Hutchison v. City of Huntington

Decision Date15 November 1996
Docket NumberNo. 23332,23332
Citation198 W.Va. 139,479 S.E.2d 649
CourtWest Virginia Supreme Court
PartiesScott HUTCHISON, Plaintiff Below, Appellee, v. The CITY OF HUNTINGTON, Defendant Below, Appellant.

1. The ultimate determination of whether qualified or statutory immunity bars a civil action is one of law for the court to determine. Therefore, unless there is a bona fide dispute as to the foundational or historical facts that underlie the immunity determination, the ultimate questions of statutory or qualified immunity are ripe for summary disposition.

2. Unless barred by one of the recognized statutory, constitutional or common law immunities, a private cause of action exists where a municipality or local governmental unit causes injury by denying that person rights that are protected by the Due Process Clause embodied within Article 3, § 10 of the West Virginia Constitution.

3. The circuit courts of West Virginia, being courts of general jurisdiction, have original jurisdiction to hear and resolve claims under Title 42, U.S.C.A. § 1983 (1979).

4. Because Title 42, U.S.C.A. § 1983 (1979) does not create substantive rights, but rather provides a remedy for pre-existing rights, all claims under this section must allege a specific violation of the constitution or "laws" of the United States. In order to recover damages under § 1983, a plaintiff must show that (1) the conduct complained of was committed by a person acting under color of state law; and (2) whether this conduct deprived a person of rights, privileges or immunities secured by the Constitution or laws of the United States.

James W. St. Clair, St. Clair and Levine, Huntington, for Appellee.

Jendonnae L. Houdyschell, Assistant City Attorney, Huntington, for Appellant.

CLECKLEY, Justice:

This is an appeal 1 by the defendant below, the City of Huntington, from a jury verdict awarding damages to the plaintiff below, Scott Hutchison. The plaintiff filed suit alleging the defendant delayed giving him a requested building permit in violation of state and federal law. The defendant assigns as error (1) the trial court's denial of its motion to dismiss the state claim, (2) admitting evidence at trial of a prior property dispute between the parties, and (3) that the evidence was insufficient to support the verdict.


The record in this case indicates that at some point in late 1991, the plaintiff approached Richard Dixon, Planning Supervisor for the defendant, and inquired as to whether a parcel of property located on Bradley and Waverly Roads in the Westmoreland section of Huntington was zoned for business. The plaintiff was contemplating purchasing the property and building either a car wash or mini-storage units on the site. In a letter dated February 3, 1992, Dixon wrote to the plaintiff that "[t]he development of a car wash on the [site] is a permissible use if it meets all other restrictions of the Zoning Ordinance." Dixon's letter stated further that "[t]he placement of storage units is also acceptable." In reliance upon Dixon's representations that the cite was zoned for business, the plaintiff borrowed $55,000 from a local bank and purchased the property in question on September 9, 1992. The plaintiff had decided to build mini-storage units on the property.

Once the plaintiff purchased the property, he applied for a building permit from Dixon at some point in the second week of October, 1992. On October 6, 1992, Dixon wrote a memo to the mayor of Huntington, wherein he stated that the Planning Commission wanted the mayor to place a thirty-day moratorium on construction on the property purchased by the plaintiff while an investigation was made into complaints by residents adjacent to the area. The complaints involved possible illegal zoning of the site, PCB contamination, and drainage and sewer problems. In a letter written by the mayor of Huntington, to Dixon, on October 6, 1992, the mayor stated that he had "requested that Public Works and Zoning issue no permits of any kind to Scott Hutchinson or any others who might seek them for construction on the [site]." The mayor based his decision to deny the plaintiff a building permit on the mayor's need to learn (1) if the site was illegally zoned for business in 1961, (2) whether drainage and sewer problems existed with the site for business zoning purposes, and (3) whether "possible PCB contamination and other general factors" might affect the site as a business area. Dixon wrote to the mayor again on October 7, 1992, and indicated that: "There is no record that this parcel was ever zoned residential. The accusation that it was rezoned from [residential to business] The area residents eventually went to the Planning Commission with a request that plaintiff's property be rezoned to residential. The plaintiff appeared at Planning Commission meetings in October and December, in an effort to prevent his property from being rezoned to residential. The Planning Commission eventually forwarded the issue to the City Council with a recommendation that the City Council try "to prevent the construction on the [site]." On December 14, 1992, the City Council held its first reading of an ordinance to amend the zoning laws for the purpose of rezoning plaintiff's property from business to residential. 3 On December 28, 1992, the City Council held its second reading on the proposed ordinance amendment. However, after counsel for plaintiff informed the City Council that it would have to pay plaintiff the fair market value of his property, should it be rezoned, the City Council tabled its vote on the issue. On January 11, 1993, the City Council met again to consider rezoning the plaintiff's property. At this meeting, one of the City Council members indicated that someone was interested in buying plaintiff's property. It was pointed out by plaintiff's counsel that the plaintiff never expressed a desire to sell his property.

                [198 W.Va. 146]  illegally at some point is simply unfounded."   With respect to the PCB issue, Dixon wrote the mayor:  "We have also contacted Scott McPhilliamy at the EPA office in Wheeling concerning possible PCB contamination of the site.  He stated that there was no substantial proof that the site was contaminated and that the EPA would not begin an investigation.  He felt that the residents were 'grasping for straws' in order to stop the development of the property. 2  "  Shortly after this communication between the mayor and Dixon, the plaintiff went to see Dixon about getting a building permit.  Dixon told the plaintiff to prepare a site plan and return it to Dixon's office.  The plaintiff complied with this requirement, and provided Dixon a site plan the day after it was requested.  However, without explanation, Dixon refused to give the plaintiff the building permit.  The plaintiff eventually learned that residents in the area had objected to his plan for building mini-storage units, and that the mayor had ordered that he was not to be issued a building permit
                [198 W.Va. 147] The City Council eventually voted on the issue of rezoning, but the measure was defeated.  On January 13, 1993, the plaintiff was issued a building permit by the defendant

On April 12, 1994, the plaintiff filed the instant suit against the defendant. 4 The plaintiff brought this action to recover the additional cost he incurred in having to build his mini-storage units during the winter of 1993, rather than during the spring of 1992, as a result of the initial refusal by the defendant to issue him a building permit. At the trial, the plaintiff presented evidence that the delay caused him to spend an additional $24,591. The plaintiff alleged both state and federal causes of action against the defendant. 5 The defendant answered the complaint, and filed a motion to dismiss the complaint under a theory of immunity. 6 The trial court denied the motion to dismiss. The case proceeded to trial by jury on July 18, 1995. Only three witnesses were called at the trial. 7 During the trial, the plaintiff presented testimony, over the defendant's timely objection, of additional conduct by the defendant in delaying his right to build mini-storage units on another piece of property. At the close of the trial, the jury returned with a verdict in favor of the plaintiff, awarding him $25,000 in damages. The defendant now prosecutes this appeal alleging that the trial court committed error in (1) denying its motion to dismiss the state law claim, (2) admitting evidence at trial of a prior property dispute between the parties, and (3) failing to find that the evidence was insufficient to support the verdict.


In this appeal, the City of Huntington claimed that the plaintiff's complaint failed to state a sufficient allegation to establish any violations of the law that would entitle him to relief. Ordinarily, this Court does not entertain nor discuss a denial of a motion for failure to state a claim under W.Va.R.Civ.P. 12(b)(6), in that such an order is interlocutory in nature. Because part of the action is grounded in federal law, i.e., Title 42, § 1983, and state statutory immunities laws, we believe some early observations are in order. 8 We premise the remarks that follow with the concern that the need for early resolution in cases ripe for summary disposition is particularly acute when the defense is in the nature of an immunity. The United States Supreme Court has held that orders denying substantial claims of qualified immunity should be decided before trial, and these pretrial decisions are immediately appealable under the collateral order doctrine. See Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411 (1985) ("the entitlement is an immunity from suit rather than a mere defense to liability; and like absolute immunity, it is effectively lost if the case is...

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