W. Va. Supreme Court Agrees that Board Members and Board Attorney Had Impermissible Conflicts of Interest

In 2001, Thornhill, LLC, a real estate developer, applied for a conditional use permit (CUP) to enable it to build a new subdivision in a rural portion of Jefferson County.  In evaluating the application, Thornhill was initially given a passing land evaluation and site assessment (LESA) score, which would have permitted it to proceed with its development plans. Appellant, opposed to the project, claimed, among other things, that she has been denied due process insofar as she had not been afforded a hearing before an impartial hearing tribunal, claiming that two of the Board members had conflicts of interest that required their recusal from the Board, and that the Board attorney had a conflict of interest that required his disqualification from the Board’s proceedings.                          

The Supreme Court of Appeals of West Virginia, agreed that the two Board members and the Board attorney should have been disqualified from the Board proceedings concerning Thornhill’s CUP application, and thus, Appellant and the remaining petitioners “did not receive the process to which they were due because they did not receive a fair hearing in a fair tribunal.”  Specifically, the Court found that board member Weigand, co-founder and president of a company which inspects new sewage lines should have been recused because he had a conflict of interest that prevented him from serving as an impartial member of the Board of Zoning Appeals since he had a prior business relationship with one of the owners of Thornhill (Capriotti). In fact, minutes of one board meeting state that “Mr. Weigand stated that several years ago his form [sic] worked for Mr. Capriotti and that he had no financial interest in the matter pending before the Board[.]” The Court concluded that this prior business relationship with Mr. Capriotti is problematic and gives rise to an appearance of impropriety, and that absent further information about the nature or extent of these prior dealings, it is plausible that the board member could be inclined to rule favorably for Thornhill in its CUP application process simply because the prior relationship “offer[s] a possible temptation to the average man as a judge . . . which might lead him not to hold the balance nice, clear and true.” In addition, the fact that Weigand has been awarded an exclusive contract to inspect sewage lines in the county following the approval is also problematic. 

A second board member, Rockwell, is an attorney who conducts real estate closings, and the appellant alleged that he conducted closings for a law firm who had performed the incorporation work for Thornhill, and that as a result of the proposed subdivision, he would stand to gain work with many closings.  The Court found that while the prior work was too tenuous to create a conflict, the Board member once directly represented Thornhill and this relationship should have been disclosed and that under West Virginia’s Rules of Professional Conduct, he may be disqualified. 

Lastly, the Attorney who represented the Board during the proceeding, then left the Board and joined the firm that represents Thornhill. The Court had previously decided that the attorney could not represent Thornhill at the firm regarding the application and now found the attorney’s participation on behalf of the Board when “it is apparent that [negotiations for employment] likely occurred while he was still working for the Board…” gave rise to the appearance of impropriety and he should have been disqualified. As a result of finding that all three participants should have been disqualified, the Court ordered a new hearing.

Rissler v. Jefferson County Board of Zoning Appeals, 2010 WL 1260166 (W.Va. 4/1/2010). 

The opinion can be accessed here.