This case is before the Court upon the appeal of the City of Hurricane and the City of Hurricane Sanitary Stormwater Board (collectively referred to as the Appellants) from the July 30, 2009, Order of the Circuit Court of Putnam County, West Virginia, granting summary judgment to the Appellees, B. A. McClure and Cheryl McClure, in a declaratory judgment action. (See footnote 1) The Appellants alleged that the circuit court erred: 1) in finding that the building of individual residential dwellings by the Appellees did not qualify as new development projects or redevelopment projects under the provisions of Hurricane Municipal Ordinance §§ 936.01 to 936.44 (2005); 2) in applying the legal principle of nonconforming use to find that the Appellees' development fell within the grandfather clause of the ordinance; and 3) in failing to recognize that the Appellants' responsibility to assure the health and safety of its citizens outweighs the Appellees' interest in not having to comply with the provisions of the Hurricane ordinance. Id. Based upon a review of the parties' briefs and arguments, the record, and all other matters submitted before this Court, the Court reverses and remands the circuit court's decision.
The Appellants refused to issue building permits based upon the Appellees'
failure to comply with the provisions of Hurricane Municipal Ordinance §§ 936.01 to 936.44.
This ordinance was adopted by the City on November 1, 2004, and required that within
twelve months, the City would enact requirements and standards for stormwater management
and drainage effective upon all new developments and redevelopment projects. The City
adopted those standards on June 6, 2005.
The Hurricane Municipal Ordinance § 936.20 (a) provides:
The requirements and standards of this section shall apply to all new developments and redevelopment projects including the disturbance of land activities of any kind, on any lot, tract, parcel or land or any portion thereof. The intent of these regulations is to minimize the discharge and transport of pollutants to storm drain systems and prevent the deterioration of water quality.
Id. (emphasis added). Further, the terms develop or development are defined in Hurricane Municipal Ordinance § 936.03(m) to mean
any land disturbance that changes the runoff or erosion characteristics of a lot, tract, parcel of land, or any portion thereof, in conjunction with residential, commercial, industrial, or institutional construction, alteration, or modification that has the potential to change the runoff or erosion characteristics of a lot, tract, or parcel of land, or any portion thereof, in conjunction within residential, commercial, industrial or institutional construction, alteration or modification.
Likewise, the term redevelopment is defined in the ordinance as any reconstruction, alteration or improvement of land disturbance performed on any site or modification to an existing property that requires or would require a building permit under existing ordinance. Hurricane Mun. Ord. § 936.03(ff).
The Appellants argue that the Appellees must comply with Hurricane Municipal Ordinance §§ 936.01 to 936.44. 936, including the provision requiring a stormwater retention pond, before the Appellants will issue any additional building permits for the remaining lots in the Appellees' subdivision. Because of the Appellants' refusal to issue additional building permits, the Appellees have been unable to construct the remaining thirty homes in the development.
On or about August 17, 2006, the parties submitted an Agreed Order of Findings of Facts and List of Issues of Law to be Ruled Upon by the Court. Thereafter, the Appellees filed a motion for summary judgment on September 8, 2006, to which the Appellants responded and a hearing was held before the circuit court; however, the record does not reflect the date of the hearing. (See footnote 3) Likewise, there is no transcript of any hearing on the motion for summary judgment in the record.
On January 27, 2009, the Appellees filed a substitution of counsel and the Appellees' new counsel, (See footnote 4) who is the current counsel on appeal, filed a motion for leave to amend the complaint to assert monetary damages. At an April 3, 2009, hearing, prior to the taking up the Appellees' motion to amend their complaint, the circuit court advised the parties that based upon the pleadings in the circuit court's file and transcripts of the prior hearing, it intended to rule in favor of the Appellees and hold that the relevant ordinance was not applicable to their subdivision. The circuit court also gave the Appellants thirty days to respond to its intended ruling in the case, acknowledging that none of the parties were prepared to address the specific declaratory judgment issues at the hearing.
Subsequently, within the thirty-day time frame set by the circuit court, the parties filed additional briefing on the summary judgment motion pending before the Court. On July 30, 2009, the circuit court entered its Order granting summary judgment in the Appellees' favor, determining that the relevant ordinance was not applicable to the Appellees' subdivision. (See footnote 5)
The focus of the instant appeal is predicated upon the circuit court's legal determination that Hurricane Municipal Ordinance §§ 936.01 to 936.44 does not apply to the construction of new residential housing development in the Appellees' subdivision. The Appellants argue that the circuit court erred in determining that the ordinance did not apply to the Appellees' project because it was neither new development nor redevelopment. The Appellants maintain that each individual home that has been built in the Appellees' subdivision was required to have a separate and individual building permit. Thus, the Appellants posit that each building permit application sought for the erection of a residential dwelling for the remaining lots in the Appellees' subdivision is new development as contemplated by Hurricane Municipal Ordinance § 936.20(b). On the other hand, the Appellees assert that the circuit court correctly concluded that the ordinance, by its express terms, does not apply to the Appellees' subdivision, as the ongoing development of the subdivision, (See footnote 6) which began five years prior to the effective date of the ordinance, is neither new nor redevelopment.
As previously mentioned, the term development is defined, in pertinent part, in the ordinance as
any land disturbance that changes the runoff or erosion characteristics of a lot, tract, parcel of land, or any portion thereof, in conjunction with residential, . . . construction, alteration, or modification that has the potential to change the runoff or erosion characteristics of a lot, tract, or parcel of land, or any portion thereof, in conjunction with residential, . . . construction, alteration or modification.
Hurricane Mun. Code § 936.03(m). The term development, however, is preceded by the
word new in Hurricane Municipal Ordinance § 936.20(a). So, the requirements and
standards for the stormwater management and erosion control comprehensive drainage
plans shall apply to all new developments and redevelopment projects including the
disturbance of land activities of any kind, on any lot, tract, parcel or land. . . . Id. (emphasis
added). Thus, the resolution on the issue presented turns on whether building a new home
on a lot in an existing or ongoing subdivision project is sufficient to trigger application of the
Where the language of a statute is clear and without ambiguity the plain meaning is to be accepted without resorting to the rules of interpretation. Syl. Pt. 2, State v. Elder, 152 W. Va. 571, 165 S.E.2d 108 (1968). Further,
this Court observed that the relevant statutes had to be read in pari materia and any ambiguous provisions in the statutes should be interpreted in such a manner as to avoid conflict and give effect to all of the provisions of the related sections of the statutes. Syllabus Point 1, in part, Carolina Lumber. . . . See also Syllabus Point 5, Fruehauf Corp. v. Huntington Moving & Storage Co., 159 W. Va. 14, 217 S.E.2d 907 (1975) (Statutes which relate to the same persons or things, or to the same class of persons or things, or statutes which have a common purpose will be regarded in pari materia to assure recognition and implementation of the legislative intent. Accordingly, a court should not limit its consideration to any single part, provision, section, sentence, phrase or word, but rather review the act or statute in its entirety to ascertain legislative intent properly.).
Richards v. Harman, 217 W. Va. 206, 210, 617 S.E.2d 556, 560 (2005).
There is no argument raised regarding any ambiguity in the subject ordinance, so this Court must accept the plain meaning of the ordinance before us. First, the term new is defined as beginning as the resumption or repetition of a previous act or thing. Merriam-Webster's Collegiate Dictionary 834 (11th ed. 2005). Under this definition of the word new, the further development of the remaining lots in the Appellees' subdivision by the construction of additional homes is the repetition of the previous acts of constructing the existing homes. To this end, it is undeniable that the development of each additional lot within the Appellees's subdivision is new development to which the provisions of Hurricane Municipal Ordinance § 936.20 were intended to apply.
Next, the Court must also read the entire ordinance in pari materia, rather than focusing upon a single word, in this case the word new, as the circuit court did. When the entire ordinance is examined, it is clear that the ordinance governs the Appellees' subdivision. For instance, Hurricane Municipal Ordinance § 936.10 provides
No person(s), individual(s), landowners, developer(s), operator(s) or their assign(s) shall be allowed to develop or engage in land disturbing activities of any kind, on any lot, tract, parcel of land, or any portion thereof for residential . . . development, redevelopment, addition or modification without obtaining and providing the appropriate Permits, including, but not limited to . . . Stormwater Management and Erosion Control Plan, or any/all documents, notices, agreements, bonds, or permits required by the City of Hurricane . . . to manage stormwater or any/all other land disturbing activities regulated by the City. . . .
Id. (emphasis added). Further, Hurricane Municipal Ordinance § 936.13(a) provides that
(a) Any person(s), individual(s), landowner(s), developer(s), operator(s) or their assign(s) that intend to develop or engage in land disturbing activities of any kind, on any lot, tract, parcel of land or any portion thereof for development, redevelopment, construction, addition or modification work in the City watershed of the City must hold a pre-construction meeting with the Designated Manager prior to the initiation of any construction or land disturbing activities. . . .
Id. (emphasis added). Finally, under the enforcement provisions of the ordinance, [n]o
person(s), individual(s), landowner(s), developer(s), operator(s), or their assign(s) shall
construct or maintain any property, residence or business not in compliance with the
standards of this Article. Hurricane Mun. Ord. § 936.19(a) (emphasis added).
Based upon the foregoing, the City, in enacting the relevant ordinance, not only broadly defined development, to include any land disturbance, but also repeatedly provided throughout the ordinance that it governed developers, who are developing or constructing residential lots, tracts or parcels of land. Hurricane Mun. Ord. § 936.06(mm), § 936.10; and § 936.19(a). Accordingly, the Court holds that the provisions of Hurricane Municipal Ordinance §§ 936.01 to 936.44 (2005) govern all new development and redevelopment projects including the disturbance of land activities of any kind, on any lot, tract, parcel or land or portion thereof and, therefore, the construction of new residential homes in an existing subdivision falls within the purview of the ordinance. Because the Appellees seek to further develop the remaining lots in their subdivision by constructing residential homes on those lots, such development falls within the purview of the ordinance at issue and, therefore, the Appellees must comply with the requirements of the ordinance. Id.
The circuit court further found, however, that
the Defendants have blocked the completion of the remaining thirty homes under the claim that the City will not issue individual building permits without a stormwater retention plan for the entire subdivision, treating the project as a whole. The Defendants also raise the issue that the subdivision may have been built in phases as a reason to apply the new ordinance to the McClures' entire project. The Defendants cannot treat the project as one project for purposes of requiring and implementing a stormwater pond and then treat the construction project as individual homes under individual building permits for purposes of applying the ordinance to the project.
On appeal, the Appellants argue that they could not agree more that the ordinance was clearly intended to apply to only those building permits issued after the date the ordinance was enacted. While it appears that the Appellants may have changed their position on the issue of requiring the Appellees to put in a stormwater retention plan for the entire subdivision, the express terms of Hurricane Municipal Ordinance §936.20(a) provide that the stormwater management and erosion control comprehensive drainage plan requirements and standards apply only to new construction and redevelopment. Id. The Appellants, therefore, cannot require the Appellees to implement a stormwater management plan for that portion of the subdivision that has existing construction and, thus, is neither new development nor redevelopment. The ordinance applies only to any new construction or redevelopment on lots, tracts, parcels, land or any portion thereof in the subdivision.
B. Applicability of the Grandfather Clause contained within the provisions of Hurricane Municipal Code
Hurricane Municipal Ordinance § 936.22 (a) provides that [f]ollowing June 6, 2005, no building permit shall be issued without an approved stormwater management plan required under this Article. Id. The circuit court found that this provision clearly recognizes that the stormwater ordinance would apply to only building permits issued after the date the ordinance was enacted that actually required a stormwater management plan (new developments and redevelopment projects). Thus, the circuit court found that, because the Appellees' subdivision began before both the date of the ordinance was approved and the date stated in the ordinance, a stormwater management plan was not required for the Appellees' subdivision prior to the issuance of a building permit.
The Appellants argue that the circuit court erred in applying the legal principle of nonconforming use (See footnote 7) to find that the Appellees were grandfathered (See footnote 8) from complying with the stormwater ordinance. The Appellees, on the other hand, assert that the circuit court did not err in its determination that the Appellees' development fell within the purview of the grandfather clause of Hurricane Municipal Ordinance § 936.22.
The circuit court's ruling ignores the express language of the ordinance. So long as a building permit is sought after June 6, 2005, it will not issue without an approved stormwater management plan as required by the ordinance. Id. The Appellees sought the
building permits in this case after June 6, 2005. Accordingly, the Appellees were not exempted from complying with the ordinance.
As additional support for the circuit court's conclusion that the Appellees' requests for building permits fell within the grandfather clause of Hurricane Municipal Ordinance § 936,22(a), the circuit court relied upon the decision of this Court in H.R.D.E., Inc. v. Zoning Officer of the City of Romney, 189 W. Va. 283, 430 S.E.2d 341 (1993). (See footnote 9) The circuit court recognized that this decision was a zoning case, but relied on the decision anyway, stating
the same concerns arise for stormwater management ordinances as arise in zoning ordinances: permanent restrictions and burdens on the use of land, the hardship of immediate compliance with new ordinances regulating existing uses, and the reduction on the value of property with the ordinance in place. Therefore, the Court finds the closest precedents to guide this Court are zoning regulations, even though stormwater regulations are not zoning regulations per se.
In H.R.D.E., a landowner brought an action challenging the Romney City
Council's affirmance of an order of the board of zoning appeals' denial of a building permit
for construction of property for elderly and physically handicapped. Id. at 284, 430 S.E.2d
at 342. The landowner had purchased property, including culverts and storm sewers for the
access road. Id. at 285, 430 S.E.2d at 343. Material for the project also had been delivered
and unloaded on the construction site. Id. The construction, however, had not begun and
was delayed. Id. The City of Romney, in the interim, began the process of enacting a zoning
ordinance, which ultimately became law. Id. at 285-86, 430 S.E.2d at 343-44. The landowner then sought a building permit for construction of an apartment building, which
was disapproved because the building was to be constructed in a residential district and the
project failed to qualify as a nonconforming use. Id. at 286, 430 S.E.2d at 244.
The Court, on appeal, found that the issue to be addressed was whether the actions of the landowner were sufficient to establish a vested right to a nonconforming use as the project was started several years before the zoning ordinance was enacted. Id. The Court determined that the landowner had vested rights to complete the project to build the housing for the elderly and physically handicapped as a nonconforming use, even though the landowner had not completed or even started the project before the zoning ordinance was enacted. H.R.D.E., 189 W. Va. at 288, 430 S.E.2d at 346.
The reliance by the circuit court on this Court's decision in H.R.D.E. was erronous. The decision in H.R.D.E. dealt with a nonconforming use, a concept which is part of the law of zoning. H.R.D.E., 189 W. Va. at 286, 430 S.E.2d at 344 (A nonconforming use is '[a] use which lawfully existed prior to the enactment of a zoning ordinance, and which is maintained after the effective date of the ordinance, although it does not comply with the zoning restrictions applicable to the district in which it is situated[.]' 1 Robert M. Anderson, American Law of Zoning 3d, § 6.01, at 446 (1986).). The applicability of the instant ordinance to the new construction in the Appellees' subdivision is not analogous to nonconforming use in a zoning case. The subject ordinance was not enacted as part of a comprehensive plan and did not change or alter the character or use of the Appellees' property. See, e.g., Largent v. Zoning Bd. of Appeals for the Town of Paw Paw, 222 W. Va 789, 671 S.E.2d 794 (2008). To the contrary, the resolution of the instant matter was one of statutory construction. (See footnote 10)