Albright, Chief Justice:
Presented through this consolidated appeal is the meaning of the term public water for zoning related decisions arising under both state and local laws in effect in Jefferson County, West Virginia. After careful consideration of this issue, we determine that Appellant Jefferson Utilities, Inc. (Jefferson Utilities), as a public utility within the meaning of West Virginia law, is providing public water within the meaning of the local laws at issue. With regard to the orders entered on July 9, 2004, and July 12, 2004, by the Circuit Court of Jefferson County through which the lower court ruled that zoning administrators are ministerial employees who are prohibited from exercising discretion and further held that the Jefferson County Board of Zoning Appeals (Board) must apply a de novo standard of review to decisions made by zoning administrators and are barred from deferring to any findings made by the zoning administrator, we wholly reject the reasoning employed by the circuit court. Under the local ordinance at issue, a zoning administrator is required to exercise some discretion on a limited basis when applying factors set forth in the local ordinance as part of the mandated review process. While an appeal to the Board from a determination by a zoning administrator is permitted by statute, there is no basis for the circuit court's conclusion that the Board is required on an appeal to reconsider each and every aspect of the decisions reached by the zoning administrator and is expressly prohibited from deferring to any determination made by the zoning administrator. Because both of the decisions reached by the lower court, as set forth in the July 9 and 12, 2004, orders, are predicated on the lower court's determination that the zoning administrator is prohibited from applying any discretion in the exercise of his/her duties and that the Board is concomitantly barred from deferring to findings made by a zoning administrator, each of those decisions is hereby reversed.
Jefferson Utilities filed a petition for
writ of certiorari with the circuit court, as permitted by West Virginia Code § 8-24-59
(1969) (Repl. Vol. 2003), for review of the Board's decision. Upon its review
of this matter, the circuit court issued a ruling on July 9, 2004, through which
it undertook to analyze the statutory authority and role of the zoning administrator.
After sua sponte concluding that the zoning administrator was a ministerial
employee with no discretionary powers for resolving zoning related issues or
authority to interpret terms contained in the Ordinance, the circuit court determined
that the letter opinion issued by Mr. Raco was not an official act subject to
its review because the zoning administrator lacked authority to interpret an
Ordinance provision and dismissed the action. Jefferson Utilities appeals from
the lower court's dismissal of its writ of certiorari and continues to seek a
ruling on the issue of whether it qualifies as a public utility, or
more specifically, as a provider of public water within the meaning
of the law.
Through its order of July 12, 2004, the circuit court issued rulings in a consolidated matter comprised of four separate appeals from the Board. The four separate rulings involved three proposed residential developments in the rural district of Jefferson County where each developer (See footnote 7) was seeking a conditional use permit through the DRS process to gain approval for high density development in an area zoned for rural use.
On September 9, 2003, the circuit court issued an eighty-eight page ruling concerning these matters through which it ruled that the Board erred in finding that certain support data submitted by the developers in support of their conditional use permit applications was sufficient and consequently remanded the cases for further proceedings. In addition, the trial court concluded that the Board erred in ruling that section 5.7(d) of the Ordinance permitted development of a non-residue rural parcel. Based on the pending nature of this Court's decision in Corliss v. Jefferson County Board of Zoning Appeals, 214 W.Va. 535, 591 S.E.2d 93 (2003), the circuit court reserved discretion to reconsider its ruling upon motion of either party following the issuance of the Corliss opinion. (See footnote 8) Both Buckeye Development and the Board filed motions seeking reconsideration of the trial court's September 9, 2003, ruling following the issuance of the Corliss decision. (See footnote 9)
By order entered on July 12, 2004, the
circuit court responded to the motions for reconsideration by upholding its decision
to reverse and remand. Rather than turning its decision on the insufficiency
of the support data as it had initially held in its September 9, 2003, order,
the trial court adopted a new tack by concluding that the zoning administrator
was a ministerial employee with no authority to exercise any discretion. Reasoning
that the Board had applied an improper standard of review in deferring to any
decisions reached by the zoning administrator with regard to the sufficiency
of the support data, the circuit court concluded that reversible error had been
committed. (See footnote
10) Remand was ordered for further proceedings and to require the
Board to adopt its own rules of procedure that would be patterned after standard
trial procedures. Through this appeal, both Buckeye Development and the Board
seek a reversal of the July 12, 2004, ruling and affirmance of the Board's rulings
authorizing the issuance of the conditional use permits sought by Buckeye Development
to proceed with its proposed development of the Daniel's Forest and Forest View
subdivisions. (See footnote
Appellants urge this Court to recognize that government ownership is not required to invoke the use of term public for purposes of assessing the availability of water. As support for this position, they assert that the terms public water system and public utility are defined by state law in a manner that supports viewing Jefferson Utilities as a provider of public water, rather than as a central water system provider under the reasoning employed by the zoning administrator. Pursuant to statutes enacted to govern the public health system, a public water system is defined as
any water supply or system that
regularly supplies or offers to supply water for human consumption through pipes
or other constructed conveyances, if serving at least an average of twenty-five
individuals per day for at least sixty days per year, or which has at least fifteen
service connections, and shall include: (1) Any collection, treatment, storage
and distribution facilities under the control of the owner or operator of such
system and used primarily in connection with such system; and (2) any collection
or pretreatment storage facilities not under such control which are used primarily
in connection with such system. . . .
W.Va. Code § 16-1-9a(a) (2001 & Supp. 2005).
For purposes of applying laws adopted pertaining to the public service commission, the term public utility is defined by statute to mean any person or persons, or association of persons, however associated, whether incorporated or not, including municipalities, engaged in any business, whether herein enumerated or not, which is, or shall hereafter be held to be, a public service. W.Va. Code § 24-1-2 (1979) (Repl. Vol. 2004).
This Court has previously held that the key to determining whether a public
utility is involved is not the issue of the ownership of the entity providing
the service, but instead whether that specific entity has dedicated or held
out its services, such as gas; oil; electricity; or water, to the public in
a manner that suggests that it is in the business of supplying the public,
rather than a limited class of individuals, with a particular service. See
Wilhite v. Public Serv. Comm'n, 150 W.Va. 747, 149 S.E.2d 273 (1966). In
ruling that all public utilities, whether publicly or privately owned, are
subject to the same treatment and supervision of the Public Service Commission
in State ex rel. City of Wheeling v. Renick, 145 W.Va. 640, 651, 116
S.E.2d 763, 769 (1960), this Court interpreted West Virginia § 24-1-2
to apply to privately owned suppliers of public services, such as Jefferson
Utilities. Accord Syl. Pt. 7, Affiliated Constr. Trades Found. v.
Public Serv. Comm'n, 211 W.Va. 315, 565 S.E.2d. 778 (2002) (holding that [e]lectric
generation and transmission facilities intended solely for the sale of electricity
on the wholesale market are within the statutory definition of public utility
set forth in West Virginia Code § 24-2-1 (1991) (Repl. Vol. 2001) whenever
it appears that the electricity produced will, in the course of distribution,
ultimately be sold to the public).
Jefferson Utilities is regulated by the Public Service Commission in connection with its provision of water to citizens of Jefferson County, West Virginia, and clearly qualifies as a public utility under the laws of this State. See W.Va. Code § 24-1-2. The
reasoning employed by the zoning administrator in requiring governmental ownership as a prerequisite to awarding the lowest score available for the amenities assessment element of public water availability fails to withstand scrutiny. It is the fact of the water availability itself and not the ownership of the entity providing such water that controls the issue. Rather than focusing singularly on the word public, as the zoning administrator appears to have conducted his analysis, the critical component of this portion of the amenities assessment is the fact of the availability of water that can be distributed to potential land owners _ i.e. the public. Regardless of whether the water supplier's ownership is private or public, the key component at issue is the availability of water. When the Legislature recently adopted a comprehensive land use planning schema, the term utility was expressly defined to include distribution of services by private entities. See W.Va. Code § 8A-1-2(ff) (2004 & Supp. 2005) (Utility means a public or private distribution service to the public that is regulated by the Public Service Commission.). Accordingly, we hold that a privately owned entity engaged in providing water services to the public that qualifies as a public utility or utility under state law is entitled to be viewed as providing public water for purposes of calculating the requisite land evaluation and site assessment phase of the development review system required by the Ordinance. Application of this ruling requires that under the facts of this case, Jefferson Utilities would be entitled to the lowest LESA score possible for the provision of public water, that is a 0, rather than the 3 that was awarded by Mr. Raco.
exercising its powers and authority, the board of zoning appeals may reverse
or affirm, in whole or in part, or may modify the order, requirement, decision
or determination appealed from, as in its opinion ought to be done in the
premises, and to this end shall have all the powers and authority of the
official or board from whom or which the appeal is taken.
W.Va. Code § 8-24-55 (emphasis supplied). From this language alone, the trial court concluded that the Board's power of review with regard to determinations made by the zoning administrator is de novo. Because the Board gave deference to certain factual determinations made by Mr. Raco, (See footnote 14) the circuit court concluded that the Board had applied an erroneous principle of law which required reversal. See Wolfe, 159 W.Va. at 35, 217 S.E.2d at 900, syl. pt. 5.
In attempting to define the authority of the zoning administrator, the trial court limited its analysis to one statutory provision that authorizes a municipal or county planning commissions to [d]elegate to employees authority to perform ministerial acts in all cases except where final action of the commission is necessary. See W.Va. Code § 8-24-14(5) (1969) (Repl. Vol. 2003). Because the enabling legislation that creates such planning commissions permits the hiring of employees for the accomplishment of ministerial acts combined with the fact that the Ordinance provides that the zoning administrator will be under the direct supervision of the Planning and Zoning Commission, (See footnote 15) the trial court concluded that a zoning administrator is necessarily someone hired by the commission solely to perform ministerial acts. (See footnote 16) W.Va. Code § 8-24-14(5).
This narrow reasoning, which focuses solely on a planning commission's authority to hire individuals for routine administrative matters that are ministerial in nature, (See footnote 17) fails to appreciate that the enabling legislation grants additional authority to planning commissions. The same statutory provision that authorizes the hiring of ministerial employees also grants to a planning commission general authority to [p]rescribe the qualifications of, appoint, remove and fix the compensation of, the employees of the commission. W.Va. Code § 8-24-14(4); see also W.Va. Code § 8-24-12 (1969) (Repl. Vol. 2003) (granting authority for hiring of employees necessary for the discharge of the duties and responsibilities of the commission). Under the Jefferson County ordinance, the zoning administrator is supposed to be hired by the planning commission. Consequently, the job duties and responsibilities assigned to the zoning administrator are to be determined by the planning commission or the ordinance language setting forth the duties of the zoning administrator. Contrary to the circuit court's approach to this issue, the ministerial acts statutory language is not the sole basis for identifying the zoning administrator's authority or job description. W.Va. Code § 8-24-14(5).
As additional authority for the creation of the zoning administrator position, we have previously recognized that county commissions and municipalities derive their general authority to adopt zoning ordinances from West Virginia Code § 8-24-39 (1988) (Repl. Vol. 2003). See Dewey v. Board of Zoning Appeals, 185 W.Va. 578, 581, 408 S.E.2d 330, 333 (1991); Wolfe, 159 W.Va. at 39, 217 S.E.2d at 903. That statutory provision expressly grants authority to municipalities and county commissions for the implementation of zoning laws. We have further observed that the enactment of a zoning ordinance is an exercise of the broad police power of the state, as delegated to the local governing body. See Par Mar v. City of Parkersburg, 183 W.Va. 706, 709, 398 S.E.2d 532, 535 (1990).
An integral part of extending the state's police powers to local governing bodies is the related enforcement powers that are implicitly granted to such bodies for the purpose of carrying out local laws. See State ex rel. State Line Sparkler v. Teach, 187 W.Va. 271, 275, 418 S.E.2d 585, 589 (1992) (recognizing that [t]he general rule is that a grant of the police power to a local government or political subdivision necessarily includes the right to carry it into effect and empowers the governing body to use proper means to enforce its ordinances). These principles are illustrated in the case at bar by the fact that the County Commission has reposed in the Planning Commission the responsibility for effectuating various laws, such as zoning matters, that pertain to land use. In turn, fulfillment of that responsibility for land use governance requires the employment of both employees and administrators. Central to the administration of the Ordinance under discussion is the position of zoning administrator.
The following Ordinance provisions address the responsibilities assigned to the zoning administrator: (See footnote 18)
3.2 Zoning Administrator
(a) It shall be unlawful to develop, construct, alter, or reconstruct any structure or to change the use of any structure or property without first obtaining a zoning certificate from the Zoning Administrator. . . .
decisions are typically characterized as being in one of four different categories
_ legislative, advisory, quasi- judicial, and administrative. In this case, the
question is whether the issuance of a permit for a landfill as a permitted use
with prescribed conditions is properly characterized as a quasi-judicial decision
or as an administrative zoning decision.
In making quasi-judicial decisions, the decisionmakers must investigate facts, or ascertain the existence of facts, hold hearings, weigh evidence, and draw conclusions from them, as a basis for their official action, and to exercise discretion of a judicial nature. In the zoning context, these quasi-judicial decisions involve the application of zoning policies to individual situations, such as variances, special and conditional use permits, and appeals of administrative determinations. These decisions involve two key elements: the finding of facts regarding the specific proposal and the exercise of some discretion in applying the standards of the ordinance.
Administrative decisions are routine, nondiscretionary zoning ordinance implementation matters carried out by the staff, including issuance of permits for permitted uses. In general, the zoning administrator is a purely administrative or ministerial agent following the literal provisions of the ordinance. The zoning administrator may well engage in some fact finding, as in making an initial determination as to whether a nonconforming use was in existence at the time a zoning ordinance was adopted. But, in such instances, this involves determining objective facts that do not involve an element of discretion.
434 S.E.2d at 612 (citations omitted and emphasis supplied).
The appellate court in Mecklenburg County concluded that the zoning decision was an administrative decision rather than a quasi-judicial determination, which would have required an evidentiary hearing and the use of fair trial standards. While the circuit court in
the case at bar placed great emphasis on language opining that the zoning administrator was not using discretion when he applied fact-finding to ordinance provisions, it was not the use of a nominal degree of discretion in Mecklenburg County that was key to declaring whether fair trial procedures were required, but instead the nature of the decision-making process at hand. If the decision required the use of fair trial procedures by the nature of the matters being addressed, then a quasi-judicial decision process was involved. Conversely, such procedures were not required if the decision was the type of administrative matter routinely capable of being resolved by the zoning administrator along with advice from his staff.
Just as the Jefferson County Zoning Administrator is called upon to use discretion in limited situations when applying the provisions of the Ordinance, the zoning administrator involved in the Mecklenburg County case was similarly required to engage in the application of specific facts to the provisions of the county ordinance at issue in that case. The North Carolina Supreme Court upheld the County Board of Commissioners' characterization of instances where the zoning administrator had to apply specific facts to make a determination regarding a specific factor or condition under the ordinance as an objective finding. Examples of such objective findings included when the zoning administrator was required to determine whether the anticipated future use of the property was consistent with the county's land use plan and whether the cost estimates for reclamation were 'reasonable.' 434 S.E.2d at 614. Despite the fact that the court in Mecklenburg County preferred to shroud the occasional employment of discretion by a zoning administrator in terms of an objective finding, this does not mean that discretion was not employed in making those decisions. Id. More importantly, while the North Carolina appellate court may have arguably sidestepped the exercise of discretion by a zoning administrator, it correctly formulated the process for determining whether an administrative decision requires the enhanced protections attendant to quasi-judicial proceedings.
In explaining how the zoning permit decision at issue in Mecklenburg County was not a special use zoning decision, one that would clearly involve the due process protections attendant to a quasi-judicial proceeding, the North Carolina court explained: It is not the terms used by the ordinance to describe these permits that has legal significance; it is whether the nature of the decision to be made is, in fact, quasi-judicial or administrative. 434 S.E.2d at 613 (emphasis supplied). In the same vein then, the critical factor in determining whether the use of some limited discretion by a zoning administrator requires the additional protections that typically attach in evidentiary proceedings is whether the determination being made is one that qualifies as administrative or quasi-judicial in nature.
As the court was quick to acknowledge in Mecklenburg County quasi-judicial special use permit decisions may not be assigned to the zoning administrator. 434 S.E.2d at 613. Those proceedings, which entail the presentation of evidence and the making of findings, are clearly quasi-judicial in nature. Like the ordinance under review in Mecklenburg County, the Ordinance at issue in the case sub judice does not permit the zoning administrator to issue a conditional use permit. (See footnote 19) Such a decision would clearly be outside the realm of the administrative functions he or she is charged with performing under the Ordinance. But the fact that the zoning administrator makes LESA determinations as an initial fact gatherer that are then looked to by the Board and ultimately the Planning Commission in deciding whether to issue a conditional use permit does not elevate the factual determinations reached by the zoning administrator to quasi-judicial in nature. The determinations made by the zoning administrator clearly do not involve the type of issues that require due process protections such as evidence production; cross-examination; document inspection; and sworn testimony. See Mecklenburg County, 434 S.E.2d at 612. Consequently, the fact that some minimal degree of discretion is involved by the zoning administrator in making his/her determinations regarding the LESA score does not remove the decisions reached by the zoning administrator from the administrative realm. See id.
nature of the decisions required to be made by the zoning administrator are,
as a rule, administrative in nature. Where a local ordinance requires the application
of a finding of fact to a provision of an ordinance to make a specific determination,
that determination may indeed involve the exercise of some discretion. This fact
alone _ the exercise of discretion or judgment in applying facts to a provision
of the Ordinance _ is insufficient to transform a finding made by a zoning administrator
into a quasi-judicial determination. Only those decisions that clearly demand
that due process standards be utilized in reaching the decision at hand can transform
an otherwise administrative decision into a quasi-judicial determination. From
the record before us, we do not see any indication that the determinations complained
of that the zoning administrator reached (i.e. sufficiency of submitted support
data) were of the nature that required the application of such standards.
In its haste to defrock the zoning administrator of authority to exercise even a limited amount of discretion in applying the duties he or she is charged with administering under the Ordinance, the lower court disregarded established principles of administrative and property law, as well as the fact that the law seeks to avoid absurd results. See Charter Commun. VI, v. Comm. Antenna Servs., Inc., 211 W.Va. 71, 77, 561 S.E.2d 793, 799 (2002) (recognizing that [i]t is the 'duty of this Court to avoid whenever possible a construction of a statute which leads to absurd, inconsistent, unjust or unreasonable results') (quoting State v. Kerns, 183 W.Va. 130, 135, 394 S.E.2d 532, 537 (1990)). The circuit court overlooked the necessity for allowing the individual who holds this position to exercise limited amounts of discretion. The day-to-day decisions that are demanded of the zoning administrator cannot be postponed until the Board, a group of unpaid lay people who lack a comparable degree of expertise that the zoning administrator along with his/her staff have by virtue of their customary application of zoning procedures, holds its monthly or bi-monthly meetings. If the decisions typically made by the zoning administrator are transferred to the Board or the Planning Commission, the Board maintains that those bodies would be overwhelmed by the sheer volume of decisions that are routinely presented and which require prompt attention. Zoning matters would virtually grind to a halt if this Court were to adopt the position articulated by the circuit court.
The lynchpin on which the trial court based its rulings regarding the erroneous application of a legal principle was its conclusion that the zoning administrator's decisions were not entitled to any deference by a reviewing body such as the Board. We reject the trial court's reasoning and hold that the provisions of West Virginia Code § 8-24-55, which set forth the authority and power of a board of zoning appeals, do not expressly or implicitly prevent that administrative body from utilizing principles of deference typically employed in administrative proceedings in reviewing determinations reached by a zoning administrator. See, e.g., Corliss, 214 W.Va. at 542, 591 S.E.2d at 100 (discussing weight to be accorded to administrative bodies charged with handling zoning matters). Moreover, the fact that the Board has the power to reverse, affirm, or modify does not mean that the Board cannot defer to specific factual findings reached by the zoning administrator. See W.Va. Code § 8-24-55. It is this Court's opinion that the statutory powers of review extended to the Board by West Virginia Code § 8-24-55 place the decision of when, or if, to defer to a specific decision reached by a zoning administrator within the prerogative of the Board. Consequently, the fact that the Board adopts a finding reached by the zoning administrator, such as the adequacy of the support data submitted in connection with a conditional use application, is not fatal with regard to a Board's review of a zoning matter. To conclude otherwise would require a duplication of efforts that simply is not required or warranted. While we certainly recognize that the review mechanism established by West Virginia Code § 8-24-55 plays a vital role with regard to challenged zoning matters, there is no basis for concluding that this review process mandates that the Board is required to start from scratch in conducting its review of a matter before it. Cf. W.Va. Code § 8-24-64 (1969) (Repl. Vol. 2003) (expressly providing that circuit court's review of appealed zoning matters shall not be by trial de novo). Moreover, we decline to label the powers of review set forth in West Virginia Code § 8-24-55 for zoning boards of appeal as entailing de novo review. (See footnote 20) As a quasi-judicial body (See footnote 21) created by statute, the powers of review afforded to a zoning board of appeals are delineated solely by statute and should not be analyzed under standards that apply to judicial determinations. See Dewey, 185 W.Va. at 582, 408 S.E.2d at 334 (recognizing that scope of zoning board's authority is determined by W.Va. Code § 8-24-55).
concludes that the Conditional Use Permit process allows a prospective subdivider
to subdivide the property into greater number of lots with a greater density
than may be allowed in the rural district pursuant to section 5.7, Zoning Ordinance.
The Board concludes that section 5.7(d)(3 and 4) does not apply in the stage
of the proceedings. The developer seeks to subdivide his property into a greater
number of lots than may be allowed by section 5.7. The developer may only do
this if he complies with the Conditional Use Permit process and obtains the permit.
Therefore the board concludes that the limitation set forth in section 5.7 pertaining
to the subdivision of a residue or parent parcel are not applicable at this stage
of the process.
In disregarding the Boards's interpretation of a law that it is charged with enforcing, the circuit court violated the tenet of administrative law that interpretations by administrative bodies charged with enforcement responsibilities are given great weight unless clearly erroneous. See Syl. Pt 4, in part, Security Nat'l Bank & Trust Co. v. First W.Va. Bancorp, 166 W.Va. 775, 776, 277 S.E.2d 613, 614. Just as in Corliss, the trial court substituted its judgment in its September 9, 2003, order for that of the administrative body charged with enforcing the Ordinance, declaring that the goals of the Comprehensive Plan and the purposes of the Ordinance are not implemented by the process urged by the Respondent and the Intervenors [use of the conditional use permit application process]. As in Corliss, we are hard pressed not to conclude that the trial court wrongly refused to grant the appropriate amount of deference to one of the administrative bodies charged with responsibility for enforcing the Ordinance. While the trial court declared the Board's
interpretation of section 5.7 to be in error, we find no firm basis for reaching that conclusion. Accordingly, we conclude that the Board's interpretation of section 5.7 as allowing the conditional use permit application process as the specified procedural mechanism for seeking approval for development of property that was not a parcel in existence on October 5, 1988, is a valid interpretation of the Ordinance, given that the language authorizing the use of the conditional use permit application process immediately follows the language which pertains to the Ordinance provisions referencing the maximum number of lots that can be developed.
Based on the foregoing, the decisions of the Circuit Court of Jefferson County entered on July 9 and 12, 2004, are hereby reversed and the matters are remanded for further proceedings consistent with the holdings contained in this opinion. (See footnote 24) With respect to those appeals in the Kletter case in which the board of zoning appeals previously issued the requested conditional use permits, the lower court relied upon improper grounds to reverse those administrative decisions; consequently, the trial court is hereby directed to enter an order approving the reissuance of the subject permits and adjust, where necessary, any time deadlines established in the Ordinance that may have passed during the pendency of this appeal so that the parties are not penalized for pursuing their statutory rights of appeal.