West Virginia Record

Friday, November 22, 2019

Justices hear Eastern Panhandle zoning case

By Steve Korris | Mar 25, 2008




MORGANTOWN – Demand for homes keeps rising in the Eastern Panhandle, but some residents of the region can't bear to bid farewell to orchards and barns.

Seeking a speed limit on growth, they want the West Virginia Supreme Court of Appeals to uphold an order that Jefferson Circuit Judge Thomas Steptoe signed in 2006 blocking construction of 152 homes.

"I wish all of West Virginia had these kinds of controversies," Chief Justice Spike Maynard said at oral arguments March 11.

Property owners Alice and Dwayne Masemer seek to overturn Steptoe's order rejecting a development plan for 123 acres they call Far Away Farms.

Steptoe ruled that the Jefferson County board of zoning appeals correctly applied the zoning ordinance and correctly determined that density on the property would exceed density in the neighborhood.

Far Away Farms attorneys Richard Gay and Nathan Cochran of Berkeley Springs and Peter Chakmakian of Charles Town appealed, arguing that their clients met or exceeded requirements in applying for a conditional use permit.

They argued that the zoning ordinance specifically allowed increased density.

The Justices heard the case on their annual visit to West Virginia University law school.

When Gay rose on behalf of the property owners, Justice Larry Starcher said, "You're turning Far Away Farms into Far Away Homes."

Gay told the justices that county commissioners amended the ordinance a week before the zoning board met to apply the ordinance.

He said the meeting ran seven hours. He said it started with 106 issues in dispute and 39 were resolved.

"The mother of all zoning hearings," Maynard said.

Gay said the judge who upheld the amendments invalidated them later.

Maynard asked who repealed them. Gay said the circuit judge did, two weeks ago.

"Someone might suggest it's moot but it isn't," Gay said.

Maynard said, "In this case or a separate case?" Gay said a separate case.

Maynard said, "Are they invalid in regard to this proceeding?" Gay said he thought so.

Gay said zoning in the Eastern Panhandle was of great interest to the state.

"This issue of 'we can make it up as we go' must be put to rest," he said.

Starcher said, "If it was invalidated we can remand."

Gay asked the Justices to remand with directions to issue a conditional use permit.

"If you send it back they will make up another reason and we will be right back here," he said.

He said there were four years of delays in this case and six years in another.

He said every decision of the zoning administrator can be appealed.

"It's a procedural nightmare," he said. "Have you ever seen birds flying in a silo? That's how we feel."

For the county, prosecuting attorney Stephanie Grove said the board had discretion to interpret its own ordinance.

She said the amendments weren't substantive and it was not an error to apply them retroactively.

Maynard asked if compatibility meant type of use rather than amount of use.

Grove said, "Zoning is always about the amount of use."

Starcher said the lots would average eight tenths of an acre.

"Most people would love to have a lot that would be almost an acre," he said.

Grove said that without a conditional use permit, the ordinance would require at least 14.56 acres per lot.

Justice Joseph Albright said, "It can't be compatible no matter how nice it is?"

Starcher said very few people want to work in apple orchards or on dairy farms.

"The heirs don't want to do what dad did," he said. "They want to grow houses."

At 10 to 15 acres, Starcher said, "These would be estates with horses."

Linda Gutsell, opposing the development for neighbors Edward Dunleavy and Edward Moore, said the amendments were favorable to developers.

Starcher said, "Are you arguing for them or against them?" He showed the law students a map of the property, explained it to them and told Gutsell, "I don't put much water in your bucket."

Gutsell said that if the court allows private decisions to prevail, government won't have the money to keep up.

Maynard said that was the chicken and the egg.

Albright asked if the plan provided a sewer system to treatment. Gutsell said, "They are planning to do a centralized sewer system as I understand it."

Albright said, "Your client would benefit?" Gutsell said, "That's debatable."

Starcher asked if her clients wanted 14 acre lots. She said they never asked for that.

Starcher said, "There's a reason why they oppose this. Do they want to develop their land?" Gutsell said, "Absolutely not."

She said they opposed it because of dangerous road conditions.

Starcher said that was the chicken and the egg.

On rebuttal, Gay said, "There is on site water and sewer."

He said, "They will redo Trough Road."

He said Gutsell's client came up with the 14 acre average.

"If you send it back they will make up something else," he said. "We still have to go through the subdivision process."

The Justices will render a decision.

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West Virginia Supreme Court of Appeals