IN THE SUPREME COURT OF APPEALS OF WEST
VIRGINIA
September 1997 Term
___________
No. 23978
___________
STEVE RANSON AND
CHERYL RANSON, HIS WIFE,
Plaintiffs Below, Appellants
v.
CITY OF CHARLESTON AND THE
BOARD OF ZONING APPEALS,
Defendants Below, Appellees
___________________________________________________
Appeal from the Circuit Court of Kanawha County
Honorable Herman G. Canady, Jr., Judge
Civil Action No. 95-C-2644
AFFIRMED
___________________________________________________
Submitted: October 8, 1997
Filed: October 24, 1997
Thomas R. Goodwin
Dennis C. Taylor
Goodwin & Goodwin
Charleston, West Virginia
Attorneys for the Appellants
Joyce F. Ofsa
Trina L. Leone
Spilman, Thomas & Battle
Charleston, West Virginia
Attorneys for the Appellees
This Opinion was delivered PER CURIAM.
CHIEF JUSTICE WORKMAN, deeming herself disqualified, did not participate in the decision of this case.
SYLLABUS BY THE COURT
"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).
Per Curiam:See
footnote 1 1
This action is
before this Court upon an appeal from the final order of the
Circuit Court of Kanawha County entered on January 18, 1996.
Pursuant to that order, the circuit court affirmed the decision
of the Charleston Board of Zoning Appeals (hereinafter BZA)
holding that a wall built on appellants' property was in
violation of a zoning ordinance and that no variance would be
granted. This Court has before it the petition for appeal, the
designated record, and the briefs and argument of counsel. As
discussed below, this Court is of the opinion that the circuit
court acted correctly in affirming the decision of the BZA.
Accordingly, the final order is affirmed.
I
In 1994,
appellants purchased a home on Grosscup Road in Charleston, West
Virginia. Shortly thereafter, appellants obtained a building
permit and began a renovation project on their new home and
surrounding property. As part of the renovations, appellants
began constructing a brick wall around the perimeter of their
property. Several months later, the City of Charleston
(hereinafter City), learned that the appellants'
remodeling work was exceeding the costs
authorized by their building permit. The City requested that
appellants upgrade their permit. When they failed to do so, the
City issued a stop work order. In response, appellants applied
for and received a new building permit authorizing $150,000
renovations.
Just over a month
later, the City issued a second stop work order. This time the
appellants were informed that the wall being constructed was in
violation of a city ordinance because portions of the wall along
the front of the property were more than six feet high.See footnote 2 2 In
order to lift the cease and desist order, appellants applied for
a height variance. At this point, appellants also hired an
engineer to inspect their wall. The appellants informed the
engineer that the planned renovations called for filling
depressions on the property with fill dirt. Based upon this
information and his inspection of the wall, the engineer issued
an opinion that the appellants' wall met the definition of
"retaining wall" set forth in the BOCA Code.See footnote 3 3 Subsequently,
appellants contacted the City and
contended that their wall was a "retaining
wall" and therefore exempt from the six-foot height
restriction.
On April 10,
1995, appellants received a letter from the City planning
director stating that he agreed that the wall was a retaining
wall and therefore, in his opinion, the appellants would not need
a variance. Accordingly, appellants withdrew their request for a
height variance. After learning that appellants were no longer
seeking a variance, several of appellants' neighbors, who had
expressed dissatisfaction with the wall from the time
construction began, appeared at the BZA offices and registered
complaints. Thereafter, a third stop work order was issued.
On May 11, 1995,
appellants filed an application with the BZA for a declaration
that the wall was a retaining wall and in compliance with the
city ordinance. Alternatively, appellants sought a two-foot
height variance. Following an evidentiary hearing on the request,
the BZA issued its decision on June 19, 1995. The BZA concluded
that the wall was "essentially constructed to enclose the
perimeter of the applicant's property and provide a barrier
between that property and the property of others." The BZA
also found that appellants demonstrated no hardship unique to the
property and refused to grant a two-foot variance. Appellants
sought relief in the circuit court by filing
a Petition for Writ of Certiorari and Complaint
for Damages. Following hearings and supplementation of the
record, the circuit court affirmed the decision of the BZA as
reflected in the final order.
II
Our general
standard of review presumes that the actions of a board of zoning
appeals were proper. We have held that: "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). See also syl. pt. 3, Harding v.
Board of Zoning Appeals of the City of Morgantown, 159 W. Va. 73,
219 S.E.2d 324 (1975); syl. pt. 3, Shannondale v. Jefferson
County Planning, 199 W. Va. 494, 485 S.E.2d 438 (1997).
Appellants
contend that the BZA's interpretation of section 22-3(c) of the
city zoning ordinance,See
footnote 4 4 does not comport with common sense, the
BOCA Code's definition of "retaining wall,"See footnote 5 5 or
the opinions of any of the experts who testified at the BZA
hearing. Appellants further contend that the BZA erred in its
factual findings by concluding that the subject wall was intended
either exclusively or primarily as a
perimeter wall. In this case, appellants are
essentially requesting this Court to assume the role of the BZA
and declare that placing dirt against the interior portion of
their wall makes it a "retaining wall" which is exempt
from the ordinance requirements. Our standard of review requires
us to decline that request.
With respect to
interpretation of the ordinance at issue, we cannot ignore the
BZA's conclusion that declaring the appellants' wall to be a
retaining wall would be tantamount to amending the ordinance. The
BZA points out that such action would encourage citizens to
circumvent the ordinance by building walls of any height and then
justifying them as being retaining walls by placing fill dirt
against them. We are mindful of our declaration in Wolfe, that
"[a] board of zoning appeals is not a law-making body and,
consequently, has no power to amend the zoning ordinance under
which it functions." 159 W. Va. at 45, 217 S.E.2d at 906.
Accordingly, we find that the BZA did not apply an erroneous
principle of law and acted within its jurisdiction in ruling upon
appellants' application.
Regarding the
BZA's factual findings, we first note that the BZA held an
extensive public hearing. The BZA heard testimony from the
appellants' engineer and city officials as well as statements
from the appellants and concerned citizens. Based upon
information obtained at that hearing, the BZA issued a detailed
order setting forth findings of fact and conclusions of law in
support of its decision to deny the appellants' request. A
crucial finding of the BZA was that the wall was never intended
to be a "typical
retaining wall." The record reflects that
throughout the proceedings in this case, appellants offered
different explanations for the wall. In the first instance, the
wall was to fence in a vicious pet dog. Eventually, appellants
revealed that the enclosed yard was going to be a play area for
their children. Appellants stated that they intended to level the
yard and in doing so, would be placing dirt against the interior
part of the wall making it a retaining wall. We find that the
BZA's factual findings are supported by the record and therefore
are not plainly wrong.
Based upon all of
the above, the final order of the Circuit Court of Kanawha County
is affirmed.
Affirmed.
Footnote: 1 1 We point out that a per curiam opinion is not legal precedent. See Lieving v. Hadley, 188 W. Va. 197, 201 n. 4, 423 S.E.2d 600, 606 n. 4 (1992) ("Per curiam opinions . . . are used to decide only the specific case before the Court; everything in a per curiam opinion beyond the syllabus point is merely obiter dicta. . . . Other courts, such as many of the United States Circuit Courts of Appeals, have gone to non-published (not- to-be-cited) opinions to deal with similar cases. We do not have such a specific practice, but instead use published per curiam opinions. However, if rules of law or accepted ways of doing things are to be changed, then this Court will do so in a signed opinion, not a per curiam opinion.").
Footnote:
2 2
The height restriction at issue in this case is found in section
22-3(c) of the Zoning Ordinance of the City of Charleston:
Fences, walls, terraces, steps, or other similar features may project into a required setback, except as provided under Sec. 22-4, Vision field, but shall not exceed six feet in height. However, retaining walls (and fences in commercial and industrial districts) may exceed six feet in height, provided they do not violate the provision of Sec. 22-4, Vision field.
Footnote: 3 3 The BOCA (Building Officials & Code Administrators International, Inc.)
National Building Code, § 1812.2 (12 ed. 1993), defines "retaining wall" as "A wall designed to resist the lateral displacement of soils and other materials." The City's zoning ordinance does not specifically define retaining wall.
Footnote: 4 4 See note 2, supra.
Footnote: 5 5 See note 3, supra.