IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2017 Term
FILED
February 9, 2017
released at 3:00 p.m.
No. 15-1223 RORY L. PERRY, II CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
TONY COFFMAN, ROBERT MARSH, MARY MARSH,
JAMES MARSH AND MARILYN MARSH,
Plaintiffs Below, Petitioners
V.
NICHOLAS COUNTY COMMISSION AND ITS MEMBERS,
DR. YANCY S. SHORT, M.D.; JOHN R. MILLER; AND KENNETH ALTIZER,
INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES,
AND CHECKS AUTO PARTS, LLC,
Defendants Below, Respondents
Appeal from the Circuit Court of Nicholas County
Honorable Gary L. Johnson, Judge
Civil Action No. 14-C-122
AFFIRMED
Submitted: January 18, 2017
Filed: February 9, 2017
W. Henry Jernigan Charles R. Bailey
Mary R. Rowe Litman Michael W. Taylor
Arie M. Spitz Bailey & Wyant, PLLC
Dinsmore & Shohl, LLP Charleston, West Virginia
Charleston, West Virginia Attorneys for the Respondents
Attorneys for the Petitioners
JUSTICE DAVIS delivered the Opinion of the Court.
JUSTICE KETCHUM dissents and reserves the right to file a dissenting opinion.
JUSTICE WORKMAN concurs and reserves the right to file a concurring opinion.
SYLLABUS BY THE COURT
1. “Where the issue on an appeal from the circuit court is clearly a question
of law or involving an interpretation of a statute, we apply a de novo standard of review.”
Syllabus point 1, Chrystal R. M. v. Charlie A. L. 194 W. Va. 138, 459 S.E.2d 415 (1995).
2. “The legislative authorizations to grant an annexation through a minor
boundary adjustment to the county commission in W. Va. Code, 8-6-[5] [(2001)
(Repl. Vol. 2012)] is a proper delegation of legislative authority.” Syllabus point 3, In re the
Petition of the City of Beckley to Annex, 194 W. Va. 423, 460 S.E.2d 669 (1995).
3. “In general, a county commission enjoys a broad discretion in exercising
its legislative powers in determining the geographic extent of a minor boundary adjustment
sought by a municipality under W. Va. Code 8-6-5 [(2001) (Repl. Vol. 2012)], so long as a
portion of the area to be annexed is contiguous to the municipality.” Syllabus point 6, In re
the Petition of the City of Beckley to Annex, 194 W. Va. 423, 460 S.E.2d 669 (1995).
i
Davis, Justice:
This appeal was brought by the Petitioners, Tony Coffman, Robert Marsh,
Mary Marsh, James Marsh, and Marilyn Marsh (collectively, “Petitioners”), plaintiffs below,
from an order of the Circuit Court of Nicholas County that, in part, granted summary
judgment in favor of the Respondents, Nicholas County Commission and its members, Dr.
Yancy S. Short, M.D.; John R. Miller; and Kenneth Altizer, individually and in their official
capacities (collectively, “Respondents”), defendants below. The matter involves the
proposed expansion of municipal geographic boundaries by minor boundary adjustment1 by
the City of Summersville, West Virginia as approved by the Nicholas County Commission.
The assignments of error advanced by the Petitioners can be summarized as
asserting that certain statutory requirements governing annexation were not met during the
approval process; the annexation was not in the best interests of Nicholas County, West
Virginia; the annexation amounted to a public nuisance; and the annexation resulted in a
diminution of the Petitioners’ property value such that there was an unconstitutional taking
of property without compensation. After careful review of the order, the briefs, the record
submitted on appeal, and the oral argument of the parties, we affirm.
1
See West Virginia Code § 8-6-5 (2001) (Repl. Vol. 2012). Relevant portions
of the statute will be set out and addressed within the body of the discussion herein.
1
I.
FACTUAL AND PROCEDURAL HISTORY
By Deed dated March 2, 2012, Rodney L. LeRose and Barbara LeRose
conveyed twenty acres, more or less, located in Nicholas County to Checks Auto Parts, LLC
(“Checks”). On or about August 21, 2012, Checks submitted an application to the Nicholas
County Commission seeking authority to operate a salvage yard on the property. The
application by Checks was made pursuant to an Ordinance of the Nicholas County
Commission enacted in 1984 establishing a salvage yard permit system.2
The Nicholas County Commission scheduled and duly noticed a public hearing
on the application by Checks. A public hearing was held on September 4, 2012. The
minutes of the public hearing reflect that Petitioner, Tony Coffman, representing Coffman
Metals, a recycling facility located in Nicholas County, was present and spoke at the hearing.
The minutes further reflect that various environmental permits already obtained by Checks
2
The Nicholas County Ordinance, as amended, established a salvage yard
permit system with an application process requiring an applicant to meet certain requirements
such as providing maps; plots of proposed operations; a business plan; plans addressing
disposal of environmentally unsafe waste; evidence of compliance with environmental
regulations; plans for storage; evidence of insurance; pictures; measures for addressing
surface, stream, or ground water pollution; and fire hazard and protection measures. Among
other things, the ordinance provided for application fees; rules and regulations regarding site
design standards; location standards; mandated the determination of the effect of proposed
salvage yards in terms of property values, investment, and social, economic, and
environmental impact on community growth and development; and provided for enforcement
and penalties for violations.
2
were discussed. Additionally, discussion was had regarding the proximity of certain homes,
a school, and a park. Further, a concern over noise levels was expressed by some individual
commissioners. At the conclusion of the public hearing, the Nicholas County Commission
indicated that it wanted more time to consider the matter. Thus, the Nicholas County
Commission voted to close the public hearing and table the matter until October 2, 2012.
At a meeting of the Nicholas County Commission on October 2, 2012, two of
the Commissioners indicated they had gone to the proposed site in order to review it and
visually see how the project would sit on the property. The Nicholas County Commission
determined that the application of Checks to obtain a Nicholas County salvage yard permit
met the requirements of the Nicholas County Ordinance. The permit was issued by
unanimous vote of the Nicholas County Commission.
Thereafter, on October 17, 2012, Checks applied to the West Virginia
Department of Transportation Division of Highways (“DOH”) for a salvage yard permit
pursuant to West Virginia Code §§ 17-23-1 through 13, which provides licensing
requirements for the establishment, operation, maintenance, and use of salvage yards. On
or about November 1, 2012, the DOH Outdoor Advertising/Salvage Yards Chief wrote to
Checks returning Checks’ paperwork and application fee, and denying the application on the
grounds that a certified survey was not included in the application. The denial letter noted
3
that aerial photos with demarcated distance measurements could not serve as location
representation in lieu of a certified survey.
Some fifteen months later, on January 13, 2014, at a regular meeting of the
Summersville City Council, the Mayor presented the issue of a proposed annexation of the
Checks’ twenty acre property. Three individuals, including Petitioners Tony Coffman and
Robert Marsh, spoke in opposition to the proposed annexation because of its “proposed usage
as a salvage yard.” A motion was made to consider the annexation of the property to be
zoned as an industrial park. Representatives of Checks were asked to speak. The minutes
of the City Council meeting reflect that Checks representatives stated they wanted to get the
property within the city limits so as to obtain a permit for a salvage yard. As cursorily
reflected in the minutes of the City Council meeting, there was a lengthy discussion which
concluded with passage of the annexation motion by a five-to-three vote of City Council
members. Following passage of the motion, on March 20, 2014, the City of Summersville
filed a Petition for Annexation before the Nicholas County Commission seeking to increase
the corporate limits of the City by minor boundary adjustment pursuant to West Virginia
Code § 8-6-5 (2001) (Repl. Vol. 2012).
Thereafter, the Nicholas County Commission proceeded to publish notice of
the proposed annexation and of a date and time for public hearing on the proposal. A public
4
hearing was held on August 5, 2014.3 The Nicholas County Commission approved the
annexation and entered an “Order on Boundary Adjustment” granting the application for
annexation by minor boundary adjustment, which allowed the City of Summersville to annex
the Checks’ twenty acre property together with two easement tracts in accord with the
Petition for Annexation.
The Petitioners, who live in Nicholas County but who are not residents of
Summersville, West Virginia, initiated action with the filing of a Complaint on October 2,
2014, followed by an Amended Complaint filed on March 24, 2015, naming the Nicholas
County Commission, individual Commission members, and Checks as defendants. The
Petitioners sought an order declaring the annexation order void, compensation for the taking
3
We observe that the minutes of the public hearing reflect counsel for
Petitioners appeared, provided a petition, a summary handout, and remarks advancing
various concerns and opposition to the annexation. Additionally, Petitioners, Mr. Coffman,
Mr. Robert Marsh, Mr. James Marsh, and Ms. Mary Marsh, spoke generally against the
annexation and more specifically against the proposed use of the property as a salvage yard.
They addressed issues regarding type of roadway and access to the roadway; lead
contamination; environmental, health, and welfare concerns; possible diminution of property
values; and potential water flow concerns. Another individual with bordering property spoke
about the contamination of the soil with lead and raised concerns that disturbing the property
would result in creek contamination. An engineer represented that environmental regulators
had been on the site testing ponds and land where lead may be present and, if necessary,
would issue orders directing abatement, which would be complied with. An individual who
owned approximately 350 acres of property around and joining the property considered for
annexation spoke about his development plans and indicated he could not foresee problems.
The owner of Checks spoke indicating that the issue was really about business competition
and directed his remarks to Petitioner, Mr. Coffman, who owns a recycling operation in
Nicholas County.
5
of their property, a declaration that Checks’ operation of an automotive junkyard on the
annexed property was in violation of ordinances of the City of Summersville and of Nicholas
County, a cease and desist order directing Checks to cease operations of an automotive
junkyard on the property, and an order directing Checks to remove junk and restore the
property. On April 17, 2015, Checks, by its owner, James M. Buckland, pro se, filed a letter
answer, stating he believed he had done everything legal; proper documentation had been
filed; his intentions were to stay in good standing by following the guidelines, rules, and
regulations; notice and opportunity to be heard had been provided; and that the case was
frivolous and should be dismissed. The Answer of the Nicholas County Commission denied
the allegations of the Amended Complaint and raised various affirmative defenses including,
but not limited to, the defense that the annexation was proper and in compliance with all
controlling law and procedure. There was extremely limited written discovery. The
Petitioners filed a motion for summary judgment, which the Nicholas County Commission
opposed. Additionally, the Nicholas County Commission filed its own counter-motion for
summary judgment. A hearing was held before the circuit court on October 15, 2015. At the
hearing, Checks was represented by counsel who indicated orally that Checks would join the
Nicholas County Commission’s motion for summary judgment.
On November 30, 2015, the circuit court entered its “Order Granting County
Commission’s Motion for Summary Judgment; Dismissing County Commission Defendants;
Denying Plaintiffs’ Motion for Summary Judgment, in part; and Continuing Hearing on
6
Remainder of Plaintiffs’ Motion.” In summary, the circuit court first found that there were
issues of fact with respect to Checks that dictated denying the motion for injunctive relief and
establishing a schedule for further proceedings. Second, the circuit court found that the
Nicholas County Commission complied with the statutory requirements in entering the Order
on Boundary Adjustment which authorized the City of Summersville’s annexation of the
property. As to the Nicholas County Commission, the circuit court indicated the Order was
final and appealable. The instant appeal followed.
II.
STANDARD OF REVIEW
This matter involves legal conclusions regarding the scope and application of
annexation statutes. Accordingly, a de novo standard of review is applied. “Where the issue
on an appeal from the circuit court is clearly a question of law or involving an interpretation
of a statute, we apply a de novo standard of review.” Syl. pt. 1, Chrystal R. M. v. Charlie A.
L., 194 W. Va. 138, 459 S.E.2d 415 (1995). Accord Syl. pt. 1, In re the Petition of the City
of Beckley to Annex, 194 W. Va. 423, 460 S.E.2d 669 (1995).
Having set forth the standard of review governing our consideration of this
case, we proceed to address the issues raised.
III.
7
DISCUSSION
The Petitioners advance seven assignments of error. Five of the assignments
of error raise issues regarding the asserted failure to abide by statutory provisions governing
annexation by minor boundary adjustment. Additionally, the Petitioners assert that the trial
court erred in finding the annexation is not a public nuisance. The Petitioners also advance
the claim that the trial court erred in finding that the annexation was not an unconstitutional
taking of property. In order to place the issue of annexation in context, we will briefly
outline annexation by municipalities. We will then proceed to address the Petitioners’
assignments of error.
A. Annexation of Unincorporated Territory by Municipalities
Municipal boundaries may be extended only when and as prescribed by law.
Municipal corporations in West Virginia have been empowered by the Legislature to annex
unincorporated territory in accordance with several statutory mechanisms. The first,
annexation by election, is initiated by a petition signed by five percent or more of a city’s
freeholders and must be approved by a majority voting in both the city and the additional
territory to be annexed. W. Va. Code § 8-6-2 (2003) (Repl. Vol. 2012). A second method
provides for annexation without an election whereby a municipality may annex territory by
ordinance if a majority of qualified voters in the area proposed to be annexed file a petition,
and a majority of all freeholders of the additional territory file a petition. The municipality’s
determination regarding the sufficiency of the petitions is reviewable by the courts.
8
W .Va. Code § 8-6-4 (2001) (Repl. Vol. 2012). A third method, only in place since 2009,
provides a statutory scheme for annexation without election for municipalities in counties
that have adopted countywide zoning including site-specific properly identified urban growth
boundaries. W. Va. Code § 8-6-4a (2009) (Repl. Vol. 2012). The fourth statutory scheme,
and the one at issue here, allows for annexation by minor boundary adjustment. W. Va. Code
§ 8-6-5. This process does not require a petition by qualified voters or freeholders or an
election. Instead, the municipality must petition the county commission for permission to
annex. In the event the petition meets certain statutory requirements, a notice regarding the
proposed annexation must be published, and a special public hearing must be held before the
county commission, which considers certain minimum statutory factors in making a decision
whether to grant or deny the petition for annexation. W. Va. Code § 8-6-5.
We observe that it is recognized that the Legislature may delegate the power
of annexation, within constitutional limits. Indeed, a municipal corporation has only the
powers granted to it by the Legislature. See Syl. pt. 1, McCallister v. Nelson, 186 W. Va.
131, 411 S.E.2d 456 (1991). In connection with the minor boundary adjustment annexation
method at issue here, the Legislature has delegated to the county commissions the authority
to grant an annexation by minor boundary adjustment. We note that the general powers of
a county commission are set forth in Article 9, Section 11 of the West Virginia Constitution,
which includes a provision that “[s]uch commissions may exercise such other powers, and
perform such other duties, not of a judicial nature, as may be prescribed by law.” We
9
previously have held: “The legislative authorizations to grant an annexation through a minor
boundary adjustment to the county commission in W. Va. Code, 8-6-[5] . . . is a proper
delegation of legislative authority.” Syl. pt. 3, In re the Petition of the City of Beckley to
Annex, 194 W. Va. 423, 460 S.E.2d 669.
Having generally outlined the authority of the Legislature to delegate the power
of annexation to municipalities, as well as the various statutorily designed methods of
annexation, we proceed to consider the assignments of error advanced by the Petitioners.
B. The Property Subject to Annexation is Contiguous
with the Geographic Boundary of the City of Summersville
The Petitioners’ first assignment of error is that the circuit court erred when it
found that the annexed property was “contiguous” with the City limits. The annexation by
minor boundary adjustment defines “contiguous” as meaning:
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.
W. Va. Code § 8-6-5(f)(1). In a footnote in its order, the circuit court found: “Although not
argued at length and not necessary to the Court’s ruling in this case, the Court does find that
10
the ‘contiguous’ requirement of West Virginia Code Section § 8-6-5 is satisfied because the
property annexed directly abuts the Frontage Road which was properly annexed in 2012.”
The Petitioners assert that the annexed property is “not truly contiguous” but
rather is only “technically linked” to the City by virtue of a narrow private easement. It is
further argued that no residential or commercial property lying within the corporate limits
of the City shares a common boundary line with the annexed property. The Petitioners
interpret “contiguity” as requiring a common boundary line between the City and residential
or commercial property. The Petitioners also contend that the consequence of annexation is
the creation of an “outrageous geographical result” consisting of a “virtual island” that defies
common sense and is therefore unreasonable and arbitrary.
On the other hand, the Respondents contend that the statutory requirement of
the term “contiguous” is met by virtue of the fact that the annexed property abuts the City
boundary. The Respondents note that, in September 2012, a minor boundary annexation
petition was approved by the Nicholas County Commission which adjusted the municipal
boundaries to include property including Frontage Road. The stated purpose of the 2012
annexation was to extend the municipal boundary past the site of Nicholas County High
School so as to provide full access for City of Summersville police to patrol and protect the
high school and surrounding area. Thus, as of September 4, 2012, and at the time of the
application for minor boundary adjustment in 2014, the municipal boundary of the City
11
included Frontage Road. The Respondents note that the property at issue includes two tracts
of land that connect directly to the municipal boundary of the City by virtue of their
connection to Frontage Road. The two tracts consist of right-of-ways of existing private
roads connecting to Frontage Road and thereby directly abutting the City boundary line.4
Further, the Respondents claim that there is no statutory requirement that the abutting
property of the City be residential or commercial property.
The relevant statutory language at issue defines “contiguous” for purposes of
annexation by minor boundary adjustment as requiring only that the “territory proposed for
annexation . . . abuts directly on the municipal boundary. . . .” W. Va. Code § 8-6-5(f)(1).
The statute does not dictate how much of the property must be “contiguous” with or “abut
directly” the municipality. Nor does the statute direct where or what part of the municipality
the property must be contiguous to or directly abut. Specifically, the statute simply does not
direct that the property sought to be annexed must be contiguous to municipal property that
is either residential or commercial in character. “In general, a county commission enjoys a
broad discretion in exercising its legislative powers in determining the geographic extent of
a minor boundary adjustment sought by a municipality under W. Va. Code 8-6-5 . . . , so long
4
The Petitioners suggest there was something improper about the 2012
annexation with their comments that the 2012 annexation was “conveniently” done in the
same time period that the Nicholas County Commission considered the Checks permit.
However, there is nothing in the record before us, either factually or legally, regarding any
lack of statutory compliance with respect to the 2012 annexation by the City of Summersville
of the Frontage Road property.
12
as a portion of the area to be annexed is contiguous to the municipality.” Syl. pt. 6, In re the
Petition of the City of Beckley to Annex, 194 W. Va. 423, 460 S.E.2d 669. As in the situation
with the Beckley annexation, the issue is “not that the annexed portion does not abut the
municipality’s boundary. Rather, the issue involves the question of how much of the
boundary of the annexed area must be contiguous to the city limits.” Id. at 430, 460 S.E.2d
at 676. The area at issue in the Beckley annexation contained a 500 foot strip along a state
route abutting the city, and the rest of the property was adjoined to the connecting strip. Id.
at 429, 460 S.E.2d at 675. Nevertheless, the Court found that it was error for the lower court
to determine that the configuration was such that the county commission acted unreasonably.
Thus, the matter was remanded for entry of an order directing that the county commission
order granting annexation by minor boundary adjustment be affirmed. Id. at 431, 460 S.E.2d
at 677.
It is clear that the annexation property at issue here is, in fact, “contiguous” in
that the territory subject to annexation “directly abuts” the municipal boundary of the City
as established in 2012. Thus, the circuit court properly concluded that the statutory
requirement of contiguity was satisfied.
Inasmuch as we have concluded that the property subject to annexation is
contiguous with the geographic boundary of the City of Summersville, we turn our attention
13
to the next assignment of error regarding compliance with the statutory criteria for
annexation.
C. The Property Subject to Annexation Comports with the Criteria for
Property Subject to Annexation by Minor Boundary Adjustment
The Petitioners assert that the property is not subject to annexation by minor
boundary adjustment because it does not fit the statutory criteria. Specifically, it is argued
that the property does not include a street or highway and one or more freeholders, nor does
the property include a street or highway that does not include a freeholder but is necessary
for the provision of emergency services in the territory being annexed.
The annexation by minor boundary adjustment statute, in relevant part,
provides:
(b) In addition to any other annexation configuration, a
municipality may incorporate by minor boundary adjustment:
(i) Territory that consists of a street or highway as defined in
section thirty-five [17C-1-35], article one, chapter seventeen-c
of this code and one or more freeholders; or (ii) territory that
consists of a street or highway as defined in section thirty-five,
article one, chapter seventeen-c of this code which does not
include a freeholder but which is necessary for the provision of
emergency services in the territory being annexed.
W. Va. Code § 8-6-5(b) (emphasis added).
The Petitioners narrowly interpret the introductory phrase “[i]n addition to any
other annexation configuration” to refer to the other statutory mechanisms of boundary
14
adjustment, i.e. annexation with election pursuant to W. Va. Code § 8-6-2 and the provisions
for annexations without elections pursuant to W. Va. Code §§ 8-6-4 and 8-6-4a. In the
Petitioners’ view, a minor boundary adjustment can consist of only the two configurations
including a street or highway. Additionally, it is argued that the term “minor,” as used in the
statute, must have some meaning and is restrictive or limited in nature.
The Respondents counter that the language of the minor boundary annexation
statute is not limited to properties involving streets or highways. They contend the language
of the statute is plain and unambiguous. Moreover, it is asserted, if the Legislature had
intended to limit the minor boundary annexation process to streets and highways, it would
not have included the phrase “[i]n addition to any other annexation configuration” as it would
have been wholly unnecessary.
We note that in Jenkins v. City of Oak Hill, No. 16-0059, 2016 WL 6819052
(W. Va. Nov. 18, 2016) (memorandum decision), we affirmed the lower court’s approval of
an annexation by minor boundary adjustment in the setting of the City of Oak Hill, consisting
of some 4.89 square miles, or 3,129 acres, annexing approximately 3.88 miles or some 2,484
acres including the entirety of a small town. This Court is mindful that the current statute
establishes factors that must be considered by a county commission when acting on an
application for a minor boundary adjustment, but provides no specific guidance as to what
is deemed a minor boundary adjustment. See In re the Petition of the City of Beckley to
15
Annex, 194 W. Va. at 430, 460 S.E.2d at 676. It is well-settled that the determination as to
geographic boundaries is essentially a legislative function into which the courts generally
should not intrude unless the process is unconstitutional or invalid. Id. Had the Legislature
intended to limit minor boundary adjustment to two configurations of territory with streets
or highways it would have so stated or simply omitted the “[i]n addition to” language. See
State ex rel. Barrat v. Dalby, 236 W. Va. 316, 319, 779 S.E.2d 584, 587 (2015) (recognizing
that “courts must presume that a legislature says in a statute what it means and means in a
statute what it says there”) (internal citations omitted)); Martin v. Randolph Cty. Bd. of
Educ., 195 W. Va. 297, 312, 465 S.E.2d 399, 414 (1995) (“‘[C]ourts must presume that a
legislature says in a statute what it means and means in a statute what it says there.’” (quoting
Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 252-54, 112 S. Ct. 1146, 1149, 117
L. Ed. 2d 391 (1992))). With these principles in mind, we conclude that the introductory
language “[i]n addition to any other annexation configuration” is not to be read narrowly.
See, e.g., State v. State Rd. Comm’n, 100 W. Va. 531, 131 S.E. 7, 10 (1925) (“We therefore
follow the current construction of the words ‘in addition thereto’ and hold that, as used in our
statute, they are equivalent to ‘also,’ ‘likewise,’ ‘besides,’ etc.”).
Upon our conclusion that the property meets the statutory criteria of property
properly subject to annexation by minor boundary adjustment, we proceed to consider the
Petitioners’ next assignment of error regarding compliance with the requirements for such
annexation petitions.
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D. The City of Summersville’s Petition for Annexation Met the Requirements of
West Virginia Code § 8-6-5(c)
The Petitioners assign as error that the City’s Petition for Annexation did not
meet all the requirements of West Virginia Code § 8-6-5(c). The statute provides that to
initiate annexation by minor boundary adjustment, a city must provide an application which
includes certain specified items such as the number of businesses and residents in the area
proposed for annexation; an accurate metes and bounds map of the area; a statement of the
city’s plan for providing public services such as police, fire, waste collection, water and
sewer, and street maintenance; a statement of impact on private waste collection services or
public service district services; a statement of impact on fire protection and fire insurance
rates; a statement regarding how municipal finances and services will be affected; and a
statement that the proposed annexation meets the requirements of the statute. W. Va. Code
§§ 8-6-5(c)(1)-(7).
The Petitioners argue that the City’s Petition did not meet the threshold
requirements of the statute, and therefore, the Nicholas County Commission should not have
proceeded to order publication of a notice, set a date and time for a public hearing, or
proceed to evaluate the Petition. The Petitioners assert that the Petition falsely stated that no
businesses were located in the territory to be annexed and that an accurate map was not
included. Additionally, the Petitioners assert that the Notice published by the Nicholas
17
County Commission did not provide a detailed explanation of the alleged positive impact the
proposed annexation would have on the City’s finances.
In contrast, the Respondents assert that the Petition was in compliance with the
statute, was not vague or misleading, the issue regarding an accurate map was not raised
below, and the publication Notice was adequate.
We observe that the Petition identified the property to be annexed by setting
out the particulars and details of the metes and bounds of the additional territory, and each
metes and bounds description indicated that the description was as shown on an attached plat.
Additionally, the Petition set forth the following statements:
3. The entire of the boundaries of the City of
Summersville and the area to be annexed lie within the
boundaries of Nicholas County, West Virginia.
4. There are no businesses located within the area
proposed to be annexed.
5. There are no residents residing in the area proposed to
be annexed.
6. The City of Summersville maintains a municipal
police force which can adequately service the area to be
annexed. Additionally, the Summersville Volunteer Fire
Department currently serves the area to be annexed with fire
protection.
7. The City of Summersville currently operates a water
distribution system which upon application by the landowners
may be extended into the area to be annexed.
18
8. There will be no impact by the annexation of the area
described on any private solid waste collection service or public
service district as currently there are no residences or businesses
located within the area to be annexed.
9. As there are no businesses or residences currently
within the proposed area for annexation, there will be no impact
on fire insurance rates.
10. The proposed annexation will have a positive impact
on the City’s finances and services.
11. The area to be annexed is contiguous to the existing
corporate limits of the City of Smmersville.
12. The proposed annexation meets all requirements of
Chapter 8, Article 6, Section 5 of the West Virginia Code.
This Court considers that the statute plainly and unambiguously provides that
when an application for annexation by minor boundary adjustment is made and meets the
threshold requirements, “the county commission shall order publication of a notice of the
proposed annexation to the corporate limits and of the date and time set by the commission
for a hearing on the proposal.” W. Va. Code § 8-6-5(e) (2001) (Repl. Vol. 2012) (emphasis
added). Additionally, notices are to be posted at a minimum of five public places within the
area proposed to be annexed. Id.
At the initial stage, prior to notice and hearing, pursuant to the mandate of the
statute, a county commission is to determine solely whether the threshold statutory
requirements for application have been met. Indeed, county commissions are permitted to
19
develop form applications. There are no requirements for how much detail is to be included
in the application. The statute provides simply that the application must include certain
“statements.” Here, we find that a review of the Petition dictates the conclusion that the
Petition met the statutory threshold statement requirements which compelled the Nicholas
County Commission to proceed to notice, publication, and hearing. It is at the hearing phase
of the process when consideration of the factors is taken into account in making a decision
on annexation.
With respect to the issue of an accurate map, the record before us is not clear
regarding whether a metes and bounds map was provided as an attachment to the Petition.
However, the record includes a copy of the duly published Notice which precisely tracts the
language of the Petition and includes a detailed metes and bounds plat. That plat did not
originate out of thin air. We observe that there are no claims that there was inadequate
identification of the area subject to annexation.
With respect to the claim that the Petition was fatally defective because it
falsely stated that no businesses were located on the property proposed for annexation, there
simply is no factual information presently before this Court allowing for a determination of
the accuracy of the statement. The evidence reflects that the Nicholas County Commission
approved Checks’ permit on October 2, 2012, and that the DOH denied Checks’ permit
application on November 1, 2012. The record is silent as to what happened with respect to
20
the property until January 13, 2014, when the matter of annexation was presented to the
Summersville City Council. The minutes of the City Council meeting indicate that
individuals, including two of the Petitioners, spoke against annexation due to the proposed
operation of a salvage yard. The minutes also indicate that Checks desired to obtain a permit
to operate a salvage yard. The inference is that no salvage yard was in operation at the time.
The Nicholas County Commission represents that at the time the Permit was filed by the City
there were no businesses operating on the property. Our review of the record reveals that
there is no evidence before us that Checks, or any other business, was operating on the
property at the time the Petition was filed on March 20, 2014.5 Moreover, we conclude that
the accuracy of a single statement at the permit stage should not determine the fate of an
annexation because the public hearing process affords the opportunity to test the accuracy
of all the information, evaluate the statements and information, and make a determination
whether the “annexation is in the best interest of the county as a whole.” W. Va. Code § 8-6-
5(f)(2).
As to the Petitioners’ argument that the Notice did not contain adequate detail
or explanation, this Court finds that the statute imposes the duty to afford the public notice
of the proposed annexation and the date and time for a public hearing. Nothing in the
5
At oral argument, counsel for the Nicholas County Commission represented
that Checks is not operating a salvage yard on the property and that the property has not been
zoned industrial. Counsel for the Petitioners indicated that they were unable to ascertain
whether Checks was conducting operations on the property.
21
statutorily-defined process directs a county commission to provide detailed explanations
regarding the statements of the municipality. Accordingly, we conclude that there are no
statutory defects in the Notice.
Upon concluding that the Petition for Annexation met the threshold statutory
requirements regarding information to be included, we now turn to a consideration of the
Petitioners’ assignments of error regarding the weighing of evidence and final determination
on annexation by the Nicholas County Commission.
E. A County Commission Must Consider Certain Factors Presented
to it and Make a Determination Whether a Proposed Annexation is in the
Best Interests of the County as a Whole When Making a Decision on Annexation
by Minor Boundary Adjustment
We next consider, in tandem, the Petitioners’ assignments of error that the
Nicholas County Commission did not properly review and weigh the evidence and that the
annexation is not in the best interests of Nicholas County. The Petitioners argue that the
Nicholas County Commission failed to account for evidence regarding an asserted
environmental impact of annexation and evidence of devalued property in surrounding homes
and businesses. As to the best interests of the County, the Petitioners argue that the Nicholas
County Commission wrongly focused on the notion that annexation would promote
economic growth and failed to consider the negative impact of an automotive junkyard. The
essence of the Respondents’ counter-argument is that the Nicholas County Commission has
22
broad discretion as to its legislative-type functions and decisions with respect to geographic
boundaries.
The Order on Boundary Adjustment entered by the Nicholas County
Commission, set forth the following pertinent findings of fact:
3. That the affected parties of the territory to be annexed
support the proposed annexation. The Commission finds the
affected parties are:
A. Southern West Virginia Asphalt.
B. Checks Auto Parts.
.....
6. No other municipality has made application to annex the
property in the proposed annexation.
7. The proposed annexation is in the best interests of Nicholas
County as a whole for the following reasons:
A. The proposed annexation will promote
economic growth in Nicholas County.
B. Future development will require the
developer to address and contain the lead
in the ground of the proposed property in
a manner which meets environmentally
safe standards.[6]
C. Additional public services maintained by
the City of Summersville will become
6
It is not clear from the record whether the lead abatement issue relates to the
prior usage of the property as a shooting range or to future operations issues.
23
available to the affected parties if the
property is annexed.
(Footnote added).
At their core, the Petitioners’ arguments amount to disagreement with the
findings and conclusions of the Nicholas County Commission. We decline to make new
findings, particularly given the limited record before us. As this Court has observed: “[i]f
we are to be faithful to the underlying concept that annexation is essentially a legislative
matter that has been delegated to the commission, then the courts may not intrude unless the
process is either unconstitutional or invalid.” In re the Petition of the City of Beckley, 194
W. Va. 423, 430, 460 S.E.2d 669, 676. In the Order on Boundary Adjustment approving the
Petition for annexation, the Nicholas County Commission serially addressed each and every
statutory factor that it was mandated to consider in making its decision. While the Order on
Boundary Adjustment does not go into great detail or lengthy analysis, it meets the minimum
requirements of the statutory scheme. Accordingly, this Court, like the circuit court, will not
substitute its judgment regarding the factors, the determination as to the best interests of the
county as a whole, or the final decision of the County Commission.
Having determined that the findings and conclusions of the Nicholas County
Commission regarding annexation will not be disturbed, we turn our focus to the assignment
of error asserting that the annexation amounts to a public nuisance.
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F. Public Nuisance
The Petitioners additionally raise as an assignment of error the claim that the
annexation constitutes a public nuisance. This assignment of error involves arguments
regarding the applicability of statutes affording municipalities the ability to permit
automobile junkyards on property zoned industrial within a municipality. W. Va. Code
§ 17-23-7 (1967) (Repl. Vol. 2013). The Petitioners assert that the annexation process was
improperly used as a vehicle for bypassing the Nicholas County Commission permit process
for the operation of a salvage yard. On the other hand, the Respondents assert, in part, that
the arguments were not advanced below, and the annexation order did not authorize the
operation of a junkyard.
A review of the record demonstrates that in Count V of their Amended
Complaint the Petitioners asserted a claim that by allowing a circumvention of the law
regarding automobile junkyards, the Nicholas County Commission authorized a public
nuisance. In their memorandum of law supporting their motion for summary judgment, the
Petitioners argued that Checks should be enjoined from operating a junkyard until it obtains
a proper permit and that the operation of the junkyard is a public nuisance. We decline to
visit this issue on the bare record before this Court. The Order of the circuit court does not
explicitly address the public nuisance issue. Instead, the circuit court indicated there were
questions of fact remaining as to the zoning of the property at issue and the applicability of
statutory exceptions to licensing requirements for automobile junkyards given the interplay
25
of the statutes and the Nicholas County Ordinance. The issues regarding statutes and
ordinances regulating junkyards are not before us. The public nuisance arguments advanced
by the Petitioners are relevant to these factual issues and to legal issues that the trial court did
not decide. The circuit court held such issues in abeyance pending further briefing, hearing,
and proceedings. The record before this Court does not reflect the submissions or outcome
of such factual and legal development.7
Inasmuch as we decline to address the issue of public nuisance, this Court
proceeds to review the final assignment of error asserting the annexation amounts to an
unconstitutional taking of property.
G. Unconstitutional Taking of Property
Finally, the Petitioners assign as error that the annexation resulted in an
unconstitutional taking of their property in violation of Article III, Section 9 of the West
Virginia Constitution. It is argued by the Petitioners that the annexation decreases the value
of their adjacent properties, prevents the economically viable use of their properties, and
7
The Nicholas County Commission indicated that, subsequent to the entry of
the trial court order, somebody “discovered” that the property had not been “formally” zoned
industrial. Thus, inasmuch as the provisions of West Virginia Code § 17-23-4 (1967)
(Repl. Vol. 2013), allowing for salvage yards located in industrial zoned areas of
municipalities, does not apply, Checks agreed to cease operations as a salvage yard. As
previously indicated, there is nothing in the record defining when and what operations were
ever commenced by Checks on the property. The representation here is that there are no
operations by Checks on the property.
26
impacts the health of their families. Again, the record on this issue, both factually and
legally, is thread-bare. The argument is raised in cursory and skeletal fashion. Indeed, the
Petitioners advance a few conclusory paragraphs which are not specifically linked with
supporting relevant evidence to address a thorny and complex constitutional issue.
Accordingly, we decline to address the matter. See, e.g., State Dep’t of Health & Human
Resources v. Robert Morris N., 195 W. Va. 759, 765, 466 S.E.2d 827, 833 (1995) (“‘A
skeletal ‘argument,’ really nothing more than an assertion, does not preserve a claim. . . . ’”
(citation omitted)).
IV.
CONCLUSION
Based upon the foregoing analysis, we affirm the judgment of the Circuit Court
of Nicholas County, West Virginia, which affirmed the Nicholas County Commission’s
determination to approve the petition of the City of Summersville, West Virginia for an
annexation by minor boundary adjustment and thereby granted the motion of the Nicholas
County Commission for summary judgment.
Affirmed.
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Tony Coffman v. Nicholas County Commission
Court: West Virginia Supreme Court
Date filed: 2017-02-09
Citations: 238 W. Va. 482, 796 S.E.2d 591
Copy CitationsCombined Opinion