Posted by: Patricia Salkin | March 14, 2011

West Virginia Supreme Court Allows Supplemental Evidence to Prove Pre-Existing Nonconforming Use

Sams appeared before the ZBA to appeal a citation issued to him by the zoning officer for a nonconforming use – a commercial business located in a single family residential zone.  At issue was whether the use of the property was exempt under a grandfather clause in the city ordinance and the partied agreed to proffer evidence as to the existence and operation of the business at the time the ordinance was enacted in 1999.  Sams did not obtain a business license until 2004, but his counsel proffered testimony that he had been operating the business at the same location since 1998. The ZBA found that Sams had only operated the business since 2004, that the citation was properly issued and that Sams had six months to correct the violation and stop using the property for his lawn care business.  Sams filed a petition and indicated he had a right to submit new evidence under West Virginia law, and over the BZA’s objection, offered a business license issued to him by the City in 1998 giving him permission to operate a lawn care business at the location in question.

The Circuit Court, based on this new evidence, overturned the BZA’s decision.  The BZA objected to the circuit court’s decision to allow the admission of this new evidence and for failing to remand the matter back to the BZA for further proceedings.  The West Virginia Supreme Court upheld the decision of the circuit court allowing Sams to supplement the record with a copy of the previously issued business license, and further held that the court did not abuse its discretion in overturning the BZA’s determination.  

Sams v City of White Sulphur Springs, 704 S.E.2d 723 (WV 11/19/2010).

The opinion can be accessed at:

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