CHARLESTON — An attorney is asking the West Virginia Supreme Court of Appeals to reverse an Intermediate Court of Appeals decision that upheld South Charleston’s authority to prohibit beekeeping within city limits, arguing in a newly filed reply brief that the city’s ordinance conflicts with several state laws governing beekeeping, agriculture and the production and sale of honey.
M. Alex Urban filed the reply brief September 29. The filing asks the Supreme Court to reverse the ICA’s memorandum decision and reinstate the Kanawha Circuit Court’s judgment in Urban’s favor. Alternatively, Urban asks the court to remand the case for consideration of a due process claim that was not resolved by the lower courts.
The dispute began after Urban sought permission in 2022 to keep two honeybee hives at his South Charleston residence. Under the city’s former ordinance, the Property Board denied his application, and Urban subsequently challenged the city’s authority to prohibit his beekeeping operation.
South Charleston later amended its ordinance to prohibit the keeping of bees and other listed animals within city limits. The Kanawha Circuit Court ruled for Urban in January 2025, but the ICA reversed that decision in February 2026 and directed the circuit court to enter summary judgment in favor of the city.
In its February decision, the ICA concluded that honeybees fall within the ordinary meaning of “animal” under West Virginia Code § 8-12-5(25), which gives municipalities authority concerning animals.
The appellate court also rejected Urban’s argument that the West Virginia Apiary Act and Right to Farm Act displaced that municipal authority, finding no “positive repugnancy” between the statutes.
Urban’s reply brief challenges that reasoning, arguing that the question is not simply whether bees can be classified as animals in ordinary language, but whether municipal authority to regulate animals permits South Charleston to prohibit an activity that Urban says is specifically addressed and protected by state agricultural laws.
He argues the municipal authority granted under § 8-12-5 exists only to the extent it is not inconsistent or in conflict with the state Constitution and other general laws.
Urban also disputes the city’s contention that he failed to preserve certain arguments for appellate review. According to the reply, his amended complaint raised a conflict between the city’s prohibition and state agricultural policy, while the parties subsequently addressed the West Virginia Cottage Food Act during the circuit court proceedings.
Urban says his filings expressly cited the Cottage Food Act’s preemption provision and that the city itself addressed the statute in its circuit court filings. He further argues that the circuit court allowed evidence concerning that theory into the record.
A central argument reiterated in the latest filing concerns the West Virginia Cottage Food Act. Urban points to West Virginia Code § 19-35-6(f), which he says prevents municipalities and counties from prohibiting or regulating the production and sale of nonpotentially hazardous food items.
His brief argues that honey is expressly identified as a nonpotentially hazardous food under state regulations and that state law defines beekeeping as a farm and food product. Urban maintains that a complete prohibition on keeping bees necessarily interferes with the local production of honey.
The brief also relies on the West Virginia Apiary Act and the West Virginia Right to Farm Act.
Urban argues that the Apiary Act establishes a state-specific regulatory framework for beekeeping, including registration of apiaries and Best Bee Management Practices administered through the West Virginia Department of Agriculture.
He contends that the city’s categorical prohibition leaves no process through which a beekeeper can comply with those state standards while maintaining a residential hive.
Urban further argues that the Right to Farm Act provides additional protection because its definition of agriculture expressly includes apiary husbandry.
The brief acknowledges that the circuit court found the record did not establish that Urban’s property met the statute’s definition of “agricultural land,” but argues that “agricultural operation” is separately defined and that state law restricts government enforcement against agricultural operations that materially comply with applicable requirements.
The reply also addresses a proposed West Virginia apiary rule filed by the Department of Agriculture July 24.
Urban says the proposed rule would contemplate allowing two colonies on a parcel smaller than one-eighth of an acre and would permit adjoining parcels to be combined for purposes of calculating colony limits when neighboring property owners provide written agreement.
The brief acknowledges that the proposed rule is not yet binding but cites it as evidence that the Department of Agriculture continues to maintain an active regulatory role in apiary husbandry.
Urban also argues that his constitutional due process claim remains unresolved. He says the amended complaint challenged the former permitting system, including the Property Board’s discretion, the absence of ascertainable standards and the circumstances surrounding the denial of his application.
The circuit court did not need to resolve that issue after ruling in Urban’s favor on statutory grounds, but the ICA later ordered judgment for the city without addressing the due process claim.
Urban therefore asks the Supreme Court, if it does not resolve the statutory dispute in his favor, to remand the case for consideration of that claim rather than allowing the ICA’s unconditional judgment for the city to stand.
The reply brief also discusses legislative and regulatory developments involving beekeeping. Urban notes that both chambers of the West Virginia Legislature passed Senate Bill 927 during the most recent regular session but that the bill ultimately failed to become law.
He argues that the failure of proposed legislation does not alter the meaning of statutes already enacted.
Urban’s reply asks the Supreme Court to restore the circuit court’s declaratory judgment if it determines that South Charleston’s ordinance conflicts with state law.
If the court instead rules for the city on the statutory questions, Urban asks that the case be remanded for consideration of the unresolved due process issue.
The reply was served on counsel for South Charleston and the Property Board on September 29.
Urban is represented by Robert Lee Bolton III.
West Virginia Supreme Court case number: 26-224
