Faf, LLC v. Jefferson County Bza

• Decision Date: 17 April 2008
• Docket Number: No. 33438.,33438.
• Citation: 664 S.E.2d 137
• Court: West Virginia Supreme Court
• Parties: FAR AWAY FARM, LLC, Petitioner Below, Appellant v. JEFFERSON COUNTY BOARD OF ZONING APPEALS, a Public Body, Thomas Trumble, Member, Jeff Bresee, Member, and Tiffany Hine, Chair, Respondents Below, Appellees.

664 S.E.2d 137

FAR AWAY FARM, LLC, Petitioner Below, Appellant v. JEFFERSON COUNTY BOARD OF ZONING APPEALS, a Public Body, Thomas Trumble, Member, Jeff Bresee, Member, and Tiffany Hine, Chair, Respondents Below, Appellees.

No. 33438.

Supreme Court of Appeals of West Virginia.

Submitted March 11, 2008.

Decided April 17, 2008.

Syllabus by the Court

1. "While on appeal there is a presumption that a board of zoning appeals acted correctly, a reviewing court should reverse the administrative decision where the board has applied an erroneous principle of law, was plainly wrong in its factual findings, or has acted beyond its jurisdiction." Syllabus Point 5, Wolfe v. Forbes, 159 W.Va. 34, 217 S.E.2d 899 (1975).

2. "`Interpretations of statutes by bodies charged with their administration are given great weight unless clearly erroneous.' Syl. Pt. 4, Security Nat'l Bank & Trust Co. v. First W. Va. Bancorp., 166 W.Va. 775, 277 S.E.2d 613 (1981)." Syllabus Point 3, Corliss v. Jefferson County Bd. of Zoning Appeals, 214 W.Va. 535, 591 S.E.2d 93 (2003).

3. "`While the interpretation of a statute by the agency charged with its administration should ordinarily be afforded deference, when that interpretation is unduly restrictive and in conflict with the legislative intent, the agency's interpretation is inapplicable.' Syl. Pt. 5, Hodge v. Ginsberg, 172 W.Va. 17, 303 S.E.2d 245 (1983)." Syllabus Point 4, Corliss v. Jefferson County Bd. of Zoning Appeals, 214 W.Va. 535, 591 S.E.2d 93 (2003).

4. "Lack of jurisdiction may be raised for the first time in this court, when it appears on the face of the bill and proceedings, and it may be taken notice of by this court on its own motion." Syllabus Point 3, Charleston Apartments Corp. v. Appalachian Elec. Power Co., 118 W.Va. 694, 192 S.E. 294 (1937).

5. "The rules for construing statutes also apply to the interpretation of municipal ordinances." Syllabus Point 1, in part, Town of Burnsville v. Kwik-Pik, Inc., 185 W.Va. 696, 408 S.E.2d 646 (1991).

6. "A statute is presumed to operate prospectively unless the intent that it shall operate retroactively is clearly expressed by its terms or is necessarily implied from the language of the statute." Syllabus Point 3, Shanholtz v. Monongahela Power Co., 165 W.Va. 305, 270 S.E.2d 178 (1980).

Peter L. Chakmakian, Esq., Charles Town, WV and Richard G. Gay, Esq., Nathan P. Cochran, Esq., Law Office of Richard G. Gay, Berkeley Springs, WV, for Far Away Farm, LLC.

Stephanie F. Grove, Esq., Assistant Prosecuting Attorney, Charles Town, WV, for Jefferson County Board of Zoning Appeals.

Linda M. Gutsell, Esq., Charles Town, WV, for Edward E. Dunleavy and Edward R. Moore.

PER CURIAM:

This case is before this Court upon appeal of a final order of the Circuit Court of Jefferson County entered on September 18, 2006. In that order, the circuit court affirmed a decision of the appellee and respondent below, the Jefferson County Board of Zoning Appeals (hereinafter "BZA"),¹ which denied the request of the appellant and petitioner below, Far Away Farm, LLC (hereinafter "FAF"), for a conditional use permit (hereinafter "permit") for the purpose of subdividing and developing 122.88 acres in a designated rural district of Jefferson County, West Virginia. In this appeal, FAF contends that the BZA applied the wrong version of the applicable zoning ordinance; that the BZA failed to consider all three standards set forth in the ordinance for determining whether a permit should be granted; that the BZA was plainly wrong in its factual findings; and that the BZA denied it due process.

Having considered the petition for appeal, the entire record, the briefs and argument of counsel, and the pertinent authorities, we reverse the final order and refer this matter back to the Jefferson County Planning and Zoning Commission with directions to issue the permit to FAF.

I. FACTS

FAF seeks to develop property located in a rural district of Jefferson County, West Virginia. Specifically, FAF's proposal involves dividing 122.88 acres into 152 new home lots, with a ten-acre lot for an existing farmhouse and six acres for a trail and park. Each new home lot would be approximately one-third to one-fifth of an acre. The Jefferson County Zoning and Land Development Ordinance (hereinafter "the Ordinance") does not allow a residential subdivision in a rural district unless the developer is granted a permit through the Development Review System (hereinafter "DRS"). Thus, FAF filed an application for a permit on June 23, 2004.

Upon receipt of the permit application, the Zoning Administrator, Paul Raco, completed a Land Evaluation and Site Assessment (hereinafter "LESA"). Basically, LESA is a numerical rating system used to evaluate the potential of the site in terms of the soil and amenities. The Soils Assessment evaluates the parcel for development based on the soil types it possesses while the Amenities Assessment looks at the site's agricultural viability and its development potential. If the proposed development receives a passing LESA score, the permit application moves onto the next stage of the DRS which is the compatibility assessment meeting. In this case, FAF received a passing LESA score. However, certain community members, Edward E. Dunleavy² and Edward R. Moore³ (hereinafter collectively referred to as "Dunleavy"), disagreed with the LESA score received by FAF and appealed that decision to the BZA. Upon review, the BZA modified the LESA score, but it remained sufficient for the application to move to the next stage of the DRS.

A compatibility assessment meeting was then held in April 2005. At the meeting, which lasted seven hours, FAF presented its development plan and members of the public were allowed to raise compatibility concerns about the project. In total, 106 "compatibility issues" were raised. Thereafter, FAF agreed to modify its development plans to satisfy thirty-nine of the issues.

A public hearing before the BZA was held on July 26, 2005, to discuss the sixty-seven issues that remained unresolved. FAF submitted a thirty-page memorandum addressing each issue as well as additional documentation consisting of approximately 320 pages supporting its position. The BZA allotted FAF thirty minutes to make its presentation and fifteen minutes for rebuttal. Individuals were given fifteen minutes to address the BZA and groups were allotted five minutes. FAF contended that its development was compatible with the character and nature of the land as well as the community because it would consist of single-family homes with a fifty-foot buffer around the whole property. FAF maintained that its development would not create a significant amount of traffic and noted that it would include an old farmhouse and park. Members of the public asserted that the roads were too narrow for a school bus and the increased traffic that would result from the development. The public also noted the historical significance of the area claiming that it was the site of a civil war battle.⁴ At the conclusion of the meeting, the BZA decided to meet on August 9, 2005, to make a decision on the permit application.

At the August 9, 2005, meeting, the BZA concluded that the development as proposed was too dense to be compatible with the surrounding neighborhood, noting that the average lot size in the area was 14.56 acres. The BZA also concluded that the roads were inadequate to deal with the increased traffic that would result from the development. Accordingly, FAF's permit application was denied.

FAF then filed an appeal with the circuit court. Dunleavy also filed an appeal with regard to the LESA score. The cases were consolidated, and on September 18, 2006, the circuit court issued an order affirming the BZA's decisions. This appeal followed.⁵

II. STANDARD OF REVIEW

In this case, we are presented with an appeal of a circuit court order which affirmed the decision of an administrative agency, the BZA. It is well-established that "[o]n appeal, this Court reviews the decisions 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 decisions of a board of zoning appeals, this Court has held that, "While on appeal there is a presumption that a board of zoning appeals acted correctly, a reviewing court should reverse the administrative decision where the board has applied an erroneous principle of law, was plainly wrong in its factual findings, or has acted beyond its jurisdiction." Syllabus Point 5, Wolfe v. Forbes, 159 W.Va. 34, 217 S.E.2d 899 (1975).

This Court has also held that, "`Interpretations of statutes by bodies charged with their administration are given great weight unless clearly erroneous.' Syl. Pt. 4, Security Nat'l Bank & Trust Co. v. First W. Va. Bancorp., 166 W.Va. 775, 277 S.E.2d 613 (1981)." Syllabus Point 3, Corliss v. Jefferson County Bd. of Zoning Appeals, 214 W.Va. 535, 591 S.E.2d 93 (2003). "`While the interpretation of a statute by the agency charged with its administration should ordinarily be afforded deference, when that interpretation is unduly restrictive and in conflict with the legislative intent, the agency's interpretation is inapplicable.' Syl. Pt. 5, Hodge v. Ginsberg, 172 W.Va. 17, 303 S.E.2d 245 (1983)." Syllabus Point 4, Corliss. With these standards in mind, we proceed to consider the parties' arguments.

III. DISCUSSION

FAF first contends that the BZA erroneously applied the Ordinance as amended on April 8, 2005, to its permit application. FAF points out that the Jefferson County Commission approved amendments to the Ordinance on March 23, 2005. Those amendments did not become effective until April 8, 2005. When the amendments were adopted, the Jefferson County Commission indicated that applications for a permit that were filed before the...