1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

City of Winfield

, P etitioner Below, Petitioner

vs. ) No. 2 1

- 0 0 86 ( P utnam County 1 5

- P

- 77 )

Putnam County Commission

, Respondent Below, Respondent



### MEMORANDUM DECISION

Petitione r City of Winfield (“Winfield”) , by counsel Timothy J. LaFon , appeal s the Circuit

Court of P utnam County’s January 8 , 202 1

, order denying Winfield’s writ of error associated with its petition for annexation by minor boundary adjustment

. Respondent Putnam County

Commission (“PCC”)

, by counsel Larry Frye , filed a response in support of the circuit court’s

order . Petitioner filed a reply.

This Court ha s 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 t he record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 of the Rules of Appellate Procedure.

In late April of 2015, Winfield filed with the PCC (pursuant to West Virginia Code § 8

- 6

- 5 ) 1 a petition for a nnexation by m inor b oundary a djustment requesting that two tracts of land b e added int o the corporate limits of City of W infield. The first tract was described as 193 +/

- acres of territory. The second tract was described as 30 +/

- acres. The property tracts were reported to

1 West Virginia Code § 8

- 6

- 5(a)(2001) provides, in pertinent part, that

[ i ] n 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 wherein the municipality . . . is located for permission to effect annexation by minor boundary adjustment. 

### FILED August 30, 2022

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 be contiguous with the City of Winfield and “enjoy the benefits of the infrastructure ” Winfield has

“ invested within the [c] it y limits

. ”

Following appropriate notice and publication, a hearing on Winfield’s petition for

annexation was c ompleted before the PCC on July 30, 2015. 2 During the hearing, Winfield ’s

mayor testified that citizens residing inside the Winfield c ity limits were paying a utility tax that those outside the territory do not pay. Further, the m ayor noted that businesses inside the Winfield

c ity limits were paying t axes to support the area and services that were utilized by those outside

c ity limits

, i ncluding those in the tracts identified to be annexed . The m ayor also advised that

Winfield currently provides sewer and water service to the proposed annexed territory, as well as financial support for local volunteer fire departments. When the hearing wa s opened for public comments, fifteen people spoke about the annexation, with four speaking in favor of the annexation and eleven against. Additionally

, the PCC noted that it had received communications from six individuals, all opposing the annexation.

By order entered on October 11, 2015, the PCC denied Winfield’s petition for annexation

. In its order , the PCC found, in part, that annexation was improper as “an overwhelming majority of the ‘affected p arties’ residing either in the Winfield City limits or in the proposed territory opposed the annexation.” The PCC further ruled that the proposed annexation was “not in the best interest of Putnam County as a whole.” In addition to the order denying the pe tition of annexation,

the PCC filed a “Certification of Facts,” which Winfield describes as an effort to create a record from the unrecorded July 30, 2015, hearing. 3

Thereafter, in November of 2015, Winfield filed, in the circuit court of Putnam County, a

p etition for w rit of e rror challenging the PCC’s denial of the petition for annexation by minor boundary adjustment. In its petition, Winfield argued that the PCC erred in failing to support its findings of fact and conclusions of law by substantial evi dence; erred in failing to support its finding that a territory opposed annexation; erred in concluding that the proposed annexation was not in the best interests of Putnam County as a whole; erred in concluding that the proposed

annexed area did not const itute a minor boundary adjustment; and erred by failing to provide findings of fact and conclusions of law in its decision to enable appellate review.

The parties submitted briefs and the court heard arguments as to th e parties’ position s regarding how t he matter should proceed, given that there was no recording of the July 30, 2015, hearing. On February 27, 2018, the circuit court entered an order remanding the case back to the

PCC for an evidentiary hearing regarding the proposed annexation and further directed “that the hearing be recorded and transcribed.”

2 D espite the PCC ’s representation that said hearing was being recorded , the hearing was not actually recorded

.

3 West Virginia Code § 58

- 3

- 4, provides, in pertinent part, that the record for appeals from rulings by c ommissions, such as respondent, may include a certificate of facts, made by

c ommissioners, or a majority of them, when the proceeding before the c ommission “was not

stenograp hically reported and preserved [

. ] ”3 On January 31, 2019, a second hearing on Winfield’s proposed annexation was held before the PCC and included testimony by Winfield’s m ayor similar to the testimony offered by the mayor at the initial hearing . During the second hearing, the PCC heard from eighteen individuals, ten of which spoke in opposition to the annexation. Additionally, a document, bearing the signature o f thirty

- seven people and entitled “the undersigned live or have a business in the a rea that is to be annexed by the [City] of Winfield, we do not support the attempt to put us inside the city limits” was entered into the record during the hearing

.

Follow ing the second hearing, on February 12, 2019, the PCC entered an order denying the petition for annexation addressing each of the factors outlined in West Virginia Code § 8

- 6

- 5( f )

. 4 Thereafter, Winfield filed a motion for a status conference in the previously filed circuit

court case , once again advancing a petition for writ of error as to the PCC’s denial of Winfield’s petition for annexation by minor boundary adjustment . After briefing and oral arguments were completed in circuit court , a hearing w as held by the court on January 9, 2020. By order entered on January 8, 2021, the court denied Winfield ’s writ of error. In its order, the circuit court found

4 West Virginia Code ⸹ 8

- 6

- 5(f) states that

[i]n 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 limi ts of the municipality. . . .

(2) Whether the proposed annexation is limited solely to a

D ivision of H ighways right

- of

- way or whether the D ivision

of H ighways holds title to the property in fee;

(3) Whether affected parties of the territory to be anne xed 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 inc lude a freeholder

, 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 a nnexation is in the best interest of the county as a whole.4 that because the PCC’s February 12, 2019, order sets forth the commission’s findings as to each

r equired element to be considered, the order was sufficient to meet the statutory requirements under West Virginia Code § 8

- 6

- 5(f). Specially, the circuit court noted that not only did the PCC “address each of the statutory requirements in its final order, according to the audio recording of the hearing held before it, the [commission] addressed each of the statutory requirements in person during the hearing.” It is from the circuit court’s January 8, 2021, order that Winfield appeals.

First, we generally note that this Court has recognized that “[i]f we are to be faithful to the underlying concept that annexation is essentially a legislative matter than has been delegated to

the [county ] commission [s] , then the courts may not intrude un less the process is either

unconstitutional or invalid.” Coffman v. Nicholas County Commission , 238 W. Va. 482, 493, 796

S.E.2d 591 , 602 (2017) (quoting In re the Petition of the City of Beckley , 194 W. Va. 4 23, 430, 460 S.E.2d 669, 67 6 (1995) )

. In S yllabus P oint three of Coffman , we have held that

[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. C ode § 8

- 6

- 5 [(2001) (Repl. Vol. 2012)], so long as a portion of the area to be annexed is contiguous to the municipality.

238 W. Va. at 48 3 , 796 S.E.2d at 5 93 (citation omitted)

.

Before this Court, Winfield raises six assignment s of error . In its first three assignments of error, which Winfield addresse s together in its petition for appeal, it contends that the circuit court erred by affirming the PCC’s denial of the proposed annexation because the PCC’s ruling was not supported by “substa ntial evidence,” was not in the best interests of Putnam County as a whole

,

an d was not opposed by a majority of the affected parties residing within the city limits or proposed territory. However, our review of the record belies Winfield’s arguments in th is regard. Here, the

circuit court had before it the detailed record from the proceedings before the PCC, which includ ed

the exhibits introduced and the testimony presented during the hearing which support the court’s findings that the PCC’s order was sufficient to meet the statutory requirements under West Virginia Code § 8

- 6

- 5(f) and represent s an appropriate exercise of PCC’s discretion. Accordingly,

we find no error.

In its fourth assignment of error, Winfield , focusing on rem arks made by the PCC during the second hearing, contends that the PCC’s denial of the petition for annexation was predicated on the fact that the proposed annexed area, approximately 223 acres, was so large that it did not constitute a minor boundary adjus tment. In support of its argument as to this issue, consisting of only one brief paragraph of three sentences, Winfield states that the area to be annexed is not too large as to be considered a minor boundary adjustment as this Court has recognized minor

b oundary adjustments in cases involving larger geographic areas. Conversely, the PCC notes, and

we concur , that the size of the proposed annexation was not a factor in the commission’s denial of the minor boundary adjustment. Here

, the size of the proposed annex was not in dispute. Below,

the PCC denied Winfield’s annexation request not because the area at issue was too large or too small to be considered a minor boundary adjustment but because Winfield did not meet each of

the seven factors set forth in Wes t Virginia Code § 8

- 6

- 5(f )

. As such, there is no error.5 As to its fifth assignment of error, Winfield contends that the PCC’s order entered in February of 2019, contained “no evidence recited therein that would support its conclusion” and that the circuit court erred in finding that the PCC’s order was sufficient. We disagree. West Virginia Code § 8-6- 5(h) states simply that “ the final order of the commission shall include the

reasons for the grant or denial of the application ” for annexation by minor boundary adjustment.

In Coffman , this Court addressed a similar argument and found that while the order at issue therein did not go into great detail or lengthy analysis, said order was proper as it met the

minimum requirements of the statu tory scheme ( West Virginia Code § 8-6-5). Coffman 238 W. Va. at 493, 796 S.E.2d at 60 2 . Here, there is no dispute that the PCC’s order at issue addresses

each of the minimum requirements of West Virginia Code § 8-6-5. Accordingly, we find no error.

T his Court will not substitute its judgment regarding the factors in West Virginia Code § 8-6-5 , or the final decision of the PCC

.

In its final assignment of error, Winfield suggests that its due process rights w ere denied as the testimony of its witnesses at the hearing before the commission in January of 2019, was limited to only three min utes per witness. Winfield suggests that the limitation was “indicative of the [commission’s] predisposition towards denial” of the annexation and was improper. We disagree. A review of the transcript from the hearing in January of 2019, establishes that Winfield was given an opportunity to be heard in a meaningful manner and was not denied due process. Further, the record suggests that the time limitations as to each witness were not strictly enforced and Winfield was permitted to present all its witnesses. As the circuit court noted in its January 8, 2021, order, w hile the witnesses’ presentations may have been brief, they were “sufficient for the [commission] to fully consider the relevant issues to reach a proper conclusion.” We further note

that there is no record of any objection by Winfield’s counsel of the time restrictions that it now

claims were i mproper . “‘Our general rule is that nonjurisdictional questions . . . raised for the first time on appeal, will not be considered.’ Shaffer v. Acme Limestone Co., Inc. , 206 W.Va. 333, 349 n.20, 524 S.E.2d 688, 704 n.20 (1999).” Noble v. W. Va. Dep’t of Motor Vehicles , 223 W. Va. 818, 821, 679 S.E.2d 650, 653 (2009). Therefore, this argument will not be considered on appeal.

For the foregoing reason s , we affirm the Circuit Court of Putnam County’s January 8, 2021

, order denying Winfield’s writ of error.

Affirmed.

ISSUED: 

### August 30, 2022

CONCURRED IN BY:

Chief Justice John A. Hutchison

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice William R. Wooton Justice C. Haley Bunn