Can a West Virginia county without a zoning ordinance use a 'land development ordinance' to block solar and wind farms from being built?

Plain-English summary

Hampshire County saw solar and wind farms going up in West Virginia and wanted to do something about them. The county does not have a zoning ordinance, but it does have a subdivision and land development ordinance. The prosecutor asked: can the county pass a separate "land development ordinance" and use it to limit where solar and wind farms can be built?

The AG's answer in two parts:

1. There is no such thing as a separate "land development ordinance" under West Virginia law. Code § 8A-4-1 authorizes a single ordinance, the "subdivision and land development ordinance." The legislature uses the singular noun, joins the two concepts with "and," and over and over uses the definite article "the" to refer to one specific ordinance. The phrase appears 20+ times across Article 4. There is no statutory hook for a separate land-development ordinance.

2. The unified subdivision and land development ordinance cannot block solar or wind farms outright. Banning or limiting a particular use of property is zoning, and West Virginia courts have drawn a "firm, bright line" between zoning ordinances (which regulate whether a property can be used for a purpose) and subdivision ordinances (which regulate how the buildout happens). See Singer v. Davenport. A county without a zoning ordinance cannot use the subdivision ordinance to do zoning work.

What the county can do is regulate the construction process. § 8A-4-2 allows the ordinance to set standards for setbacks, lot sizes, road access, sidewalks, parking, drainage, utilities, infrastructure, stormwater, and water/wastewater. It can require land development applications and charge fees. It can include guidelines specific to "renewable energy systems." § 8A-4-2(b)(3). Done thoughtfully, those construction-detail rules can shape where and how solar and wind farms appear, even though they cannot ban them.

What this means for you

County commissions in non-zoning counties

The opinion concludes that West Virginia law does not contemplate a "land development ordinance" separate from a "subdivision ordinance," and that a county commission cannot use its subdivision and land development ordinance to "completely 'limit' solar and wind farms," because doing so would be a zoning effort. The AG reaches this conclusion from the Code's repeated singular use of "the subdivision and land development ordinance" and the firm doctrinal line between subdivision and zoning ordinances drawn in Singer v. Davenport.

The opinion holds that the commission may use the subdivision and land development ordinance to regulate how solar and wind farms are constructed, including: a land development application process (§ 8A-4-2(a)(1), (3)); standards for setback requirements, lot sizes, streets, sidewalks, parking, easements, rights-of-way, drainage, utilities, infrastructure, stormwater, and water/wastewater facilities (§ 8A-4-2(a)(5)); standards for projects in flood-prone or subsidence areas (§ 8A-4-2(a)(6)); fees (§ 8A-4-2(a)(12)); guidelines specific to renewable energy systems (§ 8A-4-2(b)(3)); and "any other provisions consistent with the comprehensive plan" (§ 8A-4-2(b)(6)).

Solar and wind developers

The opinion holds that a non-zoning county cannot use a subdivision and land development ordinance to prohibit a solar or wind project. The opinion also holds that the same ordinance may impose construction-stage requirements under § 8A-4-2, including engineering standards, setbacks, infrastructure standards, and fees.

County prosecutors

The opinion's interpretive analysis catalogs seven textual cues for the single-ordinance reading: singular "ordinance," conjunctive "and," no repeated determiner, conceptual overlap, repeated use of definite article "the," contrasting use of "or" in nearby sections, and the unworkability of the § 8A-4-2(b)(5) exemption clause under a two-ordinance reading. The opinion treats Singer's "how vs. whether" line as the doctrinal divider between subdivision and zoning, and cites Bittinger v. Bolivar for the rule that local land-use regulations are void in the absence of express or implied statutory authority.

Citizens concerned about a specific project

The opinion does not address citizen procedural rights or the Public Service Commission's siting role; it addresses only the county commission's authority under Chapter 8A.

Common questions

Q: Why does it matter whether the ordinance is called "subdivision," "land development," or "subdivision and land development"?

A: Because it determines what powers the ordinance has. Code Article 4 is titled "Subdivision and Land Development Ordinance" and the legislature treats the two as a single concept. A standalone "land development ordinance" has no statutory grant of power. Without statutory authority, county-commission action is "void." Bittinger.

Q: Could the county set very large setbacks under the subdivision ordinance?

A: The opinion does not address how large is too large. It states the doctrinal rule from Singer that subdivision ordinances regulate "how" buildout happens, not "whether" a use is allowed. The opinion does not draw a line between bona fide engineering setbacks and de facto prohibitions.

Q: What are "renewable energy systems" guidelines under § 8A-4-2(b)(3)?

A: The opinion confirms that the subdivision and land development ordinance may include guidelines for renewable energy systems, but does not analyze the substantive scope of those guidelines, except to reiterate that the provision does not authorize using them to ban projects.

Q: What if a county already has a subdivision ordinance from before solar/wind farms were common, and the ordinance does not mention them?

A: The county can amend its subdivision and land development ordinance to add specific provisions for solar and wind farms, within the scope of § 8A-4-2 (construction standards, setbacks, fees, application processes, renewable-energy guidelines). What it cannot do is tack on a use-prohibition clause, which would exceed the authority of a subdivision ordinance.

Q: Could a moratorium on solar/wind construction be implemented under the subdivision ordinance?

A: The opinion does not decide whether a county may impose a moratorium under a subdivision and land development ordinance. It cites the AG's July 21, 2023 Pendleton County letter as a general reference while explaining that the ordinance cannot dictate where solar and wind farms may be built. It does not analyze a temporary construction pause.

Background and statutory framework

Chapter 8A of the West Virginia Code is the state's land-use planning chapter. Article 4 authorizes counties to regulate "subdivisions and land development" via a "subdivision and land development ordinance." § 8A-4-1(a). The article details mandatory and permissive contents in §§ 8A-4-2 through 8A-4-7.

The phrase "subdivision and land development ordinance" appears more than 20 times in Article 4 alone. Mandatory contents under § 8A-4-2(a) include a minor subdivision/development process, definitions, procedures, standards for setbacks, lot sizes, streets, sidewalks, walkways, parking, easements, rights-of-way, drainage, utilities, infrastructure, curbs, gutters, street lights, fire hydrants, stormwater management, water/wastewater facilities, and standards for flood-prone or subsidence areas. The ordinance may also charge fees. § 8A-4-2(a)(12).

Permissive contents under § 8A-4-2(b) include exemptions for certain types of land development (notable: an "exemption of certain types of land development from the subdivision and land development ordinance requirements" makes no sense if the two are separate ordinances), guidelines for renewable energy systems, and "[a]ny other provisions consistent with the comprehensive plan."

The conceptual line between ordinances is doctrinally settled in West Virginia. Singer v. Davenport: subdivision and zoning ordinances "play fundamentally different land-use roles." Zoning provides a comprehensive plan for land use; subdivision regulations govern street planning, lot plotting, and protection of the community from poor development. Harrison v. Town of Eleanor synthesizes: zoning concerns "whether," other land-use ordinances concern "how."

The interpretive moves in this opinion are textbook conjunctive-canon analysis from Scalia and Garner's Reading Law. "And" combines; "or" creates alternatives. The legislature's repeated use of "and" combined with singular nouns and definite articles shows it is talking about one thing, not two. The legislature's contrasting use of "or" in nearby sections (when it does want to differentiate, e.g., "subdivision plan or plat" or "minor subdivision or land development") shows it knew how to draw the distinction when it wanted to.

The implied-powers doctrine offers no help here. Under T. Weston v. Mineral County, county commissions can do "only such things as are authorized by law, and in the mode prescribed." Without express authority for a separate land-development ordinance, the implied-powers doctrine cannot create one.

The opinion cites a 2023 Pendleton County moratorium letter without describing that letter's reasoning. Its own analysis addresses whether a subdivision and land development ordinance can prohibit solar or wind farms in certain places.

Citations

• W. Va. Code §§ 5-3-2; 8A-1-1; 8A-4-1; 8A-4-2; 8A-4-2 to 8A-4-7; 8A-5-1 to 8A-5-2
• State ex rel. State Line Sparkler v. Teach, 187 W. Va. 271, 418 S.E.2d 585 (1992)
• Bittinger v. Corporation of Bolivar, 183 W. Va. 310, 395 S.E.2d 554 (1990)
• Singer v. Davenport, 164 W. Va. 665, 264 S.E.2d 637 (1980)
• Fairlawns Homes v. City of Morgantown, 155 W. Va. 172, 182 S.E.2d 48 (1971)
• Largent v. Zoning Bd. of Appeals for Paw Paw, 222 W. Va. 789, 671 S.E.2d 794 (2008)
• Harrison v. Town of Eleanor, 191 W. Va. 611, 447 S.E.2d 546 (1994)
• Kaufman v. Plan. & Zoning Comm'n, 171 W. Va. 174, 298 S.E.2d 148 (1982)
• Ashbaugh v. Corp. of Bolivar, 223 W. Va. 741, 679 S.E.2d 573 (2009)
• McClure v. City of Hurricane, 227 W. Va. 482, 711 S.E.2d 552 (2010)
• State ex rel. Lorenzetti v. Sanders, 235 W. Va. 353, 774 S.E.2d 19 (2015)
• In re Z.S.-1, 249 W. Va. 14, 893 S.E.2d 621 (2023)
• In re Flyers Rights Education Fund, 61 F.4th 166 (D.C. Cir. 2023)
• Dale v. Painter, 234 W. Va. 343, 765 S.E.2d 232 (2014)
• Kanawha Cnty. Bd. of Educ. v. Hall, 249 W. Va. 161, 895 S.E.2d 16 (2023)
• T. Weston, Inc. v. Mineral Cnty., 219 W. Va. 564, 638 S.E.2d 167 (2006)

Source

• Landing page: https://ago.wv.gov/media/17411/download?inline
• Original PDF: https://ago.wv.gov/media/17411/download?inline

Original opinion text

State of West Virginia
Office of the Attorney General
(304) 558-2021
Fax (304) 558-0140

Patrick Morrisey
Attorney General

August 21, 2024

The Honorable Rebecca L. Miller
Hampshire County Prosecuting Attorney
50 South High Street, Suite 153
Romney, WV 26757

Dear Prosecutor Miller:
You have asked for an Opinion of the Attorney General concerning subdivision and land development ordinances. This Opinion is being issued under West Virginia Code Section 5-3-2, which provides that the Attorney General "may consult with and advise the several prosecuting attorneys in matters relating to the official duties of their office." When this Opinion relies on facts, it depends solely on the factual assertions in your correspondence with the Office of the Attorney General.

Your letter seeks an opinion concerning "solar and wind farms being assembled in West Virginia." In particular, it seeks advice on what measures Hampshire County might implement to address their construction. Hampshire County does not have a zoning ordinance, though it does have a subdivision and land development ordinance. See Hampshire County, Subdivision and Land Development Ordinance (Jan. 2, 2009), https://tinyurl.com/4puvjers.

Thus, you have asked the following legal questions:
Is it permissible for the Hampshire County Commission to create a land development ordinance, separate from its subdivision ordinance, or is a land development ordinance simply a part of the subdivision ordinance? If the Hampshire County Commission has the ability to create a land development ordinance, can the land development ordinance limit the assembly of solar and wind farms within its county through zoning ordinances to ensure that our local ecosystems and most valuable resources within our county are protected?

We conclude that West Virginia law does not contemplate a "land development ordinance" separate from a "subdivision ordinance." Rather, it contemplates a single ordinance titled a "subdivision and land development ordinance." And West Virginia law differentiates between that sort of ordinance, which regulates the specifics of how people build out and develop their property, and a zoning ordinance, which instead regulates a property's general use. Hampshire County Commission can't use its subdivision and land development ordinance to completely "limit" solar and wind farms, as that would constitute a zoning effort. But the Commission can use the subdivision and land development ordinance to regulate how these farms are constructed in several ways.

DISCUSSION

I. West Virginia law does not contemplate a "land development ordinance" as something separate from a "subdivision ordinance."

The Hampshire County Commission is "created by statute, and possessed only of such powers as are expressly conferred by the Constitution and legislature, together with such as are reasonably and necessarily implied in the full and proper exercise of the powers so expressly given." Syl. pt. 1, State ex rel. State Line Sparkler of W.V., Ltd. v. Teach, 187 W. Va. 271, 418 S.E.2d 585 (1992). "[I]n the absence of express or implied authority" given by the relevant statutes, local land use regulations are "void." Bittinger v. Corporation of Bolivar, 183 W. Va. 310, 315, 395 S.E.2d 554, 559 (1990).

We start with the Code's land-use planning chapter, Chapter 8A, and specifically Article 4, titled "Subdivision and Land Development Ordinance." W. Va. Code § 8A-4-1, et seq.

Article 4's text shows that the Legislature did not contemplate your suggested distinction between a "subdivision ordinance" and a "land development ordinance." The Code sees no separation. The setup for Article 4 comes in Article 1, where the Legislature, casting a broad land-use regulation vision, says that local governments may "[e]nact a subdivision and land development ordinance." W. Va. Code § 8A-1-1. Article 4 repeats that option, with the first section saying that a county commission "may regulate subdivisions and land development" by "enacting a subdivision and land development ordinance." Id. § 8A-4-1(a). The next several statutory sections detail what a "subdivision and land development ordinance" looks like, with that quoted phrase appearing over 20 times. Id. §§ 8A-4-2 to 8A-4-7.

Four textual clues within the phrase "subdivision and land development ordinance" show that it references a single ordinance.

First, it uses the singular "ordinance." If the Legislature were creating two sorts of ordinances, it likely would have used the plural "ordinances." See, e.g., State ex rel. Lorenzetti v. Sanders, 235 W. Va. 353, 361, 774 S.E.2d 19, 27 (2015).

Second, the Legislature joined "subdivision" and "land development" with an "and." When the Legislature uses the conjunctive "and," it "makes both" words "necessary." In re Z.S.-1, 249 W. Va. 14, 893 S.E.2d 621, 630 (2023). As the D.C. Circuit described it in In re Flyers Rights Education Fund, Inc., a statute using "and" instead of "or" is "a strong indication that" the drafter "did not intend the joined words to be alternatives." 61 F.4th 166, 168 (D.C. Cir. 2023). This principle is a straightforward application of the "conjunctive/disjunctive canon."

Third, when a Legislature wants to clarify the relationship between modifiers and their subjects, it can repeat a crucial word or phrase to highlight the intended relationship. Here, if the Legislature intended to create separate ordinances, the best clarification would have been to insert another "ordinance" directly after "subdivision."

Fourth, subdivision and land development have significant conceptual overlap; they are two closely related kinds of land-use regulations.

Three other textual clues beyond the phrase "subdivision and land development ordinance" buttress this reading.

First, the articles used in the statute point to one, unified ordinance. Fifteen times in Article 4, the Legislature used the phrase, "the subdivision and land development ordinance." See generally W. Va. Code § 8A-4-1, et seq. (emphasis added). Deploying the definite article "the" "particularizes the subject," showing that the Legislature is speaking about a "specific" subject. Dale v. Painter, 234 W. Va. 343, 351, 765 S.E.2d 232, 240 (2014).

Second, what the Legislature didn't say is just as important as what it did. The Legislature knew well how to linguistically distinguish subdivision and land development. In West Virginia Code Section 8A-4-2(a)(1), for example, the Legislature says a county commission "shall include" several provisions in its "subdivision and land development ordinance," among which is, "[a] minor subdivision or land development process, including criteria, requirements and a definition of minor subdivision." There, the Legislature used the disjunctive "or."

Third, reading the statute differently could defeat some of its text. West Virginia Code Section 8A-4-2(b)(5) says a "subdivision and land development ordinance may include," among other things, "[e]xemptions of certain types of land development from the subdivision and land development ordinance requirements." If "subdivision" and "land development" ordinances could really be separate, this exemption makes no sense.

For these several reasons, West Virginia statutes do not empower a county commission to pass a "land development ordinance" distinct and separate from a "subdivision ordinance."

II. A county commission may not use a subdivision and land development ordinance to do the work of a zoning ordinance, but the commission can use it to regulate solar and wind farms in other ways.

The Hampshire County Commission cannot use its subdivision and land development ordinance to dictate property use, for example, to entirely prohibit wind and solar farms in certain places in Hampshire County. See generally Off. of the W. Va. Att'y Gen., Opinion Letter Concerning a Potential Windmill Moratorium in Pendleton County (July 21, 2023).

Our Supreme Court has long drawn a firm, bright line between various kinds of land-use ordinances. "Subdivision" and land development ordinances, it says, must "be distinguished from zoning ordinances." Singer v. Davenport, 164 W. Va. 665, 669, 264 S.E.2d 637, 640 (1980). These ordinances play fundamentally different land-use roles: zoning ordinances "provide an overall comprehensive plan for land use, while subdivision regulations govern the planning of new streets, standards for plotting new neighborhoods, and the protection of the community from financial loss due to poor development." Id. at 669, 264 S.E.2d at 640-41.

Put differently, zoning ordinances focus on the high-level question of whether solar or wind farms can be built on a property, while subdivision ordinances focus on the questions of how that build out happens.

The Hampshire County Commission may, however, use its subdivision and land development ordinance to regulate the buildout, construction, and maintenance of solar and wind farm builds, as explained in West Virginia Code Section 8A-4-2. For example, it can create a "land development process" that wind and solar farm owners must comply with. Id.
§ 8A-4-2(a)(1), (3). It may set "standards for setback requirements, lot sizes, streets, sidewalks, walkways, parking, easements, rights-of-way, drainage, utilities, infrastructure, curbs, gutters, street lights, fire hydrants, storm water management and water and wastewater facilities." Id.
§ 8A-4-2(a)(5). It may create standards for wind and solar farms seeking to build in "flood-prone or subsidence areas." Id. § 8A-4-2(a)(6). And it may charge various fees to process these applications. Id. § 8A-4-2(a)(12). Along with these and other general provisions, the Legislature also said these ordinances can include "[g]uidelines" specific to "renewable energy systems." Id.
§ 8A-4-2(b)(3). And it may include "[a]ny other provisions consistent with the comprehensive plan" that it considers "necessary." Id. § 8A-4-2(b)(6).

In short, so long as the Hampshire County Commission respects the boundaries between subdivision and land development and zoning ordinances, the Legislature has given it many ways to regulate the "assembly of solar and wind farms within its county ... to ensure that [its] local ecosystems and most valuable resources ... are protected."

Sincerely,

Patrick Morrisey
West Virginia Attorney General

Michael R. Williams
Solicitor General

Frankie Dame
Assistant Solicitor General