CHARLESTON -– Charleston taxpayers moved a mountain in 1999. And according to Kanawha County Circuit Judge Paul Zakaib Jr., they don't have to put it back.

Blue Jay Way Limited, former owner of some rugged land east of Yeager Airport, wanted the city to return the property to its condition in 1998, but Zakaib found that absurd.

He wrote, "To accept Blue Jay's argument that the lease demands the City to destroy its improvements means that the intent of the lease is to actually damage the property, not repair damage."

Zakaib added a few other reasons for throwing out the case in a June 14 order granting summary judgment in the city's favor.

Mayor Kemp Melton executed the lease in 1998. He planned to turn the site into soccer fields by tearing rocky earth from the high side and spreading it below.

A contractor started hammering away. Trucks hauled pieces of the slope to four piles.

When Jay Goldman replaced Melton as mayor in 1999, Goldman stopped the project and let the lease expire.

Blue Jay Way sued, arguing that the lease required the city to return the property "in the same condition as when the property was mutually leased."

Under common law as other states apply it, the argument might have succeeded. In West Virginia, however, the Legislature erased common law.

Under West Virginia Code, a promise to leave premises in good repair at the end of a lease or a similar covenant means one must yield the property "in good and substantial repair and condition, reasonable wear and tear excepted."

Zakaib wrote that such a covenant does not bind a lessee to restore or repair structures after fire or other destruction, unless the owner can prove negligence or point to other words in the lease showing intent to bind.

He wrote that in 1962 the West Virginia Supreme Court of Appeals placed the burden of proving negligence on the property owner.

In that case, bank owners installed a vault in a building they leased. When the lease expired they left the vault behind, and the owner sued to force its removal.

Zakaib wrote that under the decision, a court could not require a lessee to remove improvements in order to comply with a covenant.

He wrote, "The Court also found this to be a legal issue which should not go to the jury."

Zakaib also sided with the city on contract interpretation from three different directions.

He wrote that a court must resolve ambiguities against the party that wrote a contract. Blue Jay Way wrote the lease.

He wrote that a court must resolve ambiguities in favor of a governmental body that signed a contract for purposes of furthering the public good.

He wrote that a court must never resolve ambiguities so as to create an absurd result.

Finally he pointed out that Blue Jay Way sold most of the property -- for more than half a million dollars -- to a church for a construction project.

He wrote that Blue Jay Way "... still seeks money from the City to restore the property to its unimproved condition –- the majority portion of which Blue Jay no longer owns nor maintains an interest."

Zakaib could have thrown out the case without any of these reasons.

Last year he asked Blue Jay Way attorney Matthew Hayes of Charleston for any case law supporting a claim of damages after most of the property had been sold.

Hayes wrote to Zakaib that he was unaware of any case addressing the issue.

William Bands and Tim Yianne, of Bell & Bands, represented the city.




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