Posted by: Patricia Salkin | October 9, 2020

WV Supreme Court Affirms Trial Court’s Decision in Favor of Landowner on Substantive Due Process Challenge to Municipal Zoning Ordinance

This post was authored by Joseph Schaeffer, Esq.

For the first time in nearly 40 years, the Supreme Court of Appeals of West Virginia has affirmed a trial court’s decision in favor of the landowner on a substantive due process challenge to a municipal zoning ordinance. In the process, the Supreme Court of Appeals clarified the standard of review to be applied at both the trial court and the appellate level.

The case, City of Morgantown v. Calvary Baptist Church, No. 18-1134 (W. Va. Sept. 29, 2020), focused on an approximately ½ acre vacant parcel in the City of Morgantown—home to West Virginia University and about 30,000 full-time residents. The landowner, Calvary Baptist Church, had subdivided the parcel from a larger, neighboring parcel with the purpose of selling it to finance improvements to its sanctuary. The prospective buyer, however, conditioned the sale on a change in the zoning from single-family residential to commercial business.

The Church did not expect any obstacle to the rezoning. The vacant lot was wedged between a large mixed-use development and the Church building and fronted on a busy State road traveled by several thousand vehicles each day. And though there were other residential properties in the area, they were mostly set back from the road. Moreover, the City had recently rezoned neighboring properties from single-family residential to commercial business—on one occasion even finding that the property along the State road was unlikely to be used for residential purposes.

Since the neighboring properties had been rezoned, however, the City had adopted a new comprehensive plan. And it took the position that the plan designated the area in which the vacant lot was located for “limited growth” and “neighborhood conservation.” It therefore denied the rezoning, prompting the Church to file a petition for writ of mandamus to compel the City to adopt the desired change. The Church’s primary legal theory, and the one that ultimately prevailed at trial, was based in substantive due process.

To support its substantive due process claim, the Church expanded on the neighborhood character described above while also producing an appraiser who testified that the single-family residential classification reduced the vacant parcel’s value by more than half. The City, for its part, argued that its comprehensive plan represented the community’s desire to maintain the area around the vacant parcel as residential. The trial court weighed the evidence and sided with the Church, finding that the City had helped to create the current predicament through its prior rezonings and had looked for reasons to deny the Church’s request.

The City appealed and, as in the trial court, the parties’ arguments were defined by the Church’s reliance on neighborhood characteristics and diminished value and the City’s reliance on its comprehensive plan. Two parties also disputed, however, what standard of review applied: the City advocated for a de novo standard on appeal and the inclusion of a comprehensive plan as a specific prong in the substantive due process analysis, whereas the Church argued for a deferential standard that excluded any consideration of a comprehensive plan in favor of the six original LaSalle factors.

Although the COVID-19 pandemic delayed oral argument and, with it, a decision, in late September, the Supreme Court of Appeals issued a unanimous opinion affirming the trial court’s decision. Most interesting is that the Supreme Court of Appeals agreed with the City on the standard of review and consideration of the comprehensive plan. It held that a trial court should consider the comprehensive plan as part of a substantive due process zoning challenge and that it would review this and any future zoning challenges de novo. But it nonetheless held that the Church had met its burden of showing that single-family residential zoning was arbitrary and capricious as applied to its vacant parcel. This too is interesting because it marks the first time in nearly 40 years (and only the third time in the Court’s 70+ year substantive due process zoning jurisprudence) that a landowner has prevailed on this type of claim on appeal. A reasonable inference, then, is that the Supreme Court of Appeals will give municipalities deference on their zoning decisions, but not a rubber-stamp.

City of Morgantown v. Calvary Baptist Church, No. 18-1134 (W. Va. Sept. 29, 2020),

* Mr. Schaeffer was counsel to Calvary Baptist Church in the trial court and the Supreme Court of Appeals of West Virginia.

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