Hose v. Berkeley County Planning Com'n

• Citation: 460 S.E.2d 761,194 W.Va. 515
• Decision Date: 14 July 1995
• Docket Number: No. 22537,22537
• Parties: Larry B. HOSE and Delores F. Hose, Plaintiffs Below, Appellants, v. The BERKELEY COUNTY PLANNING COMMISSION; William J. Teach, P.E., County Engineer; Williamsport Storage Bins, Inc., a Maryland Corporation; Todd Snook; and Fox and Associates, Inc., a Maryland Corporation, Defendants Below, Appellees.
• Court: West Virginia Supreme Court

Page 761

460 S.E.2d 761

194 W.Va. 515

Larry B. HOSE and Delores F. Hose, Plaintiffs Below, Appellants, v. The BERKELEY COUNTY PLANNING COMMISSION; William J. Teach,

P.E., County Engineer; Williamsport Storage Bins, Inc., a

Maryland Corporation; Todd Snook; and Fox and Associates,

Inc., a Maryland Corporation, Defendants Below, Appellees.

No. 22537.

Supreme Court of Appeals of

West Virginia.

Submitted May 9, 1995.

Decided July 14, 1995.

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. " 'A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law.' Syllabus Point 3, Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963)." Syl. pt. 1, Andrick v. Town of Buckhannon, 187 W.Va. 706, 421 S.E.2d 247 (1992).

3. " 'Where the language of a statute is clear and without ambiguity the plain meaning is to be accepted without resorting to the rules of interpretation.' Syllabus Point 2; State v. Elder, 152 W.Va. 571, 165 S.E.2d 108 (1986)." Syl. pt. 1, Peyton v. City Council of Lewisburg, 182 W.Va. 297, 387 S.E.2d 532 (1989).

4. Pursuant to W.Va.Code, 29-12A-4(c)(2) [1986] and W.Va.Code, 29-12A-5(a)(9) [1986], a political subdivision is immune from liability if a loss or claim results from licensing powers or functions such as the issuance, denial, suspension or revocation of or failure or refusal to issue, deny, suspend or revoke any permit, license, certificate, approval, order or similar authority, regardless of whether such loss or claim is caused by the negligent performance of acts by the political subdivision's employees while acting within the scope of employment.

5. W.Va.Code, 29-12A-5(a)(9) [1986] clearly contemplates immunity for political subdivisions from tort liability for any loss or claim resulting from licensing powers or functions such as the issuance, denial, suspension or revocation of or failure or refusal to issue, deny, suspend or revoke any permit, license, certificate, approval, order or similar authority, regardless of the existence of a special duty relationship.

6. While W.Va.Code, 29-12A-5(a)(9) [1986] expressly immunizes a political subdivision from liability if a loss or claim results from licensing powers or functions such as the issuance, denial, suspension or revocation of or failure or refusal to issue, deny, suspend or revoke any permit, license, certificate, approval, order or similar authority, such immunity does not extend to private individuals or entities to which a political subdivision has issued, denied, suspended, or revoked or has failed or refused to issue, deny, suspend or revoke any permit, license, certificate, approval, order or similar authority.

Carolyn Sue Daniel, Shepherdstown, for appellants.

Janet L. Scalia, Asst. Pros. Atty., Martinsburg, Carol Ann Marunich, Furbee Amos Webb & Critchfield, Fairmont, for Berkeley County Planning Com'n and William J. Teach.

John M. Martirano, Patrick J. Nooney, Steptoe & Johnson, Hagerstown, MD, for Williamsport Storage Bins, Inc. and Todd Snook.

Anita R. Casey, Meyer, Darragh, Buckler, Bebenek & Eck, Charleston, for Fox and Associates, Inc.

McHUGH, Chief Justice:

Appellants Larry and Delores Hose instituted an action in the Circuit Court of Berkeley County, West Virginia seeking damages from appellees for changing the flow of surface water which resulted in the flooding of appellants' property. By order of March 10, 1994, the circuit court granted appellees Berkeley County Planning Commission and county engineer William Teach's motion for summary judgment on the basis of governmental immunity. In separate orders dated May 11, 1994, the circuit court granted the motions for summary judgment of appellees Williamsport Storage Bins, Inc. and Todd Snook, its president, as well as of appellee, Fox and Associates, Inc., an architectural firm.

This Court has before it the petition for appeal, all matters of record and the briefs and argument of counsel. For the reasons stated below, the order granting summary judgment in favor of the Berkeley County Planning Commission and William Teach is affirmed. However, the orders granting summary judgment in favor of Williamsport Storage Bins, Inc. and Todd Snook and Fox and Associates, Inc. are reversed.

I. Facts

Since 1982, appellants Larry and Delores Hose have owned approximately six acres of land located in Berkeley County, West Virginia. They have operated a vehicular salvage, recycling and repair business on the land since January 1988. Occasionally, water approximately one-inch deep would accumulate on appellants' land as the result of surface run-off from the property lying adjacent to and downstream from their property.

In July 1989, the property lying adjacent to and downstream from appellants' was purchased by appellee Williamsport Storage Bins, Inc., a Maryland corporation. In March 1990, Williamsport's president, Todd Snook, through an agent, applied to appellee Berkeley County Planning Commission (hereinafter "Planning Commission") for approval of proposed construction plans for twelve mini-warehouse buildings, a rental office and an eight-bay car wash. Williamsport hired appellee Fox and Associates, Inc., an architectural firm, to draft the site plans for the proposed construction.

According to the depositions of appellee Todd Snook and appellee William Teach who was acting solely within the scope of his employment as engineer for Berkeley County, fill dirt which had been hauled onto the Williamsport property by Williamsport's predecessor in title blocked the natural drainage swale. Mr. Teach indicated that this caused water to back up on the property adjoining Williamsport's and created excessive water pressure problems in the surrounding areas.

After reviewing the concept plan and preliminary plat prepared by Fox and Associates and submitted by Williamsport, the Planning Commission required Mr. Snook to either remove the dirt or to install a drainage pipe so as to return the flow of water from other landowners' property located upstream, ¹ across the Williamsport property, to its original and natural state. The concept and site plans were subsequently amended to reflect the addition of a thirty-six inch drainage pipe. ² Mr. Snook and Mr. Teach also testified that had the drainage pipe not been installed, the Planning Commission would have required Williamsport to remove the fill dirt. ³ In either case, all of the appellees herein contend that the amount of water which flowed onto appellants' land would have been the same.

Conversely, appellant Larry Hose testified that the Williamsport property had previously been "flood land" and that the appellees built an "earthen dam ... with a 36 inch spillway through [it]. [Mr. Snook] blocks up all that water that used to lay on here and runs it through that spillway and dumps it onto my property."

A public hearing to discuss the proposed plans was scheduled for July 19, 1990. The hearing date was published in the Martinsburg Journal, a newspaper of general circulation in the area, and the property was posted. Appellants contend that appellee William Teach, the county engineer with whom appellants had spoken on at least five occasions, had promised to personally notify them of the public hearing date. Mr. Teach did not notify appellants nor did they see the newspaper publication. Consequently, appellants did not attend the public hearing.

In its March 10, 1994 order, the circuit court found that at the July 19, 1990 hearing, Fox and Associates "defended the project and their plans through its agents and advocated acceptance of the plans, at which time the [Planning Commission] voted to accept the staff recommendation to grant preliminary plat Approval." On August 6, 1990, the Planning Commission voted to accept the staff recommendation to grant final plat approval which included the installation of the thirty-six inch drainage pipe.

Since implementation of the construction plans and specifically, the thirty-six inch drainage pipe, appellants have experienced an increase in the accumulation of surface water on their property. Appellants thus contend that the two to three feet of surface water which floods their property approximately three times per year is a direct result of the installation of this pipe. ⁴

By order dated March 10, 1994, the circuit court granted the Planning Commission and William Teach's motion for summary judgment, concluding, inter alia, that Mr. Teach, as an employee of a political subdivision acting within the scope of his employment, was immune from personal tort liability, pursuant to W.Va.Code, 29-12A-13(b) [1986] and that the Planning Commission was similarly immune pursuant to W.Va.Code, 29-12A-5(a)(9) [1986].

In two subsequent orders, each dated May 11, 1994, the circuit court granted Williamsport and Snook's joint motion for summary judgment, as well as that of Fox and Associates. All of the parties herein, with the exception of the Planning Commission and Mr. Teach, have represented to this Court on appeal that the May 11, 1994 orders indicate that the motions for summary judgment of Williamsport, Snook and Fox and Associates were based upon the governmental immunity previously afforded the Planning Commission and Mr. Teach. However, our reading of the May 11, 1994 orders does not so indicate. Unlike the March 10, 1994 order granting summary judgment for the Planning Commission and Mr. Teach, these orders do not contain any specific findings of fact or conclusions of law as to either Williamsport, Snook or Fox and Associates.

II. Standard of Review

As indicated above, the circuit court granted summary judgment in favor of all of the appellees herein. As we stated in syllabus...