STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

Susie M. Jenkins and Darrell Thomas, FILED 

Plaintiffs Below, Petitioners November 18, 2016 

RORY L. PERRY II, CLERK 

vs) No. 16-0059 (Fayette County 15-AA-2) SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

City of Oak Hill,
 

Defendant Below, Respondent
 

MEMORANDUM DECISION 

Petitioners Susie M. Jenkins and Darrell Thomas, by counsel E. Lavoyd Morgan, Jr., 

appeal the December 28, 2015, order of the Circuit Court of Fayette County affirming the 

Fayette County Commission’s (“Commission”) approval of the City of Oak Hill’s application for 

annexation, by minor boundary adjustment. Respondent City of Oak Hill, by counsel Robert L. 

Hogan and James V. Kelsh, filed a response in support of the circuit court’s order and a 

supplemental appendix. Petitioners filed a reply. Petitioners argue that the circuit court erred in 

approving the annexation by minor boundary adjustment as the amount of land to be annexed 

was not minor in size. Further, petitioners contend that the circuit court erred in finding that the 

Commission validly exercised its authority in approving the application for annexation over the 

objection of the majority of the affected parties. 

This Court has considered the parties’ briefs and the record on appeal. The facts and legal 

arguments are adequately presented, and the decisional process would not be significantly aided 

by oral argument. Upon consideration of the standard of review, the briefs, and the record 

presented, we find that the circuit court did not err with respect to its approval of the City of Oak 

Hill’s application for annexation by minor boundary adjustment. For these reasons, a 

memorandum decision affirming the circuit court’s order is appropriate under Rule 21 of the 

Rules of Appellate Procedure. 

On December 12, 2014, the City of Oak Hill (“City”) filed, before the Commission, an 

application for annexation of 2,484 contiguous acres of land, including the entire Town of 

Minden.1 The City pursued the application for annexation as a request for a minor boundary 

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Minden is a small unincorporated town adjacent to the City in Fayette County’s Plateau 

District. Petitioners argue that the City consists of approximately 4.89 square miles, or 3,129 

acres. The proposed additional territory the City sought to annex was approximately 3.88 miles, 

or 2,484 acres. 

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adjustment under West Virginia Code § 8-6-5.2 On December 19, 2014, the Commission found 

that the City’s application met the statutory requirements and set the matter for public hearing. 

On January 30, 2015, a public hearing was held. During the hearing, the comments of 

seven individuals supporting the annexation were heard, along with the statements of fifteen 

residents in the affected area opposing the annexation. In addition, a “document in opposition to 

the Application” with 873 signatures was presented to the Commission.3 On February 10, 2015, 

the Commission held a special meeting to consider the City’s application. Following the 

meeting, by order dated March 13, 2015, the Commission unanimously granted the City’s 

application for annexation by minor boundary adjustment. 

In July of 2015, petitioners appealed the Commission’s order to the Circuit Court of 

Fayette County. In their appeal, petitioners argued that the annexation was improperly pursed as 

a “minor boundary adjustment” because the area to be annexed was too large to be considered 

minor. Petitioners further argued that the Commission did not give proper weight to the 

“opposition of the overwhelming majority of the freeholders in the proposed additional 

territory.” The City responded in support of the Commission’s order and argued that the 

Commission had broad discretion to determine the geographic extent of the minor boundary 

adjustment and that opposition to the annexation was not dispositive, but was only one of the 

many factors to be considered by the Commission. 

A hearing was held on petitioners’ appeal before the circuit court on September 14, 2015. 

By order entered December 28, 2015, the circuit court affirmed the Commission’s ruling and 

dismissed petitioners’ appeal. In support of its findings, the circuit court cited In re the Petition 

of the City of Beckley, 194 W.Va. 423, 430, 460 S.E.2d 669, 676 (1996), in which this Court 

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The City’s annexation application was allegedly necessitated by the need to repair and 

improve the City’s wastewater treatment system. In 2014, the City applied for funding to make 

necessary repairs to its wastewater treatment facility. During that same time frame, the Arbuckle 

Public Service District’s (“PSD”) wastewater treatment facility, which provided service to the 

Town of Minden, was also in disrepair and required substantial improvements. When the City 

sought funding for its wastewater treatment improvement project, the West Virginia 

Infrastructure & Jobs Development Council (“IJDC”) consolidated the City’s request with a 

similar request it had received from the Arbuckle PSD. The IJDC supported a plan whereby the 

City would acquire the Arbuckle PSD’s assets and assume responsibility for its customers. 

However, the City would only assume responsibility for the Arbuckle PSD if its acquisition of 

the PSD’s assets provided “a reasonable balance of costs and benefits to the citizens of Oak Hill. 

Annexation of the Minden area is a condition for Oak Hill to acquire the [PSD’s] assets.” 

Without annexation and the City’s contingent agreement to assume responsibility for the 

Arbuckle PSD, “local citizens and others downstream from [the PSD would be] subject to an 

ongoing, growing health risk from untreated or inadequately treated wastewater.” 

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Respondent alleges that this document is misleading. The document is not part of the 

record herein, but was described by respondent as being an “unsworn document” which 

contained only a limited number of signatures of persons who actually resided in the area to be 

annexed. 

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noted that a county commission considering “annexation through a minor boundary adjustment is 

authorized to act without any specific guidelines . . . as to what shall be deemed a minor 

boundary adjustment.” (Citation omitted). Accordingly, the number of acres to be annexed did 

not render the Commission’s annexation process or determination invalid. Further, the circuit 

court noted that the existence of opposition to annexation was simply one of the multiple factors 

to be considered by the Commission and the mere presence of opposition would not preclude the 

Commission from approving the application. It is from the circuit court’s December 28, 2015, 

order that petitioners now appeal. 

“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, Chyrstal R.M. v. 

Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995). On appeal, petitioners raise three 

assignments of error. First, petitioners contend that the circuit court erred in approving the City’s 

application for annexation by minor boundary adjustment because the area to be annexed was not 

“minor” in size and, as such, did not meet the threshold requirements for a “minor” boundary 

adjustment under West Virginia Code § 8-6-5.4 In their second and third assignments of error, 

petitioners argue that the circuit court erred in finding that the Commission “validly considered” 

the objections of the majority freeholders in the annexed area and the higher water and sewer 

rates and surcharges that would be charged to those in the affected area. 

In support of their first assignment of error, petitioners argue that with, the addition and 

placement of the term “minor” in West Virginia Code § 8-6-5, the Legislature intended to give 

county commissions the authority to grant boundary adjustments, that are “relatively small or of 

little consequence.”5 Conversely, the City argues that circuit court did not err in affirming the 

City’s application for annexation by minor boundary adjustment and cites In re the Petition of 

the City of Beckley. 

Based upon our review of the record herein, we agree with the City and find that the 

circuit court did not err. As we held in syllabus point six of City of Beckley, “[i]n general, a 

county commission enjoys a broad discretion in exercising its legislative powers in determining 

the geographic extent of a minor boundary adjustment sought by a municipality under W.Va. 

Code [§] 8-6-5 (1989), so long as a portion of the area to be annexed is contiguous to the 

municipality.” Id. 194 W.Va. at 430, 460 S.E.2d at 676 (1996)(emphasis added). 

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West Virginia Code § 8-6-5(a) provides that 

In the event a municipality desires to increase its corporate limits by making a 

minor boundary adjustment, the governing body of the municipality may apply to 

the county commission of the county where the municipality or the major portion 

of the territory thereof, including the territory to be annexed, is located for 

permission to effect annexation by minor boundary adjustment. . . . 

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In support of their argument, petitioners acknowledge that the term “minor” in undefined 

within West Virginia Code § 8-6-5, but argue that including a definition of the same was 

unnecessary as “minor” is a common word with a common meaning. 

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In the case sub judice, there is no dispute that a portion of the area to be annexed is 

contiguous to the City. Accordingly, based upon our holding in In re the Petition of the City of 

Beckley, we find no error with the circuit court’s affirmation of the Commission’s granting of the 

City’s application for annexation by minor boundary adjustment. 

In their second and third assignments of error, petitioners contend that the circuit court 

erred in finding that the Commission validly considered the objections of the affected parties in 

granting the City’s application for annexation, including the fact that water and sewer rates of 

those in the affected area would likely increase. 6 West Virginia Code § 8-6-5(f) requires that 

In making its final decision on an application for annexation by minor boundary 

adjustment, the county commission shall, at a minimum, consider the following 

factors: (1) Whether the territory proposed for annexation is contiguous to the 

corporate limits of the municipality . . . ; (2) Whether the proposed annexation is 

limited solely to a division of highways right-of-way or whether the division of 

highways holds title to the property in fee; (3) Whether affected parties of the 

territory to be annexed oppose or support the proposed annexation . . . ; (4) 

Whether the proposed annexation consists of a street or highway . . . and one or 

more freeholders; (5) Whether the proposed annexation consists of a street or 

highway . . . which does not include a free holder but which is necessary for the 

provision of emergency services in the territory being annexed; (6) Whether 

another municipality has made application to annex the same or substantially the 

same territory; and (7) Whether the proposed annexation is in the best interest of 

the county as a whole. 

Petitioners argue that the Commission failed to consider the extent of the opposition of 

the affected residents and, in doing so, “willingly ignored the intent of the Legislature.” 

Respondents argue that the Commission’s consideration of the opposition to the annexation was 

appropriate and fully comported with West Virginia Code § 8-6-5(f). Based upon our review of 

the record herein, we agree with respondent and find no error in the circuit court’s affirmation of 

the Commission’s approval of the City’s application for annexation. The record herein plainly 

reflects that the Commission heard and considered statements of those opponents who appeared 

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Petitioners allege that the Commission failed to consider the higher water and sewer 

rates of those in the affected areas following annexation. However, the circuit court, in 

consideration of petitioners’ arguments, ruled, and we agree, that the 

Commission was cognizant that its approval of the requested annexation and [the 

City’s] agreement to assume responsibility for the [Arbuckle PSD] were 

intertwined, and that improvements to the [PSD] may and likely would result in 

increased water and sewer rates. However, the potential for increased water and 

sewer bills does not invalidate the Commission’s process of evaluating and 

approving the subject annexation because the Commission considered these 

concerns, no rate change has been requested, and the authority to approve or 

disapprove of the same lies within the [domain of] the Public Service 

Commission. 

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at the January 30, 3015, public hearing and took into consideration the best interests of Fayette 

County as a whole in rendering its decision on the City’s application, as required by West 

Virginia Code § 8-6-5(f).7 

For the foregoing reasons, we affirm the Circuit Court’s December 28, 2015, order. 

Affirmed. 

ISSUED: November 18, 2016 

CONCURRED IN BY: 

Chief Justice Menis E. Ketchum 

Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Allen H. Loughry II 

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We note, in particular, the Commission’s findings with respect to the inadequacy of the 

wastewater treatment facilities of both the City and the Arbuckle PSD and acknowledge the 

Commission’s consideration of the potentially catastrophic consequences of inadequate 

wastewater treatment facilities on this region and the health of its citizens. 

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