Grady v. City of St. Albans

• Decision Date: 21 September 1982
• Docket Number: No. 14745,14745
• Citation: 297 S.E.2d 424,171 W.Va. 18
• Parties: J.W. GRADY, et al. v. CITY OF ST. ALBANS, etc.
• Court: West Virginia Supreme Court

Page 424

297 S.E.2d 424

171 W.Va. 18

J.W. GRADY, et al. v. CITY OF ST. ALBANS, etc.

No. 14745.

Supreme Court of Appeals of West Virginia.

Sept. 21, 1982.

Dissenting Opinion Oct. 26, 1982.

Syllabus by the Court

1. It is generally held that where a statute requires publication of a notice for public hearing prior to the enactment of a zoning ordinance the failure to comply with this requirement will render the zoning ordinance invalid.

2. "Where the material facts established by the pleadings and other matters before the trial court are undisputed and only one inference may be drawn from them by reasonable minds, summary judgment is proper." Syllabus Point 2, Parsley v. General Motors Acceptance Corp., 167 W.Va. 866, 280 S.E.2d 703 (1981).

3. The violation of W.Va.Code, 8-24-44, in regard to notice and public hearings does not give rise to an implied cause of action under the rationale of Hurley v. Allied Chemical Corporation, 164 W.Va. 268, 262 S.E.2d 757 (1980).

Boettner & Crane and John Boettner, Jr., Charleston, for appellants.

Herbert W. Bryan, St. Albans, Martin C. Bowles, Charleston, for appellees.

MILLER, Chief Justice:

This is an appeal by J.W. and Alberta Grady, J.W. Gray, and J.F. and Rada Finley from a final order of the Circuit Court of Kanawha County entered May 15, 1979, granting their motion for a summary judgment, but denying them damages.

The appellants originally brought this action seeking to set aside a zoning ordinance of the City of St. Albans, the appellee, as adopted by the City Council on February 1, 1971. The appellants alleged in their complaint that the appellee acted illegally in adopting the ordinance without first holding public hearings and without giving notice of the dates, times, and places of such hearings as required by W.Va.Code, 8-24-44. The appellants sought declaratory and injunctive relief as well as damages incurred as a result of the illegal zoning of their neighborhood from residential to commercial.

The circuit court granted the appellants' motion for a summary judgment, finding as a matter of law that the failure of the City Council to provide public hearings and notice thereof constituted a violation of W.Va.Code, 8-24-44. Consequently, the court declared the zoning ordinance "invalid, void and of no legal effect." The appellants then requested an inquiry into the issue of damages. The circuit court denied this request finding no "actionable damages."

The appellants contend that the rezoning blighted the neighborhood and caused a decline in property values which they were prepared to prove by expert testimony. Thus, they were forced to relocate and sell their homes at a reduced value. The appellants argue that the appellee's violation of W.Va.Code, 8-24-44, constitutes a prima facie case of actionable negligence and that they possess a private cause of action for damages resulting from such negligence under the criteria set forth by this Court in Hurley v. Allied Chemical Corporation, 164 W.Va. 268, 262 S.E.2d 757 (1980), and Jenkins v. J.C. Penney Casualty Ins. Co., 167 W.Va. 597, 280 S.E.2d 252 (1981). The appellants therefore request that the circuit court's final order denying damages be reversed.

I.

We note initially that W.Va.Code, 8-24-44, provides generally that "the governing body of the municipality or the county court shall afford all interested persons an opportunity to be heard with reference to [the final report submitted by the planning commission]" and such notice is to be published "within fourteen consecutive days next preceding the date set for the hearings, as Class II legal advertisements" in compliance with W.Va.Code, 59-3-1, et seq. ¹ This notice and publication statute, W.Va.Code, 8-24-44, is part of the provisions of W.Va.Code, 8-24-1, et seq., relating to Urban and Rural Planning and Zoning.

The parties do not dispute that the purpose of W.Va.Code, 8-24-44, is to provide a form of public notice and hearing prior to the formal adoption or rejection of the amended zoning ordinance by the governing body nor does either party raise the applicability of W.Va.Code, 8-24-47, "Changes of zoning rules and regulations--Considered as amendments to comprehensive plan, notice and hearing," and consequently for purposes of this case we accept the proposition that W.Va.Code, 8-24-44, is applicable.

The cross-assignment of error by the appellee that we should presume valid publication under W.Va.Code, 8-24-44, lacks merit in light of the facts developed in this case.

In order to show that notice had not been given, the appellants deposed the St. Albans City Clerk-Treasurer. Her testimony indicates that the City keeps no record of published notices, except for invoices of publishing bills and cancelled checks, but that invoices are kept only for a period of two years and that the checks issued to pay for published legal notices do not specify which notices the payment is for. The clerk further testified that from a search of the records available to her, she could find no evidence of the contested notice having been published. Neither did her inspection of the City Council minutes reveal that the notice had been published, nor that a hearing had been held.

The appellants submitted the affidavits of J.W. and Alberta Grady with their motion for a summary judgment. The two affidavits, which are identical in form, state that the affiants, both of whom are parties to this proceeding, had searched through the records of four area newspapers and through the available records of cancelled checks retained at City Hall, and that "after a diligent search, no such cancelled checks were found."

Several other salient facts were before the circuit court. In the record there were the minutes of the St. Albans Planning and Zoning Commission public hearings and copies of the newspaper notices giving the date and time of these hearings. This suggests that where publication has been done records were kept. Of even greater significance is the appellee's answer to requests for admission submitted by the appellants. In Request No. 11, the appellee was asked if it were not true

"That the St. Albans City Council at its regular meeting on January 18, 1971, accepted the final report of the St. Albans Planning and Zoning Commission on the proposed Zoning Ordinance and that the Zoning Ordinance, was placed on its first reading and read a first time without notice affording the plaintiffs or other interested persons an opportunity to be heard."

The appellee's answer was: "The defendant states the opportunity by the plaintiff to be heard was not sought and was not denied." We do not believe this to be a denial that it had published the requisite notice and held the public hearings. However, the appellee's admission that it had received the Planning and Zoning Commission's final report on January 18, 1971, which was admitted in the answers to Request Nos. 9 and 11 clearly shows the appellee in noncompliance with W.Va.Code, 8-24-44. The statute requires that the notice and public hearing be held before the governing body begins its consideration of the ordinance: "Upon completion of the public hearings, the governing body of the municipality or the county court shall proceed to the consideration of the ordinance." W.Va.Code, 8-24-44.

The appellee relies on the language of Syllabus Point 3 of G-M Realty, Inc. v. Wheeling, 146 W.Va. 360, 120 S.E.2d 249 (1961), to the effect that: "The enactment of a zoning ordinance of a municipality being a legislative function, all reasonable presumptions should be indulged in favor of its validity." This language as was restated in Syllabus Point 2 of Anderson v. City of Wheeling, 150 W.Va. 689, 149 S.E.2d 243 (1966), relates to the more general rule that legislative enactments falling within the power of a legislative body are presumed to be valid. We have held in Hager v. Melton, 66 W.Va. 62, 66 S.E. 13 (1909), that where a statute or city charter requires that a municipal ordinance be published it shall not be effective in the absence of such publication. Moreover, it is generally held that where a statute requires publication of a notice for public hearing prior to the enactment of a zoning ordinance the failure to comply with this requirement will render the zoning ordinance invalid. 82 Am.Jur.2d Zoning and Planning § 50 (1976); Annot., 96 A.L.R.2d 449 (1964); 1 R. Anderson, American Law of Zoning § 4.11 (2d ed. 1968); 5 P. Rohan, Zoning and Land Use Controls § 36.01(4) (1982 ed.).

While we have traditionally been reluctant to have cases disposed of by way of summary judgments, Masinter v. Webco Co., 164 W.Va. 241, 262 S.E.2d 433 (1980); Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963), we have said that: "Where the material facts established by the pleadings and other matters before the trial court are undisputed and only one inference may be drawn from them by reasonable minds, summary judgment is proper." Syllabus Point 2, Parsley v. General Motors Acceptance Corp., 167 W.Va. 866, 280 S.E.2d 703 (1981); see also Wilkinson v. Searls, 155 W.Va. 475 184 S.E.2d 735 (1971); Petros v. Kellas, 146 W.Va. 619, 122 S.E.2d 177 (1961). The failure of the appellee to give any notice and hold any public hearing before it received the ordinance and had the first reading on it, all of which occurred on January 18, 1971, renders the ordinance invalid as a matter of law and the summary judgment in this case was appropriate. We accordingly affirm the trial court's ruling on the summary judgment.

II.

Having found the ordinance not to have been validly passed by reason of the failure of the appellee to comply with the notice and hearing requirements of W.Va.Code, 8-24-44, we consider whether this failure gives rise to an implied cause of action under Hurley v. Allied Chemical Corporation, supra, and Jenkins v. J.C. Penney Casualty Ins. Co., supra.

In Syllabus Point 1 of Hurley...