Wolfe v. Forbes, 13228

• Decision Date: 09 September 1975
• Docket Number: No. 13228,13228
• Court: West Virginia Supreme Court
• Parties: James S. WOLFE, etc. v. Gladys FORBES et al. Robert P. BLACKWELL et al. v. The CITY OF MOUNDSVILLE et al.

Page 899

217 S.E.2d 899

159 W.Va. 34

James S. WOLFE, etc. v. Gladys FORBES et al.

Robert P. BLACKWELL et al. v. The CITY OF MOUNDSVILLE et al.

No. 13228.

Supreme Court of Appeals of West Virginia.

Sept. 9, 1975.

Syllabus by the Court

1. After having taken final action on an application for a variance from the terms and requirements of a zoning ordinance, as permitted by W.Va.Code 1931, 8--24--55, as amended, a board of zoning appeals is without power to reopen and grant a rehearing or reconsideration of its action, in the absence of new facts alleged or of authority reposed in the board under the express provisions of the ordinance.

2. 'To justify the application of the doctrine of Res judicata, '* * * there must be a concurrence of four conditions, namely: (1) identity in the thing sued for; (2) identity of the cause of action; (3) identity of persons, and of parties to the action; (4) identity of the quality in the persons for or against whom the claim is made.' Opinion. Marguerite Coal Co. v. Meadow River Lumber Co., 98 W.Va. 698 (127 S.E. 644).' Syllabus, Hannah v. Beasley, 132 W.Va. 814, 53 S.E.2d 729 (1949).

3. A determination by a zoning appeals board to reopen and rehear an application for a variance in the use of property, based upon new facts alleged, should not be disturbed by a reviewing court unless it is contrary to law or plainly wrong under the evidence presented.

4. It is a fundamental rule of construction that, in accordance with the maxim Noscitur a sociis, the meaning of a word or phrase may be ascertained by reference to the meaning of other words or phrases with which it is associated. Language, although apparently general, may be limited in its operation or effect where it may be gathered from the intent and purpose of the statute that it was designed to apply only to certain persons or things, or was to operate only under certain conditions.

5. 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.

John T. Madden and G. Charles Hughes, Moundsville, George G. Bailey, Wheeling, for plaintiffs in error.

S. Robert Reiter, Wheeling, for Gladys Forbes, defendant in error.

HADEN, Chief Justice:

This is a consolidated appeal by James S. Wolfe, City Manager and Zoning Administrative Officer of the City of Moundsville and Robert P. Blackwell, Et al, protesting adjoining property owners, from a final judgment of the Circuit Court of Marshall County, which affirmed the decision of the Board of Zoning Appeals of the City of Moundsville in its granting of a use variance to Gladys Forbes permitting the operation of a rest home within a residential area designated as R--3 by the City's Zoning Ordinance.

The principal issue of this appeal is whether Moundsville's Board of Zoning Appeals, a creature of statute and ordinance, was given discretion by the City of Moundsville Zoning Ordinance of June 13, 1960 to grant Ms. Forbes authorization to use her property in a manner otherwise prohibited by the Zoning Ordinance. For reasons which shall appear, this Court is of the opinion that the Board of Zoning Appeals was without such discretion and, therefore, exceeded its lawful powers. Accordingly, the judgment of the court below must be reversed.

For a period of time beginning two or three years prior to September 1970, Gladys Forbes established and operated for profit a custodial care facility for eight to ten elderly indigent persons on the premises of a rented house at 1207 Short Center Street in Moundsville. Under the terms of the Zoning Ordinance of the City of Moundsville, as enacted in 1960, this business was an illegal ¹ nonconforming use when conducted within an R--3 zone. ² By Article VI, § 2 of the Ordinance, the permitted uses of the premises at 1207 Short Center Street generally were restricted to a two-family residential use.

When Ms. Forbes discovered she was using the premises in violation of the Zoning Ordinance, she applied to the Zoning Administrator of Moundsville for a Certificate of Occupancy to use the premises as a nursing home. On September 18, 1970, James S. Wolfe, the Zoning Administrative Officer, refused the Forbes' application because, in his opinion, the Ordinance prohibited the proposed use within an R--3 zone. Ms. Forbes then applied to the Board of Zoning Appeals for a variance from the terms of the Ordinance which would permit the use of her house as a nursing home. The Board denied her request. Thereafter, she filed a petition for a writ of certiorari to the Circuit Court of Marshall County. That court denied the relief sought and affirmed the action of the Board. Ms. Forbes did not appeal that decision of the circuit court.

Later, in July 1971, she filed a second application with the Board of Zoning Appeals seeking a variance to operate the premises at 1207 Short Center Street as a rest home. On this occasion she was successful and the Board awarded the variance. In separate applications, Wolfe, the Zoning Administrative Officer, and Robert P. Blackwell, along with twenty-six protesting adjoining owners of property located near the Forbes' premises, sought a review of the Board's decision by certiorari in the Circuit Court of Marshall County. The court granted the two separate applications, consolidated the separate proceedings into one and reviewed the record from the Board hearing. To make up a record of the proceedings before the Board of Zoning Appeals the Board entered an order containing the findings of fact it had reached in granting the variance to Ms. Forbes.

The circuit court made the Board's order a part of the record, reviewed and considered it with other evidence at a hearing conducted on December 6, 1971. Thereafter, the court rendered its memorandum of opinion and final order affirming the Board's decision.

As an initial matter, the appellants argue that all of the facts and questions considered at the second Board of Zoning Appeal's hearing on the application for the rest home variance were identical to those considered and decided by the Board in its first proceeding which passed upon the application for the nursing home. If this be so, then the general principles of Res adjudicata and the rule established in Mustard v. City of Bluefield, 130 W.Va. 763, 45 S.E.2d 326 (1947) would have negated the Board's power to conduct a second hearing. In Mustard, supra, this Court held:

'Under a zoning ordinance of a municipal corporation, implementing Code, 8--5--7, (now W.Va.Code 1931, 8--24--55, as amended) 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.' Syllabus point 1., Id.

The Zoning Ordinance makes no relevant reference either to nursing homes or rest homes. Obviously, the distinction, if any, between the two activities must be found in the record of the case or in the general law of this State. The record contains letters from the West Virginia Department of Welfare addressed to Ms. Forbes' counsel which notes legal distinctions between nursing homes and rest homes, the latter being euphemized as 'Personal Care Homes.' In the former, the administrator is required to be licensed by the State and to meet standards which mandate available medical care for the patients of the home and requiring, at a minimum, professional nursing skills. See W.Va.Code 1931, 16--5C--2(a), as amended; see generally, W.Va.Code 1931, 16--5C--1 Et seq. and 16--5D--1 Et seq., as respectively amended. Personal care homes, on the other hand, are places for the care of aged or infirm persons whose primary need is a home with such sheltered and custodial care as their age or infirmities require, and where medical attention is only occasional or incidental to the principal services rendered. See W.Va.Code 1931, 16--5E--1 Et seq., as amended.

Both the record of this case and the law demonstrate significant differences between Ms. Forbes' first and second applications for a variance. Accordingly, the Court is of the opinion that the Board of Zoning Appeals did not purport to 'rehear' the first Forbes' application for a variance while entertaining the second. Likewise, because the second application materially differed from the first, the principle of Res adjudicata does not apply to bar an application for a new variance. In this regard, the Court has recognized and applied the rule that:

'To justify the application of the doctrine of Res judicata, '* * * there must be a concurrence of four conditions, namely: (1) identity in the thing sued for; (2) identity of the cause of action; (3) identity of persons, and of parties to the action; (4) identity of the quality in the persons for or against whom the claim is made.' Opinion. Marguerite Coal Co. v. Meadow River Lumber Co., 98 W.Va. 698, 127 S.E. 644.' Syllabus, Hannah v. Beasley, 132 W.Va. 814, 53 S.E.2d 729 (1949).

We are of the further opinion that determinations made by a board of zoning appeals that there were material changes and new facts upon which the board could entertain a second application for a variance in the use of property, presented mixed questions of fact and law. As such, the decision to entertain a second application should not be disturbed by a reviewing court unless it is contrary to law or plainly wrong under the evidence. See Tidewater Utilities Corp. v. City of Norfolk, 208 Va. 705, 160 S.E.2d 799 (1968); C. & C., Inc. v. Semple, 207 Va. 438, 150...