MARTINSBURG – Jefferson County planning commission members sued developer Far Away Farms when they should have sued the West Virginia Supreme Court of Appeals, the developer's attorney claims.

On Aug. 24, Far Away Farms lawyer Richard Gay of Berkeley Springs moved to dismiss a suit the commission filed after the Supreme Court ruled that Far Away Farms could build homes on 123 acres.

Gay asked U.S. District Judge John Preston Bailey to throw out the suit for failure to name the Supreme Court as an indispensable party.

Gay wrote that the commission sued Far Away Farms "instead of summoning the courage to pursue a cause of action against the West Virginia Supreme Court."

He wrote that the United States Supreme Court declined to review the decision of the West Virginia court.

He wrote that it was absurd to blame Far Away Farms for an alleged violation of the county's constitutional rights.

The state Supreme Court ruled in favor of Far Away Farms last year, finding that the county board of zoning appeals exercised power that belonged to the commission.

The Justices agreed in an unsigned opinion that Far Away Farms addressed all issues at a public hearing and no one refuted its evidence.

They wrote that zoning ordinances must balance rights of individual property owners with community needs.

The planning commission issued a permit last year but reserved the right to challenge the Supreme Court decision and rescind the permit.

The commission then sued for an order declaring the decision null and void.

Though lawyer Bob Bastress of Morgantown filed the complaint against Far Away Farms, he mostly complained about the Supreme Court.

He wrote that the Justices "violated plaintiff's rights to due process of law as guaranteed to it by the Fourteenth Amendment to the United States Constitution."

They shouldn't have ordered the planning commission to issue a permit, he wrote, because the board of zoning appeals rejected it.

Far Away Farms sued the board of zoning appeals, he wrote, and the commission was not a party to the case.

The Court lacked personal jurisdiction and subject matter jurisdiction, he wrote.

"Plaintiff never had an opportunity to participate in the proceedings that led to the Supreme Court decision," he wrote.

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