board charged with the enforcement of any ordinance or rule and regulation adopted pursuant to sections thirty-nine through forty-nine [ §§ 8-24-39 to 8-24-49] of this article". Westover's zoning ordinance authorizes its mayor to enforce this law, Westover Zoning Ordinance, § 20, and "[a]ny decision of the Mayor in enforcement of this ordinance may be appealed by any person claiming to be adversely affected by such decision," Westover Zoning Ordinance, § 22(D). Subsection (F) of § 22, following Code, 8-24-55, provides:

F. In exercising its powers, the Board may reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from as in its opinion ought to be done in the premises, and to that end shall have all the powers of the Mayor from whom the appeal is taken.

Therefore, the board had authority and jurisdiction to rescind a permit.

A decision by a board of zoning appeals may be reviewed by certiorari in a circuit court, Code, 8-24-59, and the scope of review is defined at Code, 8-24-64:

The court or judge may consider and determine the sufficiency of the allegations of illegality contained in the petition without further pleadings and may make a determination and render a judgment with reference to the legality of the decision or order of the board of zoning appeals on the facts set out in the petition and return to the writ of certiorari.

If it shall appear to the court or judge that testimony is necessary for the proper disposition of the matter, the court or judge may take evidence to supplement the evidence and facts disclosed by the petition and return to the writ of certiorari, but no such review shall be by trial de novo.

In passing upon the legality of the decision or order of the board of zoning appeals, the court or judge may reverse or affirm, in whole or in part, or may modify such decision or order.

Judge Starcher supplemented certiorari evidence with additional testimony as specifically authorized by Code, 8-24-64, supra.

We have delineated grounds for reversal of board of zoning appeals decisions in Wolfe v. Forbes, W.Va., 217 S.E.2d 899 (1975). The presumption that a board's ruling is correct can be overcome by proof of lack of jurisdiction, plainly wrong factual findings or erroneous application of law; but here disputed acts justified this board to decide either way, and we cannot say its factual findings were plainly wrong.

Section 16 of Westover's zoning ordinance regulates performance standards for industrial uses. In relevant part it requires:

A. An Industrial Use is one which requires both buildings and open area for manufacturing, fabrication, processing, extraction, heavy repairing, dismantling, storage or disposal of equipment, raw materials, manufactured products or wastes, and provided the use conforms to the following performance standards:

(3) Dust. No dust of any kind produced by the industrial operations shall be permitted to escape beyond the limits of the property being used.

(8) Noise and Sound. A maximum of 70 decibels at the property line is permitted. Noise is required to be muffled so as not to become objectionable due to intermittance, beat frequency or shrillness. Sound may equal but not exceed street traffic noise in the vicinity during a normal day shift work period.

The board decided that DeCoals would be unable to comply with § 16(A)(3) and § 16(A)(8), and noncompliance would adversely affect the safety and general welfare of the citizenry. See generally, Housatonic Terminal Corp. v. Planning and Zoning Board of Milford, 168 Conn. 304, 362 A.2d 1375 (1975), wherein a permit was denied to an asphalt manufacturing plant on property zoned for heavy industrial uses because of failure to meet dust, noise and traffic standards.

Local governments have a right to zone as an exercise of police power. Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926). "[A] municipality may enact a zoning ordinance which restricts the use of property in designated districts within the municipality if the restrictions imposed by the ordinance are not arbitrary or unreasonable and bear a substantial relation to the public health, safety, morals, or the general welfare of the municipality." Carter v. City of Bluefield, 132 W.Va. 881, 54 S.E.2d 747, 750 (1949), Syllabus Point 7.

Substantive due process considerations require legislation to be reasonable--to be substantially related to a legitimate goal. One of government's primary purposes is protecting its constituency. "Legislation designed to free from pollution the very air that people breathe clearly falls within the exercise of even the most traditional concept of what is compendiously known as the police power." Huron Portland Cement Company v. Detroit, 362 U.S. 440, 442, 80 S.Ct. 813, 815, 4 L.Ed.2d 852 (1960). If the end is legitimate, our inquiry is limited to whether the means are substantially related to that end. It is not ours to judge the wisdom or efficacy of those chosen means.

Moreover, government is and must be entitled to attack massive problems piecemeal, and to select those most susceptible areas which permit of the least destructive effect on the economy (see 2 Cooley Constitutional Limitations [8th ed.] p. 1231; United States v. Carolene Prods. Co., 304 U.S. 144, 151, 58 S.Ct. 778[, 783] 82 L.Ed. 1234)....

This is not to say that there are not serious questions raised as to the wisdom and the practicality of the undoubtedly rigorous measures required by the ordinance. But the ultimate conclusion must be that these are questions within the domain of legislative and executive discretion because they involve choices among alternative reasonable courses of action based on the presently limited knowledge of the extent of the pollution evil and methods of cure. So long as there is reasonable basis in available information, and rationality in chosen courses of conduct to alleviate an accepted evil, there is no constitutional infirmity (United States v. Carolene Prods. Co., supra, at pp. 151-154, 58 S.Ct. 778 [at pp. 783-784]; Borden's Farm Products Co. v. Baldwin, 293 U.S. 194, 209-210, 55 S.Ct. 187 [191-92] 79 L.Ed. 281; Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, esp. pp. 80-81, 31 S.Ct. 337[, 341-42] 55 L.Ed. 369; People v. Charles Schweinler Press, 214 N.Y. 395, 406-408, 108 N.E. 639, 641-643).... Oriental Boulevard Co. v. Heller, 27 N.Y.2d 212, 316 N.Y.S.2d 226, 228-29, 265 N.E.2d 72, 74-75 (1970).

Whether a no-dust standard is the best way to protect public health, welfare, safety and morals is a legislative judgment. ¹

[T]he most important current trend in industrial zoning is the gradual movement towards zoning by performance standards. Since a primary purpose of industrial zoning is to regulate those establishments which result in substantial amounts of nuisance, it is clear that performance standards zoning ... is a ... sensitively attuned instrument for carrying out those purposes .... Williams, American Land Planning Law (Callaghan & Co., Chicago, Illinois, (1974), Volume 4, § 103.01 et seq., p. 31.

Annot., Zoning Laws Prescribing Conditions of Business or Manufacturing Designed to Avoid Nuisance or Annoyance, 173 A.L.R. 271 (1948 and later case service); Anderson, American Law of Zoning (2d ed.), Volume 2, § 9.41. Zoning by pollution performance standards is reasonable.

Is it, then, reasonable to prohibit...