Par Mar v. City of Parkersburg

• Decision Date: 25 October 1990
• Docket Number: No. 19487,19487
• Citation: 398 S.E.2d 532,183 W.Va. 706
• Court: West Virginia Supreme Court
• Parties: PAR MAR, An Ohio Corporation, v. The CITY OF PARKERSBURG, A West Virginia Municipal Corporation.

Page 532

398 S.E.2d 532

183 W.Va. 706

PAR MAR, An Ohio Corporation, v. The CITY OF PARKERSBURG, A West Virginia Municipal Corporation.

No. 19487.

Supreme Court of Appeals of West Virginia.

Oct. 25, 1990.

Syllabus by the Court

1. "A zoning ordinance is not invalid as to a particular property owner where such property owner is not treated differently from other property owners [in the same zoning district] and the ordinance bears a substantial relation to the health, safety, morals and general welfare of the people, and the courts are not disposed to declare an ordinance invalid in whole or in part where it is fairly debatable as to whether the action of the zoning commission or the city council is arbitrary or unreasonable." Syl. pt. 1, Anderson v. City of Wheeling, 150 W.Va. 689, 149 S.E.2d 243 (1966).

2. "Whether a complaint states a claim upon which relief may be granted is to be determined solely from the provisions of such complaint[.]" Syl. pt. 3, in part, Barker v. Traders Bank, 152 W.Va. 774, 166 S.E.2d 331 (1969).

3. A zoning ordinance must draw lines for boundaries between zoning districts, and such line drawing, such as utilizing a highway or a street as a boundary, is not ipso facto "arbitrary and unreasonable" so as to invalidate the application of a zoning ordinance.

R. Vance Golden, III, Parkersburg, for Par Mar.

Richard A. Hayhurst, Parkersburg, for City of Parkersburg.

McHUGH, Justice:

This appeal involves a municipal zoning ordinance, but the dispositive issue presented is procedural in nature, that is, the propriety of granting a motion to dismiss for failure to state a claim upon which relief may be granted. Under the particular circumstances here we believe the trial court, the Circuit Court of Wood County, West Virginia, properly granted the motion to dismiss for failure to state a claim, and we, therefore, affirm the trial court's final order.

I

The appellant is Par Mar, an Ohio corporation. Par Mar operates a line of convenience stores and is a wholesale distributor of Union Oil gasoline and oil products. The appellee is the City of Parkersburg, West Virginia. The real property involved in this case had been used for gasoline station purposes since about 1950 by the appellant's predecessors in title.

In 1973, the appellee enacted a new zoning ordinance based upon a comprehensive plan. ¹ The subject property was included in a single- and two-family residential (R-3) zone. It is surrounded on three sides by residences. Across State Route No. 47 (Staunton Street), one of the major roads in the city, are a heavy manufacturing (M-2) zone and a recreational zone, both of which extend back to the Little Kanawha River. One of the stated purposes of the comprehensive plan was to encourage location of businesses in the downtown central business district and to discourage "commercial strip development" along the major road arteries, such as State Route No. 47, outside the downtown district.

The 1973 zoning ordinance contained a so-called "grandfather clause," so that after enactment of such ordinance the appellant's predecessors in title continued lawfully to operate a gasoline station on the property. ² Starting sometime after 1982, the property was permitted to be used for convenience store purposes, including retail gasoline sales.

The appellant acquired title to part of the subject property in June, 1986, at a foreclosure sale. Due to a scrivener's error, the appellant did not obtain the title to the remainder of the property until April, 1988. During that period of time no business was conducted on the property because Par Mar was unable to consummate a sale or lease to anyone, due primarily to the cloud on the title. In the fall of 1988 the appellant decided to operate the convenience store itself but was denied a permit to operate the same.

It was ultimately held by the Circuit Court of Wood County, in an entirely separate action brought by two nearby lot owners, that the nonconforming (commercial) use of Par Mar's property, pursuant to the zoning ordinance's "grandfather clause," had been abandoned for more than the period of time (a year) allowed under such ordinance. The separate case involving the abandonment issue is not part of this appeal. ³

The appellant brought this action to obtain a declaratory judgment that the zoning ordinance is unconstitutional as applied to the appellant's property, as such ordinance is allegedly "arbitrary and unreasonable." The appellant also sought an injunction against the appellee and any other person restraining them from interfering with the appellant's "full commercial use" of the property. The appellant further sought to recover damages resulting from not being permitted to use its property for commercial purposes. ⁴

The trial court granted the appellee's Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief may be granted. ⁵

II

A zoning ordinance, as an exercise of the broad police power of the local governing body, is rebuttably presumed to be valid. The Court has stated this concept in the following manner: "The enactment of a zoning ordinance of a municipality[,] being a legislative function, all reasonable presumptions should be indulged in favor of its validity." Syl. pt. 3, G-M Realty, Inc. v. City of Wheeling, 146 W.Va. 360, 120 S.E.2d 249 (1961). Accord, Grady v. City of St. Albans, 171 W.Va. 18, 20, 297 S.E.2d 424, 426 (1982); syl. pt. 1, Town of Stonewood v. Bell, 165 W.Va. 653, 270 S.E.2d 787 (1980); syl. pt. 2, Anderson v. City of Wheeling, 150 W.Va. 689, 149 S.E.2d 243 (1966). To rebut the presumption of the validity of a zoning ordinance the complaining party must bear a heavy burden, for "a municipality may enact a zoning ordinance which restricts the use of property in designated districts within the municipality if the restrictions imposed by the ordinance are not arbitrary or unreasonable and bear a substantial relation to the public health, safety, morals, or the general welfare of the municipality." Syl. pt. 7, in part, Carter v. City of Bluefield, 132 W.Va. 881, 54 S.E.2d 747 (1949). Accord, syl. pt. 2, DeCoals, Inc. v. Board of Zoning Appeals, 168 W.Va. 339, 284 S.E.2d 856 (1981).

A zoning ordinance "may be valid in its general scope and broad outline but invalid to the extent that the restrictions imposed are clearly arbitrary and unreasonable in their application to particular property." Syl. pt. 8, in part, Carter v. City of Bluefield, 132 W.Va. 881, 54 S.E.2d 747 (1949). In that regard the Court held in syllabus point 1 of Anderson v. City of Wheeling, 150 W.Va. 689, 149 S.E.2d 243 (1966):

A zoning ordinance is not invalid as to a particular property owner where such property owner is not treated differently from other property owners [in the same zoning district] and the ordinance bears a substantial relation to the health, safety, morals and general welfare of the people, and the courts are not disposed to declare an ordinance invalid in whole or in part where it is fairly debatable as to whether the action of the zoning commission or the city council is arbitrary or unreasonable.

See also syl. pt. 4, DeCoals, Inc. v. Board of Zoning Appeals, 168 W.Va. 339, 284 S.E.2d 856 (1981); Town of Stonewood v. Bell, 165 W.Va. 653, 657, 270 S.E.2d 787, 790 (1980); syl. pt. 2, G-M Realty, Inc. v. City of Wheeling, 146 W.Va. 360, 120 S.E.2d 249 (1961). In short, "[w]here the complaining party has failed to show that a municipal [zoning] ordinance, properly adopted, is arbitrary or unreasonable, this Court will not overrule city authorities in the exercise of their legislative function." Syl. pt. 4, Town of Stonewood v. Bell, 165 W.Va. 653, 270 S.E.2d 787 (1980).

Moreover, the person challenging the validity of a zoning ordinance, as applied to the property in question, must show by clear and convincing evidence that the ordinance is arbitrary or unreasonable or does not bear a substantial relation to the public health, safety, morals or general welfare of the community. See Town of Stonewood v. Bell, 165 W.Va. 653, 659, 270 S.E.2d 787, 791 (1980).

In a challenge to the validity of a zoning ordinance as applied to the property in question, the relevant factors include the following: (1) existing uses and zoning of nearby property; (2) the extent to which property values are diminished by the particular zoning restrictions; (3) the extent to which the destruction of property values of the plaintiffs promotes the health, safety, morals or general welfare of the public; (4) the relative gain to the public, as compared to the hardship imposed upon the individual property owner; (5) the suitability of the subject property for the zoned purposes; and (6) the length of time the property has been vacant as zoned, considered in the context of land development in the area in the vicinity of the property. See, e.g., La Salle National Bank v. County of Cook, 60 Ill.App.2d 39, 51, 208 N.E.2d 430, 436 (1965). "If most of the factors necessary to the decision of a zoning case have both positive and negative aspects it would appear that these matters are fairly debatable, and in such case the court will not overrule the city authorities in the exercise of their legislative function." Syl. pt. 4, Anderson v. City of Wheeling, 150 W.Va. 689, 149 S.E.2d 243 (1966). Accord, syl. pt. 3, Town of Stonewood v. Bell, 165 W.Va. 653, 270 S.E.2d 787 (1980).

With these principles of substantive law in mind, we now turn to the procedural question presented in this case. The trial court granted the motion of the city to dismiss for failure to state a claim upon which relief may be granted. "Whether a complaint states a claim upon which relief may be granted is to be determined solely from the provisions of such complaint[.]" Syl. pt. 3, in part, Barker v. Traders Bank, 152 W.Va. 774, 166 S.E.2d 331 (1969). See also syl. pt. 4, in part, United States Fidelity & Guaranty Co. v. Eades, 150 W.Va. 238, 144...