DEP Horizontal-Well Permits Do Not Displace Municipal Zoning Absent Express Preemption; ICA Lacks Jurisdiction Over Certiorari Zoning Appeals

Case: City of Weirton and City of Weirton Board of Zoning Appeals v. SWN Production Company, LLC; and SWN Production Company, LLC v. City of Weirton Board of Zoning Appeals and City of Weirton
Court: Supreme Court of Appeals of West Virginia
Date: June 3, 2026

I. Introduction

These consolidated appeals arose from SWN Production Company, LLC’s effort to develop a horizontal natural-gas well pad (potentially up to fourteen wells) on a 301-acre tract within the City of Weirton. The City’s “Unified Development Ordinance” required a conditional use permit from the City of Weirton Board of Zoning Appeals (“BZA”) before oil and gas extraction could proceed inside city limits.

After public hearings, the BZA denied SWN’s conditional use permit. SWN then pursued two tracks in the Circuit Court of Brooke County: (1) a statutory certiorari petition to review the BZA decision; and (2) a declaratory judgment action asserting the City’s zoning scheme was void because it conflicted with (and was “preempted” by) state oil-and-gas environmental statutes, particularly the Natural Gas Horizontal Well Control Act.

The circuit court rejected SWN’s broad conflict/preemption theory and later affirmed the BZA’s permit denial on certiorari. On appeal, the Intermediate Court of Appeals (“ICA”) split: it reversed the circuit court on the declaratory judgment issue (finding conflict), but dismissed SWN’s separate appeal of the certiorari ruling for lack of ICA jurisdiction. The Supreme Court of Appeals of West Virginia reversed the ICA on the conflict question and affirmed the ICA’s jurisdictional dismissal.

II. Summary of the Opinion

A. Municipal zoning vs. state horizontal-well regulation

The Court held SWN showed, at most, an “incidental overlap” between DEP permitting authority under the Natural Gas Horizontal Well Control Act and municipal zoning authority under the Land Use Planning Act. Relying on Longwell v. Hodge, the Court treated this overlap as a “false conflict” produced by different state-delegated powers (state licensing/permitting and local zoning) pursuing distinct goals. Absent an express legislative directive that drilling locations are immune from local zoning approval, a DEP permit is “necessary, but not sufficient” to authorize a drilling project within a municipality that has validly adopted zoning controls.

B. ICA jurisdiction over certiorari zoning appeals

The Court held the ICA lacked subject-matter jurisdiction over SWN’s appeal from the circuit court’s certiorari judgment. The Land Use Planning Act provides that BZA decisions are reviewed by certiorari in circuit court and that an appeal from that final certiorari judgment lies to the West Virginia Supreme Court of Appeals. Separately, the ICA’s enabling statute excluded appellate jurisdiction over “extraordinary remedies,” which include certiorari.

III. Analysis

A. Precedents Cited

1. Standards of review and interpretive posture

• Chrystal R.M. v. Charlie A.L. (Syl. Pt. 1): Established de novo review for questions of law and statutory interpretation. The Court used this to frame both the conflict analysis and the jurisdictional question as legal issues.
• City of Morgantown v. Calvary Baptist Church: Confirmed de novo review when reviewing application of zoning ordinances to property use, supporting the Court’s willingness to independently assess the zoning/statute interaction.
• In re K.A. and Snider v. Snider: Reinforced that subject-matter jurisdiction is reviewed de novo, anchoring the Court’s review of the ICA’s dismissal.

2. Municipal power is delegated and limited

• Booten v. Pinson: Quoted for the principle that municipalities are political subdivisions deriving all powers from the Legislature—useful groundwork for analyzing competing state-delegated powers.
• Brackman's Inc., v. City of Huntington (Syl. Pt. 1): Restated the classic rule that a municipality has no inherent powers, only those conferred or necessarily implied. This served as a doctrinal gate: Weirton’s zoning authority must be traceable to legislative delegation (here, the Land Use Planning Act).

3. When ordinances truly conflict with statutes

• Vector Co. v. Bd. of Zoning Appeals of City of Martinsburg (Syl. Pt. 1): Provided the controlling maxim that where an ordinance conflicts with a statute, the statute prevails and the ordinance is void to the extent of the conflict. Importantly, the Court did not dispute this rule; it held SWN failed to identify a concrete conflict between a specific ordinance provision and a specific statutory command, as pleaded and litigated.

4. “False conflict” and parallel regulation: the decision’s central precedent

• Longwell v. Hodge: The Court’s decisive analog. In Longwell, a state beer license did not override local zoning restrictions on where beer could be sold. The Court imported Longwell’s logic: a state permit can be required but still not sufficient where local zoning law validly regulates land use and the Legislature has not expressly preempted local zoning over site selection.

5. Framing preemption: express vs. implied (and the Court’s caution)

• Morgan v. Ford Motor Co.: Used for the proposition that express preemption requires “specific and plain language” demonstrating legislative intent to preempt a field. The Court used this to reject SWN’s attempt to treat the Horizontal Well Control Act’s “sole and exclusive” phrase as a broad zoning-preemption clause.
• EQT Prod. Co. v. Wender: Cited for the proposition that West Virginia law would not allow a county to enact a “blanket prohibition on conduct specifically licensed by the state.” The Court distinguished SWN’s pleading posture: SWN did not identify a particular ordinance provision that categorically prohibited state-sanctioned conduct; it primarily challenged the BZA’s denial decision and advanced a facial, wholesale theory.

6. Extraordinary remedies and the ICA’s limited jurisdiction

• Poe v. Marion Mach. Works (Syl. Pt. 1, in part): Recognized certiorari as an “extraordinary remedy,” supporting the statutory conclusion that the ICA lacked jurisdiction over appeals “regarding an extraordinary remedy.”
• Huntington Realty Corp. v. City of Huntington Bd. of Zoning Appeals: Reinforced the jurisdictional point that the ICA “plainly lacked jurisdiction” over an appeal arising from a certiorari judgment, consistent with the statutory carve-out.
• SWN Prod. Co., LLC v. City of Weirton (ICA signed opinion) and SWN Prod. Co., LLC v. City of Weirton Bd. of Zoning Appeals (ICA memorandum decision): The Supreme Court’s opinion is an explicit corrective to the ICA’s conflict analysis while approving the ICA’s jurisdictional dismissal.

B. Legal Reasoning

1. Two distinct delegations of authority can regulate the same project

The Court emphasized that both the City’s zoning power and the DEP’s environmental permitting power are state-delegated. The City acted under the Land Use Planning Act (planning for orderly development; regulating uses; conditional uses via BZA). The DEP acted under Chapter 22, including the Horizontal Well Control Act (environmental protection, health/safety, and statewide uniform permitting).

Because both authorities trace to legislative delegation, overlap does not itself prove invalidity. The question is whether the ordinance permits what state law forbids or forbids what state law permits—the statutory definition the opinion cited (W. Va. Code § 8-1-2(9)) and the constitutional limitation in W. Va. Const. art. VI, § 39(a).

2. The “sole and exclusive authority” clause is not a zoning-preemption clause

The ICA treated W. Va. Code § 22-6A-6(b)’s grant of “sole and exclusive authority” to the DEP over “permitting” and “location” as displacing the City’s conditional use approval scheme. The Supreme Court rejected that reading in context, explaining that “sole and exclusive” within a statewide environmental permitting regime does not automatically mean “immune from zoning review,” absent an express statement from the Legislature.

The Court reinforced the point by contrasting statutes where the Legislature explicitly removes zoning review (e.g., where certain facilities “shall be classified as permitted uses and not subject to zoning review or approval”), treating that type of language as the kind of unmistakable command missing here.

3. Pleading and “conflict” must be specific; generalized theories were insufficient

A notable practical strand of the opinion is its insistence on specificity: SWN did not identify a discrete ordinance provision that directly contradicted a discrete statutory requirement, and some alleged conflicts involved the later-adopted and then-repealed “NUDO” setback provision that was not applied to SWN. The Court treated the ICA’s reliance on that repealed, unapplied provision as lacking merit.

4. The “false conflict” framework controls the permit-vs.-zoning interaction

Echoing Longwell v. Hodge, the Court held that, absent express preemption, a state permit does not automatically override municipal zoning decisions about where an activity may occur. A DEP drilling permit may be required for lawful drilling, but municipal zoning approval can still be required as a separate land-use condition.

5. Jurisdictional holding: certiorari appeals bypass the ICA

On SWN’s second appeal, the Court’s reasoning was straightforward: the Land Use Planning Act channels BZA review into certiorari in circuit court, and then directs appeals from the circuit court’s final judgment to the Supreme Court of Appeals of West Virginia—not the ICA. Independently, the ICA’s jurisdictional statute excluded “extraordinary remedies,” and certiorari is extraordinary.

C. Impact

1. Municipal zoning survives alongside DEP horizontal-well permitting

The decision strengthens municipal authority to apply generally applicable land-use planning tools—including conditional use processes—to oil and gas projects within municipal boundaries, so long as the municipality does not enact ordinance provisions that directly contradict state statutes or amount to an impermissible blanket prohibition on state-licensed activity.

2. “Sole and exclusive” in environmental statutes will be read narrowly absent explicit zoning displacement

Litigants should expect West Virginia courts to demand clear legislative language before concluding that state environmental permitting statutes nullify local zoning review. The opinion signals skepticism toward broad field-preemption arguments in the municipal/state context when the Legislature has not unmistakably removed zoning authority.

3. Litigation strategy: specificity matters

Facial challenges to “all West Virginia zoning laws” or generalized assertions that an ordinance “effectively prohibits drilling” are unlikely to succeed without identifying the exact ordinance provision and the exact statutory text it allegedly contradicts—especially where the challenged provision was not applied to the project at issue.

4. Appellate routing is clarified for zoning certiorari cases

Parties challenging BZA decisions via statutory certiorari must route any appeal from the circuit court’s certiorari judgment directly to the Supreme Court of Appeals of West Virginia. The ICA is not a proper forum for those extraordinary-remedy appeals, reducing procedural uncertainty and preventing jurisdictional dead-ends.

IV. Complex Concepts Simplified

• Conditional use permit: A zoning tool allowing a use that is not automatically permitted in a zoning district, but may be allowed if specified criteria are met and the zoning authority approves it.
• Certiorari (in this context): A specialized court review process—classified as an “extraordinary remedy”—used to review decisions of bodies like boards of zoning appeals. Here, it is the statutorily required mechanism to challenge BZA decisions in circuit court.
• De novo review: The reviewing court decides the legal question anew, without deferring to the lower court’s legal conclusions.
• Preemption / conflict (state vs. local): A local ordinance is invalid to the extent it contradicts state law—e.g., if it forbids what state law authorizes, or authorizes what state law forbids. Overlap is not enough; the inconsistency must be real and irreconcilable.
• “False conflict” (from Longwell): A situation where state and local rules touch the same activity but pursue different legitimate objectives; compliance with both may be required unless the Legislature expressly makes the state authorization exclusive.
• Express vs. implied preemption: Express preemption exists when the Legislature plainly says local regulation is displaced. Implied preemption is inferred from statutory structure or purpose; this opinion signals that inference will be disfavored when zoning displacement is not clearly stated.

V. Conclusion

This opinion establishes two practical rules of wide importance in West Virginia land-use and energy-development disputes. First, a DEP horizontal-well permit does not, by itself, negate municipal zoning authority: absent express legislative preemption, municipal zoning and state environmental permitting can operate concurrently, with overlap treated as an incidental “false conflict” rather than an irreconcilable contradiction. Second, appeals from circuit court certiorari judgments reviewing BZA decisions do not lie in the ICA; they proceed directly to the Supreme Court of Appeals of West Virginia because certiorari is an extraordinary remedy and the governing statutes route review accordingly.