H.R.D.E. v. Romney Zoning Officer
Annotate this CaseJanuary 1993 Term
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21346
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H.R.D.E., INC.,
Plaintiff Below, Appellant
v.
ZONING OFFICER OF THE CITY OF ROMNEY
AND THE CITY OF ROMNEY,
Defendants Below, Appellees
___________________________________________________
Appeal from the Circuit Court of Hampshire County
Honorable John M. Hamilton, Judge
Civil Action No. 90-C-201
REVERSED
___________________________________________________
Submitted: January 26, 1993
Filed: April 26, 1993
Thomas P. Maroney
Robert M. Williams
Thomas P. Maroney, L.C.
Charleston, West Virginia
Attorneys for the Appellant
Cathe Moreland
Moreland and Moreland
Romney, West Virginia
Attorney for the Appellees
JUSTICE McHUGH delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. Although the right to a nonconforming use when there
is something less than actual use is generally determined on a
case-by-case basis, the following factors are to be weighed when
determining whether or not a landowner has acquired a vested right
to a nonconforming use: (1) whether the landowner has made
substantial expenditures on the project; (2) whether the landowner
acted in good faith; (3) whether the landowner had notice of the
proposed zoning ordinance before starting the project at issue; and
(4) whether the expenditures could apply to other uses of the land.
Mere contemplated use or preparation or preliminary negotiations
with contractors or architects will not vest the right to a
nonconforming use.
2. A landowner has a vested right to complete a project
as a nonconforming use when the landowner acted in good faith while
expending approximately $95,000 in preparing for the construction
of a specially designed building for the elderly and physically
handicapped before the municipality enacted a zoning ordinance.
3. "While on appeal there is a presumption that a board
of zoning appeals acted correctly, a reviewing court should reverse
the administrative decision where the board has applied an
erroneous principle of law, was plainly wrong in its factual
findings, or has acted beyond its jurisdiction." Syl. pt. 5, Wolfe
v. Forbes, 159 W. Va. 34, 217 S.E.2d 899 (1975).
McHugh, Justice:
This case is before the Court upon the appeal of
H.R.D.E., Inc., the petitioner below, from the January 8, 1992
order of the Circuit Court of Hampshire County which concluded that
the city council of the City of Romney correctly affirmed the order
of the Board of Zoning Appeals which denied H.R.D.E., Inc.
(hereinafter H.R.D.E.) a building permit for the construction of
HUD (Housing and Urban Development) Section 202 property for the
elderly and physically handicapped since the proposed structure is
unlike any other in the adjacent area, violating article IX,
section 909 of the City of Romney's Zoning Ordinance; is in excess
of the height requirements provided in article VII of the zoning
ordinance; and violates the parking space requirement set forth in
article VII, section 704 of the zoning ordinance. The appellees
and respondents below are the zoning officer of the City of Romney
and the City of Romney.
The issue in this case is whether H.R.D.E.'s housing
project for the elderly and physically handicapped is a
nonconforming use even though the construction of the building has
not yet begun. For reasons set forth herein, we reverse the order
of the circuit court and find that the housing project is a
nonconforming use.
I
H.R.D.E. (Human Resources Development and Employment,
Inc.) is a West Virginia non-profit corporation which engages in
the construction and management of housing projects for the elderly
and physically handicapped. Prior to March 12, 1984, Homer
Kincaid, the Executive Director for H.R.D.E., met with Larry
Miller, the mayor of the City of Romney, to discuss the possibility
of constructing a multi-unit apartment building for the elderly and
physically handicapped in Romney. With the mayor's support, Mr.
Kincaid presented his proposal to the city council of the City of
Romney (hereinafter the city council) which formally gave its
support to the project on March 12, 1984.
Relying on the support of the mayor and city council,
H.R.D.E. began to work on making the project a reality. H.R.D.E.
purchased two parcels of land in Romney for a total of $30,000.00.
H.R.D.E. also purchased culverts and storm sewers for the access
road in the amount of $7,145.32. This material was delivered and
unloaded on the construction site in April of 1985.
However, H.R.D.E. lost the funding for the project in
1985 because certain documents were not timely sent to the
Charleston HUD office. At that time H.R.D.E. offered to sell the
property to the city since it was not in the business of owning
property. The city declined to buy the property. In 1987 H.R.D.E.
was approached about building housing for middle income families on
the property. H.R.D.E. presented this project to the city council.
However, financing was not available for the middle income project,
so H.R.D.E. once again in 1987 began the process of obtaining funds
for the housing project for the elderly and physically handicapped,
though the city council states that it was not informed of
H.R.D.E.'s decision to continue working on the HUD housing project.
On July 9, 1987, H.R.D.E. deeded a portion of the
property which was to be used as a public street to the City of
Romney and gave the city the storm sewers at no charge. In the
fall of 1987, the access road was developed and storm sewers and
culverts were installed.
The City of Romney began the process of enacting a zoning
ordinance in 1989. By a letter dated January 31, 1989, the mayor
assured H.R.D.E. that its project would be grandfathered under the
proposed zoning ordinance so that there would be no codes or
restrictions which would apply to the project. Mr. Kincaid
testified that he relied on the mayor's letter.See footnote 1 The mayor also
drafted letters to H.R.D.E. in March of 1989 relating that the city
would provide city services (such as police protection, snow
removal, and water and sewer services) and would complete the
street which had been given to the city by H.R.D.E. Although the
Board of Zoning Appeals declined to make this a finding of fact,
the mayor testified that he wrote the letter about grandfathering
H.R.D.E.'s project based on a discussion with the city council;
however, these discussions never appeared in the minutes of the
city council.See footnote 2 Furthermore, the mayor testified that it was not
uncommon for the minutes of the city council meetings to fail to
reflect everything that was discussed at the meeting.See footnote 3
The following facts regarding the expenses incurred by
H.R.D.E. in the development of the building project for the elderly
and physically handicapped are noticeably absent from the finding
of facts made by the board of zoning appeals; however, we find the
facts to be critical to our analysis of this case.See footnote 4 H.R.D.E.
expended $1,000.00 in 1985 on surveys for the purpose of laying
road and utility lines. The architect on the project had completed
90 to 95% of his work so H.R.D.E. is obligated for the entire
amount of the contract which is $45,000.00, according to the
testimony of the architect. In 1988 H.R.D.E. expended $6,973.50 on
extensive soil samplings and analysis. H.R.D.E. states that it has
expended in excess of $95,000.00 on the project in acquiring
property and employing services to prepare the site for
construction.
On July 17, 1989, the City of Romney passed into law a
"Comprehensive Plan for the City of Romney Planning and Zoning
Ordinance" (hereinafter zoning ordinance). In August of 1989
H.R.D.E. submitted to the City of Romney a building permit
application for the construction of a four-story, 32-unit apartment
building which would house the elderly and physically handicapped.
On September 5, 1989, Garry C. Buckbee, the building inspector,
disapproved the application based upon articles V and VI, sections
501 ("Use Regulation for Residential District") and 601
("Nonconforming Uses"), respectively, of the zoning ordinance. Mr.
Buckbee's decision was eventually upheld by the board of zoning
appeals, city council and the circuit court.
II
We first address H.R.D.E.'s contention that the building
project for the elderly and physically handicapped is a
nonconforming use which it has a right to continue. Based on the
facts in this particular case, we agree with H.R.D.E.'s contention.
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). In West Virginia
we have statutorily recognized a nonconforming use, and we have
mandated that a nonconforming use cannot be prohibited if the
purpose of the use remains the same after the ordinance is enacted.
W. Va. Code, 8-24-50 [1985].See footnote 5 The City of Romney recognized that
a nonconforming use may be continued in section 501 of the zoning
ordinance which states, in part: "The lawful use of any building,
structure, or land existing on the effective date of this
Ordinance, or authorized by an improvement location permit issued
prior thereto, may be continued, although such use does not conform
with the provisions of this Ordinance."
In the case before us, the building project for the
elderly and physically handicapped was started several years before
the City of Romney enacted its zoning ordinance; however, the
building itself was not completed nor started before the zoning
ordinance was enacted. Thus, the issue is whether the actions of
H.R.D.E. are sufficient to vest a nonconforming use.
This issue is one of first impression in this state.
Generally, "[a] use which is planned rather than actually commenced
prior to the enactment of a restrictive ordinance is not an
existing use which is entitled to continue." Anderson, supra §
6.23, at 511. For instance, in Sanderson v. Town of Greenland, 453 A.2d 1285 (N.H. 1982), the court found that site improvements which
are preliminary in nature will not cause a nonconforming use to
vest. In Sanderson the plaintiffs had not constructed any
buildings on their subdivision prior to the amendment of the
ordinance, but the plaintiffs had cleared the property, built a
rough road, dug drainage ditches, and installed pipelines.
"However, the right to nonconforming use is determined on
a case-by-case basis, and the courts have occasionally found a
vested right to exist where something less than actual use has
occurred." Anderson, supra § 6.23, at 514. In those cases where
the courts have found a vested right to exist where something less
than actual use has occurred, the courts have usually also found
that substantial costs toward the completion of the project have
been incurred or that there has been a change in position relative
to the erection of a building or establishment of a business. 8A
Eugene McQuillin, Municipal Corporations § 25.188 (3d ed. 1986).
See Boise City v. Blaser, 572 P.2d 892 (Idaho 1977); American
National Bank and Trust Co. of Chicago v. City of Chicago, 311 N.E.2d 325 (Ill. App. Ct. 1974); In re Campsites Unlimited, Inc.,
215 S.E.2d 73 (N.C. 1975); Clackamas County v. Holmes, 508 P.2d 190
(Or. 1973). But cf. Lutz v. New Albany City Plan Comm'n, 101 N.E.2d 187 (Ind. 1951) (there is no vested right to a nonconforming
use when the building has not been constructed and the work has
only been preliminary); State ex rel. Mar-well, Inc. v. Dodge, 177 N.E.2d 515 (Ohio Ct. App. 1960) (where there were no buildings on
the property the site preparation did not constitute a substantial
nonconforming use).
We agree that the question of whether a nonconforming use
has vested should be decided on a case-by-case basis. We also
agree that although mere site preparation generally does not vest
a nonconforming use, there are circumstances in which a
nonconforming use can vest even though actual use of the property
has not occurred. One question remains--how do you determine when
a nonconforming use vests?
Some courts have attempted to come up with factors to be
weighed when determining whether the right to a nonconforming use
vests. Anderson, supra § 6.08, at 467. We think there should be
factors which are weighed when determining whether a nonconforming
use has vested in order to ensure fairness. Furthermore, we like
the following factors established by the Supreme Court of Oregon in
Clackamas County v. Holmes, 508 P.2d 190, 192-93 (Or. 1973):
The test of whether a landowner has
developed his land to the extent that he has
acquired a vested right to continue the
development should not be based solely on the
ratio of expenditures incurred to the total
cost of the project. We believe the ratio
test should be only one of the factors to be
considered. Other factors which should be
taken into consideration are the good faith of
the landowner, whether or not he had notice of
any proposed zoning or amendatory zoning
before starting his improvements, the type of
expenditures, i.e., whether the expenditures
have any relation to the completed project or
could apply to various other uses of the land,
the kind of project, the location and ultimate
cost. Also, the acts of the landowner should
rise beyond mere contemplated use or
preparation, such as leveling of land, boring
test holes, or preliminary negotiations with
contractors or architects.
In Clackamas the county attempted to enjoin the
defendants from completing construction of a chicken processing
plant on the grounds that the construction violated county zoning.
The defendants had not yet constructed the plant; however, they had
drilled a well, purchased an irrigation system, installed
electrical power, planted grass, and spent approximately $33,000
toward the development of the property prior to the adoption of the
county zoning ordinance. Id. at 191. Based on the above factors
the court in Clackamus found that the landowners had a vested right
to continue the nonconforming use since the well on the property of
the planned chicken-processing plant provided more water than
normal for an ordinary farm, since special arrangements had been
made for electrical power and transformers, and since the
landowners had expended at least $33,000 toward the project. Id.
at 193.
Likewise, in the case before us, H.R.D.E. had engaged in
more than just "preliminary negotiations" with its architect. In
fact, H.R.D.E. had to pay $45,000 to the architect who had
completed more than 90% of his work which obviously would be
related to designing a building which would meet the special needs
of the elderly and physically handicapped. H.R.D.E. had also
installed storm sewers and culverts, conducted extensive soil
samplings and conducted surveys for the purpose of laying utility
and road lines. All together, H.R.D.E. had expended approximately
$95,000 before the zoning ordinance became effective which also
indicates that the actions of H.R.D.E. "rise beyond mere
contemplated use or preparation."
Furthermore, there is no indication that H.R.D.E. acted
in bad faith. H.R.D.E. started this project in 1984, and although
H.R.D.E. had contemplated alternative projects when it lost the
funding for the HUD project in 1985, H.R.D.E. did actively pursue
this project again in 1987 and even deeded property which was to be
a public street to the City of Romney in 1987. Most of H.R.D.E.'s
work on the project which was completed before H.R.D.E. applied for
a building permit occurred before the zoning ordinance took effect
in 1989. The City of Romney began the process of enacting the
zoning ordinance in 1989. Therefore, H.R.D.E. worked on the
project from 1987 until early 1989 without any official
contemplation of a zoning ordinance which would affect the project.
We find that H.R.D.E. acted in good faith.
In summary, we hold that although the right to a
nonconforming use when there is something less than actual use is
generally determined on a case-by-case basis, the following factors
are to be weighed when determining whether or not a landowner has
acquired a vested right to a nonconforming use: (1) whether the
landowner has made substantial expenditures on the project; (2)
whether the landowner acted in good faith; (3) whether the
landowner had notice of the proposed zoning ordinance before
starting the project at issue; and (4) whether the expenditures
could apply to other uses of the land. Mere contemplated use or
preparation or preliminary negotiations with contractors or
architects will not vest the right to a nonconforming use.
Therefore, in this case the landowner has a vested right
to complete the project as a nonconforming use when the landowner
acted in good faith while expending approximately $95,000 in
preparing for the construction of a specially designed building for
the elderly and physically handicapped before the municipality
enacted a zoning ordinance. We emphasize that in this particular
case the landowner's acts went beyond mere contemplated use or
preparation.
In syllabus point 5 of Wolfe v. Forbes, 159 W. Va. 34,
217 S.E.2d 899 (1975), this Court stated: "While on appeal there
is a presumption that a board of zoning appeals acted correctly, a
reviewing court should reverse the administrative decision where
the board has applied an erroneous principle of law, was plainly
wrong in its factual findings, or has acted beyond its
jurisdiction." We think the board of zoning appeals applied an
erroneous principle of law by not considering factors such as those
discussed in Clackamas, supra, which would indicate whether a
nonconforming use can vest when something less than actual use has
occurred. Before the zoning ordinance was effective, we find that
H.R.D.E.'s actions went beyond the mere contemplated use of the
property. We also find that the amount of money expended was
significant in indicating whether the project was merely
contemplated or far enough along to vest a nonconforming use. On
that basis, we reverse the decision of the circuit court which
affirmed the order of the board of zoning appeals since we find
that the board of zoning appeals was plainly wrong in its factual
findings and applied a clearly erroneous principle of law.
III
In light of our resolution of the nonconforming use
issue, it is not necessary for us to fully address the following
two issues raised by H.R.D.E.: (1) did the board of zoning appeals
err by not finding that the City of Romney was estopped from
denying the building permit under the principle of equitable
estoppel, (2) did the board of zoning appeals err by refusing to
grant a variance as set forth in the zoning ordinance.See footnote 6
IV
Based upon the foregoing, the January 8, 1992 order of
the Circuit Court of Hampshire County is reversed.
Reversed.
Footnote: 1 Below is the portion of testimony by Mr. Kincaid which
indicates that he relied on the mayor's letter:
Q. I specifically want to call your
attention to Exhibit J, which is a letter
dated January 31st, 1989, and the last
paragraph of that.
A. [by Mr. Kincaid] Exhibit J, dated
January 31st, 1989, the last paragraph. I
would deem your project to be under the
grandfather clause, in which there would be no
codes or restrictions that would apply.
Q. And did you, in fact, rely upon that?
A. Absolutely. We submitted it to our
funding agent.
Footnote: 2 The following is taken from the mayor's testimony at the
hearing before the board of zoning appeals:
Q. Does that letter specifically state
that?
A. Last paragraph: I would deem your
project to be under the grandfather clause in
which there would be no codes and restrictions
that would apply.
Q. And did you write that letter-
A. I did.
Q. (continued) as Mayor of the town?
A. I did. And that was based on
discussion at city council meetings of some
projects that was [sic] in the making at that
time, specifically, three projects was [sic]
discussed at various council meetings. This
project . . . .
Footnote: 3 The mayor testified to the following:
Q. And are there any minutes that you
can direct us to that would indicate that
council had been discussing this and taken any
action on it, even been made aware of the
progress?
A. They were made aware of it at all times by myself. Whether the minutes reflect it or not, I don't know, because it's been common practice. There's a lot of discussions takes [sic] place at council meetings that
does [sic] not get into the minutes.
Footnote: 4 The zoning appeals board rejected the evidence relating
to the amount of money H.R.D.E. had expended because it found that
evidence to be immaterial.
Footnote: 5 W. Va. Code, 8-24-50 [1984] states, in part:
Such zoning ordinance or ordinances shall not prohibit the continuance of the use of any land, building or structure for the purpose for which such land, building or structure is used at the time such ordinance or ordinances take effect, but any alteration or addition to any land or any alteration, addition or replacement of or to any existing building or structure for the purpose of carrying on any use prohibited under the zoning rules and
regulations applicable to the district may be
prohibited[.]
Footnote: 6 Although it is not necessary for us to address whether
equitable estoppel applies in this case, we would like to point out
that although the record is vague, it does not indicate that the
mayor had authority to tell H.R.D.E. that the project was
grandfathered. The general rule is that "[a] municipality is not
estopped . . . by the unauthorized act of an officer, as, for
example, in issuing a permit in violation of a zoning or other
ordinance." 9A Eugene McQuillin, Municipal Corporations § 27.56,
at 430 (3d ed. 1986) (footnotes omitted). See also City of San
Marcos v. R. W. McDonald Development Corp., 700 S.W.2d 674, 676
(Tex. Ct. App. 1985). Therefore, since the mayor was not
authorized to assure H.R.D.E. that the project would be
grandfathered, the doctrine of equitable estoppel will not apply in
this case.
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