Mustard v. City Of Bluer Eld

• Decision Date: 25 November 1947
• Docket Number: No. 9997.,9997.
• Citation: 45 S.E.2d 326
• Parties: MUSTARD. v. CITY OF BLUER ELD et al.
• Court: West Virginia Supreme Court

45 S.E.2d 326

MUSTARD.

v.CITY OF BLUER ELD et al.

No. 9997.

Supreme Court of Appeals of West Virginia.

Nov. 25, 1947.

Concurring Opinion Dec. 10, 1947.

Syllabus by the Court

1. Under a zoning ordinance of a municipal corporation, implementing Code, 8-5-7, in which a board of adjustment, created thereby, is empowered to make a variance of the strict application of the zoning regulations, under certain specified conditions, such board of adjustment, after having taken final action upon an application for a variance, is without power to reopen the proceeding and grant a rehearing or reconsideration of its action, in the absence of new facts or authority residing in the board, under the provisions of the ordinance.

2. After a board of adjustment of a municipal corporation, under authority of an ordinance, implementing Code, 8-5-7, has finally acted in making a variance of the application of the zoning regulations of the municipality, the common council of the municipal corporation, or other body authorized by statute to issue building permits, may be compelled by mandamus to act upon a property owner's request for a permit to construct a building in accordance with the variance made by such board of adjustment, but such writ should not be framed so as to govern such body in the exercise of its discretion.

Original mandamus proceeding by William M. Mustard against the City of Blue-field and others to require the board of directors of the city to meet and to act on relator's application for a building permit.

Writ awarded to compel board of directors to act on the application but not to require them to grant a permit.

Arthur F. Kingdon, of Bluefield, for relator.

Luther G. Scott, of Bluefield, for respondents.

Jerome Katz, of Bluefield, as amicus curia.

RILEY, Judge.

This is a proceeding in mandamus to require the board of directors of the City of Bluefield, a municipal corporation, to meet and act on relator's application for a building permit.

The single issue presented by the petition, return and answer, and replication is whether the board of adjustment, provided for in Section 7, Article 5, Chapter 8, Code, and Section 39 of the ordinance based thereon, was authorized to rehear and revoke its action of May 13, 1947, wherein it had granted to relator the right to erect a building to house a "light industry" on two certain lots owned by him, which were located in one of the many areas set apart for "business" purposes.

The parties litigant are in accord regarding the applicability of the enabling statute (Municipal Planning and Zoning, Article 5, Chapter 8, Code), and the ordinance thereunder, and as to the prescribed procedure in cases involving possible zoning adjustments.

Mustard, the relator, being desirous of erecting a building on the lots hereinbefore referred to for a machine shop, made application, as required, to the city engineer, asking such permission. The latter, according to indorsement thereon, refused the permit, noting thereon that a violation of the zoning law was indicated. Thereupon, relator gave notice of an appeal to the board of adjustment. The notice, signed by the secretary of the board of adjustment, was published on May 5, 1946, in two daily newspapers in the city, advising the public that said board would sit on May 13, 1946, to consider and act on said appeal. On the latter date the matter was heard, and an order entered granting the requested permit. On July 25, 1946, relator, in accordance with the building ordinance, presented his application to the city clerk, which application noted the favorable action of the board of adjustment, and accompanied the same with the required fee of $14. This petition for a building permit was approved by the building inspector. However, except for a number of orders deferring action on the petition for the building permit, the board of directors of the city has done nothing in regard thereto.

When the matter was called up at the meeting of the board of directors on August 7, 1946, certain property owners, including those who had on July 30, 1946, requested that the matter be deferred, appeared and informed the board of directors that they had petitioned the board of adjustment to rehear and to revoke the zoning permit previously authorized by it to the relator Mustard. Relator thereupon asserted his right to a building permit, stating that the board of adjustment was without jurisdiction to entertain such a petition, and that the property owners' remedy, if any, was in the circuit court. Thereafter, on August 26, 1946, the board of adjustment did reconsider, over protest of relator, the matter of the latter's right to a zoning permit; and, upon such reconsideration, entered an order purporting to revoke its former action and also to deny the zoning permit.

The petition of relator is based on the theory that the action of the board of adjustment of May 13, 1946, still stands, and that under the circumstances the board of directors of the City of Bluefield should be required to approve his application for a building permit under the building code. It makes reference to Article VIII of the zoning ordinance, which it alleges was enacted on December 13, 1938. It also alleges that said ordinance is still in force, and that Section 39 thereof, which provides for variations from the strict classification, in accordance with the authority conferred by Section 7, Article 5, Chapter 8 of the Code, and that the board of adjustment, pursuant thereto, properly made an exception in relator's case, and that said board has on previous and subsequent occasions made exceptions in various districts. Subparagraph (b) of Section 39 of the ordinance provides: "Where * * * because of other unusual circumstances, the strict application of any provision of this ordinance would result in exceptional practical difficulty or undue hardship upon the owner of any specific property, the Board, in passing upon appeals, shall have the power to vary or modify such strict application or to interpret the meaning of this ordinance so as to relieve such difficulty or hardship; provided that such variance, modification or interpretation shall remain in harmony with the general purpose and intent of this ordinance, so that the health, safety, morals and general welfare of the community shall be conserved and substantial justice done."

From the oral arguments and briefs it appears that the parties to this proceeding do not question the sufficiency of the notice of an appeal to the board of adjustment; the regularity of the proceedings before that board; or the validity of the order of May 13, 1946. But relator questions the right of the board of adjustment to rehear the matter which gave rise to the entry of the order of May 13, 1946, and upon such rehearing to modify or re-voke such order, where, as in the instant case, new facts are not adduced in support of such rehearing, and there is no provision in the zoning ordinance of the City of Bluefield permitting such rehearing. It is thus contended by relator that the order of May 13, 1946, is a finality, and, the building inspector having approved relator's application for a building permit, the board of directors of the City of Bluefield has the ministerial duty to issue such permit. We are in agreement with relator's position that respondents having failed to pursue their remedy in the Circuit Court of Mercer County, as provided by Code, 8-5-7, the order of May 13, 1946, though jt may be erroneous, is valid. In Board of Zoning Appeals v. McKinney, 174 Md. 551, 199 A. 540, 117 A.L.R. 207, it was held that the board of adjustment, after having taken determinative action upon an application for a variance, has no power to reopen the proceedings, grant a rehearing, or reconsider its determination in the absence of new facts. In this regard it is to be noted that neither the zoning ordinance in question, nor the statute, provides for such rehearing or redetermination. In McGarry v. Walsh, 213 App.Div. 289, 210 N.Y.S. 286, 295, the Court, having un-der scrutiny a second application in a zoning case held: "Upon...