Ordinance Amendments Moot Broad Challenges; Extraordinary Writs Cannot Compel Discretionary Municipal Permit Decisions Absent Arbitrary Action

Comprehensive Commentary on Susan Casdorph v. City of South Charleston, Supreme Court of Appeals of West Virginia (Oct. 21, 2025)

Introduction

This memorandum decision by the Supreme Court of Appeals of West Virginia arises from a dispute over a resident’s attempt to keep chickens within the City of South Charleston. The case, while factually modest, presents a clean vehicle for two recurring issues in public-law litigation: (1) the effect of a mid-litigation amendment to a municipal ordinance on the justiciability of claims (mootness); and (2) the limited availability of extraordinary writs (mandamus and prohibition) to challenge discretionary decisions of local boards.

Petitioner Susan Casdorph applied for a permit under the City’s former ordinance, City Code § 505.06 (2014), which allowed the Property Board to grant permits to keep “animals or poultry” if, in the Board’s opinion, such keeping would not constitute a nuisance, health problem, or unsanitary condition. After a lengthy presentation and discussion, the Property Board denied her application, citing concerns that chickens would attract predators (e.g., raccoons and coyotes) and create waste-related odors. Ms. Casdorph sought extraordinary writs of mandamus and prohibition and requested declaratory relief, including constitutional objections to the ordinance as written and as applied, and references to recordkeeping and an antecedent FOIA request. While her case was pending, the City amended the ordinance (August 2023) to categorically prohibit keeping chickens, thereby removing the discretionary permitting structure.

The circuit court dismissed her petition, finding no clear right to relief and no arbitrary or capricious exercise of discretion by the Property Board. On appeal, the Supreme Court dismissed as moot the challenges aimed at the former ordinance and its general procedures, and affirmed the dismissal of her as-applied challenges to the specific permit denial. The decision clarifies that: (a) a legislative amendment eliminating the challenged scheme typically moots facial and practice/procedure claims; and (b) extraordinary writs cannot be used to compel a discretionary permitting outcome absent well-pleaded facts showing arbitrary or capricious action.

Summary of the Opinion

• Mootness: The Court held that the City’s amendment of § 505.06 to prohibit chickens mooted petitioner’s general attacks on the prior ordinance (including declaratory challenges to its validity, recordkeeping practices, and alleged prior “de facto” moratorium as a general policy). Those claims “would avail nothing” because the prior ordinance is no longer in effect.
• Live Controversy Narrowed: The only nonmoot issue was the challenge to the Board’s denial of Ms. Casdorph’s specific permit application under the prior ordinance.
• Mandamus: Because issuing a permit was discretionary, mandamus would not lie unless the petitioner plausibly alleged arbitrary or capricious action. The Court agreed with the circuit court that the petition’s own exhibits showed the Board considered the application at length and denied it for reasons tied to factors enumerated in the ordinance (predators, odor/waste), defeating an arbitrary/capricious theory at the pleading stage.
• Prohibition: Prohibition is ordinarily unavailable to restrain discretionary or purely factual administrative decisions. The Court affirmed dismissal of the prohibition claim; the ordinance vested discretion, and petitioner’s allegation of a “de facto moratorium” was a legal conclusion the circuit court could properly disregard on a motion to dismiss.
• Declaratory Relief “as applied”: To the extent any as-applied claim survived mootness, it failed for the same reasons as the writ claims—no plausible allegations of arbitrary or capricious action in the Board’s handling of the specific application.
• Disposition: Appeal dismissed in part as moot and affirmed in part. Oral argument was deemed unnecessary under Rule 21; the Court resolved the case by memorandum decision.

Analysis

Precedents and Authorities Cited

• Mootness Doctrine:
  • City of Martinsburg v. County Council of Berkeley County, 247 W. Va. 320, 880 S.E.2d 42 (2022), quoting Syl. pt. 1, State ex rel. Lilly v. Carter, 63 W. Va. 684, 60 S.E. 873 (1908): courts do not decide abstract propositions or moot questions.
  • W. Va. Bd. of Dental Examiners v. Storch, 146 W. Va. 662, 122 S.E.2d 29 (1961) (Syl. pt. 1, in part): appeals are dismissed when no actual controversy remains.
• Pleading Standards and Review on Dismissal:
  • State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W. Va. 770, 461 S.E.2d 516 (1995) (Syl. pt. 2): de novo review of dismissal.
  • Brown v. City of Montgomery, 233 W. Va. 119, 755 S.E.2d 653 (2014): on a motion to dismiss, courts may disregard legal conclusions and conclusory assertions dressed up as facts.
• Extraordinary Writs:
  • Mandamus: 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.
  • Mandamus exception: State ex rel. Maple Creative, LLC v. Tincher, 226 W. Va. 118, 697 S.E.2d 154 (2010): even discretionary decisions may be corrected by mandamus if exercised arbitrarily or capriciously.
  • Prohibition: State ex rel. Doe v. Troisi, 194 W. Va. 28, 459 S.E.2d 139 (1995): prohibition is usually inappropriate where disputes are discretionary or fact-bound.
• Municipal Authority:
  • W. Va. Code § 8-12-5(25): municipalities may “regulate or prohibit the keeping of animals or fowls.”
• Other Authorities Referenced:
  • FOIA: W. Va. Code §§ 29B-1-1 to -7 (raised in background but no FOIA-specific relief was sought or decided).
  • City Code of South Charleston § 505.06 (2014), as amended and reenacted August 2023 (now prohibiting chicken-keeping).

Legal Reasoning

1) Mootness: The consequence of an intervening ordinance change

The Court began with mootness, a threshold justiciability inquiry. Where an ordinance is amended to remove the challenged scheme, “the decision of [moot] questions would avail nothing” in determining rights because the prior legal framework no longer governs. That is precisely the circumstance here: petitioner’s broad facial and procedural challenges (including alleged recordkeeping practices under the prior permitting regime) were rendered academic once the City amended § 505.06 to categorically prohibit keeping chickens and eliminated the discretionary permitting process altogether.

Importantly, the Court preserved as a live controversy only those claims tied to the City’s disposition of the petitioner’s specific application under the prior ordinance. This narrow carve-out reflects a common-sense approach: although the broader framework has been superseded, a completed administrative act under the old law can still be examined, provided the relief sought is meaningful and not itself mooted by the change. Here, the only viable relief would have been extraordinary writs compelling or restraining the Board’s actions on that application, but the Court ultimately concluded that the pleadings did not support such relief.

Notably, the Court did not invoke any exceptions to mootness (such as “capable of repetition yet evading review,” collateral consequences, or public-importance exceptions). Given the new categorical prohibition, recurrence is unlikely for this petitioner; no collateral legal consequences were identified; and the memorandum format under Rule 21 signals the Court did not consider the matter to raise novel, recurring legal questions warranting a precedential opinion.

2) Mandamus: Discretion narrows the path to relief

The petitioner sought a writ of mandamus compelling issuance of the permit. The Court reaffirmed a central principle: mandamus does not typically lie to compel discretionary acts. The exception—where a discretionary decision is exercised arbitrarily or capriciously—requires well-pleaded facts showing that the agency acted outside the bounds of reasoned decision-making or contrary to governing standards.

The petition, however, attached and relied on materials demonstrating the Board’s process: a 50-minute presentation with questions; consideration of written materials; and a written decision giving reasons (predator attraction; odor and waste) that map directly onto the ordinance’s factors (“nuisance, health problem or unsanitary condition”). Because the petition’s own exhibits showed the Board used the criteria the ordinance expressly authorized the Board to apply, the Supreme Court agreed that the circuit court correctly found no plausible claim of arbitrariness or caprice at the pleading stage.

The petitioner also suggested the Board had never issued a chicken permit and was hostile to the concept (including a Board member’s remark suggesting categorical skepticism). The Court treated the dispositive question as whether the decision on this application reflected the arbitrary or capricious exercise of discretion. It concluded that the Board’s stated reasons—on their face—were within the permitted factors. Bare assertions of hostility or historical non-issuance, without more, did not transform a textually grounded decision into arbitrary action for mandamus purposes.

3) Prohibition: Not a vehicle to override discretionary judgments

The petitioner alternatively sought a writ of prohibition to bar the City from enforcing what she labeled a “de facto moratorium” on chicken permits. Prohibition is an extraordinary remedy reserved to prevent a lower tribunal from exceeding its jurisdiction or acting in contravention of law, and the Court reiterated that prohibition is “typically inappropriate” where the issues are discretionary or purely factual. The ordinance used permissive language (“may issue … if, in its opinion”), signaling discretion, not a mandatory entitlement.

The circuit court was therefore justified in dismissing the prohibition claim, and the Supreme Court affirmed: the “de facto moratorium” assertion was a legal conclusion the court could disregard under Brown. The operative facts showed a case-specific review and a reasoned denial tied to ordinance criteria. In short, prohibition cannot be used as an end-run around an authorized discretionary decision.

4) Declaratory relief “as applied” and due process

The petitioner also pleaded that the ordinance was unconstitutional “as applied.” To the extent any such claim survived the ordinance amendment, it rose and fell with the extraordinary-writ theories: absent plausible allegations of arbitrary or capricious application, there was no basis to declare the ordinance unlawfully applied to this petitioner.

The circuit court also found no due process violation in how the application was handled. While the Supreme Court’s memorandum does not elaborate, the broader framework suggests two points: (a) the petitioner received process (presentation, questioning, written decision); and (b) a discretionary permitting regime seldom creates a protected property interest or a “clear legal right” to the permit itself. The Court’s emphasis on the ordinance’s discretionary text underscores the absence of a cognizable entitlement that would support a due process theory in this posture.

5) FOIA and recordkeeping: Not adjudicated

Although the petitioner described a FOIA request and alleged inconsistencies between the City’s response and the Board’s discussion of prior applications, she did not seek specific FOIA relief. The Court’s mootness holding disposed of her requests for general declarations about recordkeeping under the prior ordinance. Any distinct FOIA remedies would have needed to be pleaded and pursued under FOIA, which the petitioner did not do here.

Practical Impact

For municipalities and local boards

• Legislative fix can moot litigation: When a city amends an ordinance to remove the challenged framework, broad facial and procedural attacks generally become moot. This decision illustrates the efficacy of a legislative cure—especially where a city wishes to align policy (e.g., a categorical prohibition on certain animals) with practice.
• Discretion should be tethered to criteria: Even in a discretionary regime, tie decisions to the ordinance’s enumerated factors and provide clear, written reasons. Doing so both narrows the space for arbitrary/capricious claims and improves defensibility at the pleading stage.
• Recordkeeping and transparency: Although not adjudicated here, tension between “no records exist” and Board references to prior applications invites scrutiny. Robust, accessible records not only comply with FOIA but also protect the municipality in litigation predicated on disparate treatment or de facto prohibitions.

For applicants and litigants

• Plead specific facts of arbitrariness: To survive dismissal on extraordinary writs, plead concrete facts showing the board departed from governing criteria, ignored undisputed evidence, applied impermissible factors, or treated similarly situated applicants differently. Conclusory labels (e.g., “de facto moratorium”) will be disregarded.
• Anticipate mootness: If the governing law may change, consider seeking relief that will not be mooted, such as damages where available, or a timely injunction. If a legislative change moots a facial challenge, evaluate whether an exception to mootness applies and be prepared to establish it.
• Use FOIA correctly and separately: If transparency is central to the claim (e.g., to prove disparate treatment), pursue FOIA relief expressly and preserve a record. Do not assume that reciting FOIA correspondence in a pleading will yield FOIA remedies without a FOIA claim.
• Know the limits of extraordinary writs: Mandamus and prohibition are narrow, especially in discretionary licensing contexts. Where available, consider statutory appeals, certiorari, or other review mechanisms better suited to factual disputes.

For the development of West Virginia law

• Reaffirmation, not expansion: As a Rule 21 memorandum decision with no syllabus points, the Court applied settled doctrines—mootness, pleading standards, and the narrow role of extraordinary writs—without announcing new rules. Nonetheless, it provides persuasive guidance for similar municipal-permit disputes.
• Text matters: The Court repeatedly emphasized the ordinance’s permissive language (“may … if, in its opinion”). Text that grants broad discretion generally forecloses claims of entitlement and narrows due process and writ-based theories.

Complex Concepts Simplified

• Mootness: Courts decide live disputes, not academic questions. If a law changes such that a court’s decision would no longer affect the parties’ rights, the case (or part of it) is moot and must be dismissed absent a recognized exception.
• Memorandum decision (Rule 21): A streamlined decision used when no substantial question of law or prejudicial error is present. It resolves the case but does not set new binding precedent through syllabus points.
• Writ of mandamus: An extraordinary order directing a public body to perform a clear legal duty. It rarely compels discretionary acts unless the discretion was exercised arbitrarily or capriciously.
• Writ of prohibition: An extraordinary order preventing a lower tribunal or official from acting outside lawful bounds. It is typically unavailable to second-guess discretionary, fact-bound administrative judgments.
• Arbitrary and capricious: A decision made without a rational connection to the facts and governing standards, or based on impermissible considerations. Providing reasons grounded in the ordinance’s criteria usually defeats this claim.
• As-applied vs. facial challenge: A facial challenge argues a law is invalid in all or most applications; an as-applied challenge targets how the law was applied to the particular plaintiff. Legislative amendments commonly moot facial challenges to superseded laws.
• Municipal police power: Under W. Va. Code § 8-12-5(25), cities may regulate or prohibit keeping animals or fowls. This statutory authority undergirds ordinances restricting backyard chickens.
• Pleading standards on dismissal: Courts accept well-pleaded facts as true but may ignore bare legal conclusions. Attaching documents that show a rational decision can undermine a claim of arbitrariness at the threshold.
• FOIA relief: To obtain records or challenge denials, a FOIA cause of action and FOIA-specific relief must be pleaded; simply referencing FOIA in background allegations is not enough.

Conclusion

In Susan Casdorph v. City of South Charleston, the Supreme Court of Appeals of West Virginia dismissed as moot the petitioner’s global challenges to a now-amended permitting ordinance and affirmed dismissal of her as-applied claims to compel or restrain a discretionary permit decision. The Court’s reasoning rests on three settled pillars: (1) when a legislative amendment removes the challenged framework, facial and procedural attacks ordinarily become moot; (2) extraordinary writs are not substitutes for appeals and do not lie to control discretionary decisions absent concrete allegations of arbitrary or capricious action; and (3) on a motion to dismiss, courts may disregard conclusory characterizations (such as “de facto moratorium”) when the petitioner’s own materials demonstrate a reasoned, criteria-based denial.

For municipalities, the decision underscores the value of textually grounded discretion and clear written findings tied to ordinance criteria. For applicants, it highlights the need to plead specific facts evidencing arbitrary treatment and to select procedural vehicles tailored to the relief sought. And for West Virginia law, the memorandum reaffirms core doctrines of mootness and the limited role of extraordinary writs in reviewing local licensing decisions—doctrines that will continue to shape litigation strategies in land-use and municipal governance disputes.

Case Information

• Case: Susan Casdorph v. City of South Charleston
• Court: Supreme Court of Appeals of West Virginia
• Docket No.: 24-284 (Kanawha County CC-20-2023-P-244)
• Decision Date: October 21, 2025
• Disposition: Dismissed in part as moot; affirmed in part
• Panel: Chief Justice William R. Wooton; Justices C. Haley Bunn, Charles S. Trump IV, Thomas H. Ewing; Senior Status Justice John A. Hutchison (all concurring)