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Witteried v. City of Charles Town

Supreme Court of West Virginia

May 11, 2018

Michael F. Witteried, Mary T. Witteried, and Joshua Witteried, Defendants Below, Petitioners
v.
The City of Charles Town, a West Virginia Municipal Corporation, Plaintiff Below, Respondent

          Jefferson County CC-19-2014-C-305

          MEMORANDUM DECISION

         Petitioners Michael F. Witteried, Mary T. Witteried, and Joshua Witteried, by counsel Steven Brett Offutt, appeal the Circuit Court of Jefferson County's March 1, 2017, order denying their motion to alter or amend the circuit court's December 13, 2016, final order related to three adjoining parcels of property owned by petitioners. Respondent The City of Charles Town, a West Virginia Municipal Corporation ("the City"), by counsel Braun A. Hamstead and Andrew F. Pahl, filed its response, to which petitioners 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 is appropriate under Rule 21 of the Rules of Appellate Procedure.

         Petitioners are Michael and Mary Witteried, husband and wife, and their adult son, Joshua Witteried. On or about September 12, 2014, The City filed a complaint against petitioners as a "Petition for Injunction to abate nuisance conditions existing on the privately owned real estate of [the City] and to require of [the City] compliance with certain City codes and ordinances pertaining to their real estate." The City also sought to obtain injunctive relief so that it may have its code official inspect unoccupied structures and conditions on petitioners' real estate to determine the status thereof and whether any of those structures should be condemned. According to that complaint, petitioners are private citizens who have ownership in three adjoining parcels of real estate within the City - two located on South George Street and one on Academy Street. The complaint states that only the "Viener House" is occupied at 400 South George Street, while there is a vacant and uninhabitable house at 416 George Street ("Victorian"), and a partially completed structure ("carriage house") on the Academy Street property where construction began around 2004.[1]

         In that complaint, the City alleged that petitioners had violated § 1232(v)2a of the City's Amended Zoning Codes (effective September 26, 2012), which prohibits the outside parking of more than six vehicles on the three lots comprising the Witteried real estate. The City asserted that petitioners park more than six vehicles on their real estate and that the "excessive number of vehicles are neither used nor intended for the residential use of the said owners as a means of transportation. Instead, the aforesaid accumulation and storage of 'Collectible [sic] Cars' has been undertaken by [petitioners] for investment purposes so that Michael Witteried will have a 'retirement.'" The City pointed to several written notices between 2005 and 2013, in addition to orders to "gain compliance" with the zoning ordinance.

         The City also alleged that the real estate is subject to certain provisions of the International Property Maintenance Code ("IPMC") that the City adopted under Article 1705 of the City's Codified Ordinances. The City contends that the real estate suffers from unlawful conditions, such as parking, keeping, and storing inoperative motor vehicles and unlicensed motor vehicles on the real estate in violation of § 302.8 of the IPMC; the failure to maintain the exterior of the Victorian in good repair, sanitary, and free from deterioration, litter, and debris so as to not pose a threat to public health, safety, or welfare, and as required by §§ 302 and 304 of the IPMC; and, upon information and belief, are subject to an inspection that the City sought to undertake through the supervision of the circuit court, one or more structures on the Witteried real estate are of such condition that they are maintained in violation of the IPMC to such an extent that they should be condemned and demolished as dilapidated and unsafe real estate pursuant to § 110.1 of the IPMC.

         The City's complaint also contained allegations related to violations of the building code. Specifically, it contends that petitioners' real estate violated Article 1705 of the International Residential Code ("IRC") because petitioners built and maintained fence accessory structures without a required building permit; storage accessory structures (sometimes called sea containers) without a required permit; and the incomplete erection of the carriage house for which no building permit currently exists. Petitioners had received formal notice of such violations and an order was accordingly entered, but petitioners had not rectified the situation.

         The City asserted additional claims regarding the vacant structures ordinance and maintenance of a public nuisance. The City stated that it had reasonably exhausted all other available legal and administrative remedies and that such proceedings had "proven woefully inadequate to protect the City and its citizenry from the aforesaid public nuisance conditions." Therefore, it claimed that it is entitled to a lien against petitioners' real estate for attorney's fees and the costs of nuisance abatement, as provided for in Article 1101 of its codified ordinances, and it may be further entitled to demolition expenses, as provided in § 106.3 of the IPMC. It also contends that it has incurred huge, otherwise unnecessary, administrative expenses, and attorney's fees by reason of petitioners' intentional code violations and persistent nuisance activity on their real estate. The City then requested a preliminary injunction "to include such matters as the removal of the unlawfully stored vehicle on the Witteried real estate and an inspection of the premises by the city code official and any experts he may engage;" a permanent injunction ordering the abatement of all nuisance conditions on petitioners' real estate, including all code violations; that the City be awarded a lien against all of petitioners' real estate in the amount of any costs that shall be incurred by the City in abating the nuisance conditions and bringing the real estate into compliance with codes; that the City be awarded a lien for its legal fees and expenses reasonably incurred in this cause; and that the City be awarded damages against petitioners.

         Petitioners submitted their answer, which included several counterclaims; five of those counterclaims seek declaratory judgment. However, the circuit court granted the City's motion to strike petitioners' counterclaims, including those seeking declaratory judgment.

         On November 3, 2014, the circuit court entered a preliminary injunction, requiring the removal of all but six vehicles from petitioners' real estate. The parties later attempted mediation on two occasions with two different mediators, but mediation was not successful. Following a hearing on April 6, 2016, the circuit court entered an order converting the temporary injunction regarding the vehicles to a permanent injunction. That order also granted the City a preliminary injunction as to two sea containers situated on the carriage house lot, requiring their removal from petitioners' real estate, and prohibiting their relocation on any of the City streets. However, in May of 2016, the circuit court granted petitioners a temporary stay of the injunction related to the sea containers in the hope that a third mediation would be successful. The City agreed to the temporary stay, noting that if petitioners would obtain a permit to complete the carriage house within 180 days, the sea containers (which reportedly contained building supplies to complete the house) could constitute lawful appurtenant temporary storage structures during the period of construction. Following a third mediation, it appeared that the parties had reached an agreement as to certain disputes. At a hearing in October of 2016, the parties appeared and reported that Michael Witteried had finally obtained a permit for the enclosure of the two sea containers. He indicated at that time that he would proceed toward completion of their enclosure. He represented to the court that he would have the carriage house cleared out for inspection but had not yet done so. However, additional issues occurred, and, according to the circuit court, at a November 21, 2016, hearing, Mr. Witteried insisted that the matter be promptly brought to a conclusion, complaining of the continued proceedings and requesting dismissal of the case. The City then requested that it be allowed to complete the presentation of its rebuttal evidence.

         The circuit court entered its December 13, 2016, final order granting permanent injunction setting forth findings of fact and conclusions of law. With regard to the Victorian and property on which it is situated, the circuit court determined and ordered as follows: the condition of the home constitutes a public nuisance and petitioners are permanently enjoined from using the home and surrounding property for storage of any kind and that personal property remaining in the structure within forty-five days of the date of the order was to be deemed abandoned and could be disposed of by the City; petitioners are enjoined from demolishing or otherwise altering the structure; the City and its agents or designees shall be permitted the right of entry onto the real estate to abate the nuisance conditions present, including the right to cause the structure to be renovated and brought within compliance with the City's ordinances; if the City finds that demolition of that property would be more appropriate, it has the option to proceed to conduct demolition itself; and the City shall have a lien upon the real estate for the actual cost of the renovations or the cost that the City might have incurred by getting a building loan and doing the renovations itself, or, alternatively, for the cost of demolition.

         With regard to the carriage house, the circuit court found and ordered the following: the condition of the property constitutes a public nuisance; petitioners are enjoined from demolishing, improving, or otherwise working on that structure; the City and its agents or designees shall be permitted the right of entry onto the real estate to abate the nuisance conditions present, including the right to cause the structure to be renovated and/or completed and brought within compliance with the City's ordinances; if the City determines that demolition of the structure would be more appropriate, the City has the option to proceed to conduct the demolition itself; and the City shall have a lien against the real estate for the actual cost of the renovations or the cost that the City might have incurred by getting a building loan and doing the renovations itself, or, alternatively, for the cost of demolition. Additionally, it found that the sea containers were a public nuisance and ordered they be removed from the Witteried real estate "and may not be placed on any street within the City of Charles Town." If not removed within forty-five days of the date of the order, the City would be granted the right of entry to abate that nuisance and place a lien upon the real estate for any costs incurred.

         Thereafter, the circuit court reinstated the permanent injunction related to the collectable vehicles and amended the same to the extent that petitioners are now prohibited and enjoined from parking their vehicles, in excess of six licensed and operable vehicles, anywhere on the Witteried real estate and from storing or parking the same on any street in the City of Charles Town. Petitioners had ten days from the date of the order to remove all vehicles, in excess of the six permissible vehicles, from their real estate. If they were not removed in that time, the Sheriff of Jefferson County "shall enter onto the real estate and remove same and store them at a facility regularly used for such purpose and shall have a lien against said vehicles for the costs of removal and storage of the same." The order was prepared by the City's counsel, and the circuit court entered the same on December 13, 2016.[2]

         On December 28, 2016, petitioners filed a motion to alter or amend that December 13, 2016, order, pursuant to Rule 59(e) of the West Virginia Rules of Civil Procedure. According to the circuit court, each of the four grounds petitioners set forth in that motion focused on a singular theme - the circuit court "is simply mistaken about the past history of this matter and mistaken that the implied assumption that the past is the best predictor of the future." By order entered March 1, 2017, the circuit court denied that motion. As part of that order, the circuit court found that Michael Witteried's self-serving post-trial affidavit should not be considered as proper grounds for amending its prior order. With regard to petitioners' argument that the circuit court did not address its petition for writ of certiorari, the circuit court set forth information from several orders entered over the life of the case, and stated that

[i]t can hardly be more clear that Witteried's [sic] Petition for Writ of Certiorari was several times resolved by the [c]ourt, corresponding with his repeated insistence that the [c]ourt must consider it. It appears to the [c]ourt that no matter how many times the [c]ourt might address the long since resolved collectable car issue, Mr. Witteried ...

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