WEST VIRGINIA RECORD

WHEELING –- The owner of a Weirton bed and breakfast says her business license and zoning permit were unfairly revoked after city officials discovered a Web site in which she solicited business to homosexuals and those who led "alternative lifestyles."

In the nine-count federal suit filed last month, Rosemary Susko is seeking more than $3 million in damages from the city of Weirton and various city officials after they revoked her permit to run Rosemont Manor.

Susko originally bought the property from Weirton Steel Corporation in 2004 and was granted a zoning permit on June 30, 2004, the suit states.

Shortly after her purchase, Susko claims she started a Web site, ourhouseonthehill.com, on Sept. 5, 2005, in which she invited homosexuals and those leading alternative lifestyles to use her facility for social events or as a bed and breakfast.

"The Web site's target market was homosexuals and other alternative lifestyle people, and the web site was designed not to be accessed by Internet search engines word search inquiries but only accessed by knowing and typing in the exact web address," the suit states.

Before she started her Web site, however, Weirton adopted a Unified Development Ordinance on July 11, 2005, that went into effect Sept. 11, 2005, she claims.

The UDO designated Rosemont Manor as a grandfathered non-conforming use for an R-1 Single Family District.

So when city officials discovered Susko's Web site, Jim McHenry, the UDO administrator, sent her a "Notice of Violation" saying any uses besides those indicated in the zoning permit must be approved by the UDO.

In the notice of violation, McHenry specifically stated the reason for the letter was Susko's "recent advertisements on the internet," according to the complaint.

In another Jan. 18, 2007, letter, McHenry wrote Susko's property was only approved for use as a bed and breakfast with wedding and reception facility and that any other use was not permitted.

After the notice of violation was sent, Susko's business permit was rescinded and her business license for 2007 was refunded on Jan. 8, 2007, she claims.

She appealed the decision to the City of Weirton Zoning Board of Appeals and a public hearing was held on March 6, 2007, according to the complaint.

During the hearing, an event that took place at Rosemont Manor called Lady Raven's Leather Ball that involved mostly homosexual men and included a presentation from a Jefferson County Health Department official of Ohio on topics of HIV, safe sex and partner abuse, was mentioned to demonstrate activities that take place at the building.

Also during the hearing, Susko testified "she simply rents space as does other lodging facilities that are approved to have meetings and social events," the suit states.

Even before she bought the property, events and meetings the city now deemed non-conforming uses were held there as evidenced by letters the former owners wrote, Susko claims.

In fact, Rosemont Manor was not used as a private residence since June 1957, according to the complaint.

Weirton Steel Corporation, who owned the building before Susko, used it for overnight business guest accommodation with served meals, business meetings, social event and other activities, the suit states.

However, Susko's appeal was denied and she was not able to have her business license and zoning permit restored, according to the complaint.

In the Zoning Board of Appeals' Final Findings of Fact, there is no basis that Susko engaged in non-conforming uses, "but rather in #3 reads that website development shows uses of barbeques, parties, seminars, lectures, demonstrations etc., none of which were applied for on the application of June 17, 2004, referenced in #4," the suit states

Susko claims that in its ruling, the ZBA ignored the state law governing non-conforming use that was in effect when she bought the property.

"Statutes and ordinances for non-conforming use basically allow the new property owner to do what the prior owner did legally on the property," the suit states. "This is not based upon an approval process by a government body such as the City, but rather is based on the State and local laws, which clearly spares the public from additional burdensome bureaucratic procedures."

Because the UDO formed after Susko bought the property, she claims it has no power to apply its laws regarding non-conforming use, Susko claims.

The city is also not allowed to prohibit Susko from holding business meetings and social events, according to the complaint.

Susko's case has appeared in Hancock Circuit Court many times, with Judge Arthur Recht most recently dismissing the matter with prejudice and signing a city attorney's proposed order that allowed Susko to operate Rosemont Manor as a bed and breakfast and a wedding and reception facility.

"It was Ordered that subject activities marketed from a website are beyond the scope of the zoning variance provided by the City and are not protected speech or activity, and prohibited advertising or marketing in any from by the Plaintiff or anyone on her behalf for the same or similar activities from the subject website," the suit states.

Because of Weirton's policies, some of Susko's business guests, weddings and receptions were canceled and she was unable to conduct business without her license or zoning permit, she claims.

She was also not able to develop her property per her business plan and to develop future guests, according to the complaint.

"As a direct and proximate result of the City actions against the Plaintiff, the Plaintiff drained her personal resources to pay expenses and legal fees and incurred special damages in excess of $150,000," the suit states.

Susko suffered emotional distress "so severe that no reasonable person could be expected to endure it," she claims.

Defendants named in the suit are the city of Weirton, Mayor Mark Harris, former Mayor William Miller, City Manager Gary DuFour, McHenry, Chief Code Official Rod Rosnick, former City Solicitor John Yeager and the Weirton Zoning Board of Appeals voting members Dewey Guida, Tom Virtue, Bob Arango and Bob Mrvos.

Susko claims the defendants deprived her of her U.S. Constitutional rights to property under the 14th Amendment, to commercial free speech and freedom of association under the First Amendment.

Because of the defendants' animus to homosexuals and other alternative lifestyle people, they brought actions against Susko, according to the complaint.

"The Plaintiff has a constitutional due process right not to have her property revoked without an articulation of what specific non-conforming activities are being engaged in under zoning law," the suit states.

Because the issue is over Susko's Web site, it is an issue of free speech, not land usage, and the defendants had no legal authority to revoke her zoning permit and business license, she alleges.

The city also ignored the state law governing non-conforming use and applied the UDO instead of state law, according to the complaint.

"Clearly, the City only took actions against the Plaintiff when discreet Internet advertising to homosexual and other alternative life-style people was discovered," the suit states. "Defendants used the web site advertising to create an impression of untoward activity taking place, without any discussion as to what activities actually had taken place, and without any discussion of what activities might be considered potentially illegal with the mind to modify the advertising to accommodate any potential concerns."

Susko, who is representing herself, is seeking a judgment for $150,000 of special damages, for $1.5 million in actual damages and for $1.5 million in punitive damages.

U.S. District Court case number: 5:09-CV-1