Developer seeks federal order to overturn state Justices
Steve Korris Jul. 31, 2009, 3:10am
MARTINSBURG – Jefferson County planners who issued a permit to develop 123 acres after the state Supreme Court of Appeals ordered them to issue it now seek a federal court order that would overturn the Justices and block construction.
The county planning commission sued in U.S. District Court at Martinsburg on June 26 for an order declaring the Supreme Court's order null and void.
Commissioners granted a permit last year but reserved the right to challenge the Supreme Court decision and rescind the permit.
Bob Bastress of Morgantown filed the complaint against developer Far Away Farms, but he mostly complained about the Supreme Court.
The Justices "violated plaintiff's rights to due process of law as guaranteed to it by the Fourteenth Amendment to the United States Constitution," he wrote.
They shouldn't have ordered the planning commission to issue the permit, Bastress wrote, because the board of zoning appeals rejected it.
Far Away Farms sued the board of zoning appeals, he wrote, and the commission was not a party to the case.
The Court lacked personal jurisdiction and subject matter jurisdiction, he wrote.
"Plaintiff never had an opportunity to participate in the proceedings that led to the Supreme Court decision," he wrote.
The commission never had an opportunity to address independently the merits of the permit application, he wrote.
He asked for judgment that the Supreme Court failed to provide the commission with any opportunity to state a defense.
He asked for judgment that the commission may rescind the permit and consider it on its merits.
He asked for an award of attorney's fees and costs.
The Supreme Court ruled in favor of the development in April 2008, finding that the board of zoning appeals exercised power that belonged to the commission.
Far Away Farms addressed all issues at a public hearing "and its evidence was unrefuted," the Justices agreed in an unsigned opinion.
They wrote that zoning ordinances must balance rights of individual property owners with community needs.