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2023 Op. W. Va. Att'y Gen. 1 (2023)

handle is hein.sag/sagwv0066 and id is 1 raw text is: State of West Virginia
Office of the Attorney General
Patrick Morrisey                                             Phone: (304) 558-2021
Attorney General                                               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.

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