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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2009 Term _______________ No. 34583 _______________

FILED September 24, 2009
released at 3:00 p.m.
RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA

JEFFERSON COUNTY CITIZENS FOR ECONOMIC PRESERVATION,
a non-profit corporation,
Petitioner below, Appellee
v. COUNTY COMMISSION OF JEFFERSON COUNTY, a public body;
ARCHIBALD M. S. MORGAN, President and Member;
DALE MANUEL, Member; JAMES SURKAMP, Member;
GREGORY CORLISS, Member; and JANE TABB, Member,
Respondents below, Appellants
_______________ Appeal from the Circuit Court of Jefferson County
The Honorable Thomas W. Steptoe, Jr., Judge
Civil Action No. 05-C-143
REVERSED AND REMANDED _______________ Submitted September 8, 2009 Filed: September 24 , 2009

James Casimiro, III, Esq. Assistant Prosecuting Attorney Charles Town, West Virginia Attorney for the Appellants

Richard G. Gay, Esq.
Nathan P. Cochran, Esq.
Law Office of Richard G. Gay
Berkeley Springs, West Virginia


Peter L. Chakmakian, Esq. Alice Chakmakian, Esq. Charles Town, West Virginia Attorneys for the Appellee The Opinion of the Court was delivered by JUSTICE KETCHUM:

SYLLABUS BY THE COURT


1. "A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law." Syl. pt. 3, Aetna Casualty and Surety Company v. Federal Insurance Company of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).

2. "`The general rule is, that when an act of the Legislature is repealed without a saving clause, that it must be considered, except as to transactions passed and closed, as if it had never existed.' Syl. pt. 1, Curran v. Owens, 15 W.Va. 208 (1879)." Chesapeake and Potomac Co. v. State Tax Department, 161 W.Va. 77, 83, 239 S.E.2d 918, 922 (1977).

3. Where a county land use ordinance concerning procedures for amending the county's comprehensive plan and related ordinances relies solely upon a statutory scheme previously repealed by the West Virginia Legislature, the ordinance is without authority to mandate the procedures to be followed by the county commission and planning commission in adopting or rejecting proposed amendments to the comprehensive plan and related ordinances.

Ketchum, Justice: i

This declaratory judgment action is before this Court upon the appeal of the County Commission of Jefferson County, West Virginia, (hereinafter "appellant" or "County Commission") from the February 26, 2008, order of the Circuit Court of Jefferson County granting summary judgment in favor of an entity known as Jefferson County Citizens for Economic Preservation (hereinafter "appellee"). In the proceedings below, the appellee, a nonprofit corporation consisting of various property owners and land use professionals, challenged the March 2005 adoption by the County Commission of amendments to the Jefferson County Zoning and Land Development Ordinance. The principal challenge was to an amendment which lowered the permitted density in the County's rural district by decreasing the number of lots allowed from 1 lot for every 10 acres to 1 lot for every 15 acres.

In granting summary judgment, the Circuit Court determined that the County Commission failed to follow the relevant statutory scheme in adopting the amendments and that the amendments were, therefore, invalid. The County Commission states that the statutory scheme cited by the Circuit Court and the appellee was repealed prior to 2005 and replaced by a new statutory procedure which the County Commission followed. Accordingly, the County Commission asks this Court to reinstate the amendments.

This Court has before it the petition for appeal filed by the County Commission, the response, all matters of record and the briefs and argument of counsel. The respective positions of the parties concerning the merits of the 2005 amendments to the Ordinance, and the degree to

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which the County's rural district should be developed, are not matters for this Court to decide. Instead, the issue before this Court is limited to whether the Circuit Court was correct in its determination that the County Commission failed to follow the relevant statutes in adopting the amendments to the Ordinance.

Upon review, this Court is of the opinion that the Circuit Court's determination, that the prior statutory scheme should have been followed, was incorrect. Consequently, the February 26, 2008, order granting summary judgment in favor of the appellee is reversed, and this action is remanded to the Circuit Court for the entry of an order granting judgment in favor of the County Commission, reinstating the 2005 amendments to the Jefferson County Zoning and Land Development Ordinance.

I.
Factual Background


The Jefferson County Zoning and Land Development Ordinance was first adopted in 1988 and has been amended several times. As reflected in its Minutes, the County Commission voted in January 2005 to hold public hearings and accept written comments upon a new set of amendments, prepared by the County Commission, which included a proposal to lower the permitted density in the County's rural district by decreasing the number of lots allowed from 1 lot for every 10 acres to 1 lot for every 15 acres. That proposal would constitute a change of

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