Stoney Quinto Jr., and Stoney Quinto Sr., Petitioners Below, Petitioners
City of Fairmont Planning Commission, Respondent Below, Respondent
Stoney Quinto Jr., and Stoney Quinto Sr., pro se, appeal the
order of the Circuit Court of Marion County, entered on
October 27, 2016, denying petitioners' petition for writ
of certiorari that challenged the November 10, 2015,
resolution of the Fairmont City Council ("city
council") that adopted the October 22, 2016, decision of
Respondent City of Fairmont Planning Commission
("commission"). In its decision, the commission
denied petitioners' application to have their property
rezoned as inconsistent with the City of Fairmont's
("Fairmont") comprehensive zoning plan. The
commission, by counsel Kevin V. Sansalone, filed a summary
response in support of the circuit court's order.
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.
a man and his father, own real property on the corner of
Morgantown and Maryland Avenues in Fairmont, West Virginia.
From this real property, identified as parcels 103 through
110 on tax map 03-05, petitioners operate a used car
business. According to petitioners, prior to 2005, their
property was zoned as business "B"
("BB"), pursuant to which permitted uses included
automotive sales, gas stations, and drive-thru restaurants.
However, in 2005, Fairmont adopted a comprehensive zoning
plan and, in 2006, adopted a new planning and zoning code
based on that plan.
to the 2005 plan, petitioners' property is now zoned as
"neighborhood mixed use" ("NMU"). Until
2015, automotive sales was an illegal use of property in a
NMU zoning district under Fairmont's current zoning
regulations. However, because of grandfathering provisions,
petitioners' use of their property as a used car business
was a permitted non-conforming use in their NMU zoning
district so long as they did not abandon the operation of
that business for a period of one year. See
Fairmont, W.Va., Planning and Zoning Code § 2.2 (2015)
in 2010, petitioners attempted to persuade the commission to
rezone their property as "main corridor commercial"
("MCC"). Petitioners believe that MCC zoning is
similar to the BB zoning of their property under the pre-2005
zoning regime in that automotive sales, fueling stations, and
drive-thru establishments are permitted conditional uses in a
MCC zoning district. The commission denied petitioners'
rezoning applications in 2010 and 2014.
2015, the commission recommended to the city council that the
Fairmont planning and zoning code be amended to designate
automotive sales as a conditional use in NMU zoning districts
such as petitioners'. On May 28, 2015, the city council
enacted the amendments recommended by the commission,
pursuant to which automotive sales is a now conditional use
in both NMU and MCC zoning districts. See id. §
3.1.3(D)(i) (2015) (listing automotive sales as a conditional
use in a NMU zoning district).
the 2015 zoning amendments, in August of 2015, petitioners
filed a third application to have their property rezoned from
NMU to MCC. Petitioners stated that their present and
proposed future use of their property was for a used car
business and contended that their business was a conditional
use under the old BB zoning, but was only a permitted
non-conforming use under Fairmont's current zoning
commission held a public hearing on petitioners' rezoning
application on October 21, 2015. Petitioner Stoney Quinto Jr.
confirmed that petitioners intended to continue with their
used car business and had no plans to use their property for
any other business. However, Petitioner Stoney Quinto Jr.
contended that petitioners' property should be rezoned as
MCC so that they would have the option in the future to
engage in other businesses such as fueling stations and
drive-thru establishments. He further contended that a number
of other businesses zoned BB under the pre-2005 regime were
eventually approved for MCC zoning under Fairmont's
current zoning regime.
city planner, Mark Miller, opined that petitioners'
application was a request to "spot-zone" their
property so that it would be a MMC property within an
otherwise NMU zoning district. Mr. Miller stated that the
number of automotive sales businesses located on Morgantown
Avenue caused the commission to recommend the amendments
earlier in 2015 to designate such businesses as conditional
uses in NMU zoning districts. Consequently, Mr. Miller
explained that, with the enactment of those amendments,
petitioner's used car business was a conditional use. On
the other hand, Morgantown Avenue was included in a NMU
zoning district because of small businesses and residential
neighborhoods being in close proximity of each other and the
need to accommodate those businesses "while maintaining
the integrity of [the] residential neighborhoods."
the hearing's public comment period, one person spoke in
favor of petitioners' application to rezone their
property as MCC. However, two persons spoke against the
application. Both of these persons indicated, of the two
roadways on which petitioners' property is located,
Maryland Avenue was the more residential street, which
distinguished petitioners' property from properties
wholly located on a more heavily-used road. Thomas DeVito,
who spoke on behalf of his mother and another resident of
Maryland Avenue, stated that the other former BB businesses
that were eventually approved for MCC zoning were wholly
located on major highways, but that petitioners' property
was not. Richard Straight, who was identified as a resident
of Maryland Avenue, stated that the NMU zoning for the
neighborhood was correct "[b]ecause the property that
front[s] Maryland Avenue should be residential
property." In addition, those opposed petitioners'
rezoning application presented a signed petition requesting
that the application be denied.
decision dated October 22, 2015, the commission denied
petitioners' application to rezone their property from
NMU to MCC, finding that the requested rezoning was "not
consistent" with Fairmont's comprehensive zoning
plan. The commission found that "[t]here have been no
major changes of an economic, physical, or social nature
within the area involved[, ] which were not anticipated when
the comprehensive plan was adopted."
commission also addressed petitioners' specific
contentions. First, the commission found that, pursuant to
the 2015 zoning amendments, "the current use of
[petitioners'] property has not been and is not now a
non-conforming use." See Fairmont, W.Va.,
Planning and Zoning Code § 3.1.3(D)(i) (2015). Second,
in response to petitioners' contention that they should
have the option to engage in other uses only permitted under
MCC zoning, the commission found that petitioners "did
not state any specific different proposed, intended[, ] or
future use of the property" other than as a used car
business that is already permitted as a conditional use in
their NMU zoning district. Finally, though the commission did
not discuss the unique characteristics of petitioners'
neighborhood, it found that petitioners' "neighbors
objected to the requested rezon[ing]."
November 10, 2015, the city council adopted the
commission's October 22, 2015, decision and incorporated
the commission's findings and conclusions into its
resolution. Petitioners filed a petition for a writ of
certiorari in the Circuit Court of Marion County to challenge
the city council's adoption of the commission's
denial of their rezoning application. By order entered on October
27, 2016, the circuit court found that the deferential
standard of review regarding zoning decisions applied to this
case. Employing that standard, the circuit court found that
the commission's decision was "supported by fact and
the law of the State of ...