Residents say development creating danger

By Cara Bailey | Jan 11, 2007

CHARLES TOWN - Some Jefferson County residents have filed a lawsuit against a development company and a municipality because they say development occurring around their homes has created a dangerous area.

Heather Whitehurst, Brad Whitehurst, E. Jeremy Hutton and Warren J. McKimmie filed a suit Dec. 26 against C&R Development LLC and The Corporation of Bolivar, a municipality.

C&R is the developer of a three-home subdivision known as Sharp's Overlook within the limits of Bolivar. The sole road into the subdivision originally was designated by C&R as Fisher Road, but was subsequently re-designated as Overlook Drive.

There is an alley, Fisher Alley, a private road, which can lead to Sharp's Overlook. Access can also be gained by using Overlook Drive. Fisher Alley and Overlook Drive are separated by two small strips of land, one of which is owned by the Whitehursts.

Fisher Alley is 12 feet wide and cannot be widened because of pre-existing structures. Plans C&R submitted plans that showed Overlook Drive as 30 feet wide, ending in a "hammer head" cul-de-sac at Fisher Alley.

At a March 2003 Bolivar Planning Commission meeting, Robert Sharp, co-owner of C&R, said he was informed by an engineer that the land was too steep to accommodate an entrance from Overlook onto Jefferson Street.

During a June 2003 meeting, Sharp presented a revised plan, which showed revisions to C&R's original plans, including a redesigned Overlook Drive. Sharp proposed C&R would provide drainage support and parking spots where Overlook Drive and Jefferson Street intersect.

Sharp stated C&R would pay costs to have Overlook Drive graded, surveyed, platted and engineered, but he would expect Bolivar to do the paving.

At the same meeting, Sharp also said C&R wanted to move forward and said that if the company was unable to begin building soon, C&R would have to sell lots and Bolivar would lose access to the newly redesigned Overlook Drive by way of Jefferson Street and the new lot owners would have to access Sharp's Overlook via Fisher Alley.

It was noted that Fisher Alley is only 12 feet wide, and cannot accommodate two-way traffic because it could not be widened.

A revised plan was passed, and work on the road began.

On June 1, 2004, the Whitehursts entered a Regional Sales Contract with C&R for the purchase of property located in town. In January 2005, Overlook Drive was paved.

After the road became paved, the appearance of Overlook Drive became apparent. The intersection of Jefferson Street and Overlook Drive became extremely hazardous because of the narrowness and steepness of both streets and the existence of a nearby curve "which greatly inhibits a driver's line of sight."

The intersection also was made more hazardous by inclement weather.

"Shortly after paving was completed, Bolivar began receiving letters from concerned citizens alleging that Overlook Drive does not adhere to normal subdivision street design standards found in the Tri-State area around Bolivar," the suit states.

The town consulted with an engineer, who said Overlook Drive was not a safe street and would cost at least $160,000 to repair.

On Feb. 7, 2006, the town of Bolivar acted to close Overlook Drive, barricade the road at Jefferson Street and to accept land to connect Fisher Alley with Overlook Drive. This action left Fisher Alley as the only means of access to Sharp's Overlook, which is private property.

On March 5, 2006, a collection of residents of Overlook Drive and Fisher Alley, including Hutton and McKimmie, sent a letter to Bolivar protesting the action of the city, which created an unsafe route to their homes.

The suit claims Bolivar is responsible for ensuring the developers comply with requirements for building safe roads and failed all of its responsibilities in regards to construction of Overlook Drive.

The plaintiffs seek compensatory for loss of use, annoyance and inconvenience and loss of value in properities. They also seek punitive damages, pre- and post-judgment interest and court costs.

Jefferson Circuit Court case number 06-C-428

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