Justices throw hammer down in Jefferson zoning hearing case

By Steve Korris | Apr 15, 2010

CHARLESTON – With a triple whammy, the Supreme Court of Appeals disqualified two members of Jefferson County's board of zoning appeals and the board's lawyer from a hearing on a permit for 600 new homes.

On April 1, the Justices vindicated neighbors of the proposed Thornhill subdivision who claimed conflicts of interest violated their right to a fair hearing in 2005.

The Justices reversed Circuit Judge Christopher Wilkes, who found no fault with the hearing.

They disqualified board member Doug Rockwell, a lawyer who had represented Thornhill in an adverse possession case.

"While not serving as an attorney in his role as a member of the board of zoning appeals, Mr. Rockwell nevertheless was expected to adhere to the West Virginia Rules of Professional Conduct as a lawyer in his role as a private citizen," the Justices wrote.

They disqualified board member David Weigand not only because his company would inspect the sewer lines but also due to prior business relations with an owner of Thornhill, Eugene Capriotti.

They disqualified the board's former staff lawyer, Michael Cassell, because he quit his job, joined a firm that represented Thornhill, yet continued representing the board.

"Such circumstances certainly give rise to an appearance of impropriety," they wrote.

They remanded the case to the board for a hearing with alternate members in place of Rockwell and Weigand and a replacement for Cassell.

They called on regulars and alternates to disclose any other conflicts before the hearing takes place.

David Hammer of Martinsburg represented neighbors Jane Rissler, Patricia Rissler, Susan Rissler-Sheely, Mary MacElwee, Richard Latterell and Sherry Craig.

Richard Gay and Nathan Cochran of Berkeley Springs represented Thornhill.

Assistant prosecuting attorney Stephanie Grove represented the board.

Development disputes from Jefferson County keep the Justices constantly occupied.

On April 5, they ruled that the board properly restricted the density of homes in the proposed Paynes Ford Station subdivision.

The developer, Jefferson Orchards, wanted to build 201 homes on 142 acres in Jefferson County, plus 17 homes in Berkeley County.

Berkeley County offered water and sewer services for the whole project.

Developers claimed Paynes Ford Station would match nearby subdivisions Quail Ridge and Chapel View, and they argued it deserved the same kind of permits.

The zoning board disappointed them, limiting construction to 37 homes.

Developers appealed to Circuit Judge Thomas Steptoe, who endorsed the limit.

They appealed again, and the Justices upheld Steptoe.

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