Contractor strikes out on second trip to Supreme Court

CHARLESTON – Home builder Paul Ashbaugh once persuaded the West Virginia Supreme Court of Appeals to help him stamp a subdivision plat, but on a second trip he couldn't persuade the Court to turn the plat into reality.

The Justices ruled Feb. 6 that Ashbaugh couldn't force the Bolivar town council to grant access from their Clay Street to his Marmion Hills development.

The Justices affirmed Jefferson Circuit Judge Gray Silver, who in 2007 upheld the town council's right to deny access.

The town council didn't block the development by blocking access from Clay Street. Ashbaugh can build roads into Marmion Hills from two other public roads.

The town council has tried for years to prevent development of the property, and twice they ran afoul of the Supreme Court of Appeals.

In 1990, the Court struck down a building moratorium they had imposed, and in 2000 the Court struck down zoning restrictions they had adopted.

In 2003 the town council told Ashbaugh they would withhold approval of the Marmion Hills plat due to concerns about pedestrian safety and narrow streets.

Ashbaugh petitioned the Supreme Court of Appeals for an order that would force the town council to stamp the plat and issue building permits.

In 2005 the Justices ordered the town council to stamp the plat, but they didn't order the council to issue building permits.

The town council stamped the plat and passed an ordinance banning any connection between existing streets and privately built streets.

Ashbaugh sued Bolivar in Jefferson County circuit court, seeking declaratory judgment with regard to street access and relief for civil rights violations.

The town council removed the case to U. S. district court in Martinsburg, and Ashbaugh moved to remand it to Jefferson County.

District Judge Irene Keeley remanded the street fight to Jefferson County in 2006. She retained the civil rights claims but stayed them pending resolution of the street fight.

Judge Silver granted summary judgment to Bolivar in 2007. He wrote that nothing in the Supreme Court decision of 2005 negated the town's authority to control its streets.

He wrote that two other streets were available for ingress and egress to Marmion Hills.

Ashbaugh appealed again, arguing that when the Justices approved the plat they also approved the subdivision.

The Justices didn't appreciate his bid to inflate a small victory into a big one.

Their unsigned opinion declared that he "wrongly imputes an intent to our opinion that is nonexistent."

"For appellant to suggest, rhetorically or otherwise, that this court intended that Marmion Hills be developed based upon a factual recognition that building permits could be applied for once the approved subdivision plat was recorded is patently absurd," they wrote. "The Legislature has expressly delegated authority over issues of road use and maintenance to municipalities such as Bolivar."

Michael Lorensen and Johnna Faber, both of Bowles Rice McDavid Graff and Love in Martinsburg, represented the town council.

Richard Gay and Nathan Cochran, of the law office of Richard Gay in Berkeley Springs, represented Ashbaugh.