Ordinance Amendments Can Moot Systemic Challenges; Extraordinary Writs Cannot Compel Discretionary Permit Decisions Absent Arbitrary or Capricious Conduct

Introduction

In Susan Casdorph v. City of South Charleston, No. 24-284 (W. Va. Oct. 21, 2025), the Supreme Court of Appeals of West Virginia issued a memorandum decision that both narrows the live disputes after a legislative change and reiterates the limited role of extraordinary writs in reviewing discretionary administrative decisions.

The petitioner, a South Charleston resident, sought a permit under the City’s pre-2023 ordinance to keep chickens on her property. The City’s Property Board denied the permit—citing concerns about attracting predators and odors—and, while litigation was pending, the City amended the ordinance to prohibit keeping chickens altogether. The petitioner challenged the denial via a petition for writs of mandamus and prohibition and sought declaratory relief attacking the ordinance (both facially and as applied) and the City’s related practices (including recordkeeping).

The key issues on appeal were:

• Whether the City’s 2023 amendment to the animal-keeping ordinance rendered some or all of the petitioner’s claims moot;
• Whether extraordinary writs (mandamus and prohibition) can compel or overturn the Property Board’s discretionary denial under the former ordinance; and
• Whether the petition plausibly alleged arbitrary or capricious decision-making sufficient to survive a motion to dismiss.

The Court dismissed as moot the broad challenges to the prior ordinance and related practices, and affirmed dismissal of the remaining claims related to the petitioner’s individual permit denial—holding that extraordinary relief was inappropriate because the Board’s decision was discretionary and supported by reasons tied to the factors listed in the ordinance.

Summary of the Opinion

Issuing a memorandum decision under West Virginia Rule of Appellate Procedure 21, the Court concluded that oral argument was unnecessary and that the appeal presented no substantial question of law. The Court:

• Dismissed as moot (in part) the petitioner’s declaratory and extraordinary-writ claims attacking the prior version of City Code § 505.06 and the City’s generalized practices (including recordkeeping) under that now-superseded ordinance, because the City amended the ordinance in August 2023 to prohibit keeping chickens outright;
• Affirmed (in part) the circuit court’s Rule 12(b)(6) dismissal of the petitioner’s remaining claims tied specifically to her individual permit denial under the former ordinance—holding that:
  • Mandamus does not lie to compel a discretionary permit issuance unless the discretion was exercised arbitrarily or capriciously, which was not plausibly alleged here; and
  • Prohibition is typically inappropriate to control discretionary or factual determinations, and the complaint’s “de facto moratorium” allegation was conclusory and therefore insufficient to state a claim.
• Noted that any “as-applied” declaratory challenge fails for the same reasons: the petition did not plausibly allege an arbitrary or capricious exercise of discretion.

The Court therefore disposed of the case by dismissing in part as moot and affirming in part.

Analysis

1) Precedents and Authorities Cited

The Court grounded its disposition in a set of well-established principles:

• Mootness Doctrine:
  • State ex rel. Lilly v. Carter, 63 W. Va. 684, 60 S.E. 873 (1908) (quoted via City of Martinsburg v. County Council of Berkeley County, 247 W. Va. 320, 880 S.E.2d 42 (2022)): Courts do not decide moot questions or abstract propositions.
  • W. Va. Bd. of Dental Examiners v. Storch, 146 W. Va. 662, 122 S.E.2d 29 (1961): Appeals are generally dismissed when there is no actual controversy.
• Pleading Standard on Rule 12(b)(6):
  • State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W. Va. 770, 461 S.E.2d 516 (1995): De novo review applies to dismissals under Rule 12(b)(6).
  • Brown v. City of Montgomery, 233 W. Va. 119, 755 S.E.2d 653 (2014): Courts may disregard legal conclusions and sweeping assertions masquerading as facts at the motion-to-dismiss stage.
• Extraordinary Writs and Discretionary Decisions:
  • Casey v. W. Virginia Board of Veterinary Medicine, 226 W. Va. 6, 697 S.E.2d 42 (2010): Mandamus does not typically lie to compel discretionary acts.
  • State ex rel. Maple Creative, LLC v. Tincher, 226 W. Va. 118, 697 S.E.2d 154 (2010): Mandamus may lie where discretionary power is exercised arbitrarily or capriciously.
  • State ex rel. Doe v. Troisi, 194 W. Va. 28, 459 S.E.2d 139 (1995): Writs of prohibition are generally inappropriate to review discretionary or purely factual issues.
• Municipal Authority:
  • W. Va. Code § 8-12-5(25): Municipalities have statutory authority to regulate or prohibit the keeping of animals or fowls.
• Related Statutes and Rules:
  • W. Va. R. App. P. 21: Authorizes memorandum decisions where no substantial question of law is presented and oral argument is unnecessary.
  • W. Va. Code §§ 29B-1-1 to -7 (FOIA): The petitioner served a pre-application FOIA request, but did not plead a stand-alone FOIA cause of action or seek FOIA-specific relief.

These authorities collectively shaped the Court’s approach: decline moot issues, apply a plausibility screen to the pleadings, and maintain a high threshold for extraordinary writs in the face of discretionary decision-making.

2) Legal Reasoning

a) Threshold: Mootness After Ordinance Amendment

The City amended City Code § 505.06 in August 2023 to remove the permitting discretion and to prohibit chicken-keeping entirely. Because the petitioner sought declarations and writs dictating the City’s general practices under the former ordinance (including recordkeeping expectations and standards for considering applications), those systemic challenges no longer presented a live controversy. Applying the classic mootness rule from Lilly and Storch, the Court dismissed those claims as moot.

Importantly, the Court preserved only the controversy over the petitioner’s individual permit decision under the former ordinance. That was the last issue with concrete consequences still susceptible to judicial relief (e.g., potential extraordinary relief concerning the specific denial).

b) Mandamus: Discretion, With a Narrow Arbitrary/Capricious Exception

The former City Code § 505.06 stated that the Property Board “may issue” a permit “if it, in its opinion, determines” the animal will not be a nuisance, health problem, or unsanitary condition. This is the language of discretion. Under Casey, mandamus typically does not lie to compel a discretionary act. Under Maple Creative, a narrow exception exists where the petitioner can plausibly allege that the discretion was exercised arbitrarily or capriciously.

Applying the Brown plausibility screen, the Court looked at the petition and its exhibits (including the Board’s denial letter). The petition itself alleged that:

• the Board gave the petitioner a 50-minute hearing and asked questions;
• Board members reviewed the materials she submitted;
• the Board issued a written denial explaining its reasons—concerns about predators (raccoons and coyotes) and waste odor—expressly linked to the ordinance’s nuisance/health/sanitary criteria.

Those allegations undermine any claim that the Board ignored the ordinance or refused to consider the application. Even though the petitioner alleged the Board never had granted such a permit and that members expressed general opposition to chicken-keeping, the Board articulated ordinance-linked reasons here, and the petition alleged no concrete facts showing a predetermined outcome or bad faith so stark as to be arbitrary/capricious. Mere patterns of denials or general opposition, without more, do not transform a discretionary act into an arbitrary one at the pleading stage.

On that basis, the Court held that mandamus could not be used to compel issuance of a permit or to set aside the denial.

c) Prohibition: Not a Tool to Control Discretion or Factfinding

The petitioner also sought a writ of prohibition to block what she characterized as a “de facto moratorium” on chicken permits. Citing Troisi, the Court reiterated that prohibition is generally ill-suited to restrain discretionary or factual determinations. The ordinance’s “may issue” and “in its opinion” phrasing signaled that permitting decisions were discretionary and fact-intensive.

The “de facto moratorium” allegation was, in the Court’s view, a conclusory label, and under Brown such legal conclusions can be disregarded on a motion to dismiss. The factual core—receipt of an application, a hearing, a vote, and a reasoned denial tied to enumerated factors—does not plausibly allege the sort of non-exercise or abuse of authority that prohibition would remedy. Prohibition therefore failed for substantially the same reasons as mandamus.

d) Declaratory Relief “As Applied”

The petition also sought an “as-applied” declaration that the former ordinance was invalid/unconstitutional as applied to this petitioner. Given the Court’s findings that the Board’s action was discretionary, procedurally adequate, and substantively tied to ordinance criteria, the “as-applied” claim necessarily failed alongside the writs.

e) FOIA Allegations: No Stand-Alone Claim, No Relief

The petitioner described pre-application FOIA efforts and alleged that she was told no records existed, notwithstanding Board discussions referencing prior applications. Yet she did not plead a separate FOIA count or seek FOIA-specific relief. The Court noted this and declined to grant relief indirectly through extraordinary writs tailored to the ordinance. The take-away is straightforward: FOIA compliance must be pursued through a FOIA cause of action and corresponding remedies.

3) Impact and Practical Implications

a) Municipal Law and Animal-Keeping Ordinances

The decision reinforces municipalities’ broad authority under W. Va. Code § 8-12-5(25) to regulate or prohibit animal-keeping. Cities that face litigation over discretionary permitting regimes can, as South Charleston did, amend their ordinances to eliminate discretion and prospectively prohibit the activity—mooting many global challenges to prior practices.

b) Litigation Strategy: Pleading and Preservation

• Plead specific facts, not labels: Allegations of a “de facto moratorium” or generalized bias must be anchored in facts showing predetermination, refusal to consider evidence, reliance on non-statutory criteria, or other indicia of arbitrary/capricious conduct. Conclusory statements will be disregarded at the pleading stage under Brown.
• Seek FOIA relief via FOIA: If records matter to your claim, plead a FOIA count and ask for FOIA remedies (production, attorney’s fees, etc.). Do not assume FOIA grievances will be redressed through mandamus/prohibition directed at another ordinance.
• Consider mootness dynamics: Legislative amendments can extinguish live controversies. Counsel should evaluate mootness exceptions (e.g., “capable of repetition yet evading review,” collateral consequences, voluntary cessation/public interest) early and develop a record to support them. This opinion did not find or apply any such exception.
• Focus on the administrative record: When a board provides a hearing, considers materials, and articulates ordinance-based reasons, it will be hard to show arbitrariness on the pleadings. Building a record of procedural irregularities or reliance on impermissible factors is critical.

C) Extraordinary Writs: Guardrails Reaffirmed

The Court’s application of Casey, Maple Creative, and Troisi underscores long-standing limits: mandamus is not a vehicle to second-guess a discretionary permitting decision unless the plaintiff plausibly alleges arbitrary/capricious conduct; prohibition is not a means to restrain or reweigh discretionary or factual judgments. For local boards, this offers stability; for applicants, it raises the bar for pleading and proof.

Complex Concepts Simplified

• Mootness: Courts decide real disputes. If the law changes so that a requested ruling would no longer affect the parties’ rights, the case (or part of it) becomes moot and is dismissed. Here, a new ordinance banned chickens outright, making broad challenges to the prior permitting regime academic.
• Mandamus: An extraordinary court order directing a government body to perform a clear legal duty. It does not usually apply to decisions that involve judgment or discretion unless the decision was arbitrary or capricious.
• Prohibition: An extraordinary order preventing a lower tribunal or official from acting outside their jurisdiction or illegally. It is not meant to micro-manage discretionary or fact-bound determinations.
• Arbitrary or Capricious: A decision made without a rational basis, not tied to the governing standards, ignoring relevant evidence, or reflecting prejudice/bad faith. If a board explains its decision using the criteria the law provides, it is typically not arbitrary.
• As-Applied vs. Facial Challenge: An “as-applied” challenge argues that a law, even if generally valid, was applied in an unconstitutional way to a specific person. A “facial” challenge argues the law is invalid in all or most applications.
• De Novo Review of 12(b)(6): On appeal from a dismissal for failure to state a claim, the appellate court takes a fresh look (no deference) but applies the rule that courts accept well-pleaded facts as true and ignore bare legal conclusions.

Observations and Guidance

For Applicants

• Document the process meticulously: notice, hearing length, questions asked, materials submitted, and the reasons given in writing.
• To allege arbitrariness, identify concrete contradictions (e.g., reasons outside the ordinance, demonstrable misstatements of fact, refusal to consider evidence). Patterns of denial alone are not enough at the pleading stage.
• If you need city records to support your claims, pursue a FOIA claim with proper requests for relief; do not rely on extraordinary writs to indirectly deliver FOIA remedies.
• Consider seeking preliminary relief early; later legislative amendments can moot systemic challenges.

For Municipal Boards

• Discretionary frameworks should be backed by clear, ordinance-based findings. Short, focused written reasons tied to statutory factors, as here (nuisance/health/sanitary concerns), fortify decisions against extraordinary-writ challenges.
• Ensure transparent recordkeeping. Even though FOIA was not adjudicated here, the juxtaposition of “no records” with knowledge of prior applications invites skepticism and future litigation risk.
• When policy preferences shift, legislative amendment is an effective and lawful way to clarify or change standards going forward; it may also moot pending systemic challenges.

Conclusion

The Supreme Court of Appeals of West Virginia’s memorandum decision in Casdorph v. City of South Charleston does not create new doctrine but crisply applies bedrock principles with two practical consequences. First, legislative amendments that remove or replace a challenged regime can moot broad attacks on the old framework. Second, extraordinary writs remain a limited remedy: absent concrete, non-conclusory allegations of arbitrary or capricious conduct, courts will not compel or restrain discretionary permitting decisions through mandamus or prohibition.

For future litigants, the opinion is a reminder that the path to relief against a discretionary denial runs through factual specificity and procedural rigor, not generalized allegations. For municipalities, it confirms that well-documented, criteria-based decisions—and, where desired, clear legislative amendments—provide durable defenses to challenges in this regulatory space.

Case Snapshot

• Case: Susan Casdorph v. City of South Charleston
• Court: Supreme Court of Appeals of West Virginia
• Date: October 21, 2025
• Disposition: Dismissed in part as moot; affirmed in part
• Key Holdings:
  • Ordinance amendment mooted systemic challenges to prior ordinance and related practices.
  • Mandamus and prohibition cannot be used to overturn a discretionary permit denial absent plausible allegations of arbitrary or capricious conduct.
  • Conclusive labels such as “de facto moratorium” are disregarded at the pleading stage without supporting facts.

Note: This commentary is for informational purposes and does not constitute legal advice.