ELR Citation: ELR 20428
No(s). 14568 (W. Va. Dec 2, 1981)

The court affirms a zoning board's denial of a permit to construct a coal tipple on appellant's industrial-zoned property. After an appeal by a citizens group, the zoning board rescinded the building permit, finding that appellant could not meet zoning ordinance performance standards governing dust, noise, and sound. The court rules that the board has authority under state law to rescind the permit and its ruling was based on adequate factual findings. Further, the ordinance does not deny due process rights under the federal or state constitutions. Under the police power, local governments have a right to regulate pollution. While there may be a difference of opinion as to whether the ordinance's no-dust standard is reasonable, the court may not interfere with the legislative judgment unless it is shown to be clearly unreasonable. The court also rules that the ordinance does not violate equal protection guarantees. The city may enact a zoning ordinance to prevent further pollution while allowing existing polluting uses to continue. Finally, the court rules that the ordinance does not constitute a taking of private property requiring compensation since it advances legitimate governmental interests and does not preclude economically viable use of the land.

Counsel for Appellant
Susan S. Brewer, Robert M. Steptoe Jr.
Steptoe & Johnson
P.O. Box 2190, Clarksburg WV 26301
(304) 624-8000

Charles H. Haden
Haden & Heiskell
Monongahela Bldg., Morgantown WV 26505
(304) 292-7386

Counsel for Appellees
David L. Solomon
Solomon & Solomon
330 Chestnut St., Morgantown WV 26505
(304) 296-6696