The West Virginia Supreme Court of Appeals has granted a writ of prohibition and ordered the Monongalia County Circuit Court to grant a West Virginia Division of Highways motion for immediate entry in relation to a Mileground expansion project.

The West Virginia Division of Highways filed petitions in the Circuit Court of Monongalia County to condemn private property for use in expansion of the Mileground and moved for immediate right of

entry and transfer of defeasible title, according to court documents. Although all parties agreed that the condemnation was for a public use, the circuit court held the motion in abeyance in lieu of denial and

directed the DOH to go back to its engineers for additional consideration of perceived traffic safety issues and alternative plans, so as to minimize the impact on local businesses. The circuit court then set the matter for an evidentiary hearing, according to court documents.

A hearing on one of the petitions was held on September 7, 2018, and the DOH and affected

businesses operating on the properties to be condemned were heard, according to court documents. The DOH contended, and the affected businesses did not dispute, that the Mileground expansion project was one for public use to promote traffic flow, and that a finding of public use was sufficient to grant the DOH right of access.

However, the affected businesses expressed concern about the proximity of the businesses to the road, and they stated that further negotiations and discussions would be helpful to determine accessibility to the businesses or a potential increase in valuation should the businesses need to relocate. The circuit court expressed similar concern, namely that the Mileground expansion project had an unnecessary impact on local businesses and presented safety concerns that it did not think had been adequately addressed, according to court documents. As a result, Monongalia County Circuit Court Judge Susan B. Tucker twice denied the DOH’s motion for immediate entry on the record despite the DOH’s assertions that the finding of public use was the only inquiry before the circuit court.

Following this decision, the DOH filed a petition for a writ of prohibition, arguing that the circuit court exceeded its authority. The West Virginia Supreme Court agreed with this assertion and granted the writ of prohibition, meaning that it ordered the circuit court to cease the action it had taken.

Moreover, the Supreme Court determined that the Mileground project is indisputably for a public use, and the circuit court exceeded its legitimate authority and committed clear error by hindering the

DOH’s exercise of its legislatively-granted discretion with respect to planning and engineering the road expansion project.

The Supreme Court said the question for the circuit court’s resolution at the right of entry hearing was one of law and simply required the court to determine whether or not the project was one for a public use. Further, the court cited Charleston Nat. Gas Co. v. Low & Butler, Trustees, a 1901 ruling that stated, “[w]hen the court has determined that the use for which property is condemned is a public use, its judicial function is gone and the legislative discretion is unrestrained. Whether the proposed plan will accomplish the end proposed, or to what extent it will be beneficial to the public, are not matters to be determined by the courts; these are matters belonging to the legislative discretion.”

The DOH’s plan is to expand approximately 0.8 miles along U.S. 119, the Mileground, from three lanes to five lanes to create an express route out of Morgantown to Interstate 68.