Posted by: Patricia Salkin | October 25, 2014

W VA Supreme Court Finds Circuit Court Improperly Substituted Its Judgment for that of the Zoning Board and Awarded Granting Variance

Ms. Kelch and Mr. Tkacz owned separate property that adjoined each other in Shepherdstown. Ms. Kelch constructed a temporary “reed” fence around the perimeter of her property, which was approximately six feet, six inches tall and composed of reeds that were tightly strung together.  Subsequently, Ms. Kelch filed an application for a building permit with the Planning Commission, seeking to make the fence a permanent fixture on her property. The Planning Commission denied the application, stating that the fence did not meet the material or height requirements of the Town of Shepherdstown’s Planning and Zoning Ordinance (hereinafter the “Ordinance”). Ms. Kelch then filed an appeal with the BZA, claiming that the fence was necessary to repel trespassers and to maintain her property insurance. The BZA granted the variance with regard to the fencing material but ordered Ms. Kelch to lower the fence to a height of six feet. The circuit court granted relief to Mr. Tkacz by vacating the decision of the BZA and awarding him attorney’s fees and costs, and the BZA appealed.

Ms. Kelch was not represented by counsel when she appeared before the Planning Commission or later when she filed her appeal with the BZA. She complied with the time frame provided by the Planning Commission. As a pro se litigant, it was reasonable for Ms. Kelch to rely upon the information supplied by the Planning Commission. Because Ms. Kelch filed within the 45 days the Planning Commission had given her, the Court of Appeals found that the circuit court erred in finding that Ms. Kelch’s appeal was untimely. Additionally, Section 9–1008 of the Ordinance, provided that “no such variance in the provisions or requirements of this ordinance shall be authorized by the [BZA] unless it finds, beyond reasonable doubt,” that certain facts and conditions exist.  However, in the “Conclusions of Law” section of the decision and order, the BZA stated that “the applicable standard of proof is clear and convincing evidence.” As part of its ruling, the circuit court concluded that the BZA applied the wrong standard of proof, which “constituted reversible error in and of itsel.f” Despite this, the Court of Appeals held that it was clear from a review of the record as a whole that Ms. Kelch met the Ordinance’s requirements for the granting of a variance under the controlling standard of proof. The court therefore reversed the circuit court, and ruled in favor of the variance.

Board of Zoning Appeals of the Town of Shepherdstown v Tkacz, 2014 WL 5032592 (W. VA. 9/30/2014)

The opinion can be accessed at:

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