Challenge to Jackson Co. ordinance moved to federal court

By Lawrence Smith | Feb 4, 2010

CHARLESTON - A Jackson County couple's fight for the economic viability of their rental property has moved from Ripley to Charleston.

James and Cindi Parker on June 1 filed suit in Jackson Circuit Court against the Jackson County Commission challenging the county's flood plain ordinance. However, the Commission's attorney Wendy E. Greve, with the Charleston law firm of Pullin, Fowler, Flanagan, Brown and Poe filed notice removing the case to U.S. District Court on Jan. 21.

The reason for Greve's notice was based on the federal courts having original jurisdiction in all Constitutional disputes.

In their complaint, the Parkers say they purchased the Wildling Mobile Home Park in 2006. The exact location of the park in Jackson County in not specified except it's in Ravenswood.

Regardless, when they purchased the park, it was not affected by the county's flood plain ordinance. However, that changed on Sept. 15, 2008 when they received a letter from Robert A. Strobbe, the county's flood plain coordinator, that due to a revision of the county's flood plain ordinance passed on March 15, 2007, they would have to obtain a flood plain permit to place each new trailer in park.

Because the ordinance requires each new home to be built at least two feet about the present flood plain, the Parkers maintain on many of the existing lots that would be an "engineering impracticality." Also, the requirement that each new home have the involvement of an engineer, and a West Virginia Manufactured Homes licensed installer creates for them a "financial impracticality or impossibility."

The ordinance, the Parkers alleges, constitutes an unjustified taking of property since it denies them an "economically viable use of their land." In their suit, they seek declaratory judgment in either having the Commission condemn the land, and pay them its fair market value or holding the ordinance as illegal, and unenforceable.

They are represented by Timothy J. LaFon with the Charleston law firm of Ciccarello, Del Giudice and LaFon

Records show the Commission filed a motion on July 2 to dismiss the complaint due to the suit's failure to address which constitution the ordinance allegedly violated.. On Dec. 7, Jackson Circuit Judge Thomas C. Evans III ordered that the Parkers file an amended complaint stating whether they were bringing suit under the West Virginia or U.S. Constitution.

In their amended complaint dated Jan. 11, the Parkers cited the ordinance violated both their rights under the Fifth Amendment to the U.S. Constitution, and Article III of the West Virginia Constitution. Citing violations of the U.S. Constitution prompted Greve to file notice of removal to U.S. District court 10 days later.

The case is assigned to Judge Thomas E. Johnston.

U.S. District Court for the Southern District of West Virginia, case number 10-cv-58

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