WEST VIRGINIA RECORD

CHARLESTON – In an error with sorrowful consequences, Putnam County Circuit Judge N. Edward Eagloski destroyed the dream of a dying man.

The West Virginia Supreme Court of Appeals has reversed an Eagloski decision that kept a woman from living next to her grandparents, but the reversal comes too late.

The grandfather, Sherman Bennett, died before the Justices could hear his appeal.

"It is a sad tale but the system worked," said Bennett's attorney, Harvey Peyton of Nitro. "I am glad that the Supreme Court saw the case our way."

He said he expected granddaughter Tonya Wiersma to build a home next to Sherman Bennett's widow, Helene Bennett, in the Maplewood Estates subdivision.

He said Helene Bennett suffers from a degree of dementia that has grown worse since her husband's death.

Eagloski ruled in 2004 that the Putnam County planning commission made a mistake in allowing the Bennetts to split their property so Wiersma could build there.

The Supreme Court of Appeals ruled March 31 that Eagloski abused his discretion. The Justices found that the planning commission acted on substantial evidence.

The Bennetts moved to the subdivision in 1972, as members of Maplewood Estates Homeowners Association. Their home fronted the main street of the subdivision.

A new subdivision, Maplewood Estates East, grew up to the east. A new street, Linden Road, bordered the Bennett lot to the north and east, but only property owners in the new subdivision could drive on it.

As the Bennetts grew old they wished their granddaughter could build on their lot, but a covenant of the homeowners association forbid the splitting of lots.

In 2001, on the 50th anniversary of the subdivision, the covenant expired. The Bennetts set about creating a lot for Wiersma.

She would need access from Linden Road, so the Bennetts asked Maplewood Estates East for permission to use it. Maplewood Estates East refused permission.

The Bennetts sued East Maplewood Estates. Through mediation, East Maplewood Estates gave the Bennetts a conditional right to use Linden Road.

The Bennetts asked the county Office of Planning and Infrastructure to approve a split lot, but the office would not approve it.

Any newly subdivided parcel required access from a street 40 feet wide. Streets in Maplewood Estates and Maplewood Estates East ran 30 feet wide.

The Bennetts needed a variance from the 40 foot rule, and in 2004 attorney Peyton asked the planning commission for a variance.

Peyton quoted a regulation allowing a variance where strict compliance would cause hardship or practical difficulties, "…so that substantial justice may be done and the public interest secured…"

To approve a variance the commission would have to find that, "conditions upon which the request for a variance is based are unique to the property."

The commissioners held a hearing. They declared the condition unique because no other property owner in Maplewood Estates had a right to drive on Linden Road.

Finding that the Bennetts were in poor health and were conveying property so their granddaughter could build close by and care for them, the commissioners decided that hardship would result if they did not grant a variance. They granted it.

Maplewood Estates Homeowners Association appealed to Putnam County circuit court, arguing that the property was not unique and the Bennetts would suffer no hardship from denial of the variance.

Judge Eagloski reversed the commission's decision November 19, 2004.

He ruled that the property was not unique because three other lots in Maplewood Estates bordered Linden Road.

As for hardship, he ruled the Bennetts had to show that complying with regulations was a hardship in relation to the physical attributes of the land. He wrote that he found no such evidence in the record.

"It just broke Mr. Bennett's heart," Peyton said.

Peyton said he took it to the Supreme Court of Appeals "pro bono" – at no charge.

"I liked Mr. Bennett," Peyton said. "He was a nice old gentleman."
Jennifer Scragg of the Office of Prosecuting Attorney of Putnam County represented the planning commission. She and Peyton filed a joint brief.

Gordon Lane, Kelly Young and Brian Casto of Lane & Young, Charleston, represented Maplewood Estates Homeowners Association.

In oral argument, counsel for Maplewood Estates argued that the lot was not unique because owners of other lots bordering Linden Road could easily obtain permission to use the road.

In oral argument, Peyton told the five Justices that Sherman Bennett had died.

In a unanimous opinion March 31, the Justices ordered Eagloski to reinstate the planning commission's decision to approve the variance.

"While it is true that the Bennett lot is not the only lot in Maplewood Estates which borders Linden Road, it is the only lot that has legal access to Linden Road," they wrote.

"It is this fact, which was disregarded by the circuit court, that led the Commission to conclude that the subject property is unique," they wrote.

The Justices rejected the argument that other Maplewood Estates owners could obtain permission to use Linden Road, noting that the Bennetts had to sue to use it.

As for hardship, the Justices held that Eagloski abused his discretion by requiring proof of it in relation to physical attributes of the land.

"The Bennetts clearly satisfied the requirements for a subdivision variance," they wrote. "The circuit court improperly substituted its own judgment for that of the commission."