The City of South Charleston and City of South Charleston Property Board v. M. Alex Urban and West Virginia Department of Agriculture

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

FILED

THE CITY OF SOUTH CHARLESTON and February 24, 2026

CITY OF SOUTH CHARLESTON PROPERTY BOARD, ASHLEY N. DEEM, CHIEF DEPUTY CLERK

INTERMEDIATE COURT OF APPEALS

Defendants Below, Petitioners OF WEST VIRGINIA

v.) No. 25-ICA-51 (Cir. Ct. of Kanawha Cnty. Case No. CC-20-2023-C-683)

M. ALEX URBAN,

Plaintiff Below, Respondent

and

WEST VIRGINIA DEPARTMENT OF AGRICULTURE,

Intervenor Below, Respondent

MEMORANDUM DECISION

Petitioners the City of South Charleston and City of South Charleston Property

Board (collectively the “City”) appeal the Circuit Court of Kanawha County’s January 23,

2025, order, which denied the City’s motion for summary judgment and granted the

separate motions for summary judgment filed by Respondent M. Alex Urban and

Respondent West Virginia Department of Agriculture (“Department”). Mr. Urban and the

Department each filed a response.1 The City filed a reply.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-

11-4 (2024). After considering the parties’ arguments, the record on appeal, and the

applicable law, this Court finds that there is error in the circuit court’s decision but no

substantial question of law. This case satisfies the “limited circumstances” requirement of

Rule 21(d) of the Rules of Appellate Procedure for reversal in a memorandum decision.

For the reasons set forth below, the court’s decision is reversed, and this case is remanded

for further proceedings consistent with this decision.

1

The City is represented by W. Michael Moore, Esq., and Marey Casey, Esq. Mr.

Urban is represented by Guy R. Bucci, Esq., and Ashley N. Lynch, Esq. The Department

is represented by Attorney General John B. McCuskey, Esq., and Deputy Attorney General

Anthony D. Eates II, Esq.

1

This matter began in October of 2022 when Mr. Urban applied with the City for a

permit to harbor two honeybee hives at his residence located within City limits. The

application was made in accordance with the former version of City Code, which provided:

No person shall keep or harbor any cow, calf, horse, colt, mule, pony, goat,

sheep, hog, swine or any other wild or domestic animal within the City unless

the owner thereof shall have first obtained from the Property Board a permit

to keep or harbor such animal; provided, however, that nothing herein

contained shall be construed to mean or include dogs or cats.

The Property Board may issue such permit if it, in its opinion, determines

that such animal shall not constitute a nuisance, health problem or unsanitary

condition.

South Charleston, W. Va., Code § 505.06(a) (2014) (“2014 Code”); see W. Va. Code § 8-

12-5(25) (2023) (stating that municipalities have plenary power and authority “[t]o regulate

or prohibit the keeping of animals or fowls and to provide for the impounding, sale or

destruction of animals or fowls kept contrary to law or found running at large[.]”).2

The City’s Property Board (“Board”) held a hearing on Mr. Urban’s application on

November 1, 2022. Thereafter, the Board made the decision to deny Mr. Urban’s

application, which was memorialized in a written decision dated January 3, 2023. In

support, the Board’s decision noted the following: that there are inherent safety concerns

with the practice of beekeeping; it requires specialized equipment, techniques, and training;

Mr. Urban could not give specific details regarding his purported twelve years of

beekeeping experience; Mr. Urban’s residence abuts five residences of similar size with an

additional three residences directly across the street from his residence; honeybees become

aggressive if the hive is threatened; and that beekeeping activities could constitute or create

a nuisance, health problem, or unsanitary condition, in that bees can swarm, sting, and

cause allergic reactions and other serious, adverse health consequences.

Mr. Urban filed his original complaint in circuit court on August 9, 2023,

challenging the City’s decision and the 2014 Code. However, on August 17, 2023, the City

lawfully amended the 2014 Code.3 As amended, the new code provisions replaced the

Property Board’s permitting process with language containing the following prohibition:

2

For consistency, we cite to the current version of this statute in this decision.

However, we note that this statutory language, although renumbered, remains unchanged

from earlier versions of the statute. See W. Va. Code § 8-12-5(26) (2008) and W. Va. Code

8-12-5(26) (2014).

3

See generally W. Va. Code § 8-11-4 (2022) (setting forth the procedure to amend

municipal ordinances).

2

“No person may keep or harbor any cow, calf, horse, colt, mule, pony, goat, sheep, hog,

swine, bee, chicken, duck, goose, turkey, pigeon, or any other wild or domestic animal

within the City.” South Charleston, W. Va., Code § 505.06(a) (2023) (“2023 Code”).4

The City filed a motion to dismiss Mr. Urban’s complaint on August 30, 2023,

arguing that because the City adopted the 2023 Code, Mr. Urban could not obtain relief for

his challenges based upon the 2014 Code. The Department filed a motion to intervene on

October 10, 2023, and a response in opposition to the City’s motion to dismiss on

November 8, 2023. That same day, the City filed a response challenging the Department’s

intervention.

The circuit court held a hearing on the motion to dismiss and motion to intervene

on November 15, 2023, and addressed each motion through separate orders. Namely, by

order entered on December 4, 2023, the court denied the motion to dismiss, finding that

the complaint survived an analysis under Rule 12(b)(6) of the West Virginia Rules of Civil

Procedure. Also in this order, the court granted Mr. Urban’s oral motion to amend his

complaint and entered a briefing schedule for the filing of summary judgment motions,

supporting memoranda, and proposed orders. On December 12, 2023, the court granted the

Department’s motion to intervene, determining that intervention was warranted under

Rules 24(a) and 24(b)(2) of the West Virginia Rules of Civil Procedure.5

On November 30, 2023, Mr. Urban filed his amended complaint.6 His amended

complaint sought declaratory judgment on three points: first, he sought a declaration that a

bee was not an animal under the 2014 Code or West Virginia Code § 8-12-5(25); second,

he requested a finding that the 2014 Code and 2023 Code are void and unenforceable

because they have been preempted by the authority granted to the Department’s

Commissioner (“Commissioner”) under the West Virginia Apiary Act (West Virginia

Code §§ 19-13-1 to -20), the West Virginia Right to Farm Act (West Virginia Code §§ 19-

19-1 to -8), and corresponding regulations; and third, he sought a declaration that the 2014

Code violated due process for lack of ascertainable standards.

4

The 2023 Code also contains a list of exceptions to this prohibition, none of which

are applicable to this case. See South Charleston, W. Va., Code § 505.06(b) (2023).

5

Rule 24(a) provides for intervention as a matter of right, and Rule 24(b)(2)

provides for the permissive intervention of a government agency or official.

6

We acknowledge that Mr. Urban’s original complaint sought relief through

declaratory judgment or, in the alternative, a writ of mandamus. However, because Mr.

Urban’s amended complaint abandoned his request for mandamus relief and was the

pleading from which the circuit court granted summary judgment, this Court has

jurisdiction over this appeal pursuant to West Virginia Code § 51-11-4.

3

The City filed a motion to dismiss the amended complaint on December 18, 2023.

The City argued that both the 2014 Code and 2023 Code were lawfully enacted pursuant

to West Virginia Code § 8-12-5(25). The City further argued that the term bee falls within

the plain meaning of the term animal; that preemption does not apply because neither the

Apiary Act nor the Right to Farm Act contain any preemptive language; and the adoption

of the 2023 Code moots Mr. Urban’s challenges to the 2014 Code. The parties also

complied with the court’s scheduling order regarding summary judgment.

On January 23, 2025, the circuit court entered the order presently on appeal. In its

decision, the circuit court found that summary judgment in favor of Mr. Urban was proper

for two reasons.

First, the court found that the language of the 2014 and 2023 codes was not the

prevailing issue, but rather, the issue was whether a bee was an animal under the language

of West Virginia Code 8-12-5(25), which was necessary for the City to have the authority

to regulate bees and beekeeping. Here, the circuit court concluded that a bee was not an

animal and, thus, the City lacked authority to regulate bees in the first instance. See Syl.

Pts. 1-2, Chesapeake & Potomac Tel. Co. of W. Va. v. City of Morgantown, 144 W. Va.

149, 107 S.E.2d 489 (1959) (recognizing that a municipality only has the authority granted

to it by the constitution and legislation). Instead, the circuit court concluded that because

the term animal is not defined under West Virginia Code § 8-12-5, the court must define

the term based on its plain language. To that end, the court determined the plain meaning

of animal exclusively by reviewing how animal and related terminology have been defined

by separate provisions of West Virginia Code. Specifically, the court relied upon West

Virginia Code § 19-9-1(b) (1982) (defining animal for legislation governing Diseases

Among Domestic Animals and Euthanasia of Diseased Animals); § 19-18-1(e) (2022)

(defining livestock under the General Stock Law); §§ 19-34-2(2) and -2(3) (2014) (defining

both dangerous wild animal and domestic animal for the Dangerous Wild Animals Act);

and § 19-16A-3(3) (1990) (defining animal for the West Virginia Pesticide Control Act).

In sum, because none of those definitions expressly mentioned bees, the court reasoned

that the City could not prove that a bee is an animal. As an additional step in its analysis,

the circuit court also cited the definition of agriculture under the Right to Farm Act (West

Virginia Code § 19-19-2(a) (2019)) and opined that because the definition includes the

words animal and apiary, a bee is clearly not an animal.

Second, the circuit court determined that even if bees are animals, the City’s

prohibition on bees and beekeeping within City limits conflicts with the Apiary Act and

Right to Farm Act, and therefore the City Code is invalid because under the statutory

language of the acts, the regulation of beekeeping is solely vested with the Commissioner.

Particularly, the court noted that under the Apiary Act, the Commissioner “may propose

rules”:

4

(1) To effectively eradicate, suppress or control honey bee pests as far as may

be practical; (2) to regulate the keeping and maintaining of bees, bee

equipment, queen breeding equipment, apiaries and appliances; (3) to

regulate treatments, retreatments, and fees for the services; and (4) any other

rules necessary to effectuate the enforcement of this article.

W. Va. Code § 19-13-3(a) (2003). The court also noted that the Apiary Act authorizes the

Commissioner to cooperate with our state’s political subdivisions “to carry out the effective

administration of this article.” W. Va. Code § 19-13-3(c). Next, the court summarized the

Apiary Act’s corresponding regulations. See generally W. Va. Code R. §§ 61-2-1 to -5.

Particularly, the circuit court noted that West Virginia Code of State Rules § 61-2-1 sets

forth the “general operating rules and procedures for the inspection of apiaries, control of

bee diseases, and limitation of liability for beekeepers,” and that West Virginia Code of

State Rules § 61-2-3.1 permits the Commissioner the authority to issue certificates of

registration to beekeepers (West Virginia Code of State Rules § 61-2-3.1). The circuit

court, albeit without any citation to the applicable regulation(s), also offered the broad

observation that: “The rules also set forth regulations for safe beekeeping and authorize the

Commissioner to enforce safety standards.” Based on this statutory and regulatory

language, the circuit court noted that while the Apiary Act does not create an entitlement

to beekeeping, it does provide for the regulation of beekeeping and, thus, the City’s

prohibition exceeds its authority because it prevents the Commissioner from complying

with their duties under the Apiary Act.

The circuit court also found that the City’s regulation on beekeeping contradicted

the public policy of the Right to Farm Act, which states, in part:

Whereas, the infringement upon agricultural lands and agricultural

operations by other uses and occupancies which are either adverse or

incompatible with the continued agricultural utilization may be of such

nature as to endanger orderly agricultural production, it is hereby declared to

be the public policy of this State that agricultural production and the

utilization of land in agricultural productive operations be protected and

preserved.

W. Va. Code § 19-19-1 (1982). The court observed further that under West Virginia Code

§ 19-19-2, the Right to Farm Act declares:

(a) “Agriculture” shall mean the production of food, fiber and woodland

products, by means of cultivation, tillage of the soil and by the conduct

of animal, livestock, dairy, apiary, equine or poultry husbandry, and the

practice of forestry, silviculture, horticulture, harvesting of silviculture

products, packing, shipping, milling, and marketing of agricultural

5

products conducted by the proprietor of the agricultural operation, or any

other legal plant or animal production and all farm practices.

(b) “Agricultural land” shall mean any amount of land and the improvements

thereupon, used or usable in the production of food, fiber or woodland

products of an annual value of $1,000 or more, by the conduct of the

business of agriculture, as defined in subsection (a) of this section.

(c) “Agricultural operation” shall mean any facility utilized for agriculture.

Given these considerations, the circuit court noted that honeybees not only produce

honey, but as stated in the amended complaint, “honeybees are pollinators that are essential

to agriculture because they play a vital role in insuring a bountiful harvest of fruits,

vegetables, flowers, and nuts.” Therefore, the court found that while Mr. Urban’s property

does not meet the definition of agricultural land, his beekeeping activity qualifies as an

agricultural operation, and as a result, the Right to Farm Act protects Mr. Urban’s

activities from civil or criminal actions brought by a municipality. See W. Va. Code § 19-

19-7(d) (2019) (“No state or local agency may bring a criminal or civil action against an

agricultural operation for an activity that is in material compliance with all applicable state

and federal laws, regulations, and permits.”). For these reasons, the circuit court concluded

that the 2023 Code was unenforceable and granted summary judgment in favor of Mr.

Urban. This appeal followed.7

In West Virginia, it is well established that a de novo standard of review applies to

appellate review of orders granting summary judgment. Syl. Pt. 1, Painter v. Peavy, 192

W. Va. 189, 451 S.E.2d 755 (1994) (“A circuit court’s entry of summary judgment is

reviewed de novo.”). This Court applies the same standard for granting summary judgment

that a circuit court must apply, and that standard states, “[a] motion for summary judgment

should be granted only when it is clear that there is no genuine issue of fact to be tried and

inquiry concerning the facts is not desirable to clarify the application of the law.” United

Bank, Inc. v. Blosser, 218 W. Va. 378, 383, 624 S.E.2d 815, 820 (2005) (quoting Syl. Pt.

2, Painter, 192 W. Va. at 190, 451 S.E.2d at 756). “Summary judgment is appropriate if,

from the totality of the evidence presented . . . the nonmoving party has failed to make a

sufficient showing on an essential element of the case that it has the burden to prove.” Syl.

Pt. 2, Williams v. Precision Coil, Inc., 194 W. Va. 52, 459 S.E.2d 329 (1995). “[T]he party

opposing summary judgment must satisfy the burden of proof by offering more than a mere

‘scintilla of evidence’ and must produce evidence sufficient for a reasonable jury to find in

a nonmoving party’s favor.” Id. at 60, 459 S.E.2d at 337 (quotations and citations omitted).

7

The court’s order also stated that because the court resolved the matter through

summary judgment, the City’s December 18, 2023, motion to dismiss was denied as moot.

6

Furthermore, a de novo standard of review also applies to matters of statutory

interpretation. “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, Appalachian Power Co. v. State Tax Dep’t of West Virginia, 195 W. Va. 573, 466

S.E.2d 424 (1995) (“Interpreting a statute or an administrative rule or regulation presents

a purely legal question subject to de novo review.”). With these established principles in

hand, we proceed to the matter on appeal.

On appeal, the City raises nine assignments of error that include challenges to the

circuit court’s rulings regarding the City’s motion to dismiss, the Department’s motion to

intervene, and the parties’ summary judgment motions. However, because the core,

dispositive substantive issues in this matter center on the circuit court’s determinations on

questions of law at summary judgment, the Court does not need to address the remaining

assignment of errors in this decision. Therefore, we will only address the parties’ arguments

concerning the court’s summary judgment order, and to that extent, have consolidated and

restated those issues for ruling. See Tudor’s Biscuit World of Am. v. Critchley, 229 W. Va.

396, 402, 729 S.E.2d 231, 237 (2012) (stating the general proposition that related

assignments of error may be consolidated for ruling); Jacquelyn F. v. Andrea R., No. 16-

0585, 2017 WL 2608425, at *1 n.2 (W. Va. June 16, 2017) (memorandum decision)

(restating assignments of error where they involve clearly related issues); Perry v.

Ravenscroft, No. 24-ICA-134, 2024 WL 5002991, at *3 (W. Va. Ct. App. Dec. 6, 2024)

(memorandum decision) (consolidating and restating petitioner’s assignments of error on

appeal). As to summary judgment, the City generally contends that the circuit court’s

summary judgment ruling must be reversed because the court erroneously determined as a

matter of law that: (1) The City cannot regulate beekeeping because a bee is not animal

under West Virginia Code § 8-12-5(25); and (2) The Apiary Act and Right to Farm Act

otherwise invalidate the aforementioned statute and 2023 Code.

We begin our review by addressing the circuit court’s determination that the City

lacked the authority to regulate beekeeping because a bee does not fall within the definition

of the term animal as used in West Virginia Code § 8-12-5(25). The City argues that the

circuit court failed to apply the plain and ordinary meaning of the term animal. Conversely,

Mr. Urban and the Department separately contend that as West Virginia Code § 8-12-5(25)

plainly excludes bees and beekeeping, the principles of statutory construction such as the

rule of in pari materia apply, and the circuit court correctly relied upon other legislative

acts to define the term animal. Upon review, we agree with the City and conclude that the

circuit court erred in its statutory construction of West Virginia Code § 8-12-5(25).

The question of law before the Court is whether a bee qualifies as an animal under

West Virginia Code § 8-12-5(25). To answer this question, we must first address whether

West Virginia Code § 8-12-5(25) is unambiguous. “When a statute is clear and

unambiguous[,] and the legislative intent is plain, the statute should not be interpreted by

7

the courts, and in such case[,] it is the duty of the courts not to construe but to apply the

statute.” Syl. Pt. 5, State v. General Daniel Morgan Post No. 548, Veterans of Foreign

Wars, 144 W. Va. 137, 107 S.E.2d 353 (1959); see also Syl. Pt. 2, State v. Epperly, 135 W.

Va. 877, 65 S.E.2d 488 (1951) (“A statutory provision which is clear and unambiguous

and plainly expresses the legislative intent will not be interpreted by the courts but will be

given full force and effect.”). In contrast:

A statute is open to construction only where the language used requires

interpretation because of ambiguity which renders it susceptible of two or

more constructions or of such doubtful or obscure meaning that reasonable

minds might be uncertain or disagree as to its meaning. In other words, a

statute is ambiguous when the statute’s language connotes doubtfulness,

doubleness of meaning, or indistinctness or uncertainty of an expression.

State v. McClain, 247 W. Va. 423, 429, 880 S.E.2d 889, 895 (2022) (citation modified).

We begin by noting that while Mr. Urban and the Department each contend that the

circuit court properly concluded that West Virginia Code § 8-12-5 was ambiguous and

correctly resolved the ambiguity at summary judgment, this contention is not an accurate

reflection of the circuit court’s order. In this case, there is no express language within the

four corners of the January 23, 2025, order wherein the circuit court finds that West

Virginia Code § 8-12-5(25) is ambiguous, susceptible to multiple meanings, indistinct, or

otherwise uncertain. See Dunlap v. Friedman’s Inc., 213 W. Va. 394, 398, 582 S.E.2d 841,

845 (2003) (“A finding of ambiguity must be made prior to any attempt to interpret a

statute.”). Therefore, it must be inferred that the court found the word animal to be

unambiguous and that its subsequent analysis represents an attempt to apply the plain

meaning of animal to discern whether the City’s authority under West Virginia Code § 8-

12-5(25) extended to bees. While this Court agrees with the circuit court that the term

animal is not ambiguous, as set forth below, we find no merit in or need for the circuit

court’s subsequent analysis and ultimate determination as to the accepted meaning of

animal.

As previously established, the circuit court found that to give West Virginia Code §

8-12-5(25) its full force and effect, the ordinary meaning of animal must be extrapolated

from other provisions of West Virginia Code. To support its exclusive dependence upon

other statutes, the circuit court relied upon the Supreme Court of Appeals of West

Virginia’s (“SCAWV”) decision in Saleh v. Damron, 242 W. Va. 568, 836 S.E.2d 716

(2019). In Saleh, the Court was presented with a certified question from federal district

court regarding whether an ectopic embryo or fetus qualified as a “person” under the West

Virginia Wrongful Death Statute. Id. at 569, 836 S.E.2d at 717. The majority’s opinion

answered that question in the negative by looking to the statutory definitions of “embryo”

and “fetus” as set forth by our Legislature in The Pain-Capable Unborn Child Protection

Act and Unborn Victims of Violence Act, and indicating that “while not controlling, we

8

find these provisions indicative of how the Legislature would define the terms ‘embryo’

and ‘fetus’ in relation to the Wrongful Death Statute.” Id. at 576, 836 S.E.2d at 724 (citation

modified). It is that limited statement, which formed the circuit court’s basis in this case

for using other portions of state code to define the word animal.

However, we find fault with the circuit court’s approach. It is soundly established

that “undefined words and terms in a legislative enactment will be given their common,

ordinary, and accepted meaning.” Syl. Pt. 6, in part, State ex rel. Cohen v. Manchin, 175

W. Va. 525, 336 S.E.2d 171 (1984) (citation modified). Such meaning, however, has not

been, as the circuit court’s order suggests, appropriately derived from cross-statutory

definition borrowing. Rather, undefined terms and words have been historically defined by

using dictionary definitions. In fact, the SCAWV recently reemphasized this point, noting:

This Court has routinely looked to dictionary definitions to afford undefined

terms their common, ordinary, and accepted meaning. See e.g., State v.

McClain, 247 W. Va. 423, 880 S.E.2d 889 (2022) (the terms “crash” and

“involved” as used in our “hit-and-run statute,” West Virginia Code § 17C-

4-1); King v. West Virginia’s Choice, Inc., 234 W. Va. 440, 766 S.E.2d 387

(2014) (the phrase “subject to” as used in West Virginia Code § 21-5C-1(e)

of the Minimum Wage and Maximum Hours Standards statute); State v.

Soustek, 233 W. Va. 422, 758 S.E.2d 775 (2014) (the terms “financial” and

“transaction” as used in the identify theft statute, West Virginia Code § 61-

3-54); State v. Sulick, 232 W. Va. 717, 753 S.E.2d 875 (2012) (the phrase

“threat of force” as used in the criminal civil rights statute, West Virginia

Code § 61-6-21(b) (1987)); CSX Hotels, Inc. v. City of White Sulphur

Springs, 217 W. Va. 238, 617 S.E.2d 785 (2005) (the term “survey” as used

in the annexation procedure set forth in West Virginia Code § 8-6-2(a)); In

re Clifford K., 217 W. Va. 625, 619 S.E.2d 138 (2005) (the term “recognized”

as used in the statutory definition of “legal parent,” West Virginia Code §

48-1-232).

Eldercare of Jackson Cnty., LLC v. Lambert, 250 W. Va. 291, 303 n.18, 902 S.E.2d 840,

852 n.18 (2024) (defining the term “actual malice” for the purposes of the COVID-19 Jobs

Protection Act, West Virginia Code §§ 55-19-1 through 9 (2021)).8

Likewise, the SCAWV has an established history of rejecting invitations to establish

the common meaning of terms based upon their assigned definitions from statutes and other

8

See also Christopher P. v. Amanda C., 250 W. Va. 53, 60 n.20, 902 S.E.2d 185,

192 n.20 (2024) (defining the word “imminent” as it relates to Rule 5.04 of the West

Virginia Trial Court Rules and recognizing: “We frequently look to dictionary definitions

for the common, ordinary, and accepted meaning of undefined terms.”).

9

alternative sources. See, e.g., Watts v. W. Va. Dep’t of Health and Hum. Res./Div. of Hum.

Servs., 195 W. Va. 430, 434-35, 465 S.E.2d 887, 891-92 (1995) (declining to interpret the

undefined term “generic” as used within the job description for Social Service Worker II

positions based upon language created years later to describe Social Service Worker III

positions); W. Va. Racing Comm’n v. Reynolds, 236 W. Va. 398, 402-03, 780 S.E.2d 664,

668-69 (2015) (finding that the commission properly defined “connive” and “corrupt”

based upon their ordinary meanings and were not required to rely on specific definitions

applied by the board of stewards and hearing examiner); Soustek, 233 W. Va. at 425 n.12,

758 S.E.2d at 778 n.12 (rejecting petitioner’s invitation to use federal code definitions and

case law to define “financial” and “transaction”); W. Va. Educ. Ass’n v. Preston Cnty. Bd.

of Educ., 171 W. Va. 38, 297 S.E.2d 444 (1982) (declining to apply the broad definition of

“teacher” from the education statutes to interpret the same term in a criminal anti-nepotism

statute).

Further, despite the circuit court’s reference to various statutory definitions from

Chapter 19 of our code to reach its conclusion that a bee is not defined as an animal under

West Virginia Code § 8-12-5(25), the court’s reliance is hindered because those outside

sources contain language specifically limiting the applicability of those definitions to the

body of law to which they are ascribed. See Coordinating Council for Indep. Living v.

Palmer, 209 W. Va. 274, 282-83, 546 S.E.2d 454, 462-63 (2001) (citation modified)

(finding that the tax commissioner’s attempts to reinforce the meaning of “community care

services” under a tax statute through additional statutory definitions were misplaced

because “the various definitional statutes cited by the commissioner are limited to the

specific body of law of which they are a part.”). As it relates to this case, West Virginia

Code § 19-9-1 strictly limits the scope of its definitions to “as used in this article, or in any

rule or regulation authorized thereunder, unless the context otherwise requires or a different

meaning is specifically prescribed[.]” Notably, there is no authorizing rule or regulation

within the subject article implicating application of its definitions to West Virginia Code

8-12-5. Similar limiting language is found with respect to other statutes used by the circuit

court. See W. Va. Code § 19-16A-3 (“As used in this article”); § 19-19-2 (“For the purposes

of this article”); § 19-34-2 (“As used in this article unless otherwise specified”).

For these reasons, we conclude that the circuit court erred in its attempt to give plain

meaning to the word animal under West Virginia Code § 8-12-5(25). Instead, we note that

according to Black’s Law Dictionary, an animal is “any living creature (besides plants)

other than a human being.” Animal, Black’s Law Dictionary (12th ed. 2024). Merriam-

Webster’s Dictionary defines the term as “any of a kingdom (Animalia) of living things

including many-celled organisms and often many of the single-celled ones (such

as protozoans) that typically differ from plants[.]” Merriam Webster Online,

https://www.merriam-webster.com/dictionary/animal (last visited February 19, 2026). As

such, we find that these definitions represent the plain, ordinary, and common meaning of

10

the word animal for the purposes of West Virginia Code § 8-12-5(25).9 Accordingly,

because the circuit court’s summary judgment analysis did not afford animal its plain

meaning, the court’s summary judgment ruling is hereby reversed.

However, our review does not end there. Our final consideration is whether the

circuit court erred when it made the alternative determination that even if the City had the

authority to regulate bees under West Virginia Code 8-12-5(25), that statutory provision

was invalid because it conflicts with the Commissioner’s duties established by the Apiary

Act and Right to Farm Act. On appeal, the parties frame their arguments as one of express

and implied preemption. However, preemption is imprecise as it addresses hierarchical

conflicts in which a federal law displaces state law, or state law displaces municipal

ordinances. The circuit court’s reasoning is more accurately understood as repeal by

implication. Rather, the dispositive issue presented is whether there is an intra-code conflict

between the City’s authority under West Virginia Code § 8-12-5(25) and the

Commissioner’s duties outlined by the Apiary and Right to Farm Acts. In other words, the

issue is whether the Commissioner’s duties under the subject acts apply to the exclusion of

the City’s authority under West Virginia Code § 8-12-5(25). As explained below, we

conclude the circuit court erred when it determined that a conflict existed that nullified the

City’s authority to regulate beekeeping under the statute.

“Statutes generally conflict when they are explicitly contrary to, or inconsistent

with, each other.” State v. Schober, 251 W. Va. 34, 41, 909 S.E.2d 69, 76 (2024) (citation

modified). “Courts will not adjudge a statute to have been repealed by implication unless

a legislative intent to repeal or supersede the statute plainly and clearly appears.” Rice v.

Underwood, 205 W. Va. 274, 285, 517 S.E.2d 751, 762 (1998) (citation modified). The

SCAWV has also held: “To warrant the adjudication of the repeal of a statute by

implication there must exist such a positive repugnancy between the statute claimed to be

repealed and the subsequent enactment that they cannot, by any reasonable hypothesis, be

consistently reconciled.” Syl. Pt. 2, State ex rel. Thompson v. Morton, 140 W. Va. 207, 84

S.E.2d 791 (1954). Measured against this standard, the circuit court’s determination does

9

Mr. Urban suggests that we should not apply these common definitions of “animal”

because they render the word “fowls” in West Virginia Code § 8-12-5(25) superfluous.

This argument relies on the “rule of statutory construction that the Legislature is presumed

to intend that every word used in a statute has a specific purpose and meaning.” State ex

rel. Johnson v. Robinson, 162 W. Va. 579, 582, 251 S.E.2d 505, 508 (1979). However,

where, as in this case, “the language of a statute is plain and unambiguous, there is no basis

for application of rules of statutory construction.” State v. Mills, 243 W. Va. 328, 337, 844

S.E.2d 99, 108 (2020) (citation modified). While Mr. Urban contends that application of

this rule “create[s] ambiguity” in West Virginia Code § 8-12-5(25), the SCAWV has

explained that “[r]ules of interpretation are resorted to for the purpose of resolving an

ambiguity, not for the purpose of creating it.” Crockett v. Andrews, 153 W. Va. 714, 719,

172 S.E.2d 384, 387 (1970).

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not withstand scrutiny. As previously established, the circuit court relied upon certain

language related to the Apiary Act and Right to Farm Act to summarily conclude that a

conflict existed to the exclusion of the City’s statutory authority to regulate beekeeping.

See W. Va. Code § 19-13-3(a); W. Va. Code R. § 61-2-1 to -5; W. Va. Code §§ 19-19-1

and -7. However, upon review, we find no conflict between the statutes relied upon by the

circuit court and the operative language of West Virginia Code 8-12-5(25).

In this case, there is no express language under either the Apiary Act or Right to

Farm Act that plainly and clearly shows a legislative intent for the acts to supersede or

repeal the City’s authority to regulate beekeeping under West Virginia Code § 8-12-5(25).

Instead, the language relied upon by the circuit court merely speaks in general terms,

regarding beekeeping and the Commissioner’s duties with respect thereto. The duties are

administrative and supervisory in nature. No such “positive repugnancy” exists between

the statutes; at most, the statutes overlap in subject matter (beekeeping as agriculture). A

close review of the Apiary Act and the Right to Farm Act reflects a statutory scheme that

contemplates concurrent and cooperative regulation, not silent displacement. Critically

absent is any language that unambiguously vests the Commissioner with the sole authority

to regulate beekeeping or language that the Commissioner expressly supersedes or

invalidates the authority of any other government body to regulate beekeeping. We also

find it significant that neither act makes a specific reference to municipal authority under

Chapter 8, Article 12 of our code.

Further, contrary to the assertions of the respondents, the rule of in pari materia

cannot be applied to support the circuit court’s decision in this case.10 “As a threshold

matter, courts may not regard separate and distinct statutes in pari materia unless the

Legislature’s intent is ambiguous with respect to the statute in question.” State ex rel.

Perdue v. Nationwide Life Ins. Co., 236 W. Va. 1, 6, 777 S.E.2d 11, 16 (2015); see Syl. Pt.

1, State v. Epperly, 135 W. Va. 877, 65 S.E.2d 488 (1951) (“The rule that statutes which

relate to the same subject should be read and construed together is a rule of statutory

construction and does not apply to a statutory provision which is clear and unambiguous.”).

However, as addressed above, West Virginia Code § 8-12-5(25) is unambiguous, so this

rule is inapplicable.

Lastly, we note our agreement with the City’s argument that the circuit court erred

by finding that the language of the subject acts illustrated a legislative intent to prevent

municipalities from relying upon the word animal to regulate bees under West Virginia

Code § 8-12-5(25). We temper this observation with the knowledge that “courts presume

10

We note that the circuit court’s order does not expressly rely upon this rule to

support its ruling. However, because respondents rely upon the rule as one of the bases to

support the circuit court’s entry of summary judgment in their favor, we have chosen to

address it.

12

the legislature drafts and passes statutes with full knowledge of existing law.” W. Va.

Health Care Cost Rev. Auth. v. Boone Mem’l Hosp., 196 W. Va. 326, 336, 472 S.E.2d 411,

421 (1996) (citation modified). As previously set forth, the legislature recently amended

and reenacted West Virginia Code § 8-12-5 in 2023 and, thus, it must be presumed that

they acted with full knowledge of the existence of the Apiary and Right to Farm Acts.

Accordingly, we discern that had the legislature desired to limit or prohibit a municipality

from regulating beekeeping, it would have done so, either expressly or by specifically

defining the term animal to the exclusion of bees. We are also cognizant that a “judicial

challenge is not a license for this Court to judge the wisdom, fairness, or logic of legislative

choices.” State v. Butler, 239 W. Va. 168, 176, 799 S.E.2d 718, 726 (2017) (citation

modified). See also Martin v. Randolph Cnty. Bd. of Educ., 195 W. Va. 297, 312, 465

S.E.2d 399, 414 (1995) (citation modified) (“Courts must presume that a legislature says

in a statute what it means and means in a statute what it says there.”). We are also aware

of the repeated unsuccessful legislative efforts to amend the Apiary Act and Right to Farm

Act to preempt and supersede the regulation of certain agricultural activities, including

beekeeping, and place plenary power with the Commissioner.11 See Butler, 239 W. Va. at

176, 799 S.E.2d at 726 (noting that courts have found that the repeated rejection of

legislation to be an expression of legislative intent). These failed efforts are certainly

symbolic of a legislative intent not to expand the Department’s or Commissioner’s

authority or otherwise wane the plenary authority granted to municipalities under Chapter

8, Article 12. As such, the circuit court’s entry of summary judgment is reversed.

Accordingly, we reverse the circuit court’s January 23, 2025, order granting

summary judgment in favor of Mr. Urban and the Department, and remand the matter to

the circuit court for entry of its order granting summary judgment in favor of the City.

Reversed and Remanded.

ISSUED: February 24, 2026

CONCURRED IN BY:

Chief Judge Daniel W. Greear

Judge Charles O. Lorensen

Judge S. Ryan White

11

In the City’s brief, the following are cited as failed legislation: H.B. 2454 (2025);

H.B. 2725 (2025); S.B. 916 (2025); and S.B. 943 (2025). See also H.B.5533 (2024).

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