WEST VIRGINIA RECORD

CHARLESTON – Folks in Jefferson County stacked the deck against property owners who applied for a permit to build 152 homes, but the West Virginia Supreme Court of Appeals has handed the property owners a new deal.

On April 17, the Justices ordered the Jefferson County planning and zoning commission to issue a permit to Far Away Farm for development of 123 acres.

Far Away Farm complied with every requirement of the county zoning ordinance and is entitled to the permit, the Justices unanimously agreed.

They reversed Circuit Judge Thomas Steptoe, who had affirmed the rejection of the development by the county's board of zoning appeals.

Steptoe tolerated the appeal board's retroactive enforcement of ordinance amendments that the Jefferson County Commission adopted, but the Justices did not tolerate it.

Their unsigned opinion stated that, "... zoning ordinances must be interpreted to balance the rights of individual property owners with the needs of the community."

They wrote, "Such ordinances can only be effective if they are applied in an even-handed manner with the utmost adherence to the procedural rights of all parties."

Their opinion painted a portrait of a community trampling on rights.

At a compatibility assessment meeting that lasted seven hours, they wrote, critics made 106 demands on Far Away Farm owners Alice and Dwayne Masemer.

"FAF agreed to 39 requests but refused to comply with the other demands some of which were clearly unreasonable," they wrote.

One person demanded $400,000 annual compensation to the community for loss of trees, they wrote, and one demanded a $500,000 bond to provide water as wells failed.

At a public hearing on the remaining demands, they wrote, the board of zoning appeals allotted 45 minutes to Far Away Farm, 15 minutes to each individual speaker and five minutes to each speaker representing a group.

Far Away Farm presented expert reports showing that it would not create a significant peak impact on traffic at any of four nearby intersections, the Justices wrote.

The traffic plan fully complied with the ordinance, they wrote.

"FAF also presented evidence that it was unlikely that its water system would interfere with the local wells and demonstrated that there were no sinkholes on the property," they wrote.

Critics claimed the property held historical significance because a Civil War battle occurred there, but according to the Justices it happened a mile away.

"In contrast," they wrote, "the record shows that no evidence other than anecdotal experiences related by some members of the public was presented at the public hearing to contradict FAF's traffic study."

They wrote, "Anecdotal evidence and mere speculation and conjecture about potential traffic problems are simply insufficient to overcome expert testimony."

Critics presented no evidence contradicting Far Away Farm on any other issues of design and construction, they wrote.

"In sum," they wrote, "FAF addressed all the unresolved issues at the public hearing and its evidence was unrefuted."

Nevertheless the board declared the development too dense to be compatible with the neighborhood and found the roads inadequate to deal with increased traffic.

Steptoe affirmed the decision and Far Away Farm appealed.

At oral arguments before the Justices on March 11, Far Away Farm attorney Richard Gay of Berkeley Springs said there were four years of delays in the case.

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

Justice Larry 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."

Chief Justice Spike Maynard said, "I wish all of West Virginia had these kinds of controversies."

Gay asked the Justices to remand with directions to issue a permit. "If you send it back," he said, "they will make up another reason and we will be right back here."

The Justices did as Gay asked.

Along with Gay, Peter Chakmakian of Charles Town and Nathan Cochran of Berkeley Springs represented Far Away Farm.

Assistant prosecuting attorney Stephanie Grove represented the board of zoning appeals.

Linda Gutsell of Charles Town represented Edward Dunleavy and Edward Moore, who led the opposition to the development.

Moore owns 73 acres adjacent to Far Away Farms. Dunleavy is president of a homeowners association at Trough Bend, a nearby subdivision.