Vector Co. v. Board of Zoning Appeals of City of Martinsburg, 13085

• Citation: 155 W.Va. 362,184 S.E.2d 301
• Decision Date: 02 November 1971
• Docket Number: No. 13085,13085
• Court: Supreme Court of West Virginia
• Parties: The VECTOR COMPANY, Incorporated, etc. v. The BOARD OF ZONING APPEALS OF the CITY OF MARTINSBURG, et al., etc.

Page 301

184 S.E.2d 301

155 W.Va. 362

The VECTOR COMPANY, Incorporated, etc. v. The BOARD OF ZONING APPEALS OF the CITY OF MARTINSBURG, et al., etc.

No. 13085.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 14, 1971.

Decided Nov. 2, 1971.

Syllabus by the Court

1. When a provision of a municipal ordinance is inconsistent or in conflict with a statute enacted by the Legislature the statute prevails and the municipal ordinance is of no force and effect.

2. 'In the construction of statutes, where general words follow the enumeration of particular classes of persons or things, the general words, under the rule of construction known as Ejusdem generis, will be construed as applicable only to persons or things of the same general nature or class as those enumerated, unless an intention to the contrary is clearly shown.' Point 2, Syllabus, Parkins v. Londeree, Mayor, 146 W.Va. 1051 (124 S.E.2d 471).

Charles H. Bean, Martinsburg, for plaintiff in error.

Avey, Steptoe & Perry, Robert M. Steptoe, Martinsburg, for intervenors.

CAPLAN, President:

This is an appeal from a judgment which denied a writ of mandamus in a proceeding instituted in the Circuit Court of Berkeley County. In that proceeding the petitioner, appellant here, the Vector Company, Inc., a Tennessee corporation authorized to do business in this state, sought to compel the respondents, the Board of Zoning Appeals of The City of Martinsburg and Thom Keller, Bruce Minghini, Decatur Young, Reymann Creque and Richard L. Douglas, its members, to grant it a special exception to the municipal zoning ordinance pursuant to a favorable vote of the majority of said Board.

Donald L. Anderson, Richard R. Lowman, Jr. and Edward R. Clark, citizens of Martinsburg and owners of property in the zoned area involved in this proceeding, filed a petition for leave to intervene in the appeal granted by this Court. In their petition they alleged that they were not made parties in the mandamus proceeding in the circuit court; that the named respondents made no appearance in that proceeding; that they are informed and believe that said respondents do not intend to appear or be represented on this appeal; and that they desire to appear and intervene in the proceeding in opposition to the demand of The Vector Company, Inc. On June 7, 1971 the petition for leave to intervene was granted.

The Vector Company holds an option to purchase a parcel of 7.005 acres of land located in the City of Martinsburg, upon 2.2 acres of which it desires to contruct an eight story high rise multiple family dwelling for the elderly. A construction permit for that purpose being disapproved by the city building inspector, Vector appealed to the Board of Zoning Appeals for a special exception to the zoning ordinance. The City Planning Commission, to which its application was referred, in accordance with the Martinsburg Zoning Ordinance, recommended to the Board that the special exception be granted.

The Board of Zoning Appeals met on January 5, 1971 to consider Vector's appeal. When it was brought to the attention of John Lee VanMetre, a member of the Board, that he was ineligible to serve as such member he disqualified himself and the hearing was adjourned to January 8, 1971. On that date the Board convened and again considered Vector's request for a special exception. Richard L. Douglas had been appointed to replace John Lee VanMetre as a member of the Board. A motion was made by The Vector Company for a special exception and a vote of the members of the Board was taken. Three members voted to grant the exception, one member voted to the contrary and Douglas, the new member, abstained from voting. The petition was denied after it was announced that in order for the exception to be granted there must have been four favorable votes from the five member Board. As heretofore noted only three members of the Board voted favorably on the petition.

In these circumstances, The Vector Company, claiming that a majority vote was sufficient to effect a grant of its petition, applied to the Circuit Court of Berkeley County for a writ of mandamus as aforesaid. Upon the denial of such writ the then petitioner prosecutes this appeal.

The basic question presented on this appeal is whether a bare majority of the five member Board of Zoning Appeals may grant a special exception to the zoning ordinances, or whether, as contended by the Intervenors, such grant requires the votes of four of the five members. The resolution of this question necessitates consideration of certain municipal ordinances and of statutes enacted by the Legislature.

It is the position of the Intervenors that by reason of Section 901.4 of the Martinsburg Zoning Ordinance and Code, 1931, 8--24--70 and 71, as amended, the Board of Zoning Appeals was correct in ruling that it could grant the request of Vector only if four of its five members voted favorably on said request. Vector, on the other hand, asserts that a bare majority of the members of the Board can so act. In support of its position it cites Code, 1931, 8--24--52, as amended, and Code, 1931, 8--1--6, as amended.

In relation to decisions of the Board of Zoning Appeals, Section 901.4 of the Martinsburg Zoning Ordinance provides: 'The concurring vote of four of the members of the Board shall be necessary to reverse any order, requirement, decision, or determination of the Building Inspector, or to decide in favor of the applicant on any matter upon which it is required to pass under this ordinance, or to effect any variation in the application of this ordinance.'

Under the provisions of Code, 1931, 8--24--52, as amended, a majority of a Board of Zoning Appeals may act, the language thereof so providing as follows: 'A majority of the members of a board of zoning appeals shall constitute a quorum. No action of a board shall be official, however, unless authorized by a majority of all of the members of the board.' The appellee relies on this code section, along with Code, 1931, 8--1--6, as amended, which, in part, provides: ...