Ashbaugh v. Corporation of Bolivar
| Decision Date | 06 February 2009 |
| Docket Number | No. 33910.,33910. |
| Citation | 679 S.E.2d 573 |
| Court | West Virginia Supreme Court |
| Parties | Paul L. ASHBAUGH and Ashbaugh Custom Builders, LLC, Plaintiffs Below, Appellants v. The CORPORATION OF BOLIVAR, a West Virginia Municipality, et al., Defendant Below, Appellee. |
Syllabus by the Court
1. "A circuit court's entry of summary judgment is reviewed de novo." Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).
2. Syl. Pt. 7, Pence v. Bryant, 54 W.Va. 263, 46 S.E. 275 (1903).
Richard G. Gay, Nathan P. Cochran, Law Office of Richard G. Gay, Berkeley Springs, WV, for the Appellants.
Michael D. Lorensen, Johnna L. Faber, Bowles Rice McDavid Graff & Love, Martinsburg, WV, for the Appellee.
1
Paul L. Ashbaugh and Ashbaugh Custom Builders, LLC appeal from the August 10, 2007, order of the Circuit Court of Jefferson County granting summary judgment to the Corporation of Bolivar ("Bolivar") in a property development case. At issue below was whether the enactment of an ordinance by the Bolivar Town Council ("Town Council") that prevented the connection of privately constructed roads or streets to existing town roads, streets, and alleys was an improper attempt by the Town Council to frustrate Mr. Ashbaugh's development of the Marmion Hills subdivision. After reviewing the arguments presented on this issue, the trial court concluded that the ordinance was valid, given its appropriate municipal purpose of regulating traffic flow, and that Bolivar did not violate the directives of this Court in State ex rel. Brown v. Corporation of Bolivar, 217 W.Va. 72, 614 S.E.2d 719 (2005) (Brown II). Through this appeal, Mr. Ashbaugh seeks a determination that the ordinance at issue is invalid and a ruling that Bolivar is required to provide access to Clay Street for purposes of ingress and egress from the Marmion Hills development. Upon our careful review of this matter, we find that the circuit court committed no error and, accordingly, affirm the lower court's decision.
As we recognized in Brown II, this matter has a protracted history that dates back to 1998 when the former owner of the subject property initially attempted to place the land currently designated for the Marmion Hills development on the market. 217 W.Va. at 74, n. 3, 614 S.E.2d at 721, n. 3. Over the years, the Town Council has employed various means to forestall the development of the subject property including the issuance of a moratorium on building permits and the implementation of certain zoning restrictions, which were subsequently determined to be illegal. See id. at 74, n. 3, 614 S.E.2d at 721, n. 3; see also State ex rel. Brown v. Corporation of Bolivar, 209 W.Va. 138, 544 S.E.2d 65 (2000) (Brown I); Bittinger v. Corporation of Bolivar, 183 W.Va. 310, 395 S.E.2d 554 (1990). When this case was last before us in 2005, Mr. Ashbaugh was seeking extraordinary relief to secure the Town Council's performance of the purely ministerial act of stamping the plat depicting the Marmion Hills subdivision as approved.2 While this Court found that Mr. Ashbaugh was entitled to a directive governing the stamping of the subdivision plat as approved, we did not grant the additional relief he sought with regard to ordering the Town Council to issue the building permits he required to develop the subject property.3
Shortly after the issuance of Brown II, the Town Council approved the plat for the Marmion Hills development as directed by this Court.4 At the same time the plat was approved, however, the Town Council initiated the first of three required readings of a new ordinance that provided as follows:
"905.01 Acceptance of Streets" is amended by adding "(a)" before the first paragraph, and adding two new paragraphs lettered (b) and (c) as follows:
(b) No town road, street or alley may be extended beyond their current paved or graveled boundaries, except paper streets, as approved by the town council.
(c) No privately constructed road, street or alley may connect with existing paved or graveled roads, streets or alleys, if the existing paved or graveled road, street or alley is in whole or in part less than 30 feet in width.5
The ordinance was unanimously approved by the Town Council during its October 6, 2005, meeting.
In response to the enactment of the subject ordinance, Mr. Ashbaugh instituted a civil action on November 4, 2005, through which he sought a declaratory judgment with regard to his right to access the town's streets based upon the Town Council's approval of the Marmion Hills plat and relief for alleged civil rights violations.6 After motions for summary judgment were filed by both Bolivar and Mr. Ashbaugh, the circuit court issued its ruling on August 10, 2007, denying partial summary judgment to Mr. Ashbaugh and granting summary judgment to Bolivar. It is from this ruling that Mr. Ashbaugh seeks relief from this Court.
Our review in this matter is plenary as we recognized in syllabus point one of Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994): "A circuit court's entry of summary judgment is reviewed de novo." In determining whether the lower court committed error in granting summary judgment, we examine whether there are any genuine issues of material fact and whether inquiry concerning those facts is necessary to clarify the application of the law. See Syl. Pt. 3, Aetna Cas. & Surety Co. v. Federal Ins. Co., 148 W.Va. 160, 133 S.E.2d 770 (1963). With these standards in mind, we proceed to determine whether the grant of summary judgment was proper under the facts of this case.
Relying on Brown II and the Town Council's subsequent approval of the Marmion Hills subdivision plat, Mr. Ashbaugh argues that he is entitled to access the streets depicted on the approved plat for purposes of ingress and egress to the development (Clay and Jackson).7 Because the enactment of the ordinance at issue effectively denies him the use of Clay Street,8 Appellant contends that Bolivar has failed to comply with this Court's express directives in Brown II. Moreover, Mr. Ashbaugh suggests that by requiring the Town Council's approval of the plat in Brown II, this Court was evidencing an intent that the Marmion Hills subdivision should advance to the construction phase.
This Court's ruling in Brown II pertained to one issue: requiring the Town Council to approve the submitted plat for the Marmion Hills development based on the clear absence of any statutory impediments to such approval. 217 W.Va. at 79, 614 S.E.2d at 726. The basis upon which we predicated the issuance of a writ of mandamus in Brown II was the Town Council's mistaken view that it could withhold approval of a subdivision plat for reasons not included in the approval statute. Id. at 78, 614 S.E.2d at 725. The only impediment raised by the Town Council to the Marmion Hills development were issues related to traffic flow. Id. at 78, 614 S.E.2d at 725. While we recognized the authority of the Town Council to control the use of its streets, we explained in Brown II that traffic concerns were not a basis for withholding approval of a submitted subdivision plat under West Virginia Code § 39-1-16. 217 W.Va. at 77-78, 614 S.E.2d at 724-25.
In an attempt to bolster his position, Appellant not only seeks to expand this Court's ruling in Brown II but wrongly imputes an intent to our opinion that is nonexistent. While we directed the performance of what amounted to one nondiscretionary act in Brown II, Mr. Ashbaugh suggests that we would not have ordered the Town Council's approval of the plat absent an intention that Marmion Hills should proceed to the development phase.9 In marked contrast to Appellant's contention,10 our decision to issue the writ of mandamus was impelled solely by the parameters of the law without concern for whether development of the Marmion Hills subdivision should reach fruition.11
Just as Appellant wrongly seized on factual statements in Brown II as evidence of this Court's intent,12 he similarly looks to another mere recitation of fact to argue that the directives set forth in Brown II were violated by passage of the subject ordinance. Mr. Ashbaugh attempts to elevate the significance of the following statement in Brown II: "By necessity, the city's existing streets are required for ingress and egress to the proposed development." 217 W.Va. at 74, 614 S.E.2d at 721. Based on this factual statement and our direction concerning the plat's approval, Appellant argues that we impliedly required in Brown II that the streets, as depicted on the plat, were to be utilized by the residents of the development.
A careful reading of our opinion in Brown II demonstrates that this Court recognized the Town Council's "clear authority to provide for the use of its streets." 217 W.Va. at 78, 614 S.E.2d at 725. We acknowledged that "the Town Council can determine that certain roadways can only be traversed in one direction" for purposes of "resolv[ing] the perceived traffic flow problem." Id. at 78, 614 S.E.2d at 725. Contrary to Appellant's assertion, there was no correspondent recognition or obligation imposed by this Court on the Town Council to require Bolivar to maintain the status quo as regards the town's road system. As the trial court correctly observed: "Nothing in the West Virginia Supreme Court's decision in Brown II negated the Town's authority to control its streets." Rather than proscribing traffic-related changes relative to the submitted plat, our decision in Brown II arguably anticipated that the Town Council might take...
To continue reading
Request your trial
-
Mcclure v. City of Hurricane
...effect. Black's Law Dictionary 718 (8th ed.1999). 9. The Court, likewise, does not find its decision in Ashbaugh v. Corporation of Bolivar, 223 W.Va. 741, 679 S.E.2d 573 (2009), controlling as argued by the Appellees. In Ashbaugh, the Appellants challenged the validity of an ordinance conce......