Rissler v. The Jefferson County Bd. Of Zoning Appeals

• Decision Date: 01 April 2010
• Docket Number: No. 35274.,35274.
• Citation: 225 W.Va. 346,693 S.E.2d 321
• Court: West Virginia Supreme Court
• Parties: Jane RISSLER, Patricia Rissler, Susan Rissler-Sheely, Mary MacElwee, Richard Latterell, and Sherry Craig, Petitioners Below, Appellants,v.The JEFFERSON COUNTY BOARD OF ZONING APPEALS, Respondent Below, Appellee,andThornhill, LLC, Intervenor Below, Appellee.

225 W.Va. 346

693 S.E.2d 321

West Virginia.

Jane RISSLER, Patricia Rissler, Susan Rissler-Sheely, Mary MacElwee, Richard Latterell, and Sherry Craig, Petitioners Below, Appellants,v.The JEFFERSON COUNTY BOARD OF ZONING APPEALS, Respondent Below, Appellee,andThornhill, LLC, Intervenor Below, Appellee.

No. 35274.

Supreme Court of Appeals of

Submitted March 3, 2010.

Decided April 1, 2010.

Syllabus by the Court

1. “ ‘While on appeal there is a presumption that a board of zoning appeals acted correctly, a reviewing court should reverse the administrative decision where the board has applied an erroneous principle of law, was plainly wrong in its factual findings, or has acted beyond its jurisdiction.’ Syl. Pt. 5 Wolfe v. Forbes, 159 W.Va. 34, 217 S.E.2d 899 (1975).” Syllabus point 1 Corliss v. Jefferson County Board of Zoning Appeals, 214 W.Va. 535, 591 S.E.2d 93 (2003).

2. “A person qualifies as ‘aggrieved’ within the meaning of West Virginia Code § 8-24-59 (1969) (Repl. Vol. 1998) and thereby has standing to challenge a decision or order of the Board of Zoning Appeals as illegal where the individual demonstrates that, as a result of the challenged ruling, he/she will uniquely suffer injury separate and apart from that which the general citizenry might experience as a result of the same ruling.” Syllabus point 6 Corliss v. Jefferson County Board of Zoning Appeals, 214 W.Va. 535, 591 S.E.2d 93 (2003).

3. “Under the Code of Professional Responsibility, a lawyer may be disqualified from participating in a pending case if his continued [participation] would give rise to an apparent conflict of interest or appearance of impropriety based upon that lawyer's confidential relationship with an opposing party.” Syllabus point 2, State ex rel. Taylor Associates v. Nuzum, 175 W.Va. 19, 330 S.E.2d 677 (1985).

4. “ ‘ “A circuit court, upon motion of a party, by its inherent power to do what is reasonably necessary for the administration of justice, may disqualify a lawyer from a case because the lawyer's representation in the case presents a conflict of interest where the conflict is such as clearly to call in question the fair or efficient administration of justice. Such motion should be viewed with extreme caution because of the interference with the lawyer-client relationship.” Syl. Pt. 1, Garlow v. Zakaib, 186 W.Va. 457, 413 S.E.2d 112 (1991).’ Syllabus point 2, Musick v. Musick, 192 W.Va. 527, 453 S.E.2d 361 (1994).” Syllabus point 3, State ex rel. Michael A.P. v. Miller, 207 W.Va. 114, 529 S.E.2d 354 (2000).

5. “ ‘Courts are not constituted for the purpose of making advisory decrees or resolving academic disputes....' Mainella v. Board of Trustees of Policemen's Pension or Relief Fund of City of Fairmont, 126 W.Va. 183, 185-86, 27 S.E.2d 486, 487-88 (1943).” Syllabus point 2, in part, Harshbarger v. Gainer, 184 W.Va. 656, 403 S.E.2d 399 (1991).

David M. Hammer, Hammer, Ferretti & Schiavoni, Martinsburg, WV, Attorney for the Appellants.

Richard G. Gay, Nathan P. Cochran, Law Office of Richard Gay, LC, Berkeley Springs, WV, Attorneys for the Appellee, Thornhill, LLC.

Stephanie F. Grove, Assistant Prosecuting Attorney, Charles Town, WV, Attorney for the Appellee, the Jefferson County Board of Zoning Appeals.

PER CURIAM:

The appellants herein and petitioners below, Jane Rissler, Patricia Rissler, Susan Rissler-Sheely, Mary MacElwee, Richard Latterell, and Sherry Craig (hereinafter collectively referred to as “Ms. Rissler”), appeal from an order entered March 5, 2009, by the Circuit Court of Jefferson County. By that order, the circuit court denied Ms. Rissler's petition for writ of certiorari, through which Ms. Rissler sought to challenge the August 22, 2005, decision of the Jefferson County Board of Zoning Appeals (hereinafter referred to as “the Board”). On appeal to this Court, Ms. Rissler assigns five errors: (1) Board member David Weigand should have recused himself due to a conflict of interest; (2) Board member Doug Rockwell should have recused himself due to a conflict of interest; (3) Board attorney J. Michael Cassell should have been disqualified due to a conflict of interest; (4) Ms. Rissler was denied due process because the hearing tribunal was not impartial; and (5) the circuit court misinterpreted the language of Jefferson County Zoning and Land Development Ordinance (hereinafter referred to as the “Ordinance”) § 6.4(g). ¹ Upon a review of the parties' arguments, the record presented for appellate consideration, and the pertinent authorities, we reverse the decision of the Jefferson County Circuit Court and remand this matter for further proceedings consistent with this opinion.

I.FACTUAL AND PROCEDURAL HISTORY

The salient facts underlying the case sub judice are not disputed by the parties. Thornhill, LLC, is a real estate developer. In 2001, Thornhill applied for a conditional use permit (hereinafter referred to as “CUP”) to enable it to build a new subdivision in a rural portion of Jefferson County. In evaluating this application, Thornhill initially was given a passing LESA score,² which would have permitted it to proceed with its development plans. However, Ms. Rissler, as well as the other named petitioners, all of whom own property adjacent to the subdivision Thornhill proposes to build, objected to the approval of Thornhill's permit. Among her many objections, Ms. Rissler opposed the score assigned to the sewage system proposed by Thornhill in its CUP application claiming that such score was erroneous because the zoning administrator had given Thornhill credit for a sewage system different than the one it had proposed to construct.³

On October 6, 2004, the Board of Zoning Appeals resolved all of the issues raised by Ms. Rissler except for the sewer matter, which issue it remanded to the zoning administrator for further consideration. By decision rendered August 22, 2005, the Board adopted the findings of the zoning administrator, who had concluded that Thornhill was proposing a central sewer system, i.e., three LESA points, rather than a private sewer system, i.e., eleven LESA points.

From this decision, Ms. Rissler appealed to the Circuit Court of Jefferson County. In her writ of certiorari, Ms. Rissler argued that Thornhill should not have been given credit for a central sewer system because such system was not in place at the time it submitted its CUP application. Moreover, Ms. Rissler contended that she had been denied due process insofar as she had not been afforded a hearing before an impartial hearing tribunal. In this regard, Ms. Rissler averred that Board members Weigand and Rockwell had conflicts of interest that required their recusal from the Board, and that Board attorney Cassell had a conflict of interest that required his disqualification from the Board's proceedings. The circuit court rejected all of these assigned errors, and denied Ms. Rissler's petition for writ of certiorari. Ms. Rissler then appealed this adverse decision to this Court.

II.STANDARD OF REVIEW

Through her appeal to this Court, Ms. Rissler complains of errors that allegedly occurred during the underlying proceedings before the Jefferson County Board of Zoning Appeals. We previously have held that, “ ‘[w]hile on appeal there is a presumption that a board of zoning appeals acted correctly, a reviewing court should reverse the administrative decision where the board has applied an erroneous principle of law, was plainly wrong in its factual findings, or has acted beyond its jurisdiction.’ Syl. Pt. 5, Wolfe v. Forbes, 159 W.Va. 34, 217 S.E.2d 899 (1975).” Syl. pt. 1, Corliss v. Jefferson County Bd. of Zoning Appeals, 214 W.Va. 535, 591 S.E.2d 93 (2003). Mindful of this standard, we proceed to consider the parties' arguments.

III.DISCUSSION

On appeal to this Court, Ms. Rissler assigns five errors: (1) Board member David Weigand should have recused himself due to a conflict of interest; (2) Board member Doug Rockwell should have recused himself due to a conflict of interest; (3) Board attorney J. Michael Cassell should have been disqualified due to a conflict of interest; (4) Ms. Rissler was denied due process because the hearing tribunal was not impartial; and (5) the circuit court misinterpreted the language of Jefferson County Zoning and Land Development Ordinance § 6.4(g).

A. Due Process

Ms. Rissler contends that, because certain members of the Jefferson County Board of Zoning Appeals and its attorney were not disqualified from the underlying proceedings concerning Thornhill's CUP application, she and the other petitioners were denied due process because they did not receive a hearing before an impartial tribunal. Insofar as this assignment of error subsumes the assignments of error relating to the disqualification of various participants in the underlying zoning appeals process, we will jointly consider these issues.

In the context of these proceedings, Ms. Rissler argues that the due process protections afforded by the United States and West Virginia Constitutions ⁴ require that she be afforded a hearing before an impartial tribunal upon her appeal to the Board of Zoning Appeals. See Syl. pt. 1 Sisler v. Hawkins, 158 W.Va. 1034, 217 S.E.2d 60 (1975) (“ ‘The due process of law guaranteed by the State and Federal Constitutions, when applied to procedure in the courts of the land, requires both notice and the right to be heard.’ Point 2, Syllabus Simpson v. Stanton, 119 W.Va. 235[, 193 S.E. 64 (1937) ].”). However, before we may consider whether Ms. Rissler and the remaining petitioners were entitled to due process and the nature of the process to which they were due, we must first resolve an issue raised by Thornhill and the Board, which essentially suggests that the petitioners were not entitled to due process in these proceedings because they did not have a protected property interest therein. See Syl. pt. 3, State ex rel. Deputy Sheriff's Ass'n v. County Comm'n of Lewis County, 180 W.Va. 420, 376 S.E.2d 626...