IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2009 Term
PAUL L. ASHBAUGH AND
ASHBAUGH CUSTOM BUILDERS, LLC,
Plaintiffs Below, Appellants
THE CORPORATION OF BOLIVAR,
A WEST VIRGINIA MUNICIPALITY, ET AL.,
Defendant Below, Appellee
Appeal from the Circuit Court of Jefferson County
The Honorable Gray Silver, III, Judge
Civil Action No. 05-C-369
Submitted: January 14, 2009
Filed: February 6, 2009
Richard G. Gay
Michael D. Lorensen
Nathan P. Cochran
Johnna L. Faber
Law Office of Richard G. Gay Bowles Rice McDavid Graff & Love
Berkeley Springs, West Virginia Martinsburg, West Virginia
Counsel for the Appellants
Counsel for the Appellee
The Opinion of the Court was delivered PER CURIAM.
JUSTICE ALBRIGHT not participating.
SENIOR STATUS JUSTICE McHUGH sitting by temporary assignment.
SYLLABUS BY THE COURT
1. A circuit court's entry of summary judgment is reviewed de novo.
Pt. 1, Painter v. Peavy,
192 W.Va. 189, 451 S.E.2d 755 (1994).
2. Whether the motives of a town council in vacating a street are proper
cannot be judicially inquired into; but the aim and purpose of the vacation, and the end
accomplished, may be considered in passing on its validity. If the purpose effected by it is
within the power of the council, its act will be valid; otherwise not. Syl. Pt. 7, Pence v.
, 54 W.Va. 263, 46 S.E. 275 (1903).
Per Curiam: (See footnote 1)
Paul L. Ashbaugh and Ashbaugh Custom Builders, LLC appeal from the
August 10, 2007, order of the Circuit Court of Jefferson County granting summary judgment
to the Corporation of Bolivar (Bolivar) in a property development case. At issue below
was whether the enactment of an ordinance by the Bolivar Town Council (Town Council)
that prevented the connection of privately constructed roads or streets to existing town roads,
streets, and alleys was an improper attempt by the Town Council to frustrate Mr. Ashbaugh's
development of the Marmion Hills subdivision. After reviewing the arguments presented
on this issue, the trial court concluded that the ordinance was valid, given its appropriate
municipal purpose of regulating traffic flow, and that Bolivar did not violate the directives
of this Court in State ex rel. Brown v. Corporation of Bolivar, 217 W.Va. 72, 614 S.E.2d
719 (2005) (Brown II). Through this appeal, Mr. Ashbaugh seeks a determination that the
ordinance at issue is invalid and a ruling that Bolivar is required to provide access to Clay
Street for purposes of ingress and egress from the Marmion Hills development. Upon our
careful review of this matter, we find that the circuit court committed no error and,
accordingly, affirm the lower court's decision.
I. Factual and Procedural Background
As we recognized in Brown
II, this matter has a protracted history that dates
back to 1998 when the former owner of the subject property initially attempted to place the
land currently designated for the Marmion Hills development on the market. 217 W.Va. at
74, n.3, 614 S.E.2d at 721, n.3. Over the years, the Town Council has employed various
means to forestall the development of the subject property including the issuance of a
moratorium on building permits and the implementation of certain zoning restrictions, which
were subsequently determined to be illegal. See id.
at 74, n.3, 614 S.E.2d at 721, n.3; see
also State ex rel. Brown v. Corporation of Bolivar
, 209 W.Va. 138, 544 S.E.2d 65 (2000)
I); Bittinger v. Corporation of Bolivar
, 183 W.Va. 310, 395 S.E.2d 554 (1990).
When this case was last before us in 2005, Mr. Ashbaugh was seeking extraordinary relief
to secure the Town Council's performance of the purely ministerial act of stamping the plat
depicting the Marmion Hills subdivision as approved. (See footnote 2)
While this Court found that Mr.
Ashbaugh was entitled to a directive governing the stamping of the subdivision plat as
approved, we did not grant the additional relief he sought with regard to ordering the Town
Council to issue the building permits he required to develop the subject property. (See footnote 3)
Shortly after the issuance of Brown
II, the Town Council approved the plat for
the Marmion Hills development as directed by this Court. (See footnote 4)
At the same time the plat was
approved, however, the Town Council initiated the first of three required readings of a new
ordinance that provided as follows:
905.01 Acceptance of Streets is amended by adding (a)
before the first paragraph, and adding two new paragraphs
lettered (b) and (c) as follows:
(b) No town road, street or alley may be extended beyond their
current paved or graveled boundaries, except paper streets, as
approved by the town council.
(c) No privately constructed road, street or alley may connect
with existing paved or graveled roads, streets or alleys, if the
existing paved or graveled road, street or alley is in whole or in
part less than 30 feet in width. (See footnote 5)
The ordinance was unanimously approved by the Town Council during its October 6, 2005,
In response to the enactment of the subject ordinance, Mr. Ashbaugh instituted
a civil action on November 4, 2005, through which he sought a declaratory judgment with
regard to his right to access the town's streets based upon the Town Council's approval of
the Marmion Hills plat and relief for alleged civil rights violations. (See footnote 6) After motions for
summary judgment were filed by both Bolivar and Mr. Ashbaugh, the circuit court issued
its ruling on August 10, 2007, denying partial summary judgment to Mr. Ashbaugh and
granting summary judgment to Bolivar. It is from this ruling that Mr. Ashbaugh seeks relief
from this Court.
II. Standard of Review
Our review in this matter is plenary as we recognized in syllabus point one of Painter v. Peavy,
192 W.Va. 189, 451 S.E.2d 755 (1994): A circuit court's entry of
summary judgment is reviewed de novo.
In determining whether the lower court
committed error in granting summary judgment, we examine whether there are any genuine
issues of material fact and whether inquiry concerning those facts is necessary to clarify the
application of the law. See
Syl. Pt. 3, Aetna Cas. & Surety Co. v. Federal Ins. Co.
W.Va. 160, 133 S.E.2d 770 (1963). With these standards in mind, we proceed to determine
whether the grant of summary judgment was proper under the facts of this case.
Relying on Brown
II and the Town Council's subsequent approval of the
Marmion Hills subdivision plat, Mr. Ashbaugh argues that he is entitled to access the streets
depicted on the approved plat for purposes of ingress and egress to the development (Clay
and Jackson). (See footnote 7)
Because the enactment of the ordinance at issue effectively denies him the
use of Clay Street, (See footnote 8)
Appellant contends that Bolivar has failed to comply with this Court's
express directives in Brown
II. Moreover, Mr. Ashbaugh suggests that by requiring the
Town Council's approval of the plat in Brown
II, this Court was evidencing an intent that
the Marmion Hills subdivision should advance to the construction phase.
This Court's ruling in Brown
II pertained to one issue: requiring the Town
Council to approve the submitted plat for the Marmion Hills development based on the clear
absence of any statutory impediments to such approval. 217 W.Va. at 79, 614 S.E.2d at 726.
The basis upon which we predicated the issuance of a writ of mandamus in Brown
the Town Council's mistaken view that it could withhold approval of a subdivision plat for
reasons not included in the approval statute. Id
. at 78, 614 S.E.2d at 725. The only
impediment raised by the Town Council to the Marmion Hills development were issues
related to traffic flow. Id
. at 78, 614 S.E.2d at 725. While we recognized the authority of
the Town Council to control the use of its streets, we explained in Brown
II that traffic
concerns were not a basis for withholding approval of a submitted subdivision plat under
West Virginia Code § 39-1-16. 217 W.Va. at 77-78, 614 S.E.2d at 724-25.
In an attempt to bolster his position, Appellant not only seeks to expand this
Court's ruling in Brown
II but wrongly imputes an intent to our opinion that is nonexistent.
While we directed the performance of what amounted to one nondiscretionary act in Brown
II, Mr. Ashbaugh suggests that we would not have ordered the Town Council's approval of
the plat absent an intention that Marmion Hills should proceed to the development phase. (See footnote 9)
In marked contrast to Appellant's contention, (See footnote 10)
our decision to issue the writ of mandamus
was impelled solely by the parameters of the law without concern for whether development
of the Marmion Hills subdivision should reach fruition. (See footnote 11)
Just as Appellant wrongly seized on factual statements in Brown
II as evidence
of this Court's intent, (See footnote 12)
he similarly looks to another mere recitation of fact to argue that the
directives set forth in Brown
II were violated by passage of the subject ordinance. Mr.
Ashbaugh attempts to elevate the significance of the following statement in Brown
necessity, the city's existing streets are required for ingress and egress to the proposed
development. 217 W.Va. at 74, 614 S.E.2d at 721. Based on this factual statement and our
direction concerning the plat's approval, Appellant argues that we impliedly required in Brown
II that the streets, as depicted on the plat, were to be utilized by the residents of the
A careful reading of our opinion in Brown
II demonstrates that this Court
recognized the Town Council's clear authority to provide for the use of its streets. 217
W.Va. at 78, 614 S.E.2d at 725. We acknowledged that the Town Council can determine
that certain roadways can only be traversed in one direction for purposes of resolv[ing]
the perceived traffic flow problem. Id.
at 78, 614 S.E.2d at 725. Contrary to Appellant's
assertion, there was no correspondent recognition or obligation imposed by this Court on the
Town Council to require Bolivar to maintain the status quo as regards the town's road
system. As the trial court correctly observed: Nothing in the West Virginia Supreme
Court's decision in Brown II
negated the Town's authority to control its streets. Rather
than proscribing traffic-related changes relative to the submitted plat, our decision in Brown
II arguably anticipated that the Town Council might take action with regard to issues
involving traffic flow. See
217 W.Va. at 78, 614 S.E.2d at 725.
While Appellant seeks a ruling from this Court requiring that all streets,
avenues, and roads designated on an approved and properly recorded subdivision plat must
forever remain accessible and subject to use in the exact manner as depicted on the plat, we
find no basis in the law for such a ruling. The Legislature has expressly delegated authority
over issues of road use and maintenance to municipalities such as Bolivar. See
§ 8-12-2(a)(5) (2007) (providing that municipalities have control over acquisition, care,
management and use of the city's streets, avenues, roads, alleys, ways and property); W.Va.
Code § 8-12-5(1) (2007) (granting municipal governing bodies plenary power and
authority to lay off, establish, construct, open, alter, curb, recurb, pave or repave and keep
in good repair, or vacate, discontinue and close, streets, avenues, roads, alleys, ways
sidewalks, drains and gutters, for the use of the public); see also Brouzas v. City of
144 W.Va. 1, 106 S.E.2d 244 (1958) (upholding authority of municipality to
adopt ordinance vacating portion of street under predecessor statute to W. Va. Code § 8-12-
5(1)); Barker v. City of Charleston
, 134 W.Va. 754, 760, 61 S.E.2d 743, 747 (1950)
(recognizing statutory power and authority of municipality to vacate or close streets as
valid under parallel language of predecessor statute to W. Va. Code § 8-12-5(1)). Implicit
in the express legislative delegation of matters governing road use and access to
municipalities is the continuing authority to address these areas as the respective
municipalities see fit within the bounds of the law.
While Appellant does not deny the right of the Town Council to control over
the streets of Bolivar, he argues that certain conditions must be met before a municipality
can permanently close a street. Relying on cases decided in equity, he argues that the
street in issue must be unused and that even then it can only be closed if there is a
convenient alternative route. See, e.g., Charleston Nat'l Bank v. Thomas
, 143 W.Va. 788,
794, 105 S.E.2d 184, 188 (1958) (denying equitable relief sought to reopen street based on
lack of use and unimproved condition of street). A critical distinction overlooked by Mr.
Ashbaugh is that rather than permanently closing Clay Street, the subject ordinance is
aimed at preventing the connection of additional private streets to all existing city streets.
Rather than being closed to the public, Clay Street continues to be open to the public for
usage in the same manner that has taken place for years. While access to Clay Street has
been denied to the future residents of Marmion Hills for purposes of ingress and egress, that
street has not been permanently closed. As a consequence, those cases relied upon by
Appellant to argue that certain precedent conditions must be met before a road can be
closed are inapposite.
Claiming that the true aim of the Town Council was to thwart his development
plans, Appellant argues that the ordinance is clearly invalid under Pence v. Bryant,
263, 46 S.E. 275 (1903). In syllabus point seven of Pence
we held that:
Whether the motives of a town council in vacating a
street are proper cannot be judicially inquired into; but the aim
and purpose of the vacation, and the end accomplished, may be
considered in passing on its validity. If the purpose effected by
it is within the power of the council, its act will be valid;
As evidence for his contention that the Town Council's purpose for enacting the ordinance
was to forestall development of Marmion Hills, Mr. Ashbaugh points to the timing of when
the ordinance was first presented and to the absence of language specifically addressing
traffic in either the title of or the language of the ordinance. By its passage of this ordinance,
he argues that Bolivar accomplished exactly what this Court admonished against in Brown II: standing in the way of development. 217 W.Va. at 79, 614 S.E.2d at 726. (See footnote 13)
In passing on the validity of the ordinance, the circuit court examined the
evidence introduced below regarding the purpose of the municipal enactment at issue. The
trial court found that after the initial reading of the ordinance the town council held a series of meetings involving input from
Ashbaugh and residents of the Bolivar community with respect
to the potential closing of Clay Street at or about the street's
then terminus near the Marmion Hills property due to safety
concerns. The town also considered previous input from local
emergency services personnel regarding the inadequacy of Clay
and Taylor Streets to accommodate emergency response
vehicles and equipment. (See footnote 14)
These traffic and safety-related issues were longstanding as the Town Council, through its
mayor, had explained to Mr. Ashbaugh in a letter dated March 3, 2003, why approval for
the subdivision plat was withheld:
1) Safety of pedestrians and in particular, the safety of small
children present in significant numbers along the residential
streets proposed to be used for ingress and egress to this
subdivision; 2) Narrow streets that are ill-suited to the higher
volumes of traffic that will be caused by the size of this
subdivision . . . [; and] 3) Narrow streets that, when coupled
with residential parking along the sides of the street and two-
way traffic, will impede access by fire and emergency vehicles.
Upon its review of the entirety of the evidence proffered on the Town Council's objective
with regard to the subject ordinance, the trial court ruled that:
1) the record reflects that the motive of the Town in adopting
the Ordinance was to regulate the flow of traffic in the town of
Bolivar; 2) the town had the authority to adopt the Ordinance;
and 3) the end accomplished was the more efficient regulation
of traffic in the town of Bolivar for all of the residents of the
In ruling on the validity of the ordinance, the trial court addressed Appellant's
contention that its passage effectively rendered the Town Council's approval of the plat
meaningless. Of specific import to the trial court in rejecting this argument was the
availability of two other streets for purposes of ingress and egress to the Marmion Hills
development: Columbia Avenue and Paul Courtney Drive. While both of those roads
appear on the approved subdivision plat, Appellant objects to using these alternate means
of access based on development costs and aesthetics. (See footnote 15) Bolivar maintains that it has made
offers to assist Mr. Ashbaugh with both of these concerns.
Clearly, our decision in Pence requires that an ordinance that has as its purpose
a valid municipal objective, such as limiting access to city streets for purposes of controlling
traffic and promoting safety, must be upheld. Despite the fact that the ordinance was first
raised when the Town Council approved the subdivision plat in accordance with directives
from this Court, the record amply supports the trial court's determination that issues of safety
and traffic flow were the genesis for the enactment. Given the trial court's conclusion that
more efficient regulation of traffic was the end accomplished by the ordinance combined
with the absence of any factual evidence demonstrating to the contrary, we are without any
basis for finding the ordinance to be invalid. See Pence, 54 W.Va. at 264, 46 S.E. at 275,
syl. pt. 7. Accordingly, we conclude that the trial court did not commit error in granting
summary judgment to Bolivar.
Based on the foregoing, the decision of the Circuit Court of Jefferson County
Pursuant to administrative orders entered September 11, 2008, and January 1,
2009, the Honorable Thomas E. McHugh, Senior Status Justice, was assigned to sit as a
member of the Supreme Court of Appeals of West Virginia commencing September 12,
2008, and continuing until the Chief Justice determines that assistance is no longer necessary,
in light of the illness of Justice Joseph P. Albright.
Our decision to issue a writ of mandamus requiring that the Town Council
stamp the submitted plat as approved in Brown
II was impelled by the admitted lack of any
statutory impediment to the plat's approval under West Virginia Code § 39-1-16 (1923)
(Repl.Vol.2004). By withholding that stamp of approval, the Town Council had prevented
Mr. Ashbaugh from applying for and obtaining building permits for the Marmion Hills
217 W.Va. at 77-78, 614 S.E.2d at 724-25.
As we explained in Brown
II, the issuance of building permits was not the
proper subject of a writ of mandamus given the discretionary nature of such decisions. 217
W.Va. at 78-79, 614 S.E.2d at 725-26.
The plat was approved at the July 5, 2005, meeting of the Town Council.
Because all of the town's streets are less than thirty feet in width, this
provision affects all of the streets of Bolivar from being extended by means of connections
to privately-constructed roads.
The civil rights violations asserted by Mr. Ashbaugh under 42 U.S.C. § 1983
are currently pending before the federal district court based on successful removal
proceedings. The state law causes of action predicated on entitlement to use of Bolivar's
streets were remanded to the circuit court.
Jackson Street, which is now called Taylor Street, was turned into a green
space in 2000 before the approval of the plat in July 2005. Appellant does not appear to
take issue with the lack of access to Jackson/Taylor Street, only Clay Street.
Appellant argues that the following factual recitation in Brown
this Court's intent to promote development: 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.
217 W.Va. at 75, 614 S.E.2d at 722 (emphasis supplied).
According to Appellant,[i]t is clear from the direct content of this Court's Brown II
decision that the Court's intent in ordering Bolivar to approve Ashbaugh's
subdivision plat was to force Bolivar to stand aside and allow Ashbaugh to legally develop
his property. . . .
For Appellant to suggest, rhetorically or otherwise, that this Court intended
that Marmion Hills be developed based upon a factual recognition in Brown
II that building
be applied for once the approved subdivision plat was recorded is patently
217 W.Va. at 77, 614 S.E.2d at 724.
This Court's statement, selectively quoted by Appellant, was expressly
directed at the issuance of building permits since that issue had been included in the
petitioner's request for extraordinary relief. In explanation of our refusal to include a
directive requiring the issuance of building permits we stated: 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. 217 W.Va.
at 79, 614 S.E.2d at 726.
As the trial court found: [T]he Fire Chief of the Friendship Fire Company
which provides fire fighting services to the Town advised the town council, via a letter dated
December 6, 2002, that it was already difficult for fire trucks and other emergency
equipment to access Clay and Jackson (now Taylor) Streets due to the narrowness of the
streets coupled with the curbside parking, and that accessing Marmion Hill via Columbia
Avenue would allow emergency equipment optimum mobility in case of an emergency.
Mr. Ashbaugh argues that Paul Courtney Drive is a dirt strip, in part, and that
it meanders through a vehicle junkyard. As to Columbia Avenue, he argues that it is a state-
owned road that lies outside the boundaries of Bolivar.