Stephen R. Fanok
Morgantown, West Virginia
Attorney for the Appellant
David J. Straface
Angotti & Straface, L.C.
Morgantown, West Virginia
Attorney for the Appellee
The Opinion of the Court was delivered PER CURIAM.
JUSTICE BROTHERTON did not participate.
JUDGE FOX sitting by temporary assignment.
"Courts are not disposed to declare an ordinance invalid
in whole or in part where it is fairly debatable as to whether the
action of the municipality is arbitrary or unreasonable." Syllabus
point 4, DeCoals, Inc. v. Board of Zoning Appeals, etc., 168 W.Va.
339, 284 S.E.2d 856 (1981).
In this appeal, the appellant, the City of Morgantown,
claims that the Circuit Court of Monongalia County erred in issuing
a writ of mandamus directing it to rezone certain property owned by
James A. Prete. The City contends that the appropriateness of the
rezoning was fairly debatable and that, under the "fairly
debatable" standard followed by this Court, the circuit court
improperly interfered with its zoning decision.
After reviewing the questions raised and the facts
presented, we agree with the City. We, therefore, reverse the
decision of the circuit court, and we set aside and dismiss the
writ of mandamus issued by that court.
James A. Prete, the zoning of whose property is in issue
in this case, filed a petition with the City of Morgantown
requesting the property's zoning classification be changed from PRO
and B-1 to B-3. The PRO and B-1 classifications permitted Mr.
Prete to use the property only for residential and low-density
office and neighborhood shopping and service uses. The change in
classification would have permitted Mr. Prete to use the property
for the relatively intense retail and service businesses normally
found in central business districts.
After Mr. Prete's petition was filed, the staff of the
Morgantown City Planner submitted a report which indicated that Mr.
Prete's property was located along cross-town traffic routes and
served more as a community business district than as a neighborhood
business district. The report also indicated that the property was
already developed to the extent that the difference in uses between
B-1 and B-3 did not pose a valid concern, and the continued
development of West Virginia University had created increased
demands for services in the area.
After the Morgantown City Council discussed Mr. Prete's
petition, an ordinance which would have rezoned the property was
presented to the City Council on November 7, 1990. The ordinance
"died on the floor."See footnote 1 Mr. Prete then petitioned the Circuit Court
of Monongalia County to mandamus the City to alter the zoning of
The circuit court, after the case had been developed, and
after the parties had argued their respective positions, found that
there was no evidence that the City's zoning ordinance, as it
applied to Mr. Prete, bore any substantial relation to the public
health, safety, morals, or general welfare of the City, and
consequently concluded that the ordinance was unconstitutionally
arbitrary, capricious, and unreasonable. The court, therefore, issued a writ of mandamus directing the City to enact an ordinance
amendment rezoning Mr. Prete's property.
In the present proceeding, the City of Morgantown
contends that the circuit court, in effect, substituted its
judgment for that of the City and erred as a matter of law in
applying the improper standard in deciding to intervene in the
In Carter v. City of Bluefield, 132 W.Va. 881, 54 S.E.2d
747 (1949), this Court recognized that the process of rezoning is
a function that a municipality might legitimately perform under a
statutory delegation of police power by the State. The Court,
however, further held that the zoning power must not be exercised
by a municipality in an arbitrary or unreasonable manner and that
the exercise must bear a substantial relation to the public health,
safety, morals, or the general welfare of the municipality. The
Court also stated that:
A zoning ordinance of a municipality, creating use districts and imposing restrictions upon the use of property in the various districts, which, as applied to particular property, does not bear a substantial relation to the public health, safety, morals, or the general welfare of the municipality, and is clearly arbitrary and unreasonable in depriving the owner of the beneficial use of his property and in substantially depreciating its value, is, as to the such property, invalid as violative of Sections 9 and 10, Article III of the Constitution of this State and the Fourteenth Amendment to the Constitution of the United States.
Syllabus point 9, Carter v. City of Bluefield, Id.
In the Carter case, the Court also indicated that the
judiciary should not, as a general rule, interfere with a
municipality's zoning decision. The Court said:
In passing upon an ordinance imposing zoning restrictions courts will not substitute their judgment for that of the legislative body charged with the duty of determining the necessity for and the character of zoning regulations and, where the question whether they are arbitrary or unreasonable is fairly debatable, will not interfere with the action of the public authorities.
Id. at 905, 54 S.E.2d at 761.
In making this statement, the Court, in essence, adopted
the so-called "fairly debatable" standard of judicial intervention
in zoning decisions, a standard upheld by the Supreme Court of the
United States in Village of Euclid v. Amber Realty Co., 272 U.S.
365, 47 S.Ct. 114, 71 L.Ed. 303 (1926).
Under this standard, courts have recognized that although
it is appropriate to intervene in a zoning decision when it is
clear that the decision is arbitrary or unreasonable, or when the
decision clearly bears no substantial relation to the public
health, safety, morals, or general welfare, the courts have
recognized that it was inappropriate to intervene when it is
"fairly debatable" whether the decision is arbitrary or
unreasonable or whether it bears a substantial relation to the appropriate public concerns. On this point, this Court stated in
syllabus point 4 of DeCoals, Inc. v. Board of Zoning Appeals, 168
W.Va. 339, 284 S.E.2d 856 (1981):
Courts are not disposed to declare an ordinance invalid in whole or in part where it is fairly debatable as to whether the action of the municipality is arbitrary or unreasonable.
See also, Town of Stonewood v. Bell, 165 W.Va. 653, 270 S.E.2d 787
(1980); and G-M Realty, Inc. v. City of Wheeling, 146 W.Va. 360,
120 S.E.2d 249 (1961).
Insofar as we are aware, what is "fairly debatable" has
never been directly addressed by this Court. We, however, note
that the Supreme Court of Appeals of Virginia has indicated that an
issue is "fairly debatable" when, measured by both quantitative and
qualitative tests, the evidence offered in support of the opposing
views would lead objective and reasonable persons to reach
different conclusions. Board of Supervisors of Fairfax County v.
Pyles, 224 Va. 629, 300 S.E.2d 79 (1983); and Bell v. City Council
of City of Charlottesville, 224 Va. 490, 297 S.E.2d 810 (1982).
In this Court's view, the Virginia court's criteria for
determining what is fairly debatable are consistent with the
reasoning heretofore applied by this Court in the West Virginia
cases and is reasonably consistent with the generally recognized
view of what is fairly debatable.
The documents filed in the present case show that the
circuit judge, in ordering the rezoning of Mr. Prete's property,
apparently reached three general conclusions from the evidence
presented. First, he believed that the property surrounding Mr.
Prete's property was zoned B-3, the zoning classification which Mr.
Prete sought. Secondly, he believed that portions of Mr. Prete's
property were already being utilized for uses higher than that
allowed by the B-1 and PRO classifications in which they were
placed. After focusing on the two points, the circuit judge
concluded that the City Council's refusal to rezone Mr. Prete's
property was an arbitrary and unreasonable act. Lastly, the
circuit judge opined that, based upon the evidence, rezoning Mr.
Prete's property to the B-3 classification would not, in a negative
way, impact upon the neighborhood. Accordingly, he held that the
refusal to rezone bore no reasonable relationship to the public
health, safety, morals, or general welfare.
We believe that there was evidence adduced supporting the
circuit court's finding that the property surrounding Mr. Prete's
property was zoned B-3 and that property in the area was utilized
in a manner permitted under the B-3 classification. There was,
however, other evidence suggesting that portions of the immediate
area were not used for B-3 purposes. Many of the B-3 properties in
the immediate neighborhood were located along a four-lane highway
several hundred feet from Mr. Prete's property. Mr. Prete's
property, on the other hand, was located along a two-lane road and abutted and was wedged between B-1 properties in a predominately
Somewhat similarly, although there was evidence that
rezoning Mr. Prete's property would not negatively impact on the
neighborhood, there was also evidence that the street which Mr.
Prete's property abutted was a two-lane way which did not meet the
design criteria for an arterial street and which could not be
improved due to its narrow, twenty-seven-foot right-of-way.
Further evidence showed that changing the property to a B-3
classification could generate more street traffic, impacting upon
the traffic situation and impacting upon residential aspects of the
area. Other evidence showed that rezoning Mr. Prete's property
would eliminate a buffer zone between that property and a county
junior high school.
In this case, this Court believes that, given the
evidence before the City Council, whether the City Council's
decision was arbitrary and unreasonable was fairly debatable. The
evidence was such, both quantitatively and qualitatively, as would
lead objective and reasonable persons to reach different
conclusions. While there was evidence that the overall
neighborhood in which Mr. Prete's property was located was B-3
property, there was also evidence that the neighborhood was not
consistently B-3 and that property in the immediate neighborhood of
Mr. Prete's property carried other classifications. Also, the Court believes that whether the refusal to rezone bore a
substantial relationship to the health, safety, morals, or general
welfare of the public was fairly debatable. Although there was
some evidence supporting the circuit court's conclusion that it was
not, there was also evidence that rezoning could generate
additional traffic, a factor which would impact on public safety.
Additionally, there was evidence that a public school might be
impacted by the zoning decision.
After reviewing the documents filed in this case, this
Court believes that the propriety of the rezoning of Mr. Prete's
case was fairly debatable. Under such circumstances, the cases
cited indicate that judicial intervention in the zoning decision is
In view of all this, this Court believes that the Circuit
Court of Monongalia County erred in interfering with the zoning
decision of the City of Morgantown and that, under the
circumstances, the ruling of the circuit court should be reversed
and set aside and the writ of mandamus issued by the circuit court
should be set aside and dismissed.
Footnote: 1 The exact nature of the action, or inaction, taken by the City is unclear from the record. It is clear, however, that the City refused to rezone the property as requested by Mr. Prete.