Articles Posted in Zoning, Planning & Land Use

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At issue in this case was the proposed expansion of municipal geographic boundaries by minor boundary adjustment by the City of Summersville, West Virginia, as approved by the Nicholas County Commission. Petitioners brought this action against the County Nicholas Commission and its members (collectively, Respondents), alleging that certain statutory requirements governing annexation were not met during the approval process, the annexation was not in the best interests of Nicholas County, the annexation amounted to a public nuisance, and that the annexation resulted in an unconstitutional taking of property without compensation. The circuit court granted the County Commission’s motion for summary judgment in part and denied Petitioners’ motion for summary judgment in part, concluding that the County Commission complied with the statutory requirements in entering the order on boundary adjustment, which authorized the City’s annexation of the property. The Supreme Court affirmed, holding that the circuit court did not err in affirming the County Commission’s determination to approve the City’s petition for an annexation by minor boundary adjustment. View "Coffman v. Nicholas County Commission" on Justia Law

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In 2013, the Town of Granville adopted an ordinance limiting new mobile homes and house trailers to existing mobile home parks. Patrick Russell and Sylvia Smith (together, Mr. Russell) requested a variance to the ordinance. The Town declined to grant the variance. Mr. Russell sought relief in the circuit court, claiming that West Virginia law prohibited the Town from regulating the placement of mobile homes and house trailers. The circuit court denied relief, concluding that the ordinance was valid and enforceable. The Supreme Court affirmed, holding (1) the Town had authority under W. Va. Code 8-12-5(30) to adopt an ordinance restricting the placement of new mobile homes and house trailers to existing mobile home parks; and (2) therefore, the Town’s ordinance was valid and and enforceable. View "Russell v. Town of Granville" on Justia Law

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After Patricia Kelch, a resident of the Town of Shepherdstown, constructed a fence around the perimeter of her property, Kelch filed an application for a building permit with the Shepherdstown Planning Commission, seeking to make the fence a permanent fixture. The Planning Commission denied the application. On appeal, the Board of Zoning Appeals of the Town of Shepherdstown (“BZA”) granted a variance with regard to the fencing material and ordered Kelch to lower the fence height, finding that Kelch met all the requirements for the granting of a variance. Borys Tkacz, an adjoining property owner of Kelch, appealed the BZA’s decision. The circuit court vacated the decision of the BZA and awarded Tkacz attorney’s fees and costs. The Supreme Court reversed, holding that the circuit court (1) erred in concluding that the BZA had no jurisdiction over the matter; (2) erred in finding that the BZA applied an erroneous principle of law; and (3) improperly substituted its judgment for that of the BZA. View "Bd. of Zoning Appeals of the Town of Shepherdstown v. Tkacz" on Justia Law

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In 2004, the Berkeley County Water District and Sewer District filed requests with the Public Service Commission (PSC) to charge capacity improvement fees (CIFs) due to rapid population growth in the county. The PSC approved the requested CIFs. Petitioners subsequently filed a declaratory judgment action in the circuit court, seeking relief from paying the CIFs. The circuit court found that the PSC lacked jurisdiction to establish the CIFs. However, the Supreme Court found Petitioners had failed to exhaust their administrative remedies before the PSC and reversed. Subsequently, the PSC discontinued the CIFs, finding that the Sewer District and Water District no longer satisfied the criteria for charging the CIFs. Thereafter, the PSC granted Petitioners' motion to deny the Water and Sewer Districts' petitions for reconsideration. Petitioners appealed to challenge errors they alleged were contained in the PSC's final order. The Supreme Court affirmed, holding that Petitioners were judicially estopped from challenging the errors. View "Larry V. Faircloth Realty, Inc. v. Pub. Serv. Comm'n" on Justia Law

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In two condemnation proceedings, the circuit court entered orders requiring the Department of Transportation, Division of Highways (DOH) to turn over to Defendants, three individuals who owned and leased condemned property, appraisal reports involving several properties condemned by DOH for its South Mineral Wells Project. The DOH filed petitions for writs of prohibition, contending that federal law did not permit the release of appraisal reports from properties not owned or possessed by Defendants. Defendants argued that the court's orders were consistent with the Supreme Court's decision in State ex rel. West Virginia Department of Transportation v. Cookman, which allowed appraisal reports to be discoverable. The Court consolidated the petitions and granted the writs of prohibition, holding (1) the decision in Cookman was expressly overruled in its entirety because it failed to consider controlling federal law; and (2) a real property appraisal report generated in compliance with 42 U.S.C. 4601 and W. Va. Code 54-3-1, et seq., and its accompanying regulations, was not discoverable in a condemnation proceeding by party who did not own or have any legally cognizable possessory interest in such real property. View "State ex rel. W. Va. Dep't of Transp. v. Circuit Court (Reed)" on Justia Law

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This case involved a dispute regarding developed property. Developer filed a complaint alleging that the project's general contractor (Contractor) and an engineering firm (Firm) had negligently provided recommendations with respect to site preparation. The circuit court granted partial summary judgment in favor Firm on Contractor's cross-claims against Firm that sought recovery of remediation costs incurred by Contractor, concluding (1) some of Contractor's cross-claims were time-barred by the applicable statute of limitations, and (2) W. Va. Code 55-2-21 did not apply to toll any limitations periods because Contractor's claims were independent causes of action as opposed to cross-claims. The Supreme Court reversed, holding (1) the circuit court prematurely found that section 55-2-21 did not apply because it failed to analyze whether the claims arose from the same transaction or occurrence and, thus, constituted cross-claims or independent causes of action; and (2) genuine issues of material fact existed so as to preclude summary judgment if Contractor's claim was an independent cause of action. Remanded. View "J. A. Street & Assocs. v. Thundering Herd Dev." on Justia Law

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Appellant Harpers Ferry appealed a circuit court order in favor of Appellee Ralph Taylor. Mr. Taylor asked the City for permission to create a path along a street so that a truck he used could access his property. At the time of Mr. Taylor's request, City Councilman Robert DuBose lived near the proposed path. The City approved Mr. Taylor's request on the condition that he got an authorization from the Mayor. Mr. DuBose abstained from voting on the request, but he participated in all discussions. Two days after the City approved Mr. Taylor's request, Mr. DuBose sent emails complaining about the request. In response, the Mayor imposed additional conditions to the request. Council held a special meeting for the sole purpose of discussing Mr. Taylor's project. At the meeting, Council added more conditions. Mr. Taylor filed a declaratory judgment against the City, arguing that the additional conditions were discriminatory. Mr. Taylor won the case, and the court awarded him attorney's fees. The City argued to the Supreme Court on appeal that Mr. Taylor was not entitled to attorney's fees. After careful review of the briefs, the record submitted on appeal and the oral arguments of the parties, the Supreme Court affirmed the lower court's decision.