(a) Any person having an interest adversely affected by a final decision made and entered by the board is entitled to judicial review thereof in the circuit court of Kanawha County, or the circuit court of the county in which the facility is, or is proposed to be, situated, such appeal to be perfected by the filing of a petition with the court within sixty days of the date of receipt by the applicant of the board's written decision.
(b) The review shall be conducted by the court without a jury and shall be upon the record made before the board except that in cases of alleged irregularities in procedure before the board not shown in the record, testimony thereon may be taken before the court. The court may hear oral arguments and require written briefs.
The court may affirm the order or decision of the board or remand the case for further proceedings. It may reverse, vacate or modify the order or decision of the board if the substantial rights of the petitioner or petitioners have been prejudiced because the administrative findings, inferences, conclusions, decision or order are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority or jurisdiction of the board;
(3) Made upon unlawful procedures;
(4) Affected by other error of law;
(5) Clearly wrong in view of the reliable, probative and substantial evidence on the whole record; or
(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
(c) The judgment of the circuit court is final unless reversed, vacated or modified on appeal to the supreme court of appeals. The petition seeking such review must be filed with said supreme court of appeals within ninety days from the date of entry of the judgment of the circuit court.
(d) Legal counsel and services for the board in all appeal proceedings shall be provided by the attorney general.
Note: WV Code updated with legislation passed through the 2013 1st Special Session
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