Per Curiam:
The appellants herein and petitioners below, Jane Rissler, Patricia Rissler,
Susan Rissler-Sheely, Mary MacElwee, Richard Latterell, and Sherry Craig (hereinafter
collectively referred to as “Ms. Rissler”), appeal from an order entered March 5, 2009, by
the Circuit Court of Jefferson County. By that order, the circuit court denied Ms. Rissler's
petition for writ of certiorari, through which Ms. Rissler sought to challenge the August 22,
2005, decision of the Jefferson County Board of Zoning Appeals (hereinafter referred to
as “the Board”). On appeal to this Court, Ms. Rissler assigns five errors: (1) Board member
David Weigand should have recused himself due to a conflict of interest; (2) Board member
Doug Rockwell should have recused himself due to a conflict of interest; (3) Board attorney
J. Michael Cassell should have been disqualified due to a conflict of interest; (4) Ms.
Rissler was denied due process because the hearing tribunal was not impartial; and (5) the
circuit court misinterpreted the language of Jefferson County Zoning and Land
Development Ordinance (hereinafter referred to as the “Ordinance”) § 6.4(g). (See footnote 1) Upon a
review of the parties' arguments, the record presented for appellate consideration, and the
pertinent authorities, we reverse the decision of the Jefferson County Circuit Court and
remand this matter for further proceedings consistent with this opinion.
[a] person qualifies as “aggrieved” within the meaning of West Virginia Code § 8-24-59 (1969) (Repl. Vol. 1998)[ (See footnote 5) ] and thereby has standing to challenge a decision or order of the Board of Zoning Appeals as illegal where the individual demonstrates that, as a result of the challenged ruling, he/she will uniquely suffer injury separate and apart from that which the general citizenry might experience as a result of the same ruling.
Syl. pt. 6, Corliss v. Jefferson County Bd. of Zoning Appeals, 214 W. Va. 535, 591 S.E.2d
93 (footnote added). It goes without saying, then, that if an “aggrieved person” has a
property interest such as would afford him/her standing to appeal an adverse decision to a
board of zoning appeals, or to subsequently challenge a board of zoning appeals decision,
he/she surely is entitled to due process to ensure that such interest is protected as required
by the state and federal constitutions. See Syl. pt. 3, Waite v. Civil Serv. Comm'n, 161
W. Va. 154, 241 S.E.2d 164 (1977) (“A 'property interest' includes not only the traditional
notions of real and personal property, but also extends to those benefits to which an
individual may be deemed to have a legitimate claim of entitlement under existing rules or
understandings.”). See also Syl. pt. 2, Jordan v. Roberts, 161 W. Va. 750, 246 S.E.2d 259
(1978) (“Under procedural due process concepts a hearing must be appropriate to the nature
of the case and from this flows the principle that the State cannot preclude the right to
litigate an issue central to a statutory violation or deprivation of a property interest.”).
Reviewing the facts of this case, it is apparent that Ms. Rissler and the
remaining petitioners have a cognizable property interest they seek to protect through these
proceedings. Unlike the population of Jefferson County as a whole, the specific petitioners
who are parties to the case sub judice, “as a result of the challenged ruling, . . . will uniquely
suffer injury separate and apart from that which the general citizenry might experience as
a result of the same ruling.” Syl. pt. 6, in part, Corliss v. Jefferson County Bd. of Zoning
Appeals, 214 W. Va. 535, 591 S.E.2d 93. Ms. Rissler and the other petitioners in this case
own real property adjacent to the subdivision for which Thornhill has sought development
approval through the instant CUP application. The property owned by the petitioners is
located in a rurally-zoned area, and it is this zoning designation that requires Thornhill to
obtain a CUP before it may build its subdivision in that particular location. Ordinance § 5.7
defines an area zoned as a “rural district” as follows:
The purpose of this district is to provide a location for low density single family residential development in conjunction with providing continued farming activities. . . . A primary function of the low density residential development permitted within this section is to preserve the rural character of the County and the agricultural community. . . .
Here, Thornhill proposes to build approximately 600 houses on roughly 500 acres of land.
It goes without saying that such an increase in population density significantly affects the
property interests of the petitioners insofar as they now own property in a low-density, rural
district, but, should Thornhill's CUP application be approved, they will essentially own
property in a high-density district due to the influx of 600 additional families in Thornhill's
new subdivision. Because the property they own is adjacent to this rather substantial
proposed new subdivision, the petitioners certainly “will uniquely suffer injury separate and
apart from that which the general citizenry might experience as a result of the same ruling.”
Syl. pt. 6, in part, Corliss, 214 W. Va. 535, 591 S.E.2d 93. Therefore, we find that the
petitioners have standing to assert their right to due process in this case.
With respect to her due process assignment of error, Ms. Rissler contends
that, on appeal to the Board of Zoning Appeals, she was entitled to a hearing before an
impartial tribunal but that she was not afforded such a hearing because Board members
Weigand and Rockwell and Board attorney Cassell all harbored disqualifying conflicts of
interest. The Board and Thornhill dispute these claims of a denial of due process,
contending, instead, that none of the aforementioned participants in the Board's
proceedings harbored a disqualifying interest so as to render the proceedings improper.
In the context of the issues raised in the case sub judice, due process requires
a hearing before an impartial and neutral tribunal, over which a disinterested adjudicator
presides. See In re Murchison, 349 U.S. 133, 136, 75 S. Ct. 623, 625, 99 L. Ed. 942 (1955)
(“A fair trial in a fair tribunal is a basic requirement of due process.”). See also Concerned
Citizens of S. Ohio, Inc. v. Pine Creek Conservancy Dist., 429 U.S. 651, 652, 97 S. Ct. 828,
829, 51 L. Ed. 2d 116 (1977) (per curiam) (observing that due process requires “hearing
before . . . impartial judicial officer”). The United States Supreme Court has explained that
due process requires a “neutral and detached judge in the first instance,” Ward v. Village of Monroeville, 409 U.S. 57, 61-62, 93 S. Ct. 80, 84, 34 L. Ed. 2d 267 (1972), and the command is no different when a legislature delegates adjudicative functions to a private party, see Schweiker v. McClure, 456 U.S. 188, 195, 102 S. Ct. 1665, 1669, 72 L. Ed. 2d 1 (1982)[, superseded by statute on other grounds as stated in Diagnostic Cardioline Monitoring of New York, Inc. v. Shalala, No. 99-CV-5686 (JS), 2000 WL 1132273 (E.D.N.Y. June 26, 2000)]. “That officers acting in a judicial or quasi-judicial capacity are disqualified by their interest in the controversy to be decided is, of course, the general rule.” Tumey v. Ohio, 273 U.S. 510, 522, 47 S. Ct. 437, 441, 71 L. Ed. 749 (1927). Before one may be deprived of a protected interest, whether in a criminal or civil setting, see Marshall v. Jerrico, Inc., 446 U.S. 238, 242, and n. 2, 100 S. Ct. 1610, 1613, and n. 2, 64 L. Ed. 2d 182 (1980), one is entitled as a matter of due process of law to an adjudicator who is not in a situation “'which would offer a possible temptation to the average man as a judge . . . which might lead him not to hold the balance nice, clear and true. . . .'” Ward, supra, 409 U.S. at 60, 93 S. Ct. at 81[, 34 L. Ed. 2d 267] (quoting Tumey, supra, 273 U.S., at 532, 47 S. Ct., at 444[, 71 L. Ed. 749]). Even appeal and a trial de novo will not cure a failure to provide a neutral and detached adjudicator. 409 U.S., at 61, 93 S. Ct. at 83.
“[J]ustice,” indeed, “must satisfy the appearance of justice, and this stringent rule may sometimes bar trial [even] by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties.” Marshall v. Jerrico, Inc., supra, 446 U.S., at 243, 100 S. Ct., at 1613[, 64 L. Ed. 2d 182] (citations and internal quotation marks omitted). This, too, is no less true where a private party is given statutory authority to adjudicate a dispute, and we will assume that the possibility of bias . . . would suffice to bar [such parties] from serving as adjudicators[.]
Concrete Pipe & Prods. of California, Inc. v. Construction Laborers Pension Trust for S.
California, 508 U.S. 602, 617-18, 113 S. Ct. 2264, 2277, 124 L. Ed. 2d 539 (1993). Thus,
this requirement of impartiality applies not only to judicial officers but also to private
persons who serve as adjudicators. See Tumey v. Ohio, 273 U.S. at 522, 47 S. Ct. at 441,
71 L. Ed. 749 (“That officers acting in a judicial or quasi judicial capacity are disqualified
by their interest in the controversy to be decided is of course the general rule.”). See also Gibson v. Berryhill, 411 U.S. 564, 579, 93 S. Ct. 1689, 1698, 36 L. Ed. 2d 488 (1973)
(“Most of the law concerning disqualification because of interest applies with equal force
to . . . administrative adjudicators.” (internal quotations and citation omitted)).
As noted by the foregoing language of Concrete Pipe, supra, the appearance
of justice may require the disqualification of an adjudicator, even when the adjudicator does
not have an actual interest in a matter over which he/she presides. Thus, although there
exists a “presumption of honesty and integrity in those serving as adjudicators,” Withrow
v. Larkin, 421 U.S. 35, 47, 95 S. Ct. 1456, 1464, 43 L. Ed. 2d 712 (1975), where an
adjudicator possesses the possibility of a disqualifying bias such that the proceedings,
themselves, would appear to be constitutionally infirm, the adjudicator will be deemed to
be disqualified to ensure that the aggrieved party receives the process to which he/she is
due, i.e., a hearing before an impartial tribunal. To this end, the Supreme Court has
explained that
[a] fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness. To this end . . . no man is permitted to try cases where he has an interest in the outcome. That interest cannot be defined with precision. Circumstances and relationships must be considered. . . . Such a . . . rule may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties. But to perform its high function in the best way “justice must satisfy the appearance of justice.” Offutt v. United States, 348 U.S. 11, 14, 75 S. Ct. 11, 13[, 99 L. Ed. 11 (1954)].
In re Murchison, 349 U.S. at 136, 75 S. Ct. at 625, 99 L. Ed. 942. When determining
whether disqualification is required in a particular case, “[t]he inquiry is an objective one.
The Court asks not whether the judge is actually, subjectively biased, but whether the
average judge in his position is 'likely' to be neutral, or whether there is an unconstitutional
'potential for bias.'” Caperton v. A.T. Massey Coal Co., Inc., ___ U.S. ___, ___, 129 S. Ct.
2252, 2262, 173 L. Ed. 2d 1208 (2009).
Applying these standards to the facts presently before us, we will consider
Ms. Rissler's assignments of error pertaining to the alleged disqualification of Board
members Weigand and Rockwell and Board attorney Cassell.
1. Disqualification of Board Member Weigand. Ms. Rissler first argues
that Board member David Weigand should have been recused from the Board because he
had a conflict of interest that prevented him from serving as an impartial member of the
Board of Zoning Appeals. In support of her argument, Ms. Rissler asserts that Mr.
Weigand is the cofounder and president of a company, DIW Group, Inc., doing business
as Specialized Engineering (hereinafter referred to as “Specialized Engineering”), which
inspects new sewage lines, and that this company has an ongoing exclusive contract to
provide “construction inspection services,” such as sewage line inspections, for the
Jefferson County Public Service District. Because Mr. Weigand's company would benefit
from the construction inspections that would be needed if Thornhill's CUP is approved and
it develops its proposed subdivision, Ms. Rissler contends that Mr. Weigand was not an
impartial member of the Board and that he should have recused himself from participating
in proceedings concerning Thornhill's CUP application.
Thornhill and the Board respond that Board member Weigand was not
required to recuse himself from participating in Board decisions involving Thornhill
because he did not have a direct pecuniary interest in the approval of Thornhill's CUP
application and no contract was in existence at that time that would have provided him a
future benefit therefrom.
Upon our review of the record designated for appellate consideration in this
case, we agree with Ms. Rissler's contentions that Board member Weigand should have
been disqualified from participating in the underlying proceedings concerning Thornhill's
CUP application. Although we cannot find support for Ms. Rissler's contentions that
Specialized Engineering had an exclusive contract to perform construction inspection
services for the Jefferson County Public Service District at the time that matters involving
Thornhill's CUP application were being decided, or that Mr. Weigand or Specialized
Engineering performed any inspection work relevant to Thornhill during the consideration
of its CUP application, an additional indicia of conflicting interests is set forth in the record:
Mr. Weigand had a prior business relationship with one of the owners of Thornhill, Eugene
Capriotti. The minutes of the May 20, 2004, meeting of the Board of Zoning Appeals
reflects that “Mr. Weigand stated that several years ago his form [sic] worked for Mr.
Capriotti and that he had no financial interest in the matter pending before the Board[.]”
Despite the absence of a current pecuniary interest, the fact that Mr. Weigand had a prior
business relationship with Mr. Capriotti is problematic and gives rise to an appearance of
impropriety. Absent further information about the nature or extent of these prior dealings,
it is plausible that Mr. Weigand could be inclined to rule favorably for Thornhill in its CUP
application process simply because the prior relationship “offer[s] a possible temptation to
the average man as a judge . . . which might lead him not to hold the balance nice, clear and
true.” Concrete Pipe, 508 U.S. at 617, 113 S. Ct. at 2277, 124 L. Ed. 2d 539 (internal
quotations and citation omitted). Also troubling is Specialized Engineering's receipt of an
exclusive contract to perform construction inspection services for the Jefferson County
Public Service District after the conclusion of the underlying proceedings. The sheer
magnitude of the subdivision Thornhill seeks to build suggests that a substantial amount of
construction inspection services would be required in conjunction therewith resulting in a
significant source of revenue for Specialized Engineering. That is not to say that board
members may never preside over proceedings in which they have a speculative pecuniary
interest. However, under the facts of this case, the circumstances surrounding Mr.
Weigand's prior business relationship with an owner of Thornhill as well as the substantial
pecuniary interest he acquired in the Thornhill project shortly after its approval certainly
“'raise a suspicious judicial eyebrow'” (See footnote 6) as to whether Ms. Rissler and the remaining
petitioners actually received “[a] fair trial in a fair tribunal” (See footnote 7) as required by due process.
Therefore, Mr. Weigand should have been disqualified from the Board of Zoning Appeals
proceedings.
2. Disqualification of Board Member Rockwell. Ms. Rissler additionally
suggests that Mr. Rockwell also should have recused himself from participating in Board
decisions regarding Thornhill's CUP application because Mr. Rockwell performed
intermittent legal work as a closing attorney. In this regard, Ms. Rissler represents that Mr.
Rockwell, who is an attorney, performs some legal work in the field of real estate closings
for the law firm of Crawford & Keller, which firm previously represented Thornhill in
conjunction with its initial incorporation. As a result of Crawford & Keller's prior
representation of Thornhill and Mr. Rockwell's continued association with this law firm,
Ms. Rissler urges that Mr. Rockwell was disqualified from presiding over proceedings
involving Thornhill's CUP application. Moreover, Ms. Rissler contends that, because the
approval of Thornhill's subdivision would result in numerous real estate closings
corresponding with the subdivision's numerous property lots, Mr. Rockwell stands to
benefit from the approval of Thornhill's CUP application and, thus, should have recused
himself from participating in proceedings related thereto on this ground as well.
Thornhill and the Board respond that Board member Rockwell was not
required to recuse himself from participating in Board decisions involving Thornhill
because his potential involvement with future real estate closings related to Thornhill's new
subdivision, should it be approved, is too speculative and uncertain to give rise to a conflict
of interest. Moreover, they contend that the scope of Crawford & Keller's prior
representation of Thornhill was limited solely to Thornhill's incorporation and that such
prior representation does not relate to, or otherwise involve, Thornhill's current CUP
application.
As with Board member Weigand's disqualification, our review of the record
in this case suggests that Board member Rockwell also should have been disqualified from
participating in the underlying proceedings concerning Thornhill's CUP application. While
we agree with Thornhill and the Board that the prior incorporation representation and
potential real estate closings work are too remote, unrelated, and speculative to constitute
disqualifying interests, we nevertheless are troubled by an additional affiliation we have
discovered between Board member Rockwell and Thornhill: Mr. Rockwell's previous
direct representation of Thornhill. This prior representation was disclosed and briefly
discussed in the May 20, 2004, meeting minutes of the Board of Zoning Appeals, which
reflects that “Mr. Rockwell stated that he practiced law with both Mr. Campbell and Mr.
Hammer and represented Thorn Hill on an adverse possession case[.]” The fact that
Thornhill was, in fact, Mr. Rockwell's own client at the very least required the disclosure
of this fact to the parties likely to be adversely affected by this relationship.
While not serving as an attorney in his role as a member of the Board of
Zoning Appeals, Mr. Rockwell nevertheless was expected to adhere to the West Virginia
Rules of Professional Conduct as a lawyer in his role as a private citizen. Among the first
three responsibilities of a lawyer identified in the Preamble to the Rules is the recognition
that “[a] lawyer is . . . a public citizen having special responsibility for the quality of
justice.” The Preamble continues to counsel lawyers as to their obligation to uphold the law
and the justice system not just in their professional role but in their private affairs, as well:
“A lawyer's conduct should conform to the requirements of the law, both in professional
service to clients and in the lawyer's business and personal affairs. . . . A lawyer should
demonstrate respect for the legal system . . . . [I]t is . . . a lawyer's duty to uphold legal
process.” W. Va. R. Prof. Conduct Preamble. We additionally have held that
“Under the Code of Professional Responsibility, a lawyer may be disqualified from participating in a pending case if his continued [participation] would give rise to an apparent conflict of interest or appearance of impropriety based upon that lawyer's confidential relationship with an opposing party.” Syllabus point 2, State ex rel. Taylor Associates v. Nuzum, 175 W. Va. 19, 330 S.E.2d 677 (1985).
Syl. pt. 3, State ex rel. Cosenza v. Hill, 216 W. Va. 482, 607 S.E.2d 811 (2004) (per
curiam).
Applying these standards to the case sub judice, we are quite concerned that
Board member Rockwell's participation in the proceedings involving Thornhill's CUP
application, wherein Thornhill is Mr. Rockwell's former client, give rise to the “appearance
of impropriety.” Syl. pt. 3, in part, Cosenza, 216 W. Va. 482, 607 S.E.2d 811. This is
particularly true when viewed in the context of our decision involving then-former Board
attorney Cassell's representation of Thornhill after the proceedings at issue herein had
concluded, and our recognition that the interests of the Board and of Thornhill are very
different and may, quite possibly, conflict:
[W]hile Thorn Hill's and the BZA's [Board's] positions may coincide in connection with specific issues that arise in the CUP application process, the interests of the two are not generally aligned and may on any given issue be in sharp conflict. This is because Thorn Hill wants to get a permit; whereas the BZA wants to follow the law and serve the best interests of the people of Jefferson County_whether Thorn Hill gets a permit or not.
State ex rel. Jefferson County Bd. of Zoning Appeals v. Wilkes, 221 W. Va. 432, 441 n.15,
655 S.E.2d 178, 187 n.15 (2007). Insofar as “even the probability of unfairness” (See footnote 8) should
be avoided to ensure that the hearing before an impartial tribunal guaranteed by due process
has been afforded, we conclude that Mr. Rockwell should have been disqualified from the
Board of Zoning Appeals proceedings concerning Thornhill's CUP application.
3. Disqualification of Board Attorney Cassell. Lastly, Ms. Rissler contends
that the Board's attorney, J. Michael Cassell, also should have been disqualified from
participating in the proceedings before the Board because he eventually left the Board's
employ to work for Thornhill's counsel, the law firm of Campbell, Miller, & Zimmerman
(hereinafter referred to as “CMZ”). More specifically, Mr. Cassell resigned as the Board's
attorney on December 10, 2004; last worked for the Board on January 31, 2005; and joined
the law firm of CMZ on February 1, 2005. Ms. Rissler claims that, since Mr. Cassell
undoubtedly negotiated the terms of his employment with CMZ before his departure from
the Board's employ, and because he continued to represent the Board in its proceedings
involving Thornhill during this time, Mr. Cassell had a conflict of interest and should have
been disqualified from the Board's proceedings involving Thornhill.
Thornhill and the Board also reject Ms. Rissler's contentions that Board
attorney Cassell should have been disqualified from participating in the underlying
proceedings. In this regard, Thornhill and the Board contend that Mr. Cassell did not work
for CMZ while he was employed as the Board's attorney and that he did not represent
Thornhill while he was representing the Board.
The issue of Mr. Cassell's disqualification in matters related to Thornhill's
CUP application is not a matter of first impression for this Court. We previously
considered whether Mr. Cassell should be disqualified from representing Thornhill in such
proceedings after he left his position as the Board's attorney. See State ex rel. Jefferson
County Bd. of Zoning Appeals v. Wilkes, 221 W. Va. 432, 655 S.E.2d 178. In the prior case,
we determined that Mr. Cassell could not, as an employee of CMZ, represent Thornhill in
its CUP application proceedings given his prior representation of the Board at an earlier
stage of the same proceedings. Id.
In the case sub judice, we are called upon to decide whether Mr. Cassell also
was prohibited from representing the Board, while he was still employed by the Board, before he began to work for CMZ, at a time when he most likely was negotiating the terms
of his employment with CMZ. Rule 1.11 of the West Virginia Rules of Professional
Conduct very clearly prohibits such a scenario:
(c) Except as law may otherwise expressly permit, a lawyer serving as a public officer or employee shall not:
. . . .
(2) negotiate for private employment with any person who is involved as a party or as attorney for a party in a matter in which the lawyer is participating personally and substantially, except that a lawyer serving as law clerk to a judge, other adjudicative officer or arbitrator may negotiate for private employment as permitted by Rule 1.12(b) and subject to the conditions stated in Rule 1.12(b).
Here, Mr. Cassell served as the Board's attorney and, thus, was a “public . . . employee.”
W. Va. R. Prof. Conduct 1.11(c). At the same time of Mr. Cassell's public service, CMZ
represented Thornhill, who was “a party in a matter in which [Mr. Cassell] [was]
participating personally and substantially” (See footnote 9) on behalf of the Board. While it is not clear
when, exactly, Mr. Cassell commenced and concluded his employment negotiations with
CMZ, it is apparent that such talks likely occurred while he was still working for the Board
given that he tendered his notice of resignation from his position as the Board's attorney
on December 10, 2004, over one month before his resignation actually became effective on
January 31, 2005. Mr. Cassell began working for CMZ on February 1, 2005. Such
circumstances certainly give rise to an appearance of impropriety.
To ensure that justice is served, we have vested circuit courts with the ability
to disqualify attorneys when justice so requires.
“'“A circuit court, upon motion of a party, by its inherent power to do what is reasonably necessary for the administration of justice, may disqualify a lawyer from a case because the lawyer's representation in the case presents a conflict of interest where the conflict is such as clearly to call in question the fair or efficient administration of justice. Such motion should be viewed with extreme caution because of the interference with the lawyer-client relationship.” Syl. Pt. 1, Garlow v. Zakaib, 186 W. Va. 457, 413 S.E.2d 112 (1991).' Syllabus point 2, Musick v. Musick, 192 W. Va. 527, 453 S.E.2d 361 (1994).” Syllabus point 3, State ex rel. Michael A.P. v. Miller, 207 W. Va. 114, 529 S.E.2d 354 (2000).
Syl. pt. 4, Cosenza, 216 W. Va. 482, 607 S.E.2d 811. Moreover,
[i]n determining whether to disqualify counsel for conflict of interests, the trial court is not to weigh the circumstances “with hair-splitting nicety” but, in the proper exercise of its supervisory power over the members of the bar and with a view of preventing “the appearance of impropriety,” it is to resolve all doubts in favor of disqualification.
State ex rel. Jefferson County Bd. of Zoning Appeals v. Wilkes, 221 W. Va. at 440, 655 S.E.2d at 186 (quoting United States v. Clarkson, 567 F.2d 270, 273 n.3 (4th Cir. 1977) (additional citations omitted)). Under the facts of the case sub judice, we find that, when presented with Ms. Rissler's motion to disqualify Mr. Cassell, the circuit court should have “resolve[d] all doubts in favor of disqualification” (See footnote 10) and granted Ms. Rissler's motion to preserve “the fair [and] efficient administration of justice.” Syl. pt. 4, in part, Cosenza, id.
4. Due process summary. Having determined that Board members Weigand
and Rockwell and Board attorney Cassell should have been disqualified from participating
in the Board of Zoning Appeals proceedings concerning Thornhill's CUP application, we
conclude that Ms. Rissler and the remaining petitioners did not receive the process to which
they were due because they did not receive “[a] fair [hearing] in a fair tribunal.” In re
Murchison, 349 U.S. at 136, 75 S. Ct. at 625, 99 L. Ed. 942. Accord Concrete Pipe &
Prods. of California, Inc. v. Construction Laborers Pension Trust for S. California, 508 U.S.
at 617, 113 S. Ct. at 2277, 124 L. Ed. 2d 539 (“[D]ue process requires a 'neutral and
detached judge in the first instance.'” (quoting Ward v. Village of Monroeville, 409 U.S. at
61-62, 93 S. Ct. at 84, 34 L. Ed. 2d 267)). Accordingly, we reverse the decision of the
Jefferson County Circuit Court denying Ms. Rissler's petition for writ of certiorari on this
basis. We further remand this matter to afford Ms. Rissler and the other petitioners a new
Board of Zoning Appeals hearing on their objections regarding the approval of Thornhill's
CUP application. To ensure that this new hearing occurs before a neutral and impartial
tribunal, Board members Weigand and Rockwell are disqualified and should be replaced
by two of the Board's alternate members as contemplated by W. Va. Code § 8A-8-4(f)
(2004) (Repl. Vol. 2007). Furthermore, any members or alternate members of said Board
who have an actual or potential bias that may disqualify them from participating in or
presiding over proceedings concerning Thornhill's CUP application should disclose the
nature of their interest before such proceedings take place and should also be disqualified
and replaced by alternate members who have no such actual or potential interest in the
proceedings. Finally, Board attorney Cassell likewise is disqualified from participating in
the new Board of Zoning Appeals proceedings and should be replaced by new counsel for
the Board who does not have a disqualifying interest in these proceedings.
[a]pplication for a conditional use permit shall be made before construction of any uses not listed as permitted uses within the appropriate zoning district. Upon receipt of an application, the site will be evaluated by the Planning and Zoning Staff using the Development Review System. The two major components of the System, the Soils Assessment and the Amenities Assessment, consist of criterion which each possess a numerical value that is weighted relative to its importance as an indicator of a parcel's agricultural significance or its development potential. The total numerical value of the combined criteria is 100 points: the Soil Assessment contributes 25 points and the Amenities Assessment contributes 75 points. The highest total numerical value of the combined criteria indicates that a parcel is more suitable for agriculture, whereas, the lowest numerical value indicates that development is more appropriate for the site.