West Virginia Record

Sunday, September 22, 2019

State Supreme Court reverses circuit court, clears way to erect 2 new billboards in Wheeling

State Supreme Court

By Kyla Asbury | Jul 12, 2019


CHARLESTON — The West Virginia Supreme Court of Appeals reversed a lower court decision in a case involving the Wheeling Board of Zoning Appeals.

Dante Vincent Camastro appealed a June 30, 2016 order from Ohio Circuit Court that affirmed a Sept. 4, 2004 order of the City of Wheeling’s Board of Zoning Appeals that upheld the denial of his application to erect two additional billboards on a pre-existing structure.

“The Court has considered the parties’ briefs and the record on appeal,” the June 17 memorandum decision states. “The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument.”

The court wrote the case satisfies the “limited circumstances” requirement of Rule 21(d) of the Rules of Appellate Procedure and is appropriate for a memorandum decision rather than an opinion.

The court reversed the circuit court’s decision and remanded the case for detailed findings of fact and conclusions of law to address the petitioner’s argument that the Wheeling zoning ordinance was unconstitutional as applied to his request to erect the additional billboards, and whether his appeal includes the zoning board’s decision to deny his application for variances to erect the two additional billboards. That decision was not reduced to a written order at the time petitioner filed for a writ of certiorari in the circuit court, according to the memorandum decision.

Camastro owns a structure in Wheeling that displays two billboards on one side and is vacant on the other. 

In 2004, when the vacant side of the structure became unobstructed due to the demolition of a nearby building, Camastro sought to erect two additional billboards on the structure and the petition was denied the following day.

The planning administrator found that while the zoning ordinance allowed non-conforming uses to be maintained, it did not permit the expansion of such uses.

Camastro appealed the denial of the application to the zoning appeal’s board on July 16, 2004, and the board upheld the denial of the sign application the following month. 

Camastro then filed a variance application on Aug. 25, 2004, for permission to put up the additional billboards despite their nonconformity with several requirements of the zoning ordinance. The board then denied the application. In 2006, the board sent the record from the process to Ohio Circuit Court.

In 2009, several orders were entered in circuit court, but then nothing happened in the case for two years until the circuit court entered a notice of involuntary dismissal. The case wasn’t dismissed, but nothing else happened until 2016, when the circuit court entered a second notice in the case and scheduled a status hearing.

The court affirmed the board’s decision on June 30, 2016, and Camastro appealed.

“Upon our review of the June 30, 2016, order, we find that the circuit court made insufficient findings to allow us to meaningfully review petitioner’s assignments of error,” the decision states. 

The court wrote that the circuit court failed to address the as-applied constitutional challenge to the city’s zoning ordinance that was raised by Camastro twice.

The court also wrote that the circuit court erroneously found that Camastro’s variance application represented an adequate alternative remedy despite the fact that the board denied the variance application.

“This erroneous finding further implicates the latent issue of whether petitioner’s appeal includes the BZA’s decision to deny his application for variances to erect the additional billboards,” the decision states. 

The circuit court reversed and remanded the case back to the circuit court.

West Virginia Supreme Court of Appeals case number 17-0113

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