Commission asks judge to reconsider Far Away Farms case dismissal

By Steve Korris | Nov 12, 2009


MARTINSBURG –- Six days after U.S. District Judge John Preston Bailey dismissed a suit to block construction of homes on 123 acres in Jefferson County, the county planning commission urged him to think twice.

"The Court's prior ruling was fundamentally flawed," Robert Bastress of Morgantown wrote for the commission in a motion for reconsideration on Nov. 4.

On Oct. 29, Bailey rejected the commission's challenge to the jurisdiction of the West Virginia Supreme Court of Appeals over the Far Away Farms residential development.

The Supreme Court ruled in favor of Far Away Farms last year in a suit against the county board of zoning appeals, which denied a permit for the development.

The Justices held that the developers met every requirement for a permit.

Instead of ordering the board of zoning appeals to issue the permit, however, they ordered the planning commission to issue it.

The commissioners petitioned the U.S. Supreme Court to review the decision, and last November the Justices in Washington denied the petition.

The commissioners turned to federal court this June, alleging due process violations.

Bastress argued that the commission wasn't a party to the case at the Supreme Court of Appeals.

For Far Away Farms, Richard Gay of Berkeley Springs moved to dismiss.

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

Bailey chose not to second guess the Justices.

"Under West Virginia law, a collateral attack of a judgment is allowed where the court issuing the judgment lacked jurisdiction," he wrote.

He wrote that the commission wasn't named in the complaint or served with process, but counsel for the board of zoning appeals also represented the commission.

He wrote that commissioner Ed Dunleavy appealed to the U.S. Supreme Court.

He quoted a 1938 decision that, "After a party has his day in court, with opportunity to present his evidence and view of the law, a collateral attack upon the decision as to jurisdiction there rendered merely retries the issue previously determined."

He wrote, "The West Virginia Supreme Court actually considered the jurisdictional issues several times, and each time rejected the arguments that it lacked jurisdiction."

He wrote, "Any argument that the court acted in error is to be disregarded by this court."

In rapid response, the commissioners argued that Bailey acted in error.

According to Bastress, a collateral attack was the commission's only recourse.

"If one has not been made a party to a lawsuit by service of process, by consent, or by intervention, then one is not bound by any ruling rendered in that lawsuit regardless of whether that person knows the lawsuit is afoot," he wrote.

"The court suggests that, because the commission was aware of the West Virginia Supreme Court litigation and because the commission and the board of zoning appeals shared the same lawyer, those facts translate into the commission being subjected to the West Virginia court's jurisdiction. They do not," he wrote.

He wrote that overlapping representation and commission awareness were outside the factual scope for deciding the motion to dismiss.

If Bailey considers them relevant, Bastress wrote, the commission should have an opportunity to prove they are inaccurate.

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