Supreme Court tosses out Paw Paw zoning
The West Virginia Supreme Court ruled on December 10 that the Town of Paw Paw's zoning ordinance is invalid.
The decision was a victory for Donald E. Largent, who sought to develop a 70-acre tract on the edge of Paw Paw.
The major reason given in the opinion written by Justice Brent Benjamin is that the town did not have a comprehensive plan when the Paw Paw Council adopted the zoning ordinance in 1972.
History of the case
The Supreme Court ruling came about because of Largent's appeal of a decision by Circuit Judge Gina Groh in a lawsuit last year.
Largent's lawsuit was filed in 2006 against the Town of Paw Paw and the town's Zoning Board of Appeals.
He brought suit after the Paw Paw Zoning Board refused to rezone his 70 acres from conservation to residential and commercial so he could develop it.
Attorney Michael L. Scales of Martinsburg represented Largent in both the original case in Morgan County Circuit Court and the appeal to the State Supreme Court.
From the start, Scales' legal argument was that the Paw Paw ordinance
was adopted in 1972 without a comprehensive plan in place, as required by state law.
Paw Paw officials were unable to produce a copy of their plan when Largent requested one. Instead they gave him a copy of a regional economic development report, Scales told The Morgan Messenger earlier this year.
In June 2007, Judge Groh ruled in favor of the Town of Paw Paw, saying essentially that the town's zoning law was grandfathered in because no comprehensive plan was necessary at the time it was adopted by council.
Complicated law changes
Most of Justice Benjamin's 8-page opinion is a discussion of what the State Code required at various times since the West Virginia Legislature passed the first planning and zoning law in 1931.
The original 1931 law required a comprehensive plan before a municipality could adopt a local zoning law.
When land use laws were rewritten in 1959, a comprehensive land use plan became a precondition before counties could adopt subdivision regulations, but nothing was specifically said about its relation to zoning.
The requirement that a comprehensive plan come before a zoning ordinance was restated as part of a 1973 rewriting of planning codes, according to Justice Benjamin.
Since 2004, a comprehensive plan has been required before zoning can be adopted by a locality and the plan must be updated at least every 10 years.
In sorting this out, Justice Benjamin noted that planning is a broader concept than zoning, which is concerned with how a property is used.
Zoning is part of an end result or product of planning, since it is through the medium of zoning regulations that the gains and objectives of planning may be carried to fruition, the justice wrote.
He also noted that a comprehensive plan is a policy statement, but lacks the force and effect of laws such as zoning ordinances.
These arguments and the wording of the various land use laws led Justice Benjamin to conclude that a comprehensive plan is necessary before a zoning law can be instituted. Otherwise, a local zoning ordinance would not have a wide view of a community's land use and would not be able to regulate subdivisions.
Justice Benjamin was joined by Judge Larry Starcher in overturning the Paw Paw zoning ordinance. Other justices did not participate.