Alexander Fleming, Carole Carter, Carol Gallant, Barbara Humes, and Benjamin Buckley v. Mitch Carmichael, in his Official Capacity as Secretary of the West Virginia Department of Economic Development, and Mike Graney, in his Official Capacity as Executive Director of the West Virginia Department of Economic Development

• Court: Intermediate Court of Appeals of West Virginia
• Decided: May 13, 2024
• Docket: 23-ica-174
• Status: Published

Opinion

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA Spring 2024 Term FILED _____________________________ May 13, 2024 released at 3:00 p.m. No. 23-ICA-174 ASHLEY N. DEEM, DEPUTY CLERK _____________________________ INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

ALEXANDER FLEMING, CAROLE CARTER, CAROL GALLANT, BARBARA HUMES, and BENJAMIN BUCKLEY, Plaintiffs Below, Petitioners, v. MITCH CARMICHAEL, in his Official Capacity as Secretary of the West Virginia Department of Economic Development, and MIKE GRANEY, in his Official Capacity as Executive Director of the West Virginia Department of Economic Development, Defendants Below, Respondents. ________________________________________________________________________ Appeal from the Circuit Court of Kanawha County Honorable Maryclaire Akers, Judge Civil Action Nos. 22-C-20, 22-C-21, 22-C-22, 22-C-23, and 22-C-24

AFFIRMED ________________________________________________________________________ Submitted: March 19, 2024 Filed: May 13, 2024

Robert M. Bastress, Jr., Esq. Patrick Morrisey, Esq. Morgantown, West Virginia Attorney General Counsel for Petitioners Lindsay S. See, Esq. Solicitor General Michael R. Williams, Esq. Principal Deputy Solicitor General Sean M. Whelan, Esq. Deputy Attorney General Grant A. Newman, Esq. Assistant Solicitor General Charleston, West Virginia Counsel for Respondents JUDGE DANIEL W. GREEAR delivered the Opinion of the Court GREEAR, Judge:

Alexander Fleming, Carole Carter, Carol Gallant, Barbara Humes, and

Benjamin Buckley (“Petitioners”), appeal the March 29, 2023, order of the Circuit Court

of Kanawha County granting Mitch Carmichael, in his capacity as the Secretary of the

West Virginia Department of Economic Development, and Mike Graney’s, in his capacity

as the Executive Director of the West Virginia Department of Economic Development

(“Respondents”), Motion to Dismiss.

Having reviewed this matter, we conclude that the circuit court was correct

in granting the Respondents’ motion on the basis that the statute at issue is a general law

within the meaning of Article VI, § 39 of the West Virginia Constitution. Accordingly, we

affirm the March 29, 2023, Order Granting Dismissal.

I. FACTUAL AND PROCEDURAL BACKGROUND

In 2007, SWaN Hill Top House Hotel (“Developer”) purchased the Hill Top

House Hotel (“Hill Top”) in Harpers Ferry, West Virginia, intending to rebuild the

deteriorating property. However, from 2007 to 2019 the project failed to progress,

increasing friction between the Developer and the town residents. In 2019, the Harpers

Ferry town council executed certain street sales agreements with the Developer to enable

further project development.

1 In 2020, the West Virginia Legislature enacted the Tourism Development

District Act (“Act”), which has been codified at West Virginia Code § 5B-1-9 (2020). The

Act authorizes the West Virginia Department of Economic Development (“Department”)

to designate tourism development districts (“TDD”) in up to five towns which have less

than 2,000 residents for projects with a minimum investment of $25 million. Upon such

designation, the TDD would be exempt from nearly all municipal regulation, which

includes a municipality’s zoning, historic preservation, noise, land use, building permits,

inspection, and licensing ordinances.1 Instead, the TDD would be subject to the

Department’s regulations, and the building codes, land use, permitting, noise ordinances,

and historic preservation standards in its TDD agreement which is enforced by the

Department. W. Va. Code R. § 145-16-9.2.2 (2021). On May 5, 2021, the Developer sought

to establish Hill Top as the first TDD. The Hill Top application was approved by the

Department on August 3, 2021. The Department specifically determined the Hill Top

designation would have "a significant economic impact on the state and the region"

including a "marked increase in jobs and payroll in the district."

On September 17, 2021, Public Asset Protection, Inc. (“PAP”), a non-profit

corporation representing the interest of several unnamed Harpers Ferry residents, filed a

civil action in the Circuit Court of Jefferson County, West Virginia, Public Asset

Protection, Inc. v. Corporation of Harpers Ferry, et al., Civil Action No. CC-19-2021-C-

1 The Act reserved a municipality’s authority to collect taxes and fees from the TDD as collected by other similarly situated businesses. W. Va. Code § 5B-1-9(m) (2020). 2 134 (Cir. Ct. Jefferson Cty. 2021), requesting the invalidation of Harpers Ferry Ordinance

No. 2021-02 (“Ordinance”) which authorized the conveyance, via a private sale, of certain

public streets to the Developer for the Hill Top project. The PAP complaint alleged that

the Ordinance was in violation of West Virginia Code § 8-12-18 (2018) which requires a

fair and adequate public auction. Additionally, and most pertinent to the matter at hand,

the PAP complaint alleged the Ordinance was in violation of the existing Harpers Ferry

zoning and subdivision codes.2 The defendants in the Jefferson County civil action, the

town of Harpers Ferry, its council and the Developer, filed their respective motions to

dismiss. Addressing the allegations involving the existing zoning and subdivision codes

application, the circuit court was forced to determine the constitutionality of the Act, West

Virginia Code § 5B-1-9.3 On January 13, 2022, the circuit court issued a final order

dismissing the PAP complaint. In that order, the circuit court concluded the Act was a

general law and held it to be constitutional; therefore, the Hill Top project was exempt

from Harpers Ferry zoning and subdivision ordinances. PAP never appealed that order.

Two days prior to the dismissal in the PAP civil action in Jefferson County,

Petitioners initiated the instant action in the Circuit Court of Kanawha County, West

Virginia against Ed Gaunch, in his official capacity as Secretary of the West Virginia

2 The PAP complaint also contained counts involving the alleged violation of public trust, public policy, and conflicts of interest. 3 We note that on November 23, 2021, the State of West Virginia filed a Brief of Amicus Curiae before the circuit court defending the constitutionality of the statutes challenged by PAP. 3 Department of Commerce, and Mike Graney, in his official capacity as Director of the

West Virginia Department of Economic Development.4 Petitioners alleged: (1) the Act

created a special law regulating and altering the municipal affairs of Harpers Ferry in

violation of Article VI, §§ 39 and 39a of the West Virginia Constitution; (2) the Act

violated equal protection because it limits the availability of TDD to towns under 2,000

residents; (3) the Act negated the plaintiffs’ constitutional right to “self-rule” and “right to

vote,” because the Act stated that TDDs are to remain in existence notwithstanding its

repeal or alteration; and, (4) it bound future Legislatures in violation of Article VI of the

West Virginia Constitution. The amended complaint requested the circuit court to declare

the Act void and to impose an injunction prohibiting its enforcement.

On June 24, 2022, Respondents filed their Motion to Dismiss, arguing that

Petitioners were collaterally estopped on the issue of constitutionality. Alternatively,

Respondents argued that if collateral estoppel did not apply, the circuit court should reach

the same conclusions on these issues as the Jefferson County decision. The circuit court

held a hearing on the Motion to Dismiss on August 11, 2022.

On March 29, 2023, the circuit court granted the Respondents’ Motion to

Dismiss. The circuit court made several conclusions of law. First, the circuit court found

that collateral estoppel barred the special law and equal protection claims. Specifically, the

We note that an amended complaint was filed on June 13, 2022, replacing Secretary 4

Gaunch with Secretary Mitch Carmichael. 4 circuit court found that (1) the issues in the present case were identical to those in the

Jefferson County decision; (2) the Jefferson County decision was a final adjudication on

the merits; (3) privity existed between PAP in the prior suit and the Petitioners because

both groups had aligned interests of stopping the project, and (4) the Petitioners were

afforded a full and fair opportunity to litigate these claims in the prior action. Next, the

circuit court determined that the Act was a law of general applicability and therefore, did

not violate equal protection. It found that the Act did not single out Hill Top for unique

treatment, nor did the Act draw class lines so narrowly that Hill Top would be the only

TDD applicant. Instead, it concluded that the Act created a class of large tourism

development projects located in West Virginia’s smallest municipalities. It allowed the

Department to designate five municipalities as TDDs and it applied the benefits and

burdens of the statute equally upon all those designated. The circuit court found the Act

passed judicial review under rational basis scrutiny and was constitutional.

The circuit court went on to find that the Act did not infringe upon

Petitioners’ right to “self-rule” or the “right to vote” by removing the town’s authority over

the Hill Top area. Instead, the circuit court determined that the Act transferred regulation

of TDDs to the Department, which was responsible for considering and approving TDD

applications, as well as executing the agreements that govern the TDDs. The circuit court

found that the West Virginia Constitution contains no guaranteed right to “self-rule,” and

that municipalities have no inherent powers, as they only have the authority granted to

them by the Legislature. The circuit court determined that nothing in the Act infringed on

5 the right to vote. Finally, the circuit court found the Petitioners’ safety concerns without

merit. The Act transferred local control to the Department and preempted local laws in

conflict to provide uniform and consistent regulation. The Act did not preempt other

statutes providing for the health and safety of town residents. As a final matter, the circuit

court found that the Act’s language did not express an intent to bind future legislatures.

This appeal followed.5

II. STANDARD OF REVIEW

Our appellate review of a circuit court’s order granting a motion to dismiss

is de novo. See Syl. Pt. 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194

W. Va. 770, 461 S.E.2d 516 (1995). Examining the constitutionality of a statute is a

question of law which this Court reviews de novo. See Morrisey v. W. Va. AFL-CIO, 243

W. Va. 86, 99, 842 S.E.2d 455, 468 (2020). With this standard in mind, we consider the

issues raised on appeal.

III. DISCUSSION

On appeal, Petitioners allege four assignments of error. First, the Petitioners

argue that the circuit court erred in finding that the Petitioners were collaterally estopped

from pursuing their claims by the decision of the Circuit Court of Jefferson County in PAP.

5 This Court held oral argument on March 19, 2024. 6 Second, the circuit court erred when it failed to conclude that West Virginia Code § 5B-1-

9 creates local and special legislation in violation of Article VI, §§ 39 and 39a of the West

Virginia Constitution. Third, the circuit court erred when it failed to conclude that West

Virginia Code § 5B-1-9 creates an arbitrary and irrational classification that violates the

equal protection principles embodied in Article III, § 10 of the West Virginia Constitution.

Lastly, the circuit court erred when it failed to conclude that West Virginia Code § 5B-1-9

deprived Harpers Ferry residents of the political capacity to regulate and control a

significant portion of the town and transferred dominion over the created district to a

private entity, contravening petitioners’ rights guaranteed to them by Article III, §§ 1, 3

and Article IV, § 1 of the West Virginia Constitution. After a review of the record and the

applicable law, we find no merit in the Petitioners’ assignments.6 The circuit court was

6 Though not raised by either party, we note the threshold issue of standing. The issuance of any injunctive relief sought in this action would require Petitioners to possess standing to assert such against Respondents. The Supreme Court of Appeals of West Virginia has recognized that “Article VIII, Section 6 of the West Virginia Constitution establishes that there must be a justiciable case or controversy—a legal right claimed by one party and denied by another—in order for the circuit court to have subject matter jurisdiction. In part, this means the party asserting a legal right must have standing to assert that right.” State ex rel. Healthport Techs., LLC v. Stucky, 239 W. Va. 239, 242, 800 S.E.2d 506, 509 (2017) (footnote omitted). “In essence, the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.” Syl. Pt. 4, in pertinent part, Manville Pers. Inj. Settlement Tr. v. Blankenship, 231 W. Va. 637, 749 S.E.2d 329 (2013).

The Supreme Court has held:

Standing is comprised of three elements: First, the party attempting to establish standing must have suffered an “injury- in-fact”—an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent and

7 correct in its conclusion that the Act is constitutional.7

A. GENERAL LAW

“As a general rule, [. . .] the Legislature has plenary power to act unless

prohibited from doing so by the constitution itself.” State ex rel. Barker v. Manchin, 167

W. Va. 155, 168, 279 S.E.2d 622, 631 (1981). Article VI, §39 of the West Virginia

Constitution prohibits the Legislature from enacting local or special legislation regarding

eighteen specified subjects, when, otherwise, a general law would be as effective. Section

39 provides, in pertinent part:

not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct forming the basis of the lawsuit. Third, it must be likely that the injury will be redressed through a favorable decision of the court.

Syl. Pt. 2, State ex rel. Healthport Techs., LLC v. Stucky, 239 W. Va. 239, 800 S.E.2d 506 (2017) (citing Syl. Pt. 5, Findley v. State Farm Mut. Auto. Ins. Co., 213 W. Va. 80, 576 S.E.2d 807 (2002)).

To possess an “injury-in-fact,” a party must allege a “particularized” injury, either economic or otherwise, which is the result of the challenged action. See id. at 243, 800 S.E.2d at 510. For an injury to be “particularized,” it “must affect the plaintiff in a personal and individual way.” Stucky, 239 W. Va. at 243, 800 S.E.2d at 510. While the Respondents orally represented to this Court that Petitioners possess standing, we question Petitioners’ ability to satisfy a “particularized” injury personal to them. However, given that a particular set of facts may exist to provide Petitioners standing in this matter and the Respondents have not raised such issue on appeal; we do not address it here. 7 At oral argument, Respondents asked this Court to tailor our review to the issue of constitutionality not the application of collateral estoppel. As we find the analysis of the circuit court on the substantive issue to be correct, we decline to address the first assignment of error regarding the application of collateral estoppel. 8 The Legislature shall not pass local or special laws in any of the following enumerated cases; that is to say, for […] Incorporating cities, towns or villages, or amending the charter of any city, town or village, containing a population of less than two thousand; […] The Legislature shall provide, by general laws, for the foregoing and all other cases for which provision can be so made; and in no case shall a special act be passed, where a general law would be proper, and can be made applicable to the case, nor in any other case in which the courts have jurisdiction, and are competent to give the relief asked for.

The basic purpose of this constitutional provision is to preserve uniformity

and consistency in statutory enactments. A special or local act is one applicable to only

particular persons or things. See Syl. Pt. 1, McEldowney v. Wyatt, 44 W. Va. 711, 30 S.E.

239 (1898) (“A statute relating to persons or things as a class is a general law; one relating

to particular persons or things of a class is special.”). A general law, as distinguished from

a special law, operates throughout our entire state to affect members of a certain designated

class. See Syl. Pt. 7, State ex rel. Appalachian Power Co. v. Gainer, 149 W. Va. 740, 741,

143 S.E.2d 351, 354 (1965) (“A law which operates uniformly upon all persons, entities or

things as a class is a general law; while a law which operates differently as to particular

persons, entities or things within a class is a special law.”).

“When the constitutionality of a statute is questioned every reasonable

construction of the statute must be resorted to by a court in order to sustain constitutionality, 9 and any doubt must be resolved in favor of the constitutionality of the legislative

enactment.” Syl. Pt. 6, State ex rel. Cooper v. Tennant, 229 W. Va. 585, 589, 730 S.E.2d

368, 372 (2012). In recognition of the principle of the separation of powers among the

judicial, legislative and executive branches; our 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.” Syl. Pt. 1, Gainer,

149 W. Va. at 740, 143 S.E.2d at 351. In cases of doubt, intent of the Legislature not to

exceed its constitutional powers is to be presumed, and courts are required to favor

construction which would consider statute to be general law. See State ex rel. Heck's Inc.

v. Gates, 149 W. Va. 421, 141 S.E.2d 369 (1965).

Petitioners allege that the Act in question is special legislation that violates

Article VI, §§ 39 and 39a of the West Virginia Constitution. We disagree. West Virginia

Code § 5B-1-9 authorizes the Department of Economic Development to approve up to five

TDDs in municipalities under 2,000 population for private developers investing in tourism

projects with projected costs exceeding $25 million. Once designated a TDD,

municipalities are prohibited from “imposing or enforcing local laws and ordinances

concerning the creation or regulation” of any TDD and “any tourism development project

or tourism development expansion.” West Virginia Code § 5B-1-9(c)(2). Once established

as a tourism development district, the district may not be subject to the following:

10 (1) Municipal zoning, historic preservation, horticultural, noise, viewshed, lighting, development, or land use ordinances, restrictions, limitations, or approvals;

(2) Municipal regulation of the sale of alcoholic liquor, nonintoxicating beer, or wine for consumption within the tourism development district;

(3) Municipal building permitting, inspection, or code enforcement;

(4) Municipal license requirements;

(5) The legal jurisdiction of the municipality in which the tourism development district is entirely or partially located, except as specifically provided in this article;

(6) The implementation of any tax, fee, or charge by the municipality, except as specifically provided in this section; or

(7) Any requirement under state law for the consent or approval of the municipality in which the tourism development district is entirely or partially located of any state or county action pursuant to this code, specifically including, but not limited to, § 7-11B-1 et seq. of this code, for formal consent of the governing body of a municipality for county or state action regarding the establishment of tax increment financing development or redevelopment districts or the approval of tax increment financing development or redevelopment plans.

West Virginia Code § 5B-1-9(l).

In this instance, the Legislature decided that "it is in the best interest of the

state to induce and assist in tourism development in small municipalities" because such

developments could "reliev[e] unemployment" and create "greater sources of revenue" for

"state and local government[s][.]” West Virginia Code § 5B-1-9(b). This expressed intent

was not to alter or amend the existing charters for any small municipalities. It is to assist

11 with tourism development in the small municipalities by serving as administrators of larger

monetary projects. The Act serves a valid purpose and a narrow goal of achievement.

The fact that the Hill Top project is currently the only project that has sought

this designation so far is of no significance to this constitutional analysis. The Act does not

single out Hill Top or Harpers Ferry for unique treatment. Nor does it draw lines so

narrowly that entry is closed to future applicants. Instead, it creates a class of tourism

development projects located in the State's smallest municipalities. It grants authority to

the Department to designate five of these as TDDs, and it applies the benefits and burdens

of the statute equally upon all those designated. While this Act is restricted to a small

number of participants, such a limitation does not convert the Act into “special” legislation

nor does it render it unconstitutional. Class-based designations are permitted so long as

they bear reasonable relationship to proper governmental purpose, and all persons within

class are treated equally. Where such classification is rational and bears the requisite

reasonable relationship, the statute does not violate the constitutional prohibition against

special acts. See Hartsock-Flesher Candy Co. v. Wheeling Wholesale Grocery Co., 174 W.

Va. 538, 328 S.E.2d 144 (1984). We conclude that while the class is indeed narrow; the

circuit court was correct that the Act designates a class rationally related to a proper

government interest and is general in its application throughout the state.

Petitioners place substantial reliance on City of Charleston v. Bosely, 165 W.

Va. 332, 268 S.E.2d 590 (1980). In Bosely, the Supreme Court of Appeals of West Virginia

12 (“SCAWV”) held that the restriction of tax authority to specific political subdivisions

based on population levels, to the detriment of the remainder of the State, is an arbitrary,

unreasonable, and inappropriate means to implement a general statewide program for civic

and economic development. See id. at 344, 268 S.E.2d at 597. It was therefore void as

“special legislation.”. See id. We find such reliance to be misplaced in this case. There, the

Legislature sought to promote tourism and to provide for economic development and the

indicia of civilization at the local level through the construction of “arenas, auditoriums,

civic centers and convention centers” throughout the state. Id. at 340, 268 S.E.2d at 595.

However, the benefit of the act was limited to the largest cities in the state, specifically

Charleston and Huntington. See id. Therefore, the SCAWV concluded that the

classification was contrary to the purpose of the legislation. See id. at 344, 268 S.E.2d at

597. The Bosely Court made it clear, “The Court's ruling today does not question the

concept of population-based classification; it instead is concerned with the relationship

between the classification and the legislative purpose of promoting statewide tourism and

municipal development.” Id. at 343, 268 S.E.2d at 597.

In the present case, the Legislature’s intent was to narrowly tailor an Act that

will benefit small municipalities and spur tourism development involving large monetary

projects. On both the basis of policy and prior decisional law, such a grant of developmental

authority is constitutionally valid. See State ex rel. Appalachian Power Company v. Gainer,

149 W. Va. 740, 143 S.E.2d 351 (1965). A law is still "general" "even though the class" it

creates "is a small one." State ex rel. Cnty. Ct. of Cabell Cnty. v. Battle, 147 W. Va. 84I,

13 848, 131 S.E.2d 730, 735 (1963). Therefore, we conclude this act to be of general nature,

rationally related to achieve a proper governmental purpose.

B. EQUAL PROTECTION

Petitioners allege the circuit court erred in failing to conclude that West

Virginia Code § 5B-1-9 creates an arbitrary and irrational classification that violates the

equal protection principles embodied in Article III, § 10 of the West Virginia Constitution.

Again, we disagree. The constitutional guarantee of equal protection does not prohibit our

Legislature from creating general laws with class applicability. The “special legislation”

prohibition as contained in our Constitution and our analysis as shown above are essentially

synonymous with an equal protection clause analysis. See State v. Beaver, 248 W. Va. 177,

201, 887 S.E.2d 610, 634 (2022) (“the ‘special legislation’ prohibition is essentially an

equal protection clause”). Each serve to prevent the arbitrary creation of special classes,

and the unequal conferring of statutory benefits:

A legislative enactment in order to be valid under this clause, must operate alike on all persons and property similarly situated. As long as a statute applies uniformly upon a class, and as long as the classification utilized is neither arbitrary, nor unreasonable, the statute is general.

Id. at 201, 887 S.E.2d at 634 (quoting Bosley, 165 W. Va. 332, 339-40, 268 S.E.2d 590,

595).

14 We conclude West Virginia Code § 5B-1-9 is constitutional on equal

protection grounds, both facially and in its application here. We find Syllabus Point 3 of

Shackleford v. Catlett, 161 W. Va. 568, 244 S.E.2d 327 (1978) instructive:

When all persons in a class created by a statute are treated equally and the classification is a rational one based on social, economic, historic or geographical factors, and the classification bears a rational relationship to a legitimate state purpose, such statute is not violative of the equal protection clause of the Fourteenth Amendment to the United States Constitution or Article III, Section 17 of the West Virginia Constitution.

The subject statute “operates alike on all persons and property similarly situated,” that is,

on all small municipalities under 2,000 population. In other words, up to the statutory limit,

any municipality meeting the population and project criteria, is eligible for designation as

a TDD. As above, while the limitation of five designated development districts is small,

such a limitation is within the discretion of the Legislature.

As we have determined, this Act relates to economic rights. The legislature

is vested with a wide discretion in determining whatever economic policy may be deemed

to promote the public welfare. The courts are of limited power to override such

determinations provided the “laws passed bear a reasonable relationship to the legislative

purpose and are neither arbitrary nor discriminatory.” Hartsock-Flesher Candy Co. v.

Wheeling Wholesale Grocery Co., 174 W. Va. 538, 542, 328 S.E.2d 144, 148 (1984). A

legislative act will satisfy equal protection so as long as the classes created are “rational,”

“based on social, economic, historic or geographic factors,” and “bear[] a reasonable

15 relationship to a proper governmental purpose.” Syl. Pt. 4, Gibson v. W. Va. Dep't of

Highways, 185 W. Va. 214, 406 S.E.2d 440 (1991). “ Equal protection of the law is

implicated when a classification treats similarly situated persons in a disadvantageous

manner.” Syl. Pt. 2, Israel v. W. Va. Secondary Sch. Activities Comm'n, 182 W. Va. 454,

388 S.E.2d 480 (1989). Nothing in West Virginia Code § 5B-1-9 has implicated different

or unequal treatment to those similarly situated. While the class may be narrow, it is indeed

tailored to address the narrow issue the Legislature desired to address. Therefore, we

conclude the circuit court was correct. The Act is rationally related to achieve the proper

governmental purpose in satisfaction of equal protection afforded under the laws of this

state.

C. SELF-RULE

Next, we turn to the Petitioners’ assignment that the Act infringes upon the

constitutional rights of Harpers Ferry residents to regulate and control a significant portion

of the town by transferring dominion of that district to a private entity. Petitioners allege

the Hill Top project contains dangerous materials, yet the Act precludes Harpers Ferry from

taking action to prevent serious harm or even investigating the facts to understand the

associated risks. Further, Petitioners argue that the Act impairs their right to the beauty and

heritage that the town offers in violation of Article III, §§ 1 and 3 of the West Virginia

Constitution. We find no merit in this assignment.

16 The Act transfers the regulation of approved TDDs from the towns where

they are located to the Department. The Department is responsible for considering and

approving a developer's TDD application. West Virginia Code § 5B-1-9(d). It is also

responsible for executing the agreements that will govern the TDDs construction and

operation. Id. The agreement establishes the process whereby the Department will

"monitor[] on-going compliance" with the TDD's obligations. W. Va. Code R. § 145-16-

9.2.4. This transfer of authority to the Department does not deprive Plaintiffs of any

guaranteed right to self-rule. A right to "self-rule" appears nowhere in the text of the West

Virginia Constitution. Instead, precedent is clear: "[m]unicipalities have no inherent

power;" they "depend[] solely upon grants of power" from "the Legislature." Syl. Pt. 1,

State ex rel. Plymale v. City of Huntington, 147 W. Va. 728, 131 S.E.2d 160 (1963). The

"Legislature may at any time modify, change or withdraw any power" "granted by general

law" to municipalities. Syl. Pt. 3, Cooper v. City of Charleston, 218 W. Va. 279, 624 S.E.2d

716 (2005). Nothing prevents the Legislature from creating general legislation transferring

certain authority over areas within a municipality's geographic limits to various state

agencies.

D. RIGHT TO VOTE

Lastly, Petitioners maintain that by exempting Hill Top project from

municipal regulation, the Act substantially dilutes Petitioners’ “right to vote” in municipal

elections, as guaranteed by Article IV, § 1 of the West Virginia Constitution. While

17 residents can still vote in municipal elections, the Petitioners argue the Act diminishes the

effectiveness of such voting rights because the development will be immune from

municipal control which undermines the one-person, one-vote principle. We find this

concern to be unfounded. Based on a plain reading of the Act, it does nothing which would

contravene anyone's right to vote. Such an action taken by the Legislature does not

implicate Petitioners’ right to vote in municipal elections. As to the effectiveness of such

vote, it is abundantly clear that nothing prevents the Legislature from removing a

municipality’s ordinance enforcement when a general act of the Legislature supersedes

such application. See SWN Production Company, LLC v. City of Weirton, 249 W. Va. 372,

895 S.E.2d 227 (Ct. App. 2023).

IV. CONCLUSION

For the foregoing reasons, the March 29, 2023, Order of the Circuit Court of

Kanawha County is hereby affirmed.

Affirmed.