Can a West Virginia county that has no zoning ordinance just declare a moratorium on industrial wind turbines, or does the county have to set up a full zoning regime first?

Plain-English summary

Pendleton County has no zoning ordinance and no county planning office. The County Commission asked whether it could impose a moratorium to stop the construction of industrial wind turbines while it figured out what to do longer term. The Attorney General's answer is that a moratorium is itself an act of zoning, so the County cannot simply pass a resolution. It has to take all three of the steps that Chapter 8A of the Code requires for any new zoning ordinance.

First, the County must adopt a comprehensive plan. That is a forward-looking land-use plan with required elements (statement of goals, action plan, timeline) under W. Va. Code § 8A-3-4, and optional elements like environmental analysis and conservation programs under § 8A-3-5. The Supreme Court of Appeals has held that a county "may not enact a valid zoning ordinance without ... adopting a comprehensive plan" (Largent, 2008).

Second, the County must prepare a study and report on the proposed zoning, evaluating existing conditions and the most desirable land uses. The study can include public hearings. Pendleton County does not have a planning commission, but the Supreme Court has held that a planning commission is permissive, not required (Pancakes, 2015). Whoever does it, the study and report still has to happen.

Third, the County must enact the zoning ordinance under W. Va. Code § 8A-7-5. That requires at least two public hearings (one daytime, one evening), 14 consecutive days of newspaper notice, public access to the proposed ordinance, and additional hearings for any substantial amendments.

The opinion confirms that the Open Governmental Proceedings Act applies but adds nothing beyond what the Commission already does at its twice-monthly meetings. So the Act is not a separate hurdle, just the usual one.

Why this hard line? Because in West Virginia, "a moratorium ordinance ha[s] the effect of making the unzoned areas of the County subject to zoning restrictions" (Vulcan Materials, N.C. Ct. App. 1991, cited approvingly). And the Supreme Court of Appeals has invalidated moratoria that skipped the zoning procedure (Bittinger, 1990). Other states have reached the same result even when the locality had no prior zoning in place (Tuscola Wind III, E.D. Mich. 2018; B&L Development, N.Y. 1990). The opinion accepts that this is a heavier lift than just passing a resolution, but the statutory text and case law leave no shortcut.

The opinion also warns that its analysis is limited to West Virginia state zoning law and the Open Governmental Proceedings Act. It does not opine on whether a moratorium might face challenges under other state or federal laws (takings, dormant Commerce Clause, federal preemption of energy siting, and so on). Those are separate questions.

What this means for you

If you are a county commissioner in an unzoned county

You cannot moratorium-now-zone-later. The legal procedure is moratorium-by-zoning. Plan accordingly: a comprehensive plan and an ordinance with public hearings cannot happen in two weeks. Talk to outside counsel about a realistic timetable before you take a public position on the moratorium.

If you want to slow new wind development while the zoning process runs, look at non-zoning levers. The County Commission's tax authority, road-bond requirements for heavy-equipment hauling, and inter-county planning agreements may give you tools that do not require a zoning ordinance. None of those is a substitute for actual zoning, but each can reduce siting pressure during the runway period.

If you are tempted to pass a moratorium by resolution anyway, expect a developer to sue and likely win. Bittinger (1990) is on point: the Supreme Court of Appeals struck down a moratorium that skipped the zoning procedure.

If you are a county prosecuting attorney advising the commission

The opinion is a roadmap. Walk it through with the Commission step by step: first comprehensive plan (§ 8A-3-4 elements), then study and report (§ 8A-7-4, with or without a planning commission), then ordinance (§ 8A-7-5 hearings and notice). Document each step carefully, because every step that gets skipped is an opening for a successful court challenge.

If you are a wind-energy developer evaluating West Virginia siting

A county that has no zoning ordinance today is not a forever-friendly siting jurisdiction. Counties retain the police-power authority to zone, and a moratorium is now legally available even in counties that have not zoned before, so long as they follow the full Chapter 8A procedure. Track which counties have begun comprehensive-plan work; that is the early-warning signal. Federal energy-siting preemption and other defenses are unaddressed in this opinion and would be the developer's separate legal theory.

If you are a landowner concerned about a proposed wind project nearby

Your county can act, but only through a public process with at least two public hearings and 14 consecutive days of newspaper notice. Watch for the legal-notice section of the local paper. Show up to the hearings; Pancakes (2015) confirms that the County Commission can do its own zoning work without first creating a planning commission, so the Commission meeting is the venue.

If you are a county clerk or planning staffer

Document the procedural compliance carefully, because every required element matters in court. The comprehensive plan must contain the mandatory elements (§ 8A-3-4(b)(1)-(7)). The notice for the public hearings must run 14 consecutive days. There must be two hearings, one daytime and one evening. Substantial amendments after the hearings need additional hearings. Keep clean meeting minutes (§ 6-9A-5).

Common questions

Q: Can a county pass a moratorium without zoning?
A: Not in West Virginia. A moratorium is an act of zoning under Chapter 8A, so the county must follow the full zoning-ordinance procedure. The shortcut does not exist.

Q: Does the County Commission need a planning commission first?
A: No. Pancakes (2015) confirms that a planning commission is permissive, not mandatory. But the study-and-report step under § 8A-7-4 must still happen, whether by a planning commission or by the Commission itself.

Q: How long does the procedure take?
A: The opinion does not give a number, but the binding steps in sequence are: adopt a comprehensive plan, prepare a study and report, hold at least two public hearings with 14 consecutive days of newspaper notice for each, vote on the ordinance, hold additional hearings for any substantial amendment, and then enact. Months, not weeks, is realistic for a Commission starting from no planning office.

Q: Does the Open Governmental Proceedings Act add anything to the procedure?
A: Not beyond what the Commission already does. Regular meetings need three business days of notice; special meetings need two. Keep clean minutes.

Q: What happens if the County skips a step and passes the moratorium by resolution?
A: A developer or affected landowner can sue. Bittinger (1990) is the main West Virginia case invalidating a moratorium for procedural failure. State ex rel. Brown v. Corp. of Bolivar (2000) affirms the rule.

Q: Can the County zone only the windmills and leave everything else unzoned?
A: The opinion does not directly answer that question. It does emphasize that a zoning ordinance must address the components in § 8A-7-2(c) (board of zoning appeals, district maps, nonconforming uses, variances, conditional uses). The Commission would need to design an ordinance that satisfies those components even if the substantive restrictions are narrow.

Q: Are there other legal vulnerabilities the County should worry about?
A: Yes. The opinion expressly does not address takings, due process, equal protection, federal-energy-siting preemption, or other state and federal challenges. A development moratorium is a known target for those theories. Get specialty counsel before adopting.

Q: Does this analysis apply to counties that already have zoning?
A: A county with existing zoning can moratorium under its existing ordinance procedure, but the steps are similar: amendment of the ordinance, study and report, public hearings, and notice. The opinion focuses on Pendleton County's specific situation (no existing zoning), so the all-or-nothing framing does not necessarily apply elsewhere.

Background and statutory framework

West Virginia delegates land-use authority to local government through Chapter 8A. There is no state statute that expressly enables municipalities or counties to adopt moratoria, but Chapter 8A's grant of zoning authority has been read to include moratoria. The leading case is Bittinger v. Corp. of Bolivar (1990), which struck down a moratorium for failure to follow zoning procedure. Other state courts agree: moratoria are zoning acts and must follow zoning procedures.

The three-part Chapter 8A procedure is comprehensive plan, study and report, and ordinance enactment. The comprehensive plan under § 8A-3-1 et seq. is the legal foundation. Largent (2008) holds that a zoning ordinance is invalid if there is no underlying comprehensive plan. The study and report under § 8A-7-4 evaluates existing conditions and recommended boundaries; it can include public hearings and is not limited to formal zoning maps. The ordinance enactment under § 8A-7-5 requires two public hearings (one daytime, one evening), 14 consecutive days of newspaper notice, public access to the proposed ordinance, and additional hearings for substantial amendments.

The Open Governmental Proceedings Act, W. Va. Code § 6-9A-1 et seq., applies to the Commission's meetings during this process. Notice is three business days for regular meetings and two for special meetings. Minutes must record the date, time, place, members present and absent, motions and proposals, and vote results.

The opinion declines to address takings, due process, federal preemption, and other potential challenges to the moratorium itself. Those are open issues a developer might raise after the County acts.

Citations and references

Statutes:
- W. Va. Code § 5-3-2 (AG advice to prosecutors)
- W. Va. Code § 8A-1-1, § 8A-1-2(c) (definitions, planning commission permissive)
- W. Va. Code § 8A-3-1, § 8A-3-4, § 8A-3-5 (comprehensive plan)
- W. Va. Code § 8A-7-1, § 8A-7-2, § 8A-7-4, § 8A-7-5 (zoning ordinance procedure)
- W. Va. Code § 6-9A-1 et seq. (Open Governmental Proceedings Act)

Cases:
- Bittinger v. Corp. of Bolivar, 183 W. Va. 310, 395 S.E.2d 554 (1990)
- Kaufman v. Plan. & Zoning Comm'n, 171 W. Va. 174, 298 S.E.2d 148 (1982)
- Harrison v. Town of Eleanor, 191 W. Va. 611, 447 S.E.2d 546 (1994)
- Singer v. Davenport, 164 W. Va. 665, 264 S.E.2d 637 (1980)
- Largent v. Zoning Bd. of Appeals for Town of Paw Paw, 222 W. Va. 789, 671 S.E.2d 794 (2008)
- City of Morgantown v. Calvary Baptist Church, 243 W.Va. 578, 849 S.E.2d 150 (2020)
- Pancakes, Biscuits & More, LLC v. Pendleton Cnty. Comm'n, 2015 WL 6143370 (W. Va. 2015)
- State ex rel. Brown v. Corp. of Bolivar, 209 W. Va. 138, 544 S.E.2d 65 (2000)
- Hukle v. City of Huntington, 134 W. Va. 249, 58 S.E.2d 780 (1950)

Source

• Landing page: not separately published (the PDF is the official record)
• Original PDF: https://ago.wv.gov/media/17551/download?inline

Original opinion text

State of West Virginia
Office of the Attorney General
Patrick Morrisey
Attorney General

Phone: (304) 558-2021
Fax: (304) 558-0140
July 21, 2023

Honorable April D. Mallow
Pendleton County Prosecuting Attorney
P.O. Box 865
22 N. Main St.
Franklin, WV 26807
Dear Prosecutor Mallow:
You have asked for an Opinion of the Attorney General concerning the proper procedures
for the County Commission to follow when enacting a zoning moratorium. This Opinion is being
issued under West Virginia Code § 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 explains that Pendleton County may consider imposing a moratorium on the
building of industrial wind turbines in the County. Pendleton County wants to follow the proper
procedures, but it does not presently have a county planning or zoning office.
You have asked the following legal question:

Pursuant to the West Virginia Open Governmental Proceedings Act and state
zoning laws, what would be the proper procedure for the County Commission to
follow should they consider adopting a moratorium on the building of industrial
wind turbines in Pendleton County?

We conclude that a county wanting to adopt a moratorium must follow the procedure for
enacting a zoning ordinance under West Virginia Code § 8A-7-5. While Pendleton County has
discretion whether or not to pursue a moratorium, the Legislature has set out the procedure if it
chooses to do so. That statutory process requires Pendleton County to adopt a comprehensive
plan, develop a zoning ordinance, and enact a zoning ordinance.

DISCUSSION

Although West Virginia does not have a statute expressly enabling municipalities to adopt
moratoriums, Chapter 8A of the West Virginia Code, the state zoning law, empowers
municipalities to adopt zoning ordinances. W. VA. CODE § 8A-7-1; see also id. § 8-24-1 (repealed
2004). Using this authority, municipalities may adopt moratoriums. See Bittinger v. Corp. of
Bolivar, 183 W. Va. 310, 395 S.E.2d 554 (1990) (striking down moratorium where "town council
[did not] follow the [zoning] procedures set"); accord Sagamore Park v. City of Indianapolis, 885
F. Supp. 1146, 1150 (S.D. Ind. 1994) (holding that a building moratorium "is an act of zoning");
N.J. Shore Builders Ass'n v. Ocean Twp., 319 A.2d 255, 256 (N.J. App. Div. 1974) (treating
interim zone measures and moratoriums as the same); see also Sara C. Bronin & Dwight H.
Merriam, In Absence of Specific Statutory Authority, in 1 Rathkopf's The Law of Zoning and
Planning § 13:10 (4th ed. 2023) (noting that most States have found authority to issue moratoriums
within the general police power of zoning); but see, e.g., Naylor v. Twp. of Hellam, 773 A.2d 770,
775 (Pa. 2001) (finding that the power to impose a moratorium was not an incidental power of a
municipality's ability to zone).

And municipalities may adopt moratoriums as either zoning or building ordinances. A
zoning ordinance is "concerned with whether a certain area of a community may be used for a
particular purpose," syl. pt. 1, Kaufman v. Plan. & Zoning Comm'n, 171 W. Va. 174, 298 S.E.2d
148 (1982), while a building ordinance "involves how the use of any given piece of property is
undertaken," Harrison v. Town of Eleanor, 191 W. Va. 611, 618, 447 S.E.2d 546, 553 (1994).
Pendleton County's proposed moratorium would fall under a zoning ordinance because prohibiting
the construction of windmills concerns how property may be used for a particular purpose, not
how that use is undertaken.

We recognize that Pendleton County does not presently have any county zoning laws. So
lacking an ordinance that requires a landowner to obtain a permit or the like, a person could
currently build an industrial wind turbine in the County. Pendleton County's situation is thus
different from the usual moratorium, in that it would not require the County to suspend any existing
requirements.

The Supreme Court of Appeals has not squarely addressed how municipalities should
impose moratoriums when existing ordinances are not already in place, but the Court's description
of zoning laws' purposes supports the view that moratoriums must follow zoning procedures. "The
purpose of zoning is to provide an overall comprehensive plan for land use." Singer v. Davenport,
164 W. Va. 665, 669, 264 S.E.2d 637, 640 (1980). Zoning procedures, after all, ensure that the
community is aware of the limited uses for land. And that aim would embrace moratoriums, which
prevent certain activity.

Similarly, other States have treated moratoriums as an extension of zoning laws even when
zoning laws and procedures are not already in place in a locality. See, e.g., Tuscola Wind III, LLC
v. Ellington Twp., No. 17-CV-11025, 2018 WL 1291161 (E.D. Mich. Mar. 13, 2018); B & L Dev.
Corp. v. Town of Greenfield, 146 Misc. 2d 638, 640, 551 N.Y.S.2d 734, 736 (Sup. Ct. 1990). As
one court put it, a moratorium "is functionally similar to a zoning ordinance" even when a
municipality "has no zoning plan in place yet." Ecogen, LLC v. Town of Italy, 438 F. Supp. 2d
149, 158 n.5 (W.D.N.Y. 2006). A "moratorium ordinance ha[s] the effect of making the unzoned
areas of the County subject to zoning restrictions." Vulcan Materials Co. v. Iredell Cnty., 407
S.E.2d 283, 286 (N.C. Ct. App. 1991).

Because a municipality likely derives its moratorium authority from its power to adopt
zoning ordinances, a municipality adopting a moratorium must also comply with the procedures
to enact zoning ordinances set out in West Virginia Code § 8A-7-1. If a county fails to do so, then
the moratorium will likely be found invalid. See Bittinger, 183 W. Va. at 315, 395 S.E.2d at 559;
State ex rel. Brown v. Corp. of Bolivar, 209 W. Va. 138, 544 S.E.2d 65 (2000) (per curiam);
Hukle v. City of Huntington, 134 W. Va. 249, 255, 58 S.E.2d 780, 784 (1950).

Here again, other courts agree. "The weight of authority sustains the right of local
governments to adopt interim zoning ordinances [like moratoriums], provided the procedural
requirements of zoning enabling statutes are strictly followed." Sprint Spectrum L.P. v. Jefferson
Cnty., 968 F. Supp. 1457, 1465 (N.D. Ala. 1997) (emphasis in original); see also City of Sanibel v.
Buntrock, 409 So. 2d 1073, 1075 (Fla. Dist. Ct. App. 1981).

Thus, to adopt a moratorium on the building of industrial wind turbines, Pendleton County
needs to pass a valid ordinance by adopting a comprehensive plan, working with the planning
commission and the public to develop that ordinance, and enacting the ordinance. W. VA. CODE
§ 8A-7-1(a). We address each of these obligations in turn.

First, Pendleton County needs to adopt a comprehensive plan. W. VA. CODE § 8A-7-4(a)(1);
see also id. § 8A-3-1. A comprehensive plan is a "plan for physical development, including land
use, adopted by a governing body, setting forth guidelines, goals and objectives for all activities
that affect growth and development in the governing body's jurisdiction." Id. § 8A-1-2(c). "While
a comprehensive plan itself is not the binding zoning law," City of Morgantown v. Calvary Baptist
Church, 243 W.Va. 578, 590, 849 S.E.2d 150, 162 (2020), it "is a guide to a community's goals
and objectives and a way to meet those goals and objectives," W. VA. CODE § 8A-1-1(a)(5);
Largent v. Zoning Bd. of Appeals for Town of Paw Paw, 222 W. Va. 789, 790, 671 S.E.2d 794,
795 (2008). So a comprehensive plan "lay[s] the groundwork for the future enactment of zoning
laws." Singer, 164 W.Va. at 668, 264 S.E.2d at 640. And Pendleton County "may not enact a valid
zoning ordinance without ... adopting a comprehensive plan." Largent, 224 W. Va. at 793, 671
S.E.2d at 798.

West Virginia Code § 8A-3-4 contains the mandatory components of a comprehensive
plan. The plan must include "[a] statement of goals and objectives for the governing body," "[a]
timeline on how to meet short and long-range goals and objectives," "an action plan," and more.
W. VA. CODE § 8A-3-4(b)(1)-(7). West Virginia Code § 8A-3-5 sets forth optional components
of such a plan, including "[a]n analysis of the history of the area," environmental factors,
"programs to promote tourism," "conservation," "safety programs," and "natural resources use."
So, the County Commission's comprehensive plan should describe (among other things) the
specifics around the proposed moratorium and the County's reasons for it, as well as how the
moratorium will affect the community.

Second, the Pendleton County Commission, "with the applicable planning commission,"
must then prepare a study of the land within its jurisdiction and create a report on zoning. W. VA.
CODE § 8A-7-4(a). "No zoning ordinance may be enacted without a study and report." Id. § 8A-7-4(c).
Under West Virginia Code § 8A-7-4, the study may include:

(1) Evaluating the existing conditions, the character of the buildings, the most
desirable use for the land and the conservation of property values in relation to the
adopted comprehensive plan; and
(2) Holding public hearings and meetings with notice to receive public input.

The planning commission must then prepare a report on zoning using the study and the
comprehensive plan that includes "the proposed zoning ordinance, with explanatory maps showing
the recommended boundaries of each district, and the rules, regulations and restrictions for each
district." Id. § 8A-7-4(b).

Right now, Pendleton County does not have a planning commission. But the Supreme
Court of Appeals, in dealing with a zoning ordinance from Pendleton County, has clarified that a
planning commission is not mandatory, but is something "a governing body should have."
Pancakes, Biscuits & More, LLC v. Pendleton Cnty. Comm'n, No. 14-1263, 2015 WL 6143370,
at *4 (W. Va. Oct. 16, 2015) (citing West Virginia Code § 8A-1-1(b)(2)). Given this permissive
language, Pendleton County need not create a planning commission to prepare the study and
report. But a study and report must be completed, no matter who does it.

Third, and finally, Pendleton County needs to enact the zoning ordinance by following the
proper procedures of West Virginia Code § 8A-7-5, which provides for public input. The County
Commission must hold "at least two public hearings and give public notice"—one during the day
and the other in the evening. W. VA. CODE § 8A-7-5(a). Subsection (b) requires the County to
publish notice in a local newspaper for "at least fourteen consecutive days prior to the public
hearing." Id. § 8A-7-5(b). And the notice must include the specifics of the hearing, as well as a
"brief summary of the principal provisions of the proposed zoning ordinance." Id. Subsection (c)
requires the County to make available copies of the proposed ordinance to the public before the
meeting. Id. § 8A-7-5(c). Finally, any substantial amendments following the public hearings
require additional public hearing before voting on the zoning ordinance. Id. § 8A-7-5(d).

The County should be comfortable complying with these notice requirements having
complied with similar ones before. Again, Pancakes is instructive. The Supreme Court of Appeals
noted that Pendleton County provided "adequate notice" by reading the ordinance "in its entirety
at two separate public meetings." Pancakes, 2015 WL 6143370, at *4. Although the County
Commission in Pancakes passed its ordinance under a different statute, and therefore its notice
requirements were less onerous, the County Commission already has a good baseline for following
the requirements of Section 8A-7-5.

After complying with these rules, the governing body may enact the zoning ordinance, or
it "may hold an election" to approve the zoning ordinance. W. VA. CODE § 8A-7-5(e). Some
factors the County must consider when enacting the zoning ordinance include "[p]romoting [the]
general public welfare, health, safety, comfort and morals"; "[e]nsuring attractiveness and
convenience is promoted"; and "[l]essening congestion." Id. § 8A-7-2(a). The zoning ordinance
may also include "[r]egulating the use of land and designating or prohibiting specific land use."
Id. § 8A-7-2(b)(1). Finally, the zoning ordinance shall: 1. "[c]reate a board of zoning appeals";
2. "[s]pecify certification requirements for zoning district maps that are consistent with the
governing body's comprehensive plan"; 3. "[a]dopt procedures and requirements for
nonconforming land uses"; 4. "[a]dopt procedures and requirements for variances"; and 5.
"[a]dopt procedures and requirements for conditional use permits." Id. § 8A-7-2(c). Pendleton
County would then have a valid moratorium on the building of industrial wind turbines in the
County.

Your letter also asks about any applicable procedures under the West Virginia Open
Governmental Proceedings Act, W. VA. CODE § 6-9A-1. Although the Commission needs to
comply with the Act in issuing its moratorium, the Act does not impose any additional
requirements beyond what the Commission already follows with its twice-a-month meetings. The
meetings must be open to the public, and the Commission must "promulgate rules by which the
date, time, place and agenda of all regularly scheduled meetings and the date, time, place and
purpose of all special meetings are made available, in advance, to the public and news media." Id.
§ 6-9A-3(d). Regularly scheduled meetings require notice three business days before the meeting,
while special meetings just need two business days. And at those meetings, the governing body
needs to prepare minutes with the "date, time, and place of the meeting," the "name of each
member of the governing body present and absent," "[a]ll motions, proposals," and the "results of
all votes." W. VA. CODE § 6-9A-5. So the Commission should be familiar with these requirements.
It will not have to do more beyond the requirements that the zoning procedures impose.

The general police power authority delegated by a zoning enabling statute gives Pendleton
County the power to choose for itself, or not, whether enacting a moratorium is in the County's
best interests. If it decides to move forward, though, it must follow the zoning ordinance
procedure, or it risks a court striking down the moratorium.

Finally, our opinion analyzes only the requirements for enacting a moratorium under West
Virginia state zoning law or the West Virginia Open Governmental Proceedings Act. We have
not sought to identify all the ways a moratorium might be challenged under other state and federal
laws. See, e.g., Matthew G. St. Amand & Dwight H. Merriam, Defensible Moratoria: The Law
Before and After the Tahoe-Sierra Decision, 43 NAT. RES. J. 703 (2003) (describing considerations
in developing a legally defensible development moratorium).

Sincerely,

Patrick Morrisey
West Virginia Attorney General
Michael R. Williams
Principal Deputy Solicitor General
Spencer J. Davenport
Assistant Solicitor General