Doering v. City of Ronceverte

Decision Date20 January 2011
Docket NumberNo. 35553.,35553.
CourtWest Virginia Supreme Court
PartiesRobert A. DOERING, et al., Petitioners Below, Appellants v. CITY OF RONCEVERTE and County Commission of Greenbrier County, Respondents Below, Appellees.andWest Virginia Farm Properties, LLC, Intervenor Below, Appellee.
OPINION TEXT STARTS HERE
Syllabus by the Court

1. “Where the issue on 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).

2. “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 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. 5, Findley v. State Farm Mutual Automobile Insurance Company, 213 W.Va. 80, 576 S.E.2d 807 (2002).

3. “When a statute is clear and unambiguous and the legislative intent is plain, the statute should not be interpreted by the courts, and in such case it is the duty of the courts not to construe but to apply the statute.” Syl. pt. 5, State v. General Daniel Morgan Post No. 548, 144 W.Va. 137, 107 S.E.2d 353 (1959).

4. Where voters and freeholders seek municipal annexation of a tract of land and a public roadway which connects the tract to the municipality, W.Va.Code, 8–6–4 [2001] (providing for “annexation without an election”), requires that freeholders, who own the fee in or underneath the public roadway to be annexed, are to be included in determining whether the annexation petition was filed by a “majority of the qualified voters of the additional territory” and a “majority of all freeholders of the additional territory.”

5. This Court will not pass on a nonjurisdictional question which has not been decided by the trial court in the first instance.” Syl. pt. 2, Sands v. Security Trust Company, 143 W.Va. 522, 102 S.E.2d 733 (1958).

William D. Turner, Esq., Pyles & Turner, Lewisburg, WV, for Appellants Robert A. Doering, et al.

Aaron C. Ambler, Esq., Ambler & Dotson, Lewisburg, WV, for Appellee City of Ronceverte.

Jesse O. Guills, Jr., Esq., Law Office of Jesse O. Guills, Jr., Lewisburg, WV, for Appellee West Virginia Farm Properties, LLC.KETCHUM, Justice:

The appellants, Robert A. Doering, et al., voters and freeholders within or near the City of Ronceverte, West Virginia, appeal from the August 24, 2009, and October 16, 2009, orders of the Circuit Court of Greenbrier County, holding that they lack standing to challenge City of Ronceverte Ordinance no.2009–01 annexing a tract of land consisting of approximately 295 acres known as the Stoney Glen Subdivision. The Subdivision is located four miles south of the City. To facilitate access to the Subdivision, the Ordinance also annexed three intervening roadways. The appellants are separated into two groups: (1) those living within the City prior to the annexation, known as the Ronceverte Group and (2) those living in the unincorporated Organ Cave community near the Subdivision, known as the Organ Cave Group. In the proceedings below, the appellants sought injunctive relief and an order invalidating the Ordinance.

The City of Ronceverte and West Virginia Farm Properties, LLC, the Virginia-based development company of the Stoney Glen Subdivision, ask this Court to affirm the August 24, 2009, and October 16, 2009, orders which dismissed the action. Although named as a party defendant and appellee, the County Commission of Greenbrier County has taken no position in this litigation.1

Upon review of the argument and briefs of counsel, and a careful examination of the record, this Court is of the opinion that the dismissal of the action for lack of standing constitutes reversible error. As discussed below, this Court concludes that standing to file the action existed because certain appellants in the Organ Cave Group are voters and freeholders of the annexed territory yet were unlawfully excluded from the annexation process in violation of the controlling statute, W.Va.Code, 8–6–4 [2001]. As a result of the exclusion, fatal to the annexation ordinance under the facts herein, the petitions for annexation and Ordinance no.2009–01 were void ab initio.

Consequently, although new petitions and an ordinance for the annexation of the territory in question are not precluded, a remand of this action, which solely concerns City of Ronceverte Ordinance no.2009–01, is unnecessary.

I.Factual Background

By petitions dated September 22, 2008, and December 30, 2008, West Virginia Farm Properties, LLC, a Virginia-based real estate development company, petitioned the City of Ronceverte to annex a 293 acre tract known as the Stoney Glen Subdivision four miles south of the City and a 0.04 acre water pump station two miles south of the City. By separate petition dated September 22, 2008, James L. and Michelle H. Bayless, Jr., living in Japan, petitioned the City to annex their 1.95 acre lot located within the Subdivision. The Baylesses were freeholders of the only lot sold in the ongoing development of the Subdivision. None of the petitions expressly referred to the three intervening roads connecting the City of Ronceverte and the Stoney Glen Subdivision, although the public notice of the proposed annexation included the roads.

During the time-frame of this matter, West Virginia Code, chapter 8, article 6, addressing municipal annexation, provided three methods for a city to annex territory: (1) W.Va.Code, 8–6–2 [2003], requiring an election by voters; (2) W.Va.Code, 8–6–4 [2001], the method employed by West Virginia Farm Properties and the Baylesses in this action, authorizing annexation without an election; and (3) W.Va.Code, 8–6–5 [2001], providing for annexation by minor boundary adjustment. In re Petition of the City of Beckley, 194 W.Va. 423, 426, 460 S.E.2d 669, 672 (1995).

As W.Va.Code, 8–6–4 [2001], concerning “annexation without an election” states, in part:

(a) The governing body of a municipality may, by ordinance, provide for the annexation of additional territory without ordering a vote on the question if: (1) A majority of the qualified voters of the additional territory file with the governing body a petition to be annexed; and (2) a majority of all freeholders of the additional territory, whether they reside or have a place of business therein or not, file with the governing body a petition to be annexed.

(b) For purposes of this section, the term “qualified voter of the additional territory” includes firms and corporations in the additional territory regardless of whether the firm or corporation is a freeholder. * * *

(c) The determination that the requisite number of petitioners have filed the required petitions shall be reviewable by the circuit court of the county in which the municipality or the major portion of the territory thereof, including the area proposed to be annexed is located.

Following a public hearing, the Ronceverte City Counsel, on March 23, 2009, adopted Ordinance no.2009–01 annexing the Stoney Glen Subdivision which consisted of the 293 acres owned by West Virginia Farm Properties and the 1.95 acre lot owned by James L. and Michelle H. Bayless, Jr. Also annexed was the 0.04 acres owned by West Virginia Farm Properties located two miles south of Ronceverte. The Ordinance noted that the Stoney Glen Subdivision is four miles south of Ronceverte.

In addition, the Ordinance stated that the territory to be annexed “requires the annexation of West Virginia Division of Highways roadway to be contiguous to the City of Ronceverte and for access to the Stoney Glen subdivision.” Accordingly, portions of the following roadways between the City of Ronceverte and the Subdivision were annexed: (1) U.S. Highway 219, (2) Morgan Hollow Road—Route 65, and (3) Hokes Mill Road—Route 62.

On July 14, 2009, the County Commission of Greenbrier County approved and confirmed Ordinance no.2009–01. See, W.Va.Code, 8–6–3 [1969], and W.Va.Code, 8–6–4(g) [2001] (providing for the approval and confirmation by a county commission of a municipal annexation ordinance).2

II.Procedural Background

On July 15, 2009, the Organ Cave Group of appellants, residing along U.S. Highway 219, Morgan Hollow Road and Hokes Mill Road, near the Subdivision, filed an action in the Circuit Court of Greenbrier County, seeking injunctive relief and an order invalidating Ordinance no.2009–01. Leave was subsequently granted by the Circuit Court to join additional appellants, including the Ronceverte Group. The appellants alleged, inter alia, that the Ordinance is invalid because: (1) those appellants who are voters and freeholders within the annexed territory were unlawfully excluded from the “annexation without an election” process provided under W.Va.Code, 8–6–4 [2001], and (2) the annexation of a subdivision four miles away from the City violates the “contiguous” requirement set forth in W.Va.Code, 8–6–1(a) [2001].

Specifically, the appellants alleged that the City of Ronceverte violated W.Va.Code, 8–6–4(a) [2001], by failing to properly calculate the pool from which a majority of qualified voters, and a majority of all freeholders, of the additional territory are to be counted for purposes of annexation without an election. As the appellants alleged:

[T]here are multiple property owners, including several of [the appellants], who own the right of way beneath and/or alongside the pavement, whose property has been annexed by Ordinance # 2009–01, who oppose the annexation petition and unlawfully were not included in the calculation of a “majority of the qualified voters ... and a...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT