No. 15-1223 – Tony Coffman, Robert Marsh, Mary Marsh, James Marsh, FILED
and Marilyn Marsh v. Nicholas County Commission, et al.
February 9, 2017
released at 3:00 p.m.
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
Justice Ketchum dissenting: OF WEST VIRGINIA
I disagree with the majority’s conclusion that the annexed property is
“contiguous” with the city limits of Summerville.
The city council petitioned to annex the subject property pursuant to W.Va.
Code § 8-6-5 [2001]. West Virginia Code 8-6-5(f)(1) provides:
(f) In making its final decision on an application for
annexation by minor boundary adjustment, the county
commission shall, at a minimum, consider the following
factors:
(1) Whether the territory proposed for annexation is
contiguous to the corporate limits of the municipality. For
purposes of this section, “contiguous” means that at the time
the application for annexation is submitted, the territory
proposed for annexation either abuts directly on the municipal
boundary or is separated from the municipal boundary by an
unincorporated street or highway, or street or highway right-
of-way, a creek or river, or the right-of-way of a railroad or
other public service corporation, or lands owned by the state
or the federal government;
The annexed property was not truly contiguous with the city limits. No
residential or commercial property within the corporate limits of the city shares a
common boundary line with the annexed property. Nevertheless, in an attempt to remedy
this problem, the city’s petition used a “narrow private easement” to connect the annexed
property to the city limits. West Virginia Code 8-6-5(f)(1) defines “contiguous” for
purposes of annexation by minor boundary adjustment as requiring that the “territory
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proposed for annexation . . . abuts directly on the municipal boundary. . .” In the present
case, the annexed property does not “abut directly on the municipal boundary.”
Therefore, I agree with the Petitioners that the use of the “narrow private
easement” to satisfy the contiguous requirement creates an “outrageous geographical
result” that defies common sense and is unreasonable and arbitrary. See In re Petition of
the City of Beckley, 194 W.Va. 423, 430, 460 S.E.2d 669, 676 (1995) (“Common sense
would dictate that the municipality would not undertake a burdensome obligation to
supply services to the annexed area by extending them at great length along a narrow
strip of land. Thus, there is an element of reasonableness that will control the city’s
decision to annex.”).
Based on the foregoing, I respectfully dissent.
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