No. 15-1223 – Tony Coffman, Robert Marsh, Mary Marsh, James Marsh,                 FILED
and Marilyn Marsh v. Nicholas County Commission, et al.
                                                                              February 9, 2017
                                                                                  released at 3:00 p.m.
                                                                                RORY L. PERRY II, CLERK
                                                                              SUPREME COURT OF APPEALS
Justice Ketchum dissenting:                                                        OF WEST VIRGINIA 


             I disagree with the majority’s conclusion that the annexed property is

“contiguous” with the city limits of Summerville.

             The city council petitioned to annex the subject property pursuant to W.Va.

Code § 8-6-5 [2001]. West Virginia Code 8-6-5(f)(1) provides:

             (f) 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. For
             purposes of this section, “contiguous” means that at the time
             the application for annexation is submitted, the territory
             proposed for annexation either abuts directly on the municipal
             boundary or is separated from the municipal boundary by an
             unincorporated street or highway, or street or highway right-
             of-way, a creek or river, or the right-of-way of a railroad or
             other public service corporation, or lands owned by the state
             or the federal government;

             The annexed property was not truly contiguous with the city limits. No

residential or commercial property within the corporate limits of the city shares a

common boundary line with the annexed property. Nevertheless, in an attempt to remedy

this problem, the city’s petition used a “narrow private easement” to connect the annexed

property to the city limits. West Virginia Code 8-6-5(f)(1) defines “contiguous” for

purposes of annexation by minor boundary adjustment as requiring that the “territory



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proposed for annexation . . . abuts directly on the municipal boundary. . .” In the present

case, the annexed property does not “abut directly on the municipal boundary.”

              Therefore, I agree with the Petitioners that the use of the “narrow private

easement” to satisfy the contiguous requirement creates an “outrageous geographical

result” that defies common sense and is unreasonable and arbitrary. See In re Petition of

the City of Beckley, 194 W.Va. 423, 430, 460 S.E.2d 669, 676 (1995) (“Common sense

would dictate that the municipality would not undertake a burdensome obligation to

supply services to the annexed area by extending them at great length along a narrow

strip of land. Thus, there is an element of reasonableness that will control the city’s

decision to annex.”).

              Based on the foregoing, I respectfully dissent.




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