1

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Dante Vincent Camastro,

Petitioner Below, Petitioner

vs) No. 17-0113 (Ohio County 04-C-435)

City of Wheeling Board of

Zoning Appeals,

Respondent Below, Respondent

MEMORANDUM DECISION

Petitioner Dante Vincent Camastro, pro se, appeals the June 30, 2016, order of the Circuit 

Court of Ohio County affirming the September 4, 2004, order of Respondent City of Wheeling 

Board of Zoning Appeals (“BZA”) that upheld the denial of his application to erect two additional 

billboards on a preexisting structure. The BZA, by counsel Rosemary Humway-Warmuth, filed a 

summary response.

The Court has considered the parties’ briefs and the record on appeal.1 The facts and legal 

arguments are adequately presented, and the decisional process would not be significantly aided 

by oral argument. This 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. For the reasons expressed below, the decision of the circuit court is reversed and this case 

is remanded to the circuit court for detailed findings of fact and conclusions of law addressing (1)

petitioner’s argument that the Wheeling, West Virginia, zoning ordinance was unconstitutional as 

applied to his request to erect the additional billboards; and (2) whether petitioner’s appeal 

includes the BZA’s decision to deny his application for variances to erect the two additional 

billboards, which decision was not reduced to a written order at the time that petitioner filed his 

petition for a writ of certiorari in the circuit court.

 

1The appellate record did not include the circuit court’s February 12, 2009, scheduling 

order and the BZA’s responses filed on November 4, 2004, May 12, 2009, and May 15, 2009. On 

our own motion, we supplement the record with both the scheduling order and the BZA’s 

responses pursuant to Rule 6(b) of the West Virginia Rules of Appellate Procedure.

FILED

June 17, 2019

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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Petitioner owns a preexisting structure on the northwest corner of Sixteenth Street and 

Lane F in the City of Wheeling (“City”). The structure displays two billboards on one side and is 

vacant on its other side. This use of the structure constitutes a non-conforming use under the City’s

zoning ordinance. 2 On July 1, 2004, after the view of the structure’s vacant side became 

unobstructed due to the demolition of a nearby building, petitioner filed an application to erect two 

additional billboards on the structure. The City’s planning administrator denied the application on 

July 2, 2004, finding that, while the zoning ordinance allowed non-conforming uses to be 

maintained, it did not permit the expansion of such uses. Petitioner appealed the denial of the 

application to the BZA on July 16, 2004. At an August 19, 2004, hearing, the BZA upheld the 

denial of the sign application. On August 25, 2004, petitioner filed a variance application for 

permission to put up the additional billboards despite their non-conformity with several 

requirements of the zoning ordinance.3 Consequently, in its written order affirming the denial of

the sign application, entered on September 16, 2014, the BZA noted that petitioner “file[d] an 

application for a variance on these same issues[.]” At a September 16, 2004, hearing, the BZA 

denied petitioner’s variance application, finding that the purpose of the zoning ordinance was to 

reduce the number of billboards throughout the City. 

On October 18, 2004, petitioner filed a petition for a writ of certiorari in the circuit court 

and the notice required by West Virginia Code § 8A-9-2 advising the BZA’s chairperson that he 

was challenging the BZA’s September 16, 2004, order affirming the denial of the sign application. 

To his petition, petitioner attached the October 8, 2004, letter from the BZA’s counsel informing 

him that the written order denying his variance application was not yet entered but would be sent to 

him in due course. On October 21, 2004, the BZA entered its order denying the variance 

application. 

In his petition, petitioner argued, inter alia, that the City’s zoning ordinance was 

unconstitutional as applied to his request to erect the additional billboards. On November 10, 2004, 

the BZA filed a response and generally denied the arguments advanced by petitioner. On January 

 

2

In Syllabus Point 2 of Poole v. Berkeley County Planning Commission, 200 W. Va. 74, 

488 S.E.2d 349 (1997), we held that:

“[a] non-conforming use is a use which, although it does not 

conform with existing zoning regulations, existed lawfully prior to 

the enactment of the zoning regulations. These uses are permitted to 

continue, although technically in violation of the current zoning 

regulations, until they are abandoned. An exception of this kind is 

commonly referred to as a ‘grandfather’ exception.” Syl. [P]t. 3, 

McFillan v. Berkeley County Planning Commission, 190 W.Va. 

458, 438 S.E.2d 801 (1993). 

3A zoning variance is “[a] license or official authorization to depart from a zoning law.” 

BLACK’S LAW DICTIONARY 1787 (10th ed. 2014). 
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19, 2006, the BZA sent the circuit court the administrative record that included the September 16, 

2004, order affirming the denial of the sign application and the October 21, 2004, order denying 

the variance application, as well as the minutes from the August 19, 2004, and September 16, 

2004, hearings. 

On February 12, 2009, the circuit court entered a scheduling order agreed to by the parties. 

On March 17, 2009, petitioner filed a brief in support of his appeal, noting that the BZA 

“interpreted the [zoning] ordinance to deny expansion of non-conforming uses and declined to 

grant variances.” Petitioner reiterated his arguments including his position that the City’s zoning 

ordinance was unconstitutional as applied to his request to erect the additional billboards. 

Petitioner asked that the circuit court direct that his application for a sign permit “and/or the 

requested variances . . . be granted.” The BZA filed a response on or about April 16, 2009,4

arguing that the circuit court should affirm the BZA’s authority “to decide both the procedural 

issues of the variance process as well as the merits of the issue of whether or not the City has a 

legitimate interest to protect, a non-discriminatory application and constitutionally appropriate 

land use and planning code concerning off-premises signage and increasing a non-conforming 

land use.” (Emphasis added.) Petitioner filed a reply on May 1, 2009, repeating his request that the 

circuit court direct that his application for a sign permit “and/or the requested variances . . . be 

granted.” Finally, the BZA filed a supplemental response on May 15, 2009, to respond to the 

“[additional] arguments made by counsel for [p]etitioner.”

Thereafter, the case laid dormant until September 19, 2011, when the circuit court entered a 

notice of involuntary dismissal pursuant to Rule 41 of the West Virginia Rules of Civil Procedure. 

The case was not dismissed but remained dormant until February 24, 2016, when the circuit court 

entered a second Rule 41 notice and set the case for a status hearing on April 5, 2016. At the status 

hearing, the circuit court agreed with the BZA’s position that the case was ripe for decision. On 

April 25, 2016, petitioner, pro se, filed an objection to the proposed order submitted by the BZA, 

arguing that the circuit court should direct that his application for a sign permit “and/or the 

requested variances . . . be granted.” By order entered June 30, 2016, the circuit court affirmed the

BZA’s September 16, 2004, order upholding the denial of the sign application but made no ruling 

regarding the BZA’s October 21, 2004, order denying the variance application. Instead, the circuit 

court erroneously found that petitioner’s variance application represented an adequate alternative 

remedy despite the fact that, at the September 16, 2004, hearing, the BZA heard and denied the 

variance application. In addition, the circuit court failed to address petitioner’s as-applied 

constitutional challenge to the City’s zoning ordinance that was raised in his October 18, 2004, 

certiorari petition and his March 17, 2009, brief. 

It is the circuit court’s June 30, 2016, order that petitioner now appeals. “When the circuit 

court sits in review of the decisions of . . . administrative tribunals[,] it shall record findings of fact 

and conclusions of law along with the judicial orders which it issues.” Syl. Pt. 1, Golden v. Bd. of 

Educ. of Harrison County, 169 W.Va. 63, 285 S.E.2d 665 (1981). We have held, in a variety of 

 

4This response was initially misfiled; as a result, it was not entered into the record until 

May 12, 2009. 
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contexts, that there should be findings of fact and conclusions of law sufficient to allow 

meaningful appellate review. See State ex rel. Mylan, Inc. v. Zakaib, 227 W.Va. 641, 713 S.E.2d 

356 (2011) (forum non conveniens); State ex rel. Watson v. Hill, 200 W.Va. 201, 488 S.E.2d 476 

(1997) (habeas corpus); Fayette Cty. Nat. Bank v. Lilly, 199 W.Va. 349, 484 S.E.2d 232 (1997)

(summary judgment), overruled on other grounds, Sostaric v. Marshall, 234 W.Va. 449, 766 

S.E.2d 396 (2014).

On appeal, petitioner reiterates the arguments he made before the circuit court: (1) that the 

City’s zoning ordinance was unconstitutional as applied to his request to erect the additional 

billboards; and (2) that his application to put up the additional billboards and/or his application 

“for the requested variance[s] be granted.” The BZA counters that the circuit court’s June 30, 

2016, order should be affirmed.

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. First, the 

circuit court failed to address the as-applied constitutional challenge to the City’s zoning ordinance 

that was raised in petitioner’s October 18, 2004, certiorari petition and his March 17, 2009, brief. 

Second, the circuit court erroneously found that petitioner’s variance application represented an 

adequate alternative remedy despite the fact that, at the September 16, 2004, hearing, the BZA 

heard and 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. At the time petitioner filed his certiorari petition, the 

written order denying the variance application was yet to be entered; therefore, petitioner did not 

list that order as an order being appealed in the notice to the BZA’s chairperson, as required by 

West Virginia Code § 8A-9-2. Nevertheless, petitioner has consistently argued that the circuit 

court possesses the authority to order the BZA to grant his variance application as one of two 

possible remedies and nothing in the BZA’s several responses has challenged petitioner’s position.

Accordingly, we reverse the June 30, 2016, order, and remand this case to the circuit court for 

detailed findings of fact and conclusions of law addressing (1) petitioner’s argument that the City’s

zoning ordinance was unconstitutional as applied to his request to erect the additional billboards; 

and (2) whether petitioner’s appeal includes the BZA’s decision to deny his application for 

variances to erect the two additional billboards.5 

For the foregoing reasons, we reverse the circuit court’s June 30, 2016, order, and remand 

this case for further proceedings consistent with this memorandum decision.

 Reversed and Remanded with Directions.

ISSUED: June 17, 2019

 

5Because we remand this case for detailed findings of fact and conclusions of law, we deny 

petitioner’s motion requesting for oral argument that was filed on November 8, 2017.
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CONCURRED IN BY:

Chief Justice Elizabeth D. Walker

Justice Margaret L. Workman

Justice Tim Armstead

Justice Evan H. Jenkins

Justice John A. Hutchison