Posted by: Patricia Salkin | March 5, 2019

WVA Appeals Court Dodges Question of Whether County Property Located in City is Subject to City Zoning Regulation Citing Lack of Justicability

This post was authored by Matthew Loeser, Esq.


The County filed suit in the Circuit Court of Berkeley County against the City seeking declaratory judgment that various properties located within the City limits, but owned by the County, were not subject to the City’s zoning ordinances. The complaint listed twelve properties owned by the Berkeley County Council and six properties owned by the Berkeley County Building Commission. The City filed a motion to dismiss or for summary judgment, contending that its authority to enact land use regulations extends to all land within its jurisdiction pursuant to West Virginia Code § 8A-7-1(a)(3), and, that under West Virginia Code § 8A-10-3(a), the enacting body may enjoin “a person or a unit of government” from violating the enacted land use ordinances. The circuit court denied the City’s motion, and granted summary judgment in favor of the County, holding that “the City has no inherent power to adopt a zoning ordinance that affects the properties of governmental entities, and that it is well-established law in West Virginia that the County is afforded the power to purchase or lease real estate for the purpose of constructing or maintaining a courthouse, hospitals, jails, and other public buildings.”

On appeal, the court found that the complaint did not allege any proposed or potential project that might implicate an analysis of the County’s apparent authority to acquire real estate as it related to the City’s apparent authority to zone land within its jurisdiction. Furthermore, there had been no legal right claimed by the County to acquire particular real estate for or to construct a particular type of public building, or any other building. Thus, there had been no rights denied by the City based on one or more of its zoning ordinances. The court therefore vacated the order of the Circuit Court of Berkeley County.

City of Martinsburg v. Berkeley County Council, 825 S.E.2d 332 (WV App. 2019)

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s


%d bloggers like this: