CHARLESTON – The Supreme Court has ruled that 20 acres of land in Summersville meets the statutory criteria of property properly subject to annexation by minor boundary adjustment and concluded that the petition for annexation met the threshold statutory requirements.

Nicholas County Commission and its members, Dr. Yancy S. Short, John R. Miller and Kenneth Altizer; and Checks Auto Parts LLC

The appeal involves the proposed expansion of municipal geographic boundaries by minor boundary adjustment by the City of Summersville that was approved by the Nicholas County Commission, according to the Feb. 9 opinion.

“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,” the majority opinion states. “After careful review of the order, the briefs, the record submitted on appeal and the oral argument of the parties, we affirm.”

Justice Robin Jean Davis authored the majority opinion. Justice Menis Ketchum authored a dissenting opinion. Justice Margaret Workman authored a concurring opinion.

By deed dated March 2, 2012, Rodney L. LeRose and Barbara LeRose conveyed 20 acres located in Nicholas County to Checks Auto Parts and on Aug. 21, 2012, Checks submitted an application to the Nicholas County Commission seeking authority to operate a salvage yard in the property.

The commission scheduled a public hearing on the application and it was held on Sept. 4, 2012. At the conclusion of the hearing, the commission indicated it wanted more time to consider the matter and tabled the matter until Oct. 2, 2012.

On Oct. 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 commission determined that the application for the permit met the requirements of the Nicholas County Ordinance and the permit was issued by a unanimous vote.

On Oct. 17, 2012, Checks applied to the West Virginia Department of Transportation-Division of Highways for a salvage yard permit, however, on Nov. 1, 2012, the DOH denied the application on the grounds that a certified survey was not included in the application.

The denial letter noted that aerial photos with demarcated distance measurements could not serve as location representation in lieu of a certified survey, according to the opinion.

On Jan. 13, 2014, at a regular meeting of the Summersville City Council, the mayor presented the issue of a proposed annexation of the Checks’ 20 acre property and 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 and the city council voted five to three to increase the corporate limits of the city by minor boundary adjustment.

The commission proceeded to publish notice of the proposed annexation and later approved the annexation at a hearing held on Aug. 5, 2014. On Oct. 2, 2014, the petitioners filed a complaint against the respondents and sought an order declaring the annexation order void.

On Nov. 30, 2015, the circuit court entered an order granting the commission’s motion for summary judgment and dismissed the county commission defendants. They also denied the plaintiffs’ motion for summary judgment. The appeal was filed soon after.

The Supreme Court ruled that the property meets the statutory criteria of property properly subject to annexation by minor boundary adjustment and concluded that the petition for annexation met the threshold statutory requirements.

The Supreme Court affirmed the circuit court’s judgment.

In her concurring opinion Workman wrote that while she agreed with the majority’s decision to affirm the circuit court’s grant of summary judgment, she wanted to write separately to underscore that the crux of the petitioners’ grievance appears to be with the purported use of the subject property and not with the annexation.

“The circuit court’s order suggests that significant factual development remains as to matters not encompassed within this appeal and which appear to more squarely vindicate petitioners’ grievances,” she wrote. “Accordingly, for the reasons set forth hereinabove, I respectfully concur.”

In his dissenting opinion, Ketchum wrote that he disagreed with the majority’s conclusion that the annexed property is “contiguous” with the city limits of Summersville.

“The annexed property was not truly contiguous with the city limits,” he wrote. “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. In the present case, the annexed property does not “abut directly on the municipal boundary,” he wrote.

“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,” Ketchum wrote. “Based on the foregoing, I respectfully dissent.”

The petitioners are represented by W. Henry Jernigan, Mary R. Rowe and Arie M. Spitz of Dinsmore & Shohl.

The respondents are represented by Charles R. Bailey and Michael W. Taylor of Bailey & Wyant.

W.Va. Supreme Court of Appeals case number: 15-1223

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Bailey & Wyant PLLC West Virginia Supreme Court of Appeals

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