Morgantown Mall Associates v. City of Westover

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Morgantown Mall Associates Limited Partnership

and Rural King Realty, LLC, FILED

Plaintiffs Below, Petitioners September 1, 2017

RORY L. PERRY II, CLERK

SUPREME COURT OF APPEALS

vs) No. 16-0835 (Monongalia County 13-C-798) OF WEST VIRGINIA

The City of Westover, and

County Commission of Monongalia County,

Defendants Below, Respondents

MEMORANDUM DECISION

Petitioners, Morgantown Mall Associates Limited Partnership and Rural King Realty,

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LLC, by counsel John Philip Melick, appeal two orders of the Circuit Court of Monongalia

County regarding the annexation of about 102 acres of petitioners’ real property by Respondent

City of Westover (“Westover”). In the first order, dated July 31, 2015, the circuit court found it

did not have jurisdiction to rule on petitioners’ petition for writ of error to review an order by

Respondent County Commission of Monongalia County (the “Commission”) that approved the

annexation. In the second order, dated August 29, 2016, the circuit court granted judgment on the

pleadings to Westover and thereby issued a declaratory judgment in favor of Westover. The

latter order also dissolved a preliminary injunction granted to petitioners soon after they filed this

action. Respondent Westover, by counsel Timothy P. Stranko, Matthew D. Elshiaty, and Lindsay

M. Gainer, filed a response. Respondent Commission, by counsel Phillip M. Magro, also filed a

response.

This Court has considered the parties’ briefs and the record on appeal. The facts and legal

arguments are adequately presented, and the decisional process would not be significantly aided

by oral argument. Upon consideration of the standard of review, the Court finds no substantial

question of law and no prejudicial error. For these reasons, a memorandum decision affirming

the circuit court’s order is appropriate under Rule 21 of the Rules of Appellate Procedure.

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This appeal was filed on November 8, 2016, by Petitioner Morgantown Mall Associates

Limited Partnership and then-Petitioner Morgantown Commons Limited Partnership. Thereafter,

Rural King Realty, LLC purchased the Morgantown Commons Limited Partnership’s real estate

that is part of the acreage subject to the annexation at issue in this appeal. On July 10, 2017,

Petitioner Morgantown Mall Associates Limited Partnership, the Morgantown Commons

Limited Partnership, and Rural King Realty, LLC, by counsel John Philip Melick and Heather H.

Gentile, filed a motion to substitute Rural King Realty, LLC for the Morgantown Commons

Limited Partnership. The Court granted that motion on August 14, 2017.

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Westover sought to annex 102 acres of developed, commercial property owned almost

entirely by petitioners. Its first two attempts were unsuccessful. However, on Westover’s third

attempt, the Commission granted Westover’s annexation petition by final order entered October

2, 2013, and thereby annexed the acreage via a “minor boundary adjustment” under West

Virginia Code § 8-6-5.

On October 17, 2013, petitioners responded with a “Verified Complaint for Injunctive

and Declaratory Relief and Petition for Writ of Error.” As this title suggests, petitioners sought

three forms of relief: an immediate injunction to stop the annexation until the circuit court could

rule on the merits; a writ of error that the Commission’s order was unenforceable; and a

declaratory judgment that the annexation statutes are unconstitutional. On December 2, 2013, the

circuit court entered an “Order Granting Temporary Restraining Order and Preliminary

Injunctive Relief” to petitioners which preliminarily enjoined Westover from exercising

municipal authority over petitioners’ properties.

By order entered July 31, 2015, the circuit court found that it did not have jurisdiction

over petitioners’ petition for a writ of error because petitioners failed to comply with state law

regarding writs of error. Specifically, the circuit court found petitioners failed to timely file a bill

of particulars as required by West Virginia Code § 58-3-3, and failed to timely submit an original

record of the proceedings as required by West Virginia Code § 58-3-4.2 However, the circuit

court did not rule on petitioners’ request for declaratory relief.

Petitioners appealed the July 31, 2015, order to this Court (No. 15-0861). By order

entered September 4, 2015, we refused to docket the appeal on the ground that the July 31, 2015

order was not a final appealable order.

On October 1, 2015, Westover filed a motion to dismiss or, in the alternative, a motion

for judgment on the pleadings that addressed petitioners’ remaining claims for injunctive and

declaratory relief. Further, on March 16, 2016, Westover filed a motion to dissolve the

December 2, 2013, “Order Granting Temporary Restraining Order and Preliminary Injunctive

Relief.”

Following various hearings, on August 29, 2016, the circuit court granted Westover’s

motion for judgment on the pleadings and declined to grant a declaratory judgment in favor of

petitioners. Specifically, the circuit court found that: (1) Westover did not unlawfully scheme to

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Despite finding it had no jurisdiction with regard to petitioners’ petitioner for writ of

error, the circuit court, “for the sake of thoroughness,” addressed the grounds petitioners raised

in that petition and found as follows: (1) the Commission did not abuse its broad discretion in

determining that Westover’s annexation of the 102 acre parcel was a “minor boundary

adjustment”; (2) Westover satisfied the threshold requirements for pursuing a “minor boundary

adjustment” as opposed to annexation by means of an election or petition of owners under West

Virginia Code §§ 8-6-2 or -4; and (3) that the Commission adequately considered and correctly

employed the seven factors found in West Virginia Code § 8-6-5 in approving annexation by a

minor boundary adjustment.

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annex petitioners’ real property; (2) that West Virginia Code § 8-6-5 is not void for vagueness;

(3) that the annexation did not violate petitioners’ due process or equal protection rights; (4) that

West Virginia Code § 8-6-5 is a proper delegation of legislative authority; and (5) that the

subject annexation did not constitute an unlawful taking. The circuit court also dissolved the

December 2, 2013, “Order Granting Temporary Restraining Order and Preliminary Injunctive

Relief.”

Petitioners now appeal both the July 31, 2015, and August 29, 2016, orders.

In reviewing challenges to findings and rulings made by a circuit court, we

apply a two-pronged deferential standard of review. We review the rulings of the

circuit court concerning a new trial and its conclusion as to the existence of

reversible error under an abuse of discretion standard, and we review the circuit

court’s underlying factual findings under a clearly erroneous standard. Questions

of law are subject to a de novo review.

Syl. Pt. 3, State v. Vance, 207 W. Va. 640, 535 S.E.2d 484 (2000).

On appeal, petitioners first argue that the circuit court erred in finding it lacked

jurisdiction over their writ of error due to petitioners’ failure to timely perfect their petition for

judicial review of the county commission’s order.

West Virginia Code §§ 8-6-5(i) and -16 provide the circuit court with jurisdiction to

review a county commission’s final order regarding annexation, but specify that an appealing

party must seek review “in accordance with provisions of article three, chapter fifty-eight of this

code[.]” See West Virginia Code §§ 58-3-1 to -7. West Virginia Code § 58-3-3 requires that an

appealing party include a bill of exceptions:

[a]t the trial or hearing of any matter by the county court as to which an appeal

will lie under section one of this article, a party may except to any opinion of the

court and tender a bill of exceptions to such opinion. . . . Or, in lieu of such bill of

exceptions, such exception may with like effect be shown by certificate . . . signed

by such commissioners, or a majority of them. . . . A party to any such

proceeding, as to which an appeal will lie as aforesaid may avail himself of any

error appearing on the record by which he is prejudiced without obtaining a

formal bill of exceptions, provided he objects or excepts on the record to the

action of the court complained of, and provided it is such a matter as can be

considered without a formal bill of exceptions.

Moreover, West Virginia Code § 58-3-4 provides that such an appeal “shall be presented within

four months” following the entry of the county commission’s order and “shall be accompanied

by the original record of the proceeding in lieu of a transcript thereof.”

This Court has concluded that the failure to comply with the statutory requirements to

perfect the appeal of an annexation order is fatal to the appeal. Moreover, the failure to file a bill

of particulars in the appeal of an annexation order is jurisdictional and may be raised sua sponte

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by the court. Syl. Pt. 3, Pettry v. Chesapeake & Ohio Ry. Co., 148 W.Va. 443, 135 S.E.2d 729

(1964).3 Likewise, an appellant’s failure to timely file the required record in an appeal of a

county commission’s order is fatal to a circuit court’s exercise of jurisdiction. Syllabus, In re

Stonestreet, 147 W.Va. 719, 131 S.E.2d 52 (1963). Accord, Syl. Pt. 4, Tax Assessment Against

Purple Turtle, LLC v. Gooden, 223 W.Va. 755, 679 S.E.2d 587 (2009).

As noted above, the Commission issued its order approving the annexation on October 2,

2013. Thereafter, petitioners timely filed their appeal in the circuit court on October 17, 2013.

However, petitioners never filed a bill of particulars. Further, petitioners did not file the original

record of the proceedings with their verified complaint or within four months of the

Commission’s October 2, 2013, decision, i.e., by February 2, 2014. Instead, petitioners filed the

original record over thirteen months later, on November 10, 2014. Because petitioners failed to

comply with the clear requirements of West Virginia Code §§ 58-3-3 and -4, the circuit court

concluded that it lacked jurisdiction and dismissed the petition for a writ of error.

On appeal, petitioners argue that, despite the language of West Virginia Code § 58-3-3, it

was not required to file a bill of particulars and, instead, included “thoroughly specified

objections” in their petition for a writ of error. As for their failure to timely file the original

record of the Commission’s proceedings, petitioners argue that they cited to the “video record”

in their “Verified Complaint for Injunctive and Declaratory Relief and Petition for Writ of

Error.” On February 5, 2014, the circuit court required petitioners to submit the original record in

writing. Petitioners claim that the video record of the proceedings before the Commission had to

be transcribed, reviewed, and assembled. This process took many months due to omissions/errors

made by the firm hired by the Commission to transcribe the videos. Therefore, petitioners argue

that the circuit court should not have held the delay in the filing of the original record against

them.

Respondent Westover concurs with the circuit court’s reasoning and highlights that

petitioners did not file the required original record until November 10, 2014, more than thirteen

months after the Commission entered its October 2, 2013, decision and nine months past the

four-month deadline set forth in West Virginia Code § 58-3-4. Respondent Commission counters

that petitioners provide no argument or citation to any valid authority that relieved them of the

statutory duty to timely perfect their appeal of the Commission’s order.

Our analysis centers solely upon the petitioners’ failure to timely file the original record

before the Commission. In petitioners’ brief to this Court, they do not address, in any fashion,

whether they provided a video record or any other record to the circuit court within four months

of the Commission’s order. Instead, petitioners claim that their failure to timely file the original

record was due to the circuit court’s February 5, 2014, order that the original record be submitted

in writing. However, February 5, 2014, was four months and two days after the Commission

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Although Rule 80(f) of the West Virginia Rules of Civil Procedure abolished bills and

certificates of exception, we have held that “[t]hey are also not abolished in appeals from county

courts when needed on appeal.” Pettry v. Chesapeake & Ohio Ry. Co., 148 W.Va. 443, 450, 135

S.E.2d 729, 733 (1944).

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issued its October 2, 2013, decision granting Westover’s annexation petition. Thus, on February

5, 2014, petitioners had already missed the deadline for filing the original record. As noted

above, an appellant’s failure to timely file the required record is fatal to a circuit court’s exercise

of jurisdiction. See Tax Assessment Against Purple Turtle, LLC v. Gooden, 223 W.Va. at 762,

679 S.E.2d at 594 (“Where the petition for appeal . . . is not accompanied by the record from the

proceedings below and such record is not [timely] provided . . . the appeal has not been properly

perfected and must be refused.”)

Accordingly, we affirm the circuit court’s conclusion that it lacked jurisdiction to rule on

the petition for a writ of error due to petitioners’ “failure to comply with mandatory statutory

jurisdictional requirements.” Id. Because we find that the circuit court lacked jurisdiction with

regard to petitioners’ petition for writ of error on this ground, we need not address the circuit

court’s findings with regard to petitioners’ decision not to file a bill of particulars.4

We now turn to petitioners’ challenge of the circuit court’s August 29, 2016, order,

wherein the circuit court granted Westover’s motion for judgment on the pleadings and dissolved

its preliminary injunction. In that order, the circuit court concluded: (1) that Westover’s

annexation was lawful in both objective and execution; (2) that the “annexation by minor

boundary adjustment” statute, West Virginia Code § 8-6-5, was not constitutionally void for

vagueness; and (3) that the statute did not violate the due process and equal protection rights of

the petitioners.

Petitioners first argue that the circuit court should have entered a declaratory judgment

and found that Westover improperly contrived the annexation of petitioners’ land. Petitioners

contend Westover “cut a deal” with a different landowner in order to “corral” petitioners’ land

into the city as a “fresh source of taxes,” and that such an act could never legally qualify as a

“minor boundary judgment” under the annexation law, West Virginia Code § 8-6-5.

In Syllabus Point 6 of Petition of City of Beckley to Annex, by Minor Boundary

Adjustment, W. Va. Route 3 Right-of-Way Beginning at Present Corp. Limits, 194 W. Va. 423,

460 S.E.2d 669 (1995), we found that municipalities have broad authority to engage in minor

boundary adjustments:

In general, a county commission enjoys a broad discretion in exercising its

legislative powers in determining the geographic extent of a minor boundary

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Given that the circuit court did not have jurisdiction over petitioners’ appeal, we find

that its findings—made “for the sake of thoroughness” in the July 31, 2015, order—are moot.

“Moot questions or abstract propositions, the decision of which would avail nothing in the

determination of controverted rights of persons or of property, are not properly cognizable by a

court.” Syl. Pt. 1, State ex rel. Lilly v. Carter, 63 W.Va. 684, 60 S.E. 873 (1908). Accord Syl. Pt.

1, Tynes v. Shore, 117 W.Va. 355, 185 S.E. 845 (1936) (“Courts will not ordinarily decide a

moot question.”).

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adjustment sought by a municipality under W.Va. Code 8-6-5 (1989), so long as a

portion of the area to be annexed is contiguous to the municipality.

West Virginia Code § 8-6-5 requires a municipality to establish, at a minimum, seven threshold

requirements to properly annex land by a minor boundary adjustment.5

The circuit court permitted petitioners the right to limited discovery to develop their

theory that Westover abused its discretion during the annexation process. However, the circuit

court found that the evidence developed in discovery “fails to demonstrate a ‘scheme’ . . . and

fails to demonstrate or suggest any unlawful action by Westover.” Further, the record on appeal

supports a finding that Westover met the statutory threshold requirements for a minor boundary

adjustment. Specifically, the record supports the finding that the annexation could not have been

efficiently accomplished by any other means (such as voluntary annexation) because petitioners

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West Virginia Code § 8-6-5(f) provides:

(f) In making its final decision on an application for annexation by minor

boundary adjustment, the county commission shall, at a minimum, consider the

following factors:

(1) Whether the territory proposed for annexation is contiguous to the corporate

limits of the municipality. For purposes of this section, “contiguous” means 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;

(2) Whether the proposed annexation is limited solely to a division of highways

right-of-way or whether the division of highways holds title to the property in fee;

(3) Whether affected parties of the territory to be annexed oppose or support the

proposed annexation. For purposes of this section, “affected parties” means

freeholders, firms, corporations and qualified voters in the territory proposed for

annexation and in the municipality and a freeholder whose property abuts a street

or highway, as defined in section thirty-five, article one, chapter seventeen-c of

this code, when: (i) The street or highway is being annexed to provide emergency

services; or (ii) the annexation includes one or more freeholders at the end of the

street or highway proposed for annexation;

(4) Whether the proposed annexation consists of a street or highway as defined in

section thirty-five, article one, chapter seventeen-c of this code and one or more

freeholders;

(5) Whether the proposed annexation 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;

(6) Whether another municipality has made application to annex the same or

substantially the same territory; and

(7) Whether the proposed annexation is in the best interest of the county as a

whole.

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refused to respond to Westover’s repeated requests to discuss annexation. Lastly, the record on

appeal supports the circuit court’s finding that Westover established the seven requirements of

West Virginia Code § 8-6-5. Accordingly, we find no error in the circuit court’s conclusion that

Westover’s annexation of petitioners’ property was lawful in objective and execution.

Petitioners next argue that West Virginia Code § 8-6-5 is either constitutionally void for

vagueness, or is an impermissible delegation of legislative authority. With regard to void for

vagueness, petitioners assert that the terms “minor boundary adjustment,” “effectively

accomplished,” and “best interest of the county as a whole” contained in § 8-6-5 are

unconstitutionally vague. “As a matter of basic procedural due process, a law is void on its face

if it is so vague that persons ‘of common intelligence must necessarily guess at its meaning and

differ as to its application.’” Garcelon v. Rutledge, 173 W.Va. 572, 574, 318 S.E.2d 622, 625

(1984) (quoting Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926)). Petitioners further

assert that the Legislature unconstitutionally delegated its discretion to the counties in annexation

matters by using such vague terms.

To succeed in establishing that a civil statute or ordinance is unconstitutionally vague, the

entity challenging the statute or ordinance “must demonstrate that the law is impermissibly

vague in all of its applications[,]” Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc.,

455 U.S. 489, 497 (1982), and establish that the law could never be applied in a valid manner.

United States v. Salerno, 481 U.S. 739, 745 (1987). However, “every reasonable construction of

the statute must be resorted to by a court in order to sustain constitutionality, and any doubt must

be resolved in favor of the constitutionality of the legislative enactment.” Syl. Pt. 3, in part,

Willis v. O’Brien, 151 W.Va. 628, 153 S.E.2d 178 (1967). In drafting West Virginia Code § 8-6­

5, the Legislature provided county commissions with flexibility to make determinations based

upon local concerns. Petitioners have not shown that these terms are vague in all of their

applications, or that the Legislature improperly chose these terms to guide the discretion of the

counties in weighing questions of local concern. Accordingly, we cannot say that the circuit

court erred in finding that West Virginia Code § 8-6-5 is neither impermissibly vague nor the

result of an impermissible delegation of legislative authority.

Petitioners’ final argument is that West Virginia Code § 8-6-5 violates due process and

equal protection considerations. Specifically, petitioners contend that the statute does not provide

explicit standards to avoid arbitrary and discriminatory application. Petitioners offer few

citations in support of their argument.

In their skeletal constitutional arguments, petitioners’ “overlook the fact that ‘legislative

Acts adjusting the burdens and benefits of economic life come to the Court with a presumption

of constitutionality, and . . . the burden is on one complaining of a due process violation to

establish that the legislature has acted in an arbitrary and irrational way.’” Verizon W.Va., Inc. v.

W.Va. Bureau of Employ. Programs, Workers’ Comp. Div., 214 W.Va. 95, 121, 586 S.E.2d 170,

196 (2003) (quoting Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 15 (1976)). In challenges

to economic legislation, “the legislature must be accorded considerable deference under a due

process standard.” Syl. Pt. 3, Gibson v. W.Va. Dep’t of Highways, 185 W.Va. 214, 406 S.E.2d

440 (1991). As we stated in Syllabus Point 1 of State ex rel. Appalachian Power Co. v. Gainer,

149 W. Va. 740, 143 S.E.2d 351 (1965):

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In considering the constitutionality of a legislative enactment, courts must

exercise due restraint, in recognition of the principle of the separation of powers

in government among the judicial, legislative and executive branches. Every

reasonable construction must be resorted to by the courts in order to sustain

constitutionality, and any reasonable doubt must be resolved in favor of the

constitutionality of the legislative enactment in question. Courts are not concerned

with questions relating to legislative policy. The general powers of the legislature,

within constitutional limits, are almost plenary. In considering the

constitutionality of an act of the legislature, the negation of legislative power must

appear beyond reasonable doubt.

In West Virginia Code § 8-6-5, the Legislature required county commissions to address

an exhaustive list of considerations when resolving annexation questions. For example, the

county commission must consider the number of businesses and people in the territory to be

annexed; a map of the territory; the impact on police and fire protection, solid waste collection,

water sewer and street services; information about fire protection and insurance rates; and the

impact of the annexation on the municipality’s finances and services. W.Va. Code § 8-6-5(c). A

county commission must also consider the contiguous nature of the territory, whether affected

parties support or oppose the annexation, and whether the annexation is in the best interest of the

county as a whole. W.Va. Code § 8-6-5(f). Moreover, the county commission must give notice

and conduct hearings, and allow affected individuals to be heard. In light of these considerations,

we reject petitioners’ argument that West Virginia Code § 8-6-5 lacks guidelines to preclude

arbitrary and discriminatory application. Thus, we concur with the circuit court’s finding that

petitioners failed to show beyond a reasonable doubt that West Virginia Code § 8-6-5 violates

due process and equal protection guarantees.

Accordingly, for the foregoing reasons, we affirm the July 31, 2015, order that found the

circuit court lacked jurisdiction to consider petitioners’ petition for a writ of error. We also

affirm the circuit court’s August 29, 2016, order that granted judgment on the pleadings to

Westover, rejected petitioners’ complaint for declaratory relief, and dissolved the December 2,

2013, order granting petitioners a temporary restraining order and preliminary injunctive relief.

Affirmed.

ISSUED: September 1, 2017

CONCURRED IN BY:

Chief Justice Allen H. Loughry II

Justice Margaret L. Workman

Justice Menis E. Ketchum

Justice Elizabeth D. Walker

DISSENTING:

Justice Robin Jean Davis

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