Posted by: Patricia Salkin | February 3, 2009

W. Va. Supreme Court Invalidates Zoning Ordinance Not Adopted Pursuant to Comprehensive Plan

In a case hinging on statutory interpretation, the West Virginia Supreme Court traces the legislative history of the planning and zoning enabling acts in the State from the initial enactment in 1931 with changes made in 1959, 1969, 1973 and 2004 with respect to the requirements related to the comprehensive plan and zoning.

 

In 1972 the Town adopted a planning and zoning ordinance authorizing the designation of certain areas as “Conservation Open Space (COS),” with limited types of uses allowed in these districts. In 2006, the appellant sought to develop his land located in COS District and his request for a variance was denied.  He then sought a declaratory judgment that the 1972 zoning ordinance was invalid on the grounds that when the Town adopted the ordinance, it had not previously adopted a comprehensive plan and that under the applicable statutes, a comprehensive plan was a prerequisite to the adoption of a valid zoning ordinance. After reviewing the various relevant statutory provisions and their legislative history, the Court concluded that both 1931 and 2004 versions clearly require the adoption of a comprehensive plan before a municipality may exercise its zoning powers, and that the 1959 and 1969 versions refer to a comprehensive plan with respect to zoning but the mandatory precondition language found in the 1931 and 2004 versions was not present. Further, the Court noted that the 1959, 1969 and 2004 versions do contain mandatory statutory language when discussing the regulation of subdivisions.

                      

In reviewing the history of the importance of the comprehensive plan, the Court noted that it was described in one case as “an integral part of the enactment of zoning,” see, Harrison v. Town of Eleanor, 191 W.Va. 611, 618 (1994), and after finding in another case that the “single most important tool for Plan implementation is the zoning ordinance, the Court concluded that “the comprehensive plan is merely the foundation for the control of future development and growth.”  See, Singer v Davenport, 164 W. Va. 665, 668 (1980). Combining this with a further examination of statutory language and a discussion of the general role of the comprehensive plan and zoning, the Court noted that to conclude that statutory amendments in 1959 and 1969 somehow removed the requirement that a comprehensive plan precede zoning would present an anomaly, and such was not the intent of the Legislature.  Therefore, since the Town’s 1972 zoning ordinance was not adopted pursuant to a comprehensive plan, the Court concluded it was not legally adopted under the 1969 statutory enactment, and accordingly invalidated the law and declared it unenforceable.  

 

Largent v. Zoning Board of Appeals for the Town of Paw Paw, 2008 WL 5192102 (W. Va. 12/10/2008).

 

The opinion can be accessed at: http://www.state.wv.us/wvsca/docs/fall08/33832.htm


Responses

  1. That seems like an exercise of the nuclear option to kill an annoying rodent.

    My first thought is, where does this action leave 35+ years of local zoning decisions?

    My second thought is, I hope that, while this case was under appeal, the community undertook a crash program to prepare and adopt an up-to-date comprehensive plan and new zoning ordinance….

    A very interesting case, in that the Court allowed the developer to reach back so far into the past to find a technicality. It’s another reminder to pay attention to the details!


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