Gary L. Capriotti v. Jefferson County Planning Commission

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
GARY L. CAPRIOTTI; EDWARD R. MOORE;
February 26, 2015
EDWARD E. DUNLEAVY; AND SHEPHERDSTOWN
released at 3:00 p.m.
BATTLEFIELD PRESERVATION ASSOCIATION, INC., RORY L. PERRY II, CLERK
Petitioners Below, Petitioners SUPREME COURT OF APPEALS
OF WEST VIRGINIA
vs.) No. 13-1243 (Jefferson County No. 11-C-325)
JEFFERSON COUNTY PLANNING COMMISSION,
Respondent Below, Respondent
FAR AWAY FARM, LLC,
Intervenor Below, Respondent
MEMORANDUM DECISION
The petitioners herein, Gary L. Capriotti; Edward R. Moore; Edward E. Dunleavy; and
Shepherdstown Battlefield Preservation Association, Inc. (“the Petitioners”), by counsel
Linda M. Gutsell, appeal from orders entered November 8, 2013, and November 27, 2013,
by the Circuit Court of Jefferson County. By those orders, the circuit court reversed its
earlier ruling granting partial summary judgment to the Petitioners and found, instead, that
the respondent herein, Jefferson County Planning Commission (“Planning Commission”),
who is represented herein by Stephen V. Groh, had not violated the West Virginia Open
Governmental Proceedings Act, W. Va. Code § 6-9A-1 et seq. (“the Act”). On appeal to this
Court, the Petitioners contend that the circuit court erred by setting aside its prior ruling and
by concluding that the Planning Commission had not violated the Act. The Planning
Commission and the additional respondent herein, and intervenor below, Far Away Farm,
LLC (“FAF”), by counsel Richard G. Gay and Nathan P. Cochran, maintain that the circuit
court’s rulings were proper.
Upon our review of the parties’ arguments, the appendix record, and the pertinent
authorities, we affirm, in part, and reverse, in part, the rulings of the Jefferson County Circuit
Court. We affirm the circuit court’s ruling reversing its prior order and finding that the
Planning Commission had not violated the Act’s provisions regarding executive session
proceedings. However, we reverse the remaining portions of the circuit court’s order and
find that the Planning Commission did violate the Act’s requirement that it provide agenda
1
notice of the topics it planned to consider during its meeting and that it disclose the terms of
the subject settlement. Accordingly, we remand this case for further proceedings consistent
with this opinion. Because this case does not present a new or significant issue of law, and
for the reasons set forth herein, we find this case satisfies the “limited circumstances”
requirement of Rule 21(d) of the West Virginia Rules of Appellate Procedure and is proper
for disposition as a memorandum decision.
In June 2004, FAF applied for a conditional use permit (“CUP”) to allow it to develop
a residential subdivision. The Jefferson County Planning and Zoning Director determined
that FAF’s property was suitable for the proposed development, but, before the CUP was
issued, certain of the Petitioners herein appealed the suitability determination to the Jefferson
County Board of Zoning Appeals (“the BZA”) based upon their status as owners of land
adjacent to the FAF property and also believing that FAF’s property was the site of a Civil
War battlefield.1 During those proceedings, the CUP requested by FAF was denied.
Protracted litigation ensued culminating in this Court’s decision in Far Away Farm, LLC v.
Jefferson County Board of Zoning Appeals, 222 W. Va. 252, 664 S.E.2d 137 (2008), in
which the Court approved the issuance of FAF’s requested CUP. Following the issuance of
this Court’s opinion, the case was unsuccessfully appealed to the United States Supreme
Court. See Dunleavy v. Far Away Farm, LLC, 555 U.S. 1012, 129 S. Ct. 573, 172 L. Ed. 2d
431 (2008) (denying certiorari). Thereafter, the Planning Commission filed a federal lawsuit
against FAF seeking to have this Court’s decision overturned, which suit was dismissed. See
Jefferson Cnty. Planning Comm’n v. Far Away Farms, LLC, No. 3:09-CV-45 (BAILEY),
2009 WL 3617749 (N.D. W. Va. Oct. 29, 2009) (unreported decision).
Following the conclusion of the federal court proceedings, FAF made two requests
to the Planning Commission for consideration at its December 14, 2010, meeting: (1) that all
Planning Commission members who had been involved in the federal lawsuit recuse
themselves and (2) that the impending deadlines associated with FAF’s CUP be extended
insofar as it had been unable to proceed with its development plans due to the ongoing and
protracted litigation or that it be granted a variance therefrom.2 The Planning Commission
denied both of these requests. FAF then requested an order from the Planning Commission
1
It since has been determined that the Civil War battle believed to have occurred on
FAF’s property in fact occurred on nearby property and not on the property that FAF seeks
to develop.
2
FAF based its request for the extension of its deadlines and/or a variance therefrom
on W. Va. Code § 8A-5-12(f) (2010) (Repl. Vol. 2012) and this Court’s prior decision in
Jefferson Utilities, Inc. v. Jefferson County Board of Zoning Appeals, 218 W. Va. 436, 624
S.E.2d 873 (2005).
2
memorializing its decisions and filed a petition for writ of certiorari in the Jefferson County
Circuit Court to obtain relief from the Planning Commission’s rulings. Although the
Petitioners moved to intervene in FAF’s certiorari proceeding, and a hearing was held on
their motion, the circuit court did not render a final ruling on said motion.
Thereafter, FAF tendered a settlement offer to the Planning Commission’s attorney
on July 26, 2011, shortly before the Planning Commission’s regularly scheduled meeting for
that night. When it reached its listed agenda item entitled “Reports from Legal Counsel and
legal advice to P[lanning]C[ommission],” a motion was made to go into closed executive
session to discuss legal matters; the motion carried. During the executive session, counsel
for the Planning Commission presented FAF’s settlement offer and conferred with the
Planning Commission, and the Planning Commission reportedly discussed a counteroffer.
Upon a successful motion to end the closed executive session and return to public session,
an additional motion was made “to proceed with the order as presented by Counsel in
executive session and to authorize [the Planning Commission] President to sign the order”;
this motion also passed. Following the meeting, a counteroffer was tendered to FAF. By
order entered August 3, 2011, the circuit court approved the parties’ settlement3 and
dismissed the certiorari proceeding. By notation on the court’s order, a copy of the
settlement order was sent to counsel for each of the two parties and to counsel for the
Petitioners. Thereafter, on September 21, 2011, the Petitioners filed a petition in the Circuit
Court of Jefferson County against the Planning Commission alleging violations of the Open
Governmental Proceedings Act and requesting that the settlement between FAF and the
Planning Commission be annulled due to such alleged violations. FAF moved to intervene
in the Petitioners’ suit and was granted intervenor status.
By order entered June 19, 2012, the circuit court granted partial summary judgment
to the Petitioners finding that the Planning Commission had violated the Act’s advance notice
requirements of W. Va. Code § 6-9A-3 (1999) (Repl. Vol. 2010)4 because the Planning
Commission had not listed the specific topic of the FAF litigation on its July 26, 2011,
meeting agenda. The court additionally found that the Planning Commission had failed to
comply with W. Va. Code § 6-9A-4(b)(11) (1999) (Repl. Vol. 2010) insofar as it did not
reveal that it had received a settlement offer that it would be considering. Finally, the court
determined that the Planning Commission had failed to disclose the terms of the settlement
within a “reasonable time after the settlement is concluded” as required by W. Va. Code § 6­
3
The agreed settlement resulted in the reissuance of FAF’s CUP, permission for FAF
to use its prior documentation in lieu of the alternate documentation required under the
county’s new subdivision ordinance, and the resetting of the applicable deadlines.
4
See infra note 6.
3
9A-4(b)(11). While the circuit court denominated this ruling as an appealable, final order,
the court did not grant any relief to the Petitioners other than an award of partial summary
judgment. The Planning Commission and FAF appealed the circuit court’s rulings to this
Court, but this Court dismissed the appeal upon the Petitioners’ motion. On June 11, 2013,
the Planning Commission held a curative meeting in an attempt to remedy the violations of
the Act that the circuit court had identified in its partial summary judgment order.
The Petitioners then requested the circuit court to determine the proper remedy to
award to them as a result of the Planning Commission’s violations of the Act. During the
course of the proceedings, the Planning Commission filed a “Motion to Reconsider and Set
Aside Partial Summary Judgment,” which the circuit court treated as a motion made pursuant
to Rule 60(b)(6) of the West Virginia Rules of Civil Procedure.5 Additionally, FAF moved
to limit the remedy to be awarded to the Petitioners. By order entered November 8, 2013,
the circuit court determined that it had improperly relied upon this Court’s prior opinion in
Peters v. County Commission of Wood County, 205 W. Va. 481, 519 S.E.2d 179 (1999),
which was decided under the predecessor to W. Va. Code § 6-9A-4 and which statute did not
contain exceptions 11 and 12 that are at issue in the case sub judice. In reconsidering its
prior decision, the circuit court found that the Planning Commission had not violated the Act
because W. Va. Code § 6-9A-4(b)(12) (1999) (Repl. Vol. 2010) permitted it to hold a closed
executive session to confer with its attorney and to receive legal advice insofar as such
communications are protected by the attorney-client privilege and are deemed to be
confidential. The circuit court then determined that it need not decide whether the Planning
Commission’s disclosure of the parties’ settlement at its October 2011 meeting had violated
the requirement of W. Va. Code § 6-9A-4(b)(11) that settlement terms be disclosed in a
“reasonable time after the settlement is concluded” because there existed a genuine issue of
material fact as to when the subject settlement was concluded, i.e., at the Planning
Commission’s meeting of July 26, 2011, or on August 3, 2011, when the circuit court
approved the parties’ settlement, that rendered the court’s earlier grant of summary judgment
on that issue improper. Finally, the circuit court concluded that the Planning Commission
had not commenced its executive session on July 26, 2011, merely because its attorney was
present as expressly prohibited by W. Va. Code § 6-9A-4(b)(11). Accordingly, the circuit
court vacated its earlier decision granting partial summary judgment to the Petitioners.
By supplemental order entered November 27, 2013, the circuit court conclusively
determined that the Planning Commission also had not violated W. Va. Code § 6-9A­
5
Rule 60(b)(6) of the West Virginia Rules of Civil Procedure permits a court to
“relieve a party . . . from a final judgment . . . for . . . any other reason justifying relief from
the operation of the judgment.”
4
4(b)(11), which matter had been left unresolved by its prior order. In so deciding, the circuit
court determined that the date of the settlement’s conclusion was rather inconsequential, and
that, upon the court’s approval of the parties’ settlement, the settlement was entered into the
public records of the circuit court. Thus, the court determined that the settlement terms were
made a matter of public record within a “reasonable time” of its conclusion. Moreover, the
circuit court noted that the Petitioners, by counsel, had received a copy of the settlement
order upon its entry. Therefore, the circuit court explained, the terms of the settlement had
been disclosed to the public well before the Planning Commission referenced the settlement
at its October 11, 2011, meeting and its “official publication of the meeting minutes.” From
these two orders, the Petitioners now appeal to this Court.
On appeal to this Court, the Petitioners contend that the circuit court erred by vacating
its prior partial summary judgment order. The court reached this decision in the context of
considering and granting the Planning Commission’s Rule 60(b)(6) motion for relief from
the court’s earlier ruling. This Court previously has held that “[a] motion to vacate a
judgment made pursuant to Rule 60(b), W. Va. R.C.P., is addressed to the sound discretion
of the court and the court’s ruling on such motion will not be disturbed on appeal unless there
is a showing of an abuse of such discretion.” Syl. pt. 5, Toler v. Shelton, 157 W. Va. 778,
204 S.E.2d 85 (1974).
Before this Court, the Petitioners assert that the circuit court erred by finding there
exists a genuine issue of material fact regarding the conclusion date of the settlement
between the Planning Commission and FAF; determining that the Planning Commission had
not violated the Act; and concluding that any violation of the Act in the case sub judice was
de minimis and did not entitle the Petitioners to a remedy.
The Petitioners first contend that, throughout these proceedings, they have always
maintained that August 3, 2011, is the date upon which the Planning Commission and FAF
concluded their settlement. The settlement conclusion date is referenced in W. Va. Code § 6­
9A-4(b)(11) as the date from which the “reasonable time” begins to run and as the time
within which the Planning Commission was required to disclose the settlement’s terms.
Thus, the Petitioners contend that the circuit court erred by concluding that there exists a
genuine issue of material fact as to the settlement conclusion date because all parties agree
that the settlement was concluded when the circuit court approved and entered the parties’
agreed settlement order on August 3, 2011, and not during the Planning Commission’s
meeting on July 26, 2011. While the circuit court acknowledged a possible issue of fact
regarding the settlement’s conclusion date, this factual issue did not form the basis of the
circuit court’s initial decision to vacate its partial summary judgment order nor preclude it
from ultimately determining whether a violation had occurred under W. Va. Code § 6-9A­
4(b)(11). Rather, the circuit court based its initial decision to vacate its partial summary
5
judgment order upon its perceived misplaced reliance on this Court’s prior decision in Peters
v. County Commission of Wood County, 205 W. Va. 481, 519 S.E.2d 179 (1999). In this
regard, the circuit court found that its reliance on Peters was misplaced because the prior
version of the Act, upon which the Peters decision relied, does not contain exceptions 11 and
12, which are set forth in the current version of the Act, W. Va. Code §§ 6-9A-4(b)(11-12),
and which apply to the facts of this case. Moreover, in its subsequent order, the circuit court
nevertheless determined that even if a factual dispute exists as to the date of the settlement’s
conclusion, it did not preclude the circuit court from deciding whether the Planning
Commission had violated the Act’s requirement that it disclose the settlement’s terms within
a “reasonable time” of its conclusion. See W. Va. Code § 6-9A-4(b)(11). We agree with the
circuit court’s ultimate conclusion that the issue of when, precisely, the parties consummated
their settlement agreement does not preclude our determination of the fundamental issue
presented by the case sub judice: whether the Planning Commission violated the Act.
Therefore, we affirm the circuit court’s orders in this regard.
The Petitioners next assign error to the circuit court’s rulings finding that the Planning
Commission did not violate the Act. In support of their argument, the Petitioners assert that
the Planning Commission committed three separate violations of the Act. Because the Act
is a body of statutory law, our well-established rules of statutory construction will guide our
consideration of these assigned errors. See generally Syl. pt. 1, Smith v. State Workmen’s
Comp. Comm’r, 159 W. Va. 108, 219 S.E.2d 361 (1975) (“The primary object in construing
a statute is to ascertain and give effect to the intent of the Legislature.”). See also Syl. pt. 2,
State v. Elder, 152 W. Va. 571, 165 S.E.2d 108 (1968) (“Where the language of a statute is
clear and without ambiguity the plain meaning is to be accepted without resorting to the rules
of interpretation.”); Syl. pt. 5, State v. General Daniel Morgan Post No. 548, Veterans of
Foreign Wars, 144 W. Va. 137, 107 S.E.2d 353 (1959) (“When a statute is clear and
unambiguous and the legislative intent is plain, the statute should not be interpreted by the
courts, and in such case it is the duty of the courts not to construe but to apply the statute.”).
First, the Petitioners contend that the Planning Commission violated the Act’s agenda
notice provision. The agenda notice requirement is set forth in W. Va. Code § 6-9A-3:
Each governing body shall promulgate rules by which the date, time,
place and agenda of all regularly scheduled meetings and the date, time, place
and purpose of all special meetings are made available, in advance, to the
public and news media, except in the event of an emergency requiring
6
immediate official action.[6]
(Emphasis and footnote added). The Petitioners assert that the Planning Commission failed
to include in its July 26, 2011, meeting agenda any reference to the FAF litigation or to the
Planning Commission’s intention to discuss the same during that meeting. The July 26,
2011, meeting agenda item corresponding to the Planning Commission’s consideration of
FAF’s proposed settlement was titled “Reports from Legal Counsel and legal advice to PC.”7
Considering the referenced agenda item together with the pertinent statutory language,
we agree with the Petitioners’ contention that the noticed agenda item was insufficient to
notify the public that the Planning Commission intended to discuss the FAF litigation during
its meeting of July 26, 2011. The plain language of W. Va. Code § 6-9A-3 expressly requires
a public body to make available to the public, in advance of a scheduled meeting, the agenda
for said meeting. The purpose of this notice requirement is to fulfill the Legislature’s stated
policy of maintaining an “[o]pen government” and providing “public access to information.”
W. Va. Code § 6-9A-1 (1999) (Repl. Vol. 2010). Such openness is intended to “allow[] the
public to educate itself about government decisionmaking through individuals’ attendance
and participation at government functions . . . and public debate on issues deliberated within
the government.” Id. By the same token,
[p]ublic access to information promotes attendance at meetings . . . and
encourages more . . . complete discussion of issues by participating officials.
The government also benefits from openness because . . . public input allow[s]
government agencies to gauge public preferences accurately and thereby tailor
their actions and policies more closely to public needs. . . .
Id. Despite these statutory directives aimed at providing notice to interested individuals of
the topics to be discussed at the meetings of public bodies, the agenda notice provided by the
Planning Commission in the case sub judice was not adequate to inform the Petitioners, and
other members of the public, that it planned to discuss the FAF litigation or a proposed
settlement thereof. Rather, the agenda’s generic reference to “legal advice” provided no
indication whatsoever that the ongoing FAF proceedings would be a topic of discussion at
6
In 2013, the Legislature amended W. Va. Code § 6-9A-3, placing the pertinent
agenda notice language in subsection (d). See W. Va. Code § 6-9A-3(d) (2013) (Supp.
2014). However, because the events giving rise to the case sub judice occurred in 2011, we
will apply the prior version of the operative statutory language to our decision of this case.
7
The appendix record contains numerous Planning Commission meeting agendas
which contain the same general entry: “Reports from Legal Counsel and legal advice to PC.”
7
the Planning Commission’s July 26, 2011, meeting. Because the agenda notice did not
adequately inform the public of the specific items to be considered at the Planning
Commission’s July 26, 2011, meeting, we find that the Planning Commission violated
W. Va. Code § 6-9A-3 and reverse the circuit court’s contrary ruling.
The Petitioners next contend that the Planning Commission did not properly announce
the authorization for its executive session as required by W. Va. Code § 6-9A-4(a) (1999)
(Repl. Vol. 2010). W. Va. Code § 6-9A-4(a) details the procedure for convening an
executive session:
The governing body of a public agency may hold an executive session
during a regular, special or emergency meeting, in accordance with the
provisions of this section. During the open portion of the meeting, prior to
convening an executive session, the presiding officer of the governing body
shall identify the authorization under this section for holding the executive
session and present it to the governing body and to the general public, but no
decision may be made in the executive session.
(Emphasis added). W. Va. Code § 6-9A-4(b) (1999) (Repl. Vol. 2010) further directs “[a]n
executive session may be held only upon a majority affirmative vote of the members present
of the governing body of a public agency. A public agency may hold an executive session
and exclude the public only when a closed session is required for any of the following
actions[.]” The exceptions set forth in W. Va. Code §§ 6-9A-4(b)(11-12) are within the
“following actions” referenced by W. Va. Code § 6-9A-4(b). During the Planning
Commission’s July 26, 2011, meeting, Commissioner “Mr. Smith moved to go into executive
session to discuss legal matters.” The motion was seconded and unanimously approved.
W. Va. Code § 6-9A-4(b)(12) allows an executive session to be held “[t]o discuss any
matter which . . . is rendered confidential.” Thus, conferring with counsel “to discuss legal
matters” would be included within the confidential matters contemplated by W. Va. Code
§ 6-9A-4(b)(12). Therefore, the explanation for the Planning Commission’s decision to hold
an executive session was properly communicated during the open public meeting, and, while
the corresponding statutory section was not cited, the motion accurately identified the
statutorily-authorized reason for convening an executive session: to discuss legal matters.
When coupled with the agenda item under which this motion was made, which concerned
reports from the Planning Commission’s counsel and advice therefrom, it is clear that the
intended purpose of the executive session was to discuss legal matters with the Planning
Commission’s counsel that are protected by the attorney-client privilege and that come within
8
the purview of W. Va. Code § 6-9A-4(b)(12). Accordingly, we affirm the circuit court’s
conclusion that the Planning Commission did not violate this portion of the Act.
The third alleged violation of the Act raised by the Petitioners asserts that the Planning
Commission violated the Act by not reporting the settlement’s terms within a “reasonable
time” of its conclusion as required by W. Va. Code § 6-9A-4(b)(11). Pursuant to the relevant
portion of W. Va. Code § 6-9A-4(b)(11), “[i]f the public agency has approved or considered
a settlement in closed session, and the terms of the settlement allow disclosure, the terms of
that settlement shall be reported by the public agency and entered into its minutes within a
reasonable time after the settlement is concluded.” (Emphasis added). In concluding that
the Planning Commission had complied with this disclosure requirement, the circuit court
determined that the inclusion of the settlement’s terms in the public record of the court, when
the court entered the agreed settlement order on August 3, 2011, satisfied the Planning
Commission’s obligation to disclose such terms. The Petitioners argue that such disclosure
does not fulfill the statutory requirements. We agree.
Pursuant to the plain language of W. Va. Code § 6-9A-4(b)(11), a public body
entering into a non-confidential settlement must (1) report the settlement’s terms and (2)
include the settlement’s terms in its minutes. All of the parties agree that the terms of the
settlement entered into by the Planning Commission and FAF were not confidential. While
the Planning Commission referenced the settlement at its meeting of October 11, 2011, and
indicated that it would attach the final settlement to the minutes of that meeting, it has yet to
do so. Specifically, the October 11, 2011, meeting minutes reflect that “Ms. Grove [counsel
for the Planning Commission] stated that the order discussed at the July 26, 2011 Planning
Commission meeting had been signed and should be included in the minutes. (Full text of
the order is attached).” The referenced order presumably is the counteroffer proposed by the
Planning Commission which ultimately became the agreed settlement order entered by the
circuit court. Despite this language indicating that a document would be attached to the
Planning Commission’s October 11, 2011, meeting minutes, such minutes, as they appear on
the Planning Commission’s website, do not contain the terms of the parties’ settlement nor
do they have any attachments containing the settlement’s terms. While the Planning
Commission has placed on its website numerous documents entitled “PC Packets,” the packet
that pertains to the October 11, 2011, meeting, which does contain the settlement’s terms,
also includes the agenda of the October 11, 2011, meeting and the minutes from the previous
month’s meeting that were approved at the October 11, 2011, meeting. The subsequent
month’s packet, referencing the Planning Commission’s November 8, 2011, meeting,
contains both the October 11, 2011, minutes and the parties’ agreed settlement order, but its
description as a “packet” for the November 8, 2011, meeting makes it virtually impossible
to ascertain that it actually contains the meeting minutes for the October 11, 2011, meeting
with the referenced attachments.
9
It is apparent, then, that the Planning Commission has, in fact, disclosed the terms of
the parties’ settlement. However, we do not agree with the circuit court’s decision finding
no violation of the disclosure requirements of W. Va. Code § 6-9A-4(b)(11). This statutory
language very simply and explicitly requires that “the terms of that settlement shall be
reported by the public agency and entered into its minutes within a reasonable time after the
settlement is concluded.” (Emphasis added). This statutory language does not contemplate
the disclosure of settlement terms in any other type of document, be it a meeting agenda,
press release, or compilation of papers considered at the disclosure meeting. Rather, the
statute expressly requires that the public body “enter [the settlement terms] into its minutes.”
(Emphasis added). A review of the Planning Commission’s minutes for its meeting of
October 11, 2011, standing alone, reveals that while the settlement is referenced in general
terms therein, and is required to be attached thereto, the minutes contain no attachments or
language detailing the settlement’s terms. Accordingly, we find that the Planning
Commission has violated the reporting requirements set forth in W. Va. Code § 6-9A­
4(b)(11), and we reverse the circuit court’s contrary ruling.
Although we have found two violations of the Act, the violations do not necessarily
require that the actions taken at the July 26, 2011, meeting be invalidated. The remedies
provided in W. Va. Code §§ 6-9A-3, 6-9A-6 (1999) (Repl. Vol. 2010),8 and 6-9A-7 (1999)
(Repl. Vol. 2010)9 are left to the discretion of the circuit court. Moreover, as we explained
in McComas v. Board of Education of Fayette County, 197 W. Va. 188, 475 S.E.2d 280(1996), “[a] finding that a violation [of the Open Governmental Proceedings Act] occurred
. . . does not necessarily require invalidation of all actions taken during or following from the
wrongfully held . . . meeting.” 197 W. Va. at 201, 475 S.E.2d at 293.10
For the foregoing reasons, we affirm, in part, and reverse, in part, the November 8,
2013, and November 27, 2013, orders of the Circuit Court of Jefferson County, and remand
this case to the circuit court for further proceedings to determine the remedy, if any, the
circuit court may deem appropriate under the facts and circumstances of this case.
8
W. Va. Code § 6-9A-6 (1999) (Repl. Vol. 2010) provides remedies for violations of
the Act.
9
W. Va. Code § 6-9A-7 (1999) (Repl. Vol. 2010) establishes criminal penalties for
violations of the Act, as well as allowing for an award of fees and expenses to a prevailing
party in a civil action alleging violations of the Act.
10
While W. Va. Code §§ 6-9A-3, 6-9A-6, and 6-9A-7 were amended subsequent to
McComas, the amendments did not impact the permissive and discretionary nature of the
remedies provided for therein.
10
Affirmed, in part; Reversed, in part; and Remanded.
ISSUED: February 26, 2015
CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II
CONCURRING AND WRITING SEPARATELY:
Justice Brent D. Benjamin
DISSENTING AND WRITING SEPARATELY:
Justice Robin Jean Davis
11
Benjamin, Justice, concurring:
I completely concur with the majority decision. I write separately to urge the
Legislature to amend what I consider to be a troubling provision of the State’s Open
Governmental Proceedings Act.
As the majority recognizes, W. Va. Code § 6-9A-4(b)(11) permits a public
agency to convene a closed session to consider and even approve a settlement of pending
litigation, and the terms of the settlement then must be reported within “a reasonable time.”
This provision appears to me to be at odds with the policy underlying the Open
Governmental Proceedings Act which recognizes that it is “in the best interests of the people
of this state for the proceedings of public agencies be conducted openly, with only a few
clearly defined exceptions.” W. Va. Code § 6-9A-1 (1999). Of course, the government has
a legitimate interest in closing a meeting on certain occasions, and the Legislature has
attempted to balance the government’s interests in doing so with the public’s right “to
participate in a meaningful manner in public agency decisionmaking” in fashioning the
provisions of the Act. Id. However, I can discern no legitimate governmental interest in
permitting public agencies to vote on the terms of non-confidential legal settlements in closed
meetings.
For this reason, I encourage the Legislature to amend W. Va. Code § 6-9A­
4(11) to provide that while a public agency may go into closed session to discuss the terms
of a settlement, the public agency must in most cases disclose and vote on the settlement
terms in an open meeting. Accordingly, I concur to the decision in this case.
12
Davis, Justice, dissenting:
In 2004, Far Away Farm (“FAF”) first obtained permission to develop its property
into a residential subdivision. Despite its best efforts to comply with the governing zoning
ordinances, FAF has been stymied at every stage of the process by citizens who oppose the
development and the governmental bodies they have elected. Even rulings by this Court1 and
the United States Supreme Court2 have not dissuaded the nay sayers’ unrelenting campaign
of harassment with the intent of forestalling FAF’s development plans. For eleven years,
FAF patiently has waited for the seemingly endless litigation to cease, finally offering
concessions to the Jefferson County Planning Commission (“Planning Commission”) in an
attempt to attain the temporal extensions granted to it by the Legislature3 but which the
Planning Commission vehemently had refused to recognize. Yet, through no fault of its own,
FAF’s development project once again has been relegated to the shadows while the perpetual
litigation lingers on: this time, as a result of the majority’s decision to defer to the circuit
court’s final resolution of this case, FAF, who had no power over the Planning Commission’s
compliance with the provisions of the West Virginia Open Governmental Proceedings Act,
W. Va. Code § 6-9A-1 et seq. (“the Act”), may nevertheless be forced to re-negotiate with
the Planning Commission to achieve the deadline extensions to which it is statutorily entitled.
I disagree with the majority’s decision to punish FAF, the innocent bystander in the case sub
judice, by forcing it to expend even more time and resources in the pursuit of its most basic
right to develop its property as permitted by the governing zoning law and the prior decision
1
See Far Away Farm, LLC v. Jefferson Cnty. Bd. of Zoning Appeals, 222 W. Va. 252,
664 S.E.2d 137 (2008).
2
See Dunleavy v. Far Away Farm, LLC, 555 U.S. 1012, 129 S. Ct. 573, 172 L. Ed. 2d
431 (2008) (denying certiorari).
3
See generally W. Va. Code § 8A-5-12(f) (2010) (Repl. Vol. 2012). See also
Jefferson Utils., Inc. v. Jefferson Cnty. Bd. of Zoning Appeals, 218 W. Va. 436, 450, 624
S.E.2d 873, 887 (2005) (directing circuit court “to enter an order approving the reissuance
of the subject permits and adjust, where necessary, any time deadlines established in the
Ordinance that may have passed during the pendency of this appeal so that the parties are not
penalized for pursuing their statutory rights of appeal”).
13
of this Court recognizing the same.4 I further disagree with the majority’s decision to intrude
upon the fundamental right of a public body to confer with its counsel and to erode the
associated attorney-client privilege inherent in such confidential communication.
I. Adequacy of Agenda Notice
The majority first concludes that the Planning Commission failed to provide advance
notice of its agenda for its July 26, 2011, meeting because, in the majority’s estimation, the
Planning Commission’s agenda did not adequately describe the topics to be covered under
the agenda item, “Reports from Legal Counsel and legal advice to P[lanning]C[ommission].”
See W. Va. Code § 6-9A-3 (1999) (Repl. Vol. 2010).5 While I appreciate the majority’s
concern that the Planning Commission should have more specifically mentioned FAF and
the pending litigation in its meeting agenda, I nevertheless agree with the circuit court’s
conclusion that there was no violation of the meeting notice provision in this case. Pursuant
to W. Va. Code § 6-9A-4(b)(12) (1999) (Repl. Vol. 2010), the Planning Commission was
permitted to confer with its attorney during a closed, executive session. See W. Va. Code
§ 6-9A-4(b)(12) (permitting closed executive session “[t]o discuss any matter which, by
express provision of federal law or state statute or rule of court is rendered confidential, or
which is not considered a public record within the meaning of the Freedom of Information
Act as set forth in article one [§§ 29B-1-1 et seq.], chapter twenty-nine-b of this code.”). See
also W. Va. R. Prof’l Conduct 1.6(a) (“A lawyer shall not reveal information relating to the
representation of a client unless the client consents after consultation.”).6
Moreover, W. Va. Code § 6-9A-4(b)(11) (1999) (Repl. Vol. 2010) contemplates that
settlements negotiated by a public body are not subject to disclosure until after such
4
See Far Away Farm, LLC v. Jefferson Cnty. Bd. of Zoning Appeals, 222 W. Va. 252,
664 S.E.2d 137 (2008).
5
To maintain consistency with the majority’s decision, I, too, will rely upon the
version of W. Va. Code § 6-9A-3 that was in effect at the time of the events giving rise to
the instant proceeding. Compare W. Va. Code § 6-9A-3 (1999) (Repl. Vol. 2010) with
W. Va. Code § 6-9A-3(d) (2013) (Supp. 2014).
6
The West Virginia Rules of Professional Conduct were amended effective January
1, 2015. Because the events at issue herein occurred prior to the effective date of these
amendments, I will cite to the version of the Rules that was operative at that time. However,
the amended language of Rule 1.6(a) also contemplates the confidentiality of an attorney-
client relationship. See W. Va. R. Prof’l Conduct 1.6(a) (2015) (“A lawyer shall not reveal
information relating to representation of a client unless the client gives informed consent
. . . .”).
14
settlements have been concluded. See W. Va. Code § 6-9A-4(b)(11) (“If the public agency
has approved or considered a settlement in closed session, and the terms of the settlement
allow disclosure, the terms of that settlement shall be reported by the public agency and
entered into its minutes within a reasonable time after the settlement is concluded.”
(emphasis added)). Thus, to the extent that the discussions pertaining to the pending
litigation with FAF and the settlement, itself, were protected both by the attorney-client
privilege and the Act’s provisions safeguarding settlement negotiations, inclusion of detailed
information on the meeting agenda pertaining thereto would contravene the express
exemptions allowed by W. Va. Code §§ 6-9A-4(b)(11-12), which permit both the
contemplation of pending legal matters with counsel and their resolution through settlement
in a closed, executive session. Accordingly, the majority should have affirmed the circuit
court’s ruling finding no violation of the Act’s agenda notice requirement under the facts of
this case.
II. The Majority’s Failure to Determine a Remedy Deprives FAF of Finality
While I applaud the majority’s decision to leave intact the parties’ hard fought
negotiated settlement, I am deeply disappointed that my brethren have decided to prolong
FAF’s agony by not settling the question of a remedy in this tribunal but, rather, remanding
the case to the circuit court for even more litigation to determine whether the Planning
Commission’s perceived transgression deserves to be punished. As I mentioned earlier in
this separate opinion, FAF has been trying, for eleven years, to develop its property and has
been thwarted at every step by unrelenting litigation instigated by the Petitioners and the
Planning Commission. At this juncture, there still is no end in sight to the parade of FAF
legal proceedings because the majority has ceded its authority to fashion a remedy and
directed the circuit court to conduct “further proceedings to determine the remedy, if any, the
circuit court may deem appropriate under the facts and circumstances of this case.” And,
despite the majority’s laudable efforts to refrain from annulling the Planning Commission’s
decision to settle stemming from its allegedly improperly noticed meeting of July 26, 2011,
such a sanction is still a very real and distinct possibility authorized by the statutes designed
to remedy violations of the Act. In its haste to remand this case for the circuit court to render
the final verdict, the majority neglects to acknowledge that both W. Va. Code § 6-9A-3 and
W. Va. Code § 6-9A-6 (1999) (Repl. Vol. 2010) authorize the annulment of a decision that
has been made in violation of the Act. See W. Va. Code § 6-9A-3 (“Upon petition by any
adversely affected party any court of competent jurisdiction may invalidate any action taken
at any meeting for which notice did not comply with the requirements of this section.”
(emphasis added)); W. Va. Code § 6-9A-6 (“The court is empowered to compel compliance
or enjoin noncompliance with the provisions of this article and to annul a decision made in
violation of this article.” (emphasis added)).
Insofar as the majority is convinced that the Planning Commission made its settlement
15
decision in violation of the Act’s agenda notice provisions, the parties’ agreed settlement
remains at risk of annulment if the circuit court determines that that is the remedy befitting
the Planning Commission’s supposed violation of the Act. Imposition of such a remedy is
undeniably harsh and would unfairly punish FAF, who, as a mere bystander to these
proceedings, has had no control over the Planning Commission’s actions in complying with
or violating the Act’s provisions. I only hope that the circuit court, who has had numerous
opportunities to interact with the parties to these proceedings, appreciates the consequences
of its actions in fashioning a remedy, if it deems the circumstances of this case even warrant
reproach. In considering this case on remand, I urge the circuit court to be cognizant of
FAF’s role in these proceedings as an innocent intervenor who neither had a duty to comply
with the Act’s requirements nor an obligation to compel the Planning Commission’s
adherence thereto.
For the foregoing reasons, I resolutely dissent from the majority’s decision in this
case.
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