Background
SWN Production Company, LLC holds a lease to drill for natural gas on a 301-acre tract within the City of Weirton, West Virginia. In 2021, SWN sought a conditional use permit from the City’s Board of Zoning Appeals (BZA) to construct a well pad for up to fourteen horizontal gas wells. After two public hearings, the BZA denied the application in October 2021, citing unreliable traffic projections, failure to address aquifer impacts, and incompatibility with the City’s Comprehensive Plan designating the area as a mixed-use commercial hub. SWN’s proposed drilling rig, at 165 feet, also far exceeded the zoning ordinance’s 60-foot height limit for commercial-industrial structures.
SWN responded with two parallel actions in Brooke County Circuit Court: a certiorari petition to reverse the BZA’s denial, and a declaratory judgment action arguing that state environmental law — principally the Natural Gas Horizontal Well Control Act — preempted the City’s zoning authority over oil and gas drilling. After the DEP issued SWN a horizontal well drilling permit in February 2022, SWN pressed the preemption claim more forcefully. The circuit court rejected both arguments, finding no irreconcilable conflict between the Horizontal Well Control Act and the City’s zoning ordinance, and separately affirming the BZA’s denial on the merits.
SWN appealed both rulings to the Intermediate Court of Appeals (ICA). In the preemption appeal, the ICA reversed the circuit court, concluding that the Act’s grant to the DEP of “sole and exclusive authority” over the permitting and location of horizontal gas wells conflicted with the City’s conditional use permit requirement. In the certiorari appeal, the ICA dismissed for lack of jurisdiction, holding that it has no appellate authority over circuit court rulings on extraordinary remedies. Both sides sought further review, and the Supreme Court of Appeals consolidated the cases.
The Court’s Holding
In the preemption appeal (No. 23-753), the Court reversed the ICA and reinstated the circuit court’s judgment. Justice Wooton, writing for the Court, held that the overlap between the DEP’s permitting authority under the Horizontal Well Control Act and the City’s zoning authority under the Land Use Planning Act is a “false conflict,” not an irreconcilable one. The Legislature separately delegated environmental permitting power to the DEP and land-use planning power to municipalities; both agencies operated within their respective grants of authority when they each considered SWN’s proposed project. Relying on Longwell v. Hodge, 171 W. Va. 45, 297 S.E.2d 820 (1982) — which held that a state beer license is a necessary but not sufficient condition for selling beer where a city’s zoning ordinance also applies — the Court reasoned that a DEP drilling permit does not automatically override local zoning. The Horizontal Well Control Act’s “sole and exclusive authority” language does not constitute the express statutory preemption of municipal zoning that would be required to void the City’s ordinance.
The Court also emphasized that SWN’s amended complaint never identified a specific City ordinance that either permitted what state law forbids or forbade what state law permits. SWN instead challenged the BZA’s conditional use decision and argued the ordinance was facially preempted in its entirety — a claim the circuit court correctly rejected. Without a concrete, provision-by-provision conflict, there is no basis to invalidate the zoning ordinance as a matter of law.
In the certiorari-jurisdiction appeal (No. 24-320), the Court affirmed the ICA’s dismissal. The Land Use Planning Act specifies that BZA decisions are reviewed by certiorari in circuit court and that subsequent appeals go directly to the Supreme Court of Appeals — not to the ICA. Because certiorari is an extraordinary remedy, and the ICA’s enabling statute expressly excludes appellate jurisdiction over extraordinary remedies, the ICA correctly dismissed SWN’s appeal as improvidently docketed. The proper appellate path for a circuit court certiorari ruling on a zoning decision runs directly to this Court.
Key Takeaways
- A DEP drilling permit under the Horizontal Well Control Act does not preempt or override a municipality’s authority to require a conditional use permit under its zoning ordinance; obtaining state approval is necessary but not sufficient where local zoning also applies.
- The Horizontal Well Control Act’s “sole and exclusive authority” language does not constitute the express statutory preemption needed to void municipal zoning ordinances — the Court distinguished it from legislative language that explicitly exempts specific uses from zoning review or approval.
- A facial preemption challenge to a municipal zoning ordinance requires identifying a specific ordinance provision that is irreconcilably inconsistent with a specific state statute; a general argument that an ordinance “effectively prohibits” a state-permitted activity is insufficient.
- Under the Land Use Planning Act, circuit court certiorari rulings on BZA zoning decisions bypass the ICA and are appealable only directly to the Supreme Court of Appeals of West Virginia.
- The BZA’s denial of SWN’s conditional use permit — based on traffic, aquifer, and land-use incompatibility grounds — remains in effect; SWN must separately pursue that merits challenge through the correct appellate channel.
Why It Matters
This decision resolves a significant tension between state energy regulation and local land-use authority in West Virginia, a major natural gas producing state. By rejecting SWN’s preemption argument, the Court affirms that municipalities retain meaningful zoning power over where oil and gas operations may be sited, even when the operator holds a valid state drilling permit. Energy companies operating in West Virginia must now navigate both DEP permitting and local conditional use processes — securing one does not insulate a project from the other.
The ruling also clarifies an important procedural trap for practitioners: zoning decisions reviewed by certiorari in circuit court must be appealed directly to the Supreme Court of Appeals, skipping the ICA entirely. Attorneys who route such appeals through the ICA risk dismissal for lack of jurisdiction, potentially forfeiting their right to further review.