                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS                                 FILED
                                                                                October 7, 2016
                                                                                  RORY L. PERRY II, CLERK
Central Place, LLC,                                                             SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA
Petitioner Below, Petitioner

vs) No. 15-1057        (Monongalia County 15-C-245 and 15-C-358-consolidated below)

The City of Morgantown
Planning Commission, City of
Morgantown Board of Zoning
Appeals, and Campus Acquisitions
Holding, LLC,
Respondents Below, Respondents


                               MEMORANDUM DECISION

        Petitioner Central Place, LLC, by counsel Samuel H. Simon, Matthew L. Lautman, and J.
Bryan Edwards, appeals the October 6, 2015, order of the Circuit Court of Monongalia County
that denied its petitions for writs of certiorari filed in connection with the approval of a site plan
submitted by Respondent Campus Acquisitions Holding, LLC (“Campus Acquisitions”) for the
development of certain mixed-use dwelling property in the City of Morgantown. Respondent
Campus Acquisitions, by counsel Stephen M. LaCagnin and Wendy G. Adkins, and Respondents
City of Morgantown Planning Commission (“Planning Commission”) and City of Morgantown
Board of Zoning Appeals (“BZA”), by counsel Ryan P. Simonton, filed responses. Petitioner
submitted a reply.

        This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

       On February 6, 2015, Campus Acquisitions filed with the Planning Commission an
application for review of a Type III Site Plan (“Site Plan”) for a proposed development in the
City of Morgantown’s B-4 General Business District. The Site Plan proposed a building height
of 120 feet or less; 89 residential dwelling units, with a total of 331 bedrooms; 157 parking
spaces for residential use; and 7,649 square feet of nonresidential space that included 3,435
square feet of commercial retail space with the remainder of the nonresidential space for use by
building tenants and staff.

       Petitioner owns a property that is adjacent to the proposed development. On March 11,
2015, petitioner filed an application for administrative appeal seeking a review by the BZA of

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“multiple erroneous determinations” about the Site Plan made by a Staff Report of the
Morgantown Director of Development Services office.

       Meanwhile, on March 12, 2015, the Planning Commission approved the Site Plan.

        On April 10, 2015, petitioner filed a petition for writ of certiorari in the Circuit Court of
Monongalia County seeking judicial review of the Planning Commission’s approval of the Site
Plan,1 and also filed an application for administrative appeal with the BZA seeking its review of
the Planning Commission’s decision. With the consent of the parties, the BZA combined the
March 11, 2015, application for administrative appeal with the one filed on April 10, 2015. A
hearing was conducted on May 7, 2015; thereafter, the BZA upheld the Planning Commission’s
approval of the site plan.

       On June 4, 2015, petitioner filed a second petition for writ of certiorari in which it sought
review of the BZA’s decision to uphold the Planning Commission’s approval of the Site Plan.

        By order entered May 21, 2015, Campus Acquisitions was permitted to intervene in the
above-described proceedings and, by agreed order entered June 15, 2015, the certiorari
proceedings were consolidated. By order entered October 6, 2015, the circuit court denied the
petitions and affirmed the decisions of the Planning Commission and BZA approving Campus
Acquisitions’ Site Plan. This appeal followed.

        This case requires a review of certiorari orders issued by the circuit court. “This Court
applies an abuse of discretion standard in reviewing a circuit court’s certiorari judgment.” Syl.
Pt. 2, Jefferson Orchards, Inc. v. Jefferson Cty. Zoning Bd. of Appeals, 225 W.Va. 416, 693
S.E.2d 781 (2010). The same standard of review utilized by the circuit court also applies to our
review of this matter. As this Court explained in Webb v. West Virginia Bd. of Med., 212 W.Va.
149, 569 S.E.2d 225 (2002), “[o]n appeal, this Court reviews the decisions of the circuit court
under the same standard of judicial review that the lower court was required to apply to the
decision of the administrative agency.” Id., 212 W.Va. at 155, 569 S.E.2d at 231; accord Martin
v. Randolph Cnty. Bd. of Educ., 195 W.Va. 297, 304, 465 S.E.2d 399, 406 (1995).

        “‘Interpretations of statutes by bodies charged with their administration are given great
weight unless clearly erroneous.’ Syl. Pt. 4, Security Nat’l Bank & Trust Co. v. First W. Va.
Bancorp., 166 W.Va. 775, 277 S.E.2d 613 (1981).” Syl. Pt. 3, Corliss v. Jefferson Cty. Bd. of
Zoning Appeals, 214 W. Va. 535, 591 S.E.2d 93 (2003). However, in syllabus point 5 of Wolfe v.
Forbes, 159 W.Va. 34, 217 S.E.2d 899 (1975), this Court held “[w]hile 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.” See also Syl. pt. 1, Jefferson
Utilities, Inc. v. Jefferson Cty. Bd. of Zoning Appeals, 218 W.Va. 436, 624 S.E.2d 873 (2005).
With these standards in mind, we consider the parties’ arguments.

       1
          See W.Va. Code § 8A-9-1(a), which states that “[e]very decision or order of the
planning commission, board of subdivision and land development appeals, or board of zoning
appeals is subject to review by certiorari.”
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        In its first assignment of error, petitioner argues that the circuit court erred in affirming
the Planning Commission’s finding that the proposed development does not violate the
prohibition against driveways in the B-4 General Business District from coming within thirty
feet of other driveways, as set forth in City of Morgantown, Codified Ordinances § 1351.01(D)
(2015) (“Morgantown City Code”). Morgantown City Code § 1351.01(D) states as follows:

       Curb Cuts. No part of a driveway leading from a public street shall be nearer than
       thirty-five (35) feet to the street right-of-way line of any intersecting street, nor
       nearer than thirty (30) feet to the end of a curb radius at an intersecting street, nor
       shall the driveway be nearer than thirty (30) feet to any other part of another
       driveway entering a public street. The maximum width of any driveway leading
       from a public street shall not exceed twenty-six (26) feet at the curb line or
       twenty-two (22) feet at the street right-of-way line. Driveways that cross
       pedestrian walks shall be designated to allow for barrier free pedestrian travel.

        The configuration of the driveway at issue, as it relates to petitioner’s driveway, appears
to be undisputed. The proposed development will have two entrances to its internal and external
parking facilities, one on Spruce Street and the other on Willey Street. At the point of exit/entry
onto the street, the Willey Street driveway is separated from petitioner’s driveway by at least
thirty feet. However, other parts of the Willey Street driveway run less than five feet from the
property boundary. It is petitioner’s contention that Morgantown City Code § 1351.01(D) clearly
prohibits driveways from coming nearer than thirty feet to any other part of another driveway
that leads to or from a public street and that, therefore, the path of the above-described driveway
violates this provision.

        Respondents counter that the circuit court did not err in affirming the lower tribunals’
rulings that the required separation between the driveways is measured from the portions of the
driveways that enter onto or lead from a public street, which, as the ordinance’s heading denotes,
are the tangents of the respective curb cut flares and the curb lines. Respondents argue that the
remaining portions of a driveway are not regulated by Morgantown City Code § 1351.01(D).
Petitioner argues that although the ordinance’s heading is entitled “curb cuts,” it is undisputed
that the text of the applicable ordinance does not include or otherwise refer to such phrase, nor
does it state that portions of a driveway within a property are excluded from the distance
requirements. Petitioner argues further that the lower tribunals violated the rules of construction
set forth in the city’s ordinance by allowing the heading of § 1351.01(D) to dictate the meaning
of its operative text. As Morgantown City Code § 1329.01(B) specifically states, “[i]n the event
there is any conflict or inconsistency between the heading of an article, section, subsection, or
paragraph of this ordinance and the context thereof, the heading shall not be deemed to affect the
scope, meaning, or intent of such context.”

        We agree with respondents and find no error in the circuit court’s conclusion that the
“curb cuts” heading is not inconsistent with the operative text of the ordinance. The heading
clarifies that the thirty foot separation requirement pertains only to the “part of another driveway
entering a public street”—that is, the curb cut. It is undisputed that Campus Acquisition’s Site
Plan of the proposed development shows that the curb cuts will be at least thirty feet from all
adjacent curb cuts, including the one on petitioner’s property. This is in conformity with the

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distance requirements set forth in Morgantown City Code §1351.01(D). We, therefore, conclude
that the circuit court gave appropriate deference to the interpretation of §1351.01(D) by the
Planning Commission and BZA and did not err.

       In its next assignment of error, petitioner argues that the circuit court erred in affirming
the lower tribunals’ findings that the proposed development has the requisite number of parking
spaces for a mixed-use dwelling. The circuit court concluded that the Planning Commission and
BZA were not clearly wrong in applying the B-4 General Business District minimum parking
requirements set forth in Morgantown City Code § 1349.08 to the proposed development, which
includes 89 dwelling units with 331 bedrooms and 7,649 square feet of nonresidential space.

    The circuit court concluded that, under Morgantown City Code § 1349.08, proposed
developments within the City of Morgantown’s B-4 General Business District must comply with
the following parking requirements:

      (1) Residential: Parking shall not be required for the first twenty-two (22) occupants,
          as determined by the West Virginia State Building Code and adopted and
          implemented by the City, within permitted residential development. With the
          exception of the first twenty-two (22) occupants, the minimum number of parking
          spaces for permitted residential uses shall be one-half a space (0.5) per occupant,
          as determined by the West Virginia State Building Code and adopted and
          implemented by the City.

      (2) Nonresidential:	 Parking shall not be required for permitted nonresidential

          development which does not meet or exceed the criteria of a Development of

          Significant Impact or a Major Development of Significant Impact. The minimum

          number of parking spaces for permitted nonresidential uses shall be provided in

          accordance with Table 1365.04.01 “Minimum Off-Street Parking Requirements”

          for that gross floor area that exceeds the criterial of a Development of Significant

          Impact or a Major Development of Significant Impact.


Id.

     The circuit court further determined that “[t]he only applicable parking limitation for
‘Dwelling, Mixed Use’ developments within the B-4 District is the requirement that they have
‘at least one (1) parking space for each residential unit, plus twenty-five (25) percent of the usual
non-residential parking requirement.’” See Morgantown City Code § 1331.06(26)(c). Applying
the foregoing formula, the minimum number of parking spaces required for the development was
155 spaces for residential use, and no additional parking for the development’s nonresidential
uses.2 The current allotment of off-street parking for Campus Acquisitions’ proposed
development is 157 parking spaces, which exceeds the required number.

   Petitioner argues that the circuit court should have applied the general off-street parking
requirement formula for a “Dwelling, Mixed Use,” which, under Morgantown City Code §

         2
             This was based upon the following calculation: (331-22) x 0.5 = 155.
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1329.02, refers to a building containing primarily residential uses with a subordinate amount of
commercial and/or office uses on the ground floor. Petitioner argues that Campus Acquisitions’
own documents indicate that the land-use classification for the proposed development is
“Dwelling, Mixed Use,” and also reference the ordinance’s supplemental regulations for “Mixed
Use Dwelling Units.” The minimum parking requirements for such a development are “1 space
per dwelling unit or 0.75 spaces per occupant . . . whichever is greater, plus required spaces for
commercial use(s). See Morgantown City Code Table § 1365.04.01. According to petitioner, the
resulting calculation is 331 x 0.75 = 248.25 spaces, which figure does not take into account any
of the additional parking spaces that would be required for nonresidential use under Table §
1365.04.01, or any of the conditional use parking reductions available to developments located
within the B-4 General Business District. Petitioner argues that the 157 allotted off-street
residential parking spaces for the proposed development are far short of this required number,
with no spaces allotted for commercial use even though the building was designed to include
both residential housing and commercial uses.

    We find no error. The circuit court expressly noted that it considered petitioner’s argument
under the “Dwelling, Mixed Use” ordinance requirements. However, the circuit court also
considered the stated purpose of the B-4 General Business District, which is to “[p]romote
development of a compact, pedestrian-oriented central business district consisting of a high
intensity employment center, vibrant and dynamic mixed use areas, and residential living
environments that provide a broad range of housing types for an array of housing needs.”
Morgantown City Code § 1349.01(A). The circuit court further considered the fact that the B-4
General Business District endeavors to “[e]ncourage pedestrian-oriented development within
walking distance of public transit opportunities at densities and intensities that will help to
support transit usage and businesses[.]” Id. at § 1349.01(C). See Id. at 1349.01(B) (stating, in
part, that the B-4 General Business District is intended to “[p]romote a diverse mix of residential,
business, commercial, [and] office . . . activities[.]”). Attendant to this purpose is the need for
less parking than in other areas of the City of Morgantown. Based upon our review of the
applicable ordinances and the record herein, we find that the circuit court did not abuse its
discretion in affirming the decisions of the Planning Commission and BZA as to their
interpretations of the parking requirement ordinances for the proposed development.

        In its third assignment of error, petitioner argues that the circuit court erred in affirming
the lower tribunals’ findings that the proposed development, which will be twelve stories high
and 120 feet or less in height, does not violate the Morgantown Comprehensive Plan’s building
height restriction of a maximum height of four stories or fifty feet. Specifically, petitioner argues
that, under Morgantown City Code § 1301.05, the proposed development “shall conform to the
principles, policies and provisions of the Comprehensive Plan[,]” and further, that the 2010
Morgantown Downtown Strategic Plan Update, which petitioner argues must be read in pari
materia with all other provisions of the Morgantown City Code relating to land use,3 states that

3
    Morgantown City Code § 1327.05(A) states that

         [t]he Zoning Ordinance shall be interpreted to include any and all other provisions
         of the Morgantown City Code, which are necessary for an understanding of this
         ordinance and the attainment of its purposes. The City Council of the City of
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new buildings within the Character Area C4-Forest Avenue4 “shall be” a maximum height of
four stories or fifty feet, or a minimum of three stories or thirty feet in height to promote a mix of
uses and a continuous urban edge. Petitioner argues that the use of the term “shall” indicates that
it is mandatory that the maximum height of the proposed development be no more than four
stories, or fifty feet.

        Respondents counter that the specific zoning ordinance provision that governs building
height in the B-4 General Business District requires that “[t]he maximum height of a principal
structure . . . shall not exceed 120 feet, except as provided in Section 1363.02(A).” Morgantown
City Code § 1349.05(B). Respondents argue that the Morgantown Comprehensive Plan height
requirements are simply guidelines for implementing zoning rules and do not supersede specific
zoning ordinances,5 which are specifically authorized to regulate building height. See W.Va.


       Morgantown, West Virginia, intends that all Morgantown City Code provisions
       relating to land use, and all orders, rules, and regulations established pursuant to
       said provisions, be read as part of a uniform system of Morgantown land use
       regulation.

      Petitioner argues that the “other provisions of the Morgantown City Code” include the
Morgantown Comprehensive Plan and the Morgantown Downtown Strategic Plan Update.
       4
          Without a great deal of explanation, petitioner and Campus Acquisitions state that the
proposed development—which all parties agree is located within the B-4 General Business
District—is also located in the Character Area C4-Forest Avenue as defined by the Downtown
Morgantown Strategic Plan
.
        5
          West Virginia Code § 8A-3-1(a), (b) and (c), regarding comprehensive plans, provides
as follows:

       (a) The general purpose of a comprehensive plan is to guide a governing body to
       accomplish a coordinated and compatible development of land and improvements
       within its territorial jurisdiction, in accordance with present and future needs and
       resources.
       (b) A comprehensive plan is a process through which citizen participation and
       thorough analysis are used to develop a set of strategies that establish as clearly
       and practically as possible the best and most appropriate future development of
       the area under the jurisdiction of the planning commission. A comprehensive plan
       aids the planning commission in designing and recommending to the governing
       body ordinances that result in preserving and enhancing the unique quality of life
       and culture in that community and in adapting to future changes of use of an
       economic, physical or social nature. A comprehensive plan guides the planning
       commission in the performance of its duties to help achieve sound planning.
       (c) A comprehensive plan must promote the health, safety, morals, order,
       convenience, prosperity and general welfare of the inhabitants, as well as
       efficiency and economy in the process of development.

                                                  6

Code § 8A-7-2(b)(8) (stating that “[a] zoning ordinance may include the following: . . .
Regulating the height, area, bulk, use and architectural features of buildings . . . .”). Respondents
further argue that petitioner erroneously relies on the 2010 Downtown Strategic Plan Update,
conflating it with the Comprehensive Plan.

        We agree with respondents and find that the circuit court did not abuse its discretion in
affirming the decisions of the lower tribunals. Recognizing that a comprehensive plan is to be
used by the Planning Commission as an aid and was “never intended to replace definite, specific
guidelines; instead, it was to lay the groundwork for the future enactment of zoning laws,”
Singer v. Davenport, 164 W.Va. 665, 668, 264 S.E.2d 637, 640 (1980), the circuit court
concluded that the zoning ordinances governing the B-4 General Business District superseded
any comprehensive or strategic plan. Thus, as the proposed development conforms to the
maximum height requirement of 120 feet as set forth in Morgantown City Code § 1349.05(B),
the circuit court did not err.

         In its fourth assignment of error, petitioner argues that the circuit court erred in denying
petitioner’s petition for writ of certiorari because the Planning Commission and BZA relied on
an out-of-date traffic impact study when approving the Site Plan. The study was submitted along
with Campus Acquisitions’ original site-plan application for the proposed development, which
was filed as a “Type III Development of Significant Impact.” Though the original application
was approved by the Planning Commission, the BZA reversed because, based upon the size and
scope of the proposed development, it qualified as a “Major Development of Significant Impact”
under the City’s planning and zoning code. The present site-plan application was submitted
under this classification. In this appeal, petitioner argues that after the original application was
filed, Campus Acquisitions increased the proposed amount of commercial space by almost 4,000
square feet. As a result, the Planning Commission and BZA should have required an updated
traffic impact study because, without it, they were unable to perform a “complete and thorough
review” of the submitted Site Plan as required by Morgantown City Code § 1385.01. See Id.
(stating, in part, that “[i]t shall be the duty of the Planning Director, or his/her designee, in
conjunction with other appropriate departments and agencies, to perform [a] complete and
thorough review of all plans submitted to the Planning Department.”).

         We find no error. As a threshold matter, a traffic impact study was not mandatory as part
of the site-plan application. In connection with a “Type III Major Development of Significant
Impact” site-plan review, the Planning Commission “may require an analysis of the proposed
development’s impact on . . . traffic flows and/or dedicated City roadways[.]” Morgantown City
Code § 1385.08(D). (Emphasis added). If submitted, the study would not be grounds for denial
of the project unless the projected traffic impact “would result in a two (2) full letter grade
decline in the existing Level of Service (e.g., going from a Level of Service B to a Level of
Service D) of any dedicated City street directly serving the use . . . .” Morgantown City Code
§1385.08(D)(1), in part. Notwithstanding petitioner’s assertion to the contrary, the record shows
that the proposed development will have 7,310 square feet of non-residential space with
approximately 3,435 square feet of commercial/retail space, the latter of which is reflected in the
traffic impact study accompanying the application submitted under the “Major Developments of
Significant Impact” classification. We find that this does not represent an increase in commercial
space as petitioner claims and note the circuit court’s finding that the City of Morgantown and

                                                 7

the West Virginia Department of Transportation “determined that [the] study adequately
represented the likely traffic impacts of the Proposed Development and did not demonstrate
degradation in level of service on the affected streets.”6 Petitioner did not present evidence to
the contrary. Given these facts, petitioner’s argument that the Planning Commission could not
have performed a “complete and thorough review” of the Site Plan as required by Morgantown
City Code § 1385.01 is without merit. Accordingly, the circuit court did not err in affirming the
decisions of the Planning Commission and BZA.

        In its final assignment of error, petitioner argues that the circuit court erred in denying
petitioner’s petition for writ of certiorari because there was no room for construction staging and
storage at the location of the proposed development. Petitioner argues that the lack of such space
will create serious health and safety issues for the Morgantown community given that the
proposed development “will cover virtually the entirety of the lot in question with only set-backs
not occupied by the structure[,]” leaving no space for storage and spacing. Furthermore,
petitioner argues that extended closures of either or both Willey and Spruce Streets will be
required, which can only occur with authorization of the West Virginia Department of
Transportation, Division of Highways. See W.Va. Code §§ 17-4-1 and -8. According to
petitioner, the resulting significant decline in the level of service for a city street is sufficient
grounds for denial of the project. See Morgantown City Code § 1385.08.

        Respondents counter that petitioner misapprehends the role of site plan review, as the
same does not include review of construction documents or the temporary closure of streets;
rather, it is limited to consideration of the general, performance and design standards in the City
of Morgantown’s planning and zoning ordinances. See Id. at § 1385.12(B)(1) and (2).
Respondents explain that Campus Acquisitions must separately apply for a building permit once
the Site Plan is approved and must also request the temporary closure of Willey and Spruce
Streets—which are State roads—from the West Virginia Department of Transportation, Division
of Highways. Respondents thus argue that the construction staging and storage issues raised by
petitioner are not grounds for the rejection of the project at issue. We agree.

        Given that any temporary closure of a state road would be controlled by the State, not the
City of Morgantown, and that the Planning Commission’s review of the Site Plan does not
include review of construction documents, the Planning Commission may not reject a site plan
based upon an anticipated need to close streets for construction. Thus, it was not error for the
circuit court to affirm the decisions of the Planning Commission and BZA on this issue.

       For the foregoing reasons, we affirm.

                                                                                          Affirmed.

       6
         Respondents represent and petitioner does not dispute that Willey and Spruce Streets
are State roads within the jurisdiction of the West Virginia Department of Transportation,
Division of Highways, and thus, not “dedicated City street[s]” under Morgantown City Code
§1385.08(A)(2). Nonetheless, both the City of Morgantown and the West Virginia Department
of Transportation determined that, based upon the traffic impact study, no degradation in level of
service would occur.
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ISSUED: October 7, 2016

CONCURRED IN BY:

Chief Justice Menis E. Ketchum
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II




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