Tony Coffman v. Nicholas County Commission

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.

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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

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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

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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.

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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

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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.

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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.

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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

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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

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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

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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.

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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

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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

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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

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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.

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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

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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

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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.

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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

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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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