Given their failure to obtain the Town Council's
approval of the Marmion Subdivision development despite protracted efforts, (See
footnote 7) and convinced that a mandamus proceeding was their only
remaining remedy, Petitioners filed a petition for a writ of mandamus with this
Court on January 10, 2005. Through this extraordinary proceeding, Petitioners
seek a directive requiring the Town Council to stamp the submitted plat for the
development of Marmion Hill with the necessary designation of approval that will
allow the Clerk of the Jefferson County Commission to record the same and permit
them to proceed with their development plans.
writ of mandamus will not issue unless three elements coexist _ (1) a clear legal
right in the petitioner to the relief sought; (2) a legal duty on the part of
respondent to do the thing
which the petitioner seeks to compel; and (3) the absence of another adequate remedy.
Also applicable is this Court's holding in syllabus point four of Walter v. Ritchie, 156 W.Va. 98, 191 S.E.2d 275 (1972):
will lie to compel performance of a nondiscretionary duty of an administrative
officer though another remedy exists, where it appears that the official, under
misapprehension of the law, refuses to recognize the nature and scope of his
duty and proceeds on the belief that he has discretion to do or not to do the
thing demanded of him.
Accordingly, we proceed to determine whether there is a basis for issuing a writ of mandamus in this case.
Both the moratorium issued by the Town Council
in March 1987 and an ordinance later adopted on July 14, 1987 (hereinafter referred
to as the 1987 ordinance) were at issue in Bittinger. After
first determining that the 1987 ordinance was a validly enacted building ordinance,
as opposed to a zoning ordinance, (See
footnote 9) this Court addressed the issue of the moratorium. Given
that municipalities have only those powers conferred upon them by statute or
pursuant to their charter, we held in Bittinger that there was no existing
authority that would allow the Town Council to issue a blanket moratorium and
thereby defeat the operation of a valid ordinance. 183 W.Va. at 314, 395 S.E.2d
at 558. Consequently, we held that the moratorium was improperly issued and reversed
the lower court's decision to deny the writ of mandamus requested by the appellants
in that case. In so ruling, we stated that the appellants are entitled
to have their applications for [building]
permits which were submitted within that moratorium period considered under
the ordinances existing at that time and granted, if the ordinances as written
would permit. 183 W.Va. at 315, 395 S.E.2d at 559.
When Petitioner Brown initially sought to market the subject real estate, (See footnote 10) she encountered difficulty in selling the property due to the nine-month moratorium imposed by the Town Council, which was purportedly imposed for the purpose of studying and evaluating the town's building and zoning ordinance. See State ex rel. Brown v. Corporation of Bolivar (Brown I), 209 W.Va. 138, 141, 544 S.E.2d 65, 68 (2000). In her efforts to proceed with the planned sale despite the moratorium, Petitioner Brown filed a petition for extraordinary relief and Petitioner Ashbaugh intervened in that proceeding based on his ownership of separate property located in Bolivar that he desired to develop. Just as in Bittinger, we determined in Brown I that the Town Council had imposed a moratorium that was void as a matter of law. Id. at 142, 544 S.E.2d at 69. And, because our decision in Bittinger held in unmistakable terms that valid ordinances could not be suspended from operation by means of a moratorium, (See footnote 11) this Court awarded attorney's fees and costs in Brown I for the Town Council's blatant disregard of a clear directive of this Court. Id. at 144, 544 S.E.2d at 71.
In fashioning the relief awarded to the petitioners in Brown I, we referenced our holding in Bittinger which required that any submitted building permit applications were to be considered under the ordinance existing at the time the application was submitted, rather than pursuant to any subsequently enacted ordinances. Because Ms. Brown had not submitted a building permit to the Town Council before seeking relief in Brown I, our ruling in Bittinger concerning the remedy to be awarded for an improperly enacted moratorium was of no benefit to Petitioner Brown. As this Court recognized in Brown I, the specific harm Petitioner Brown suffered due to the illegally imposed moratorium was in being effectively prevented from selling her property. As part of identifying the appropriate relief for this effective denial of sale, we adopted the approach taken by the United States Court of Appeals for the Tenth Circuit in which the court determined that the remedy for an improperly enacted ordinance was to permit the property owner affected . . . to use his property for any lawful purpose without regard to the void zoning ordinance. Carter v. City of Salina, 773 F.2d 251, 255 (10th Cir. 1985). Applying the holding in Carter to the facts of Brown I, this Court ruled:
[W]e find that equitable considerations
dictate that Ms. Brown and her immediate purchasers and/or her immediate successors
in title to the estate's property are entitled to develop and use the property
for any lawful purpose as they might have done
prior to the void moratorium and the now repealed zoning ordinance. Likewise,
Mr. Ashbaugh was also effectively prevented from developing his property while
the moratorium was in place, and he is also entitled to continue to develop
his property without regard to the current zoning ordinance, as he might have
done prior to the void moratorium and the now repealed zoning ordinance. (See
209 W.Va. at 144, 544 S.E.2d at 71 (footnote added).
Based on the structure of this Court's award of relief to Petitioner Brown in Brown I, Petitioners posit that the 1987 ordinance is the controlling set of standards under which the building permit applications pertaining to the Marmion Hill development must be considered. Rather than being controlled by the 2000 planning and zoning ordinance in effect at the time the initial subdivision plat was submitted, Petitioners contend that the language of Brown I, which extends to the immediate purchasers and immediate successors in title, governs their building permit applications. 209 W.Va. at 144, 544 S.E.2d at 71. While we agree that the 1987 ordinance is the applicable building ordinance for purposes of issuing building permits, there is separate authority that pertains to the initial and immediate concern presented by Petitioners _ the approval of the subdivision plat.
Before any building permits can be issued relative to the Marmion Hill subdivision, there first must be a recording of the plat with the Jefferson County Commission. And, as the county commission has indicated, it cannot record the subdivision plat absent the seal of approval from the Town Council. The statute which governs the authority of the Town Council to approve subdivisions provides that:
case a proposed subdivision of any lot or parcel of land is situate within the
corporate limits of any municipality, or abutting thereon, it shall be the duty
of the owner, or owners, or his or their agent, to submit a plat or plan of such
subdivision to the council or commissioners of such municipality, showing
the street and alley connections that such subdivision makes with such municipality,
and furnishing full information for the purpose of determining whether the proposed
subdivision will impede or prevent the further development and extension of such
municipality where such subdivision is situate. Before any such subdivision
is finally laid out, it shall have the approval of the council or commissioners
of the municipality wherein the subdivision is situate, or upon which it abuts,
and such approval and the date thereof shall be indicated on the plat or plan
of such subdivision before the same is finally filed in the office of the clerk
of the county court [now county commission] and the county assessor's office.
W.Va. Code § 39-1-16 (1923) (Repl. Vol. 2004) (emphasis supplied). (See footnote 13)
In explanation of its decision to withhold approval of the Marmion Hill subdivision plat, the Town Council states that it has the right to regulate the direction of traffic in the municipality of Bolivar. For this authority, the Town Council refers to its charter which grants it the right to control all the avenues in Bolivar. (See footnote 14) And, it further posits that Petitioners can readily gain approval of their proposed subdivision if they just alter the plat to reflect ingress on Columbia Avenue. This Court does not disagree with the Town Council's position that it has the authority to regulate the use of its streets and the traffic flow on such streets. It appears to us, however, that the Town Council wrongly asserts that authority as a basis for withholding its approval of the Marmion Hill subdivision plat.
Under the only statutory authority that governs
the terms for the Town Council's consideration of a submitted subdivision plat,
there are two essential bases upon which the Town Council is permitted to review
a submitted plat. First, the plat is required to show[ ] the street and
alley connections that such subdivision makes with such municipality. W.Va.
Code § 39-1-16. Second, the plat must contain full information to
allow the Town Council to determine whether the proposed subdivision will
impede or prevent the further development and extension of such municipality
where such subdivision is situate. Id.
In refusing to issue its stamp of approval to the Marmion Hill subdivision, the Town Council has not raised any contention that the submitted plat (See footnote 15) fails to depict the street and alley connections. With regard to the second prong of the municipal approval statute, the record does not disclose that the Town Council has raised any valid concern that this development would impede or prevent the further development of the municipality of Bolivar. W.Va. Code § 39-1-16. (See footnote 16) The only issue that the Town Council has voiced in explanation of its decision not to approve the development is traffic related; specifically, the need to limit the direction of traffic on certain streets. While the Town Council has the clear authority to control the use of its streets, that right is separate and distinct from the considerations at issue in the approval of a submitted subdivision plat under the authority of West Virginia Code § 39-1-16.
From the record submitted in this case, it appears to this Court that there is no legitimate basis _ in law or in fact _ for refusing to stamp the submitted plat for Marmion Hill with the seal of approval required for purposes of recording the plat with the Clerk of the Jefferson County Commission. Given that the record fails to disclose any information that the submitted plat is insufficient for purposes of showing alley and street connections or that it presents legitimate concerns of impeding further development of Bolivar, we find no basis for the Town Council's continued refusal to issue the stamp or seal of approval necessary for Petitioners to proceed with this development.
We do not suggest that the Town Council is without means to remedy the traffic problems it is concerned with, only that those problems do not properly lie within the realm of the statutorily-delineated bases for withholding a stamp of approval on a submitted subdivision plat. See W.Va. Code § 39-1-16. Under its clear authority to provide for the use of its streets, the Town Council can determine that certain roadways can only be traversed in one direction and resolve the perceived traffic flow problem that it presents as the only impediment to gaining its approval of this development. Because we conclude that
the Town Council is mistaken with regard to the scope of its reviewing authority under West Virginia Code § 39-1-16 in that it wrongly believes it has the discretion to withhold approval of the plat for reasons that do not fall within the considerations delineated in the approval statute, we grant a writ of mandamus, as moulded, to require the Town Council to place its designation of approval on the submitted plat. See Walter, 156 W.Va. at 99, 191 S.E.2d at 276, syl. pt. 4 (holding that mandamus lies to compel performance of nondiscretionary duty where administrative official misapprehends law, refuses to recognize nature and scope of his duty, and acts pursuant to belief that he has discretion to do or not do what is demanded).
While we had little difficulty in directing the Town Council to approve the submitted Marmion Hill plat for recordation purposes given the lack of proper bases for withholding such approval, we do not find that Petitioners' request to direct the Town Council to issue any and all required building permits is similarly the proper subject for a writ of mandamus. This is because there are multiple considerations that would clearly involve the discretion of the Town Council in determining whether any requested building permit can be issued. We do not suggest, however, that the Town Council can wrongly withhold the issuance of any building permit in the guise of standing in the way of development, only that such issue, due to its discretionary nature, would not be the proper subject of a writ of mandamus.
With regard to Petitioners' request for attorney's fees, we do not consider this case to be similar to the situation presented in Brown I. In that case, it was beyond dispute that the Town Council had ignored the rulings of this Court in Bittinger with regard to issuing moratoriums as a means of defeating the operation of valid ordinances. Here, we do not have facts that suggest that the Town Council has acted in defiance of clear previous directives issued by this Court. While Petitioners suggest that this Court all but said in Brown I that they were entitled to the necessary building permits and concomitant approval required to proceed with Marmion Hill, the rulings we issued in that case cannot be read in as broad a fashion as Petitioners maintain. Although Brown I contained directives that Petitioners were entitled to develop and use the property for any lawful purpose pursuant to the 1987 ordinance, that decision did not mandate that all necessary building permits were to be issued. 209 W.Va. at 144, 544 S.E.2d at 71. Critically, this Court's decision in Brown I did not dispense with the Town Council's discretion with regard to consideration of and issuance of building permits. It merely designated which ordinance would provide the governing standards for the issuance of such permits. As there is no contention that the Town Council attempted to apply any ordinance other than the 1987 ordinance to their building permits, there is no basis from which to argue that attorney's fees are warranted for the Town Council's failure to comply with our directives in Brown I.
This Court's decision to issue a writ of
mandamus is pursuant to our previous recognition in Walter that mandamus
can be properly used where a government official misapprehends the nature of
his duty to act and wrongly refuses to perform an act based on an incorrect understanding
of his statutory duty. 156 W.Va. at 99, 191 S.E.2d at 276, syl. pt. 4. In this
case, the Town Council appears to read its obligation with regard to the factors
it may consider when reviewing a submitted subdivision plat in a fashion more
expansive than the clear terms of the statute permit. Due to the fact that West
Virginia Code § 39-1-16 has never been interpreted by this Court, the Town
Council's interpretation of the authority extended to it by that statute was
not in clear disregard of specific judicial directives. Consequently, on the
facts presented by this case we do not find an award of attorney's fees to be
warranted based on the Town Council's incorrect interpretation of its statutory
obligations as delineated in West Virginia Code § 39-1-16.
In summary, this Court is issuing a writ of mandamus for the limited purpose of directing the Town Council to approve the submitted plat depicting the Marmion Hill subdivision pursuant to the authority of West Virginia Code § 39-1-16. Following the recordation of that plat by the Jefferson County Commission, all building permits that are submitted for approval which pertain to the subdivision are to be reviewed pursuant to the standards set forth in the 1987 ordinance. That ordinance is the controlling building ordinance based on the rulings of this Court in Brown I. See 209 W.Va. at 144, 544 S.E.2d
at 71. Those standards, rather than the ones now in force, are the governing standards pursuant to which building permits sought with respect to the Marmion Hill subdivision are to be reviewed.
Based on the foregoing, a writ of mandamus, as moulded, is issued for the purpose of requiring the Town Council of Bolivar to place its seal or stamp of approval on the plat submitted by Petitioners depicting the Marmion Hill subdivision.