Tony Coffman v. Nicholas County Commission

796 S.E.2d 591, 238 W. Va. 482, 2017 W. Va. LEXIS 63
West Virginia Supreme Court·Decided February 9, 2017·No. 15-1223·Published·Cited by 2 cases

Opinions

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.

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, Cheeks 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 Com[485]*485mission 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 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 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 Summers-ville 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 § 8-6-6 (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 [486]*486hearing 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 Sum-mersville, 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 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.

Free access — add to your briefcase to read the full text and ask questions with AI

Tony Coffman v. Nicholas County Commission, 796 S.E.2d 591, 238 W. Va. 482, 2017 W. Va. LEXIS 63 (W. Va. 2017).

796 S.E.2d 591 (Tony Coffman v. Nicholas County Commission) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related