CHARLESTON – Developers who built 40 homes in Hurricane under an old stormwater ordinance must comply with a new ordinance before building 31 more homes, the Supreme Court of Appeals has ruled.

Four Justices reversed Putnam Circuit Judge Philip Stowers, who would have allowed B. A. McClure and Cheryl McClure to abide by the old ordinance.

"The circuit court's ruling ignores the express language of the ordinance," Justice Margaret Workman wrote in the Nov. 22 opinion.

She wrote that "construction of new residential homes in an existing subdivision falls within the purview of the ordinance."

She rejected a plea to allow a nonconforming use, often called a grandfather clause.

Chief Justice Robin Davis and Justices Brent Benjamin and Thomas McHugh agreed.

Dissenting Justice Menis Ketchum believed the McClures should have argued that their right to continue the project vested before the ordinance changed.

He wrote that the other Justices should have declared that their right vested even though the McClures didn't advance the argument.

In 2001, Hurricane officials approved a subdivision plat for the McClures.

On June 6, 2005, the city adopted an ordinance setting stormwater management and drainage standards for all new development and redevelopment.

The McClures applied for building permits, and the city denied them.

The McClures sued the city, and Stowers ruled in their favor last year.

The McClures applied again for building permits, and the city asked Stowers to stay the proceedings pending an appeal.

Stowers granted a stay, but he ordered the city to issue permits and post a $10,000 bond on each lot pending the appeal.

At the Supreme Court of Appeals, the permits didn't survive.

Workman wrote that the ordinance broadly defined development and provided that it governed anyone developing residential lots.

She wrote, "So long as a building permit is sought after June 6, 2005, it will not issue without an approved stormwater management plan as required by the ordinance."

Ketchum wrote, "We should have taken this opportunity to examine and adopt the vested rights doctrine."

He wrote, "Had this argument been developed, it could very well have led the majority to the correct conclusion that the developer does have a vested right to finish his subdivision without complying with the new stormwater management regulations."

He wrote, "Our courts have had very few cases dealing with land use law because we have been a rural state. However, land use is rapidly changing in this state."

Johnnie Brown, Bryan Price and Andrew Byrd, all of Pullin, Fowler, Flanagan, Brown and Poe in Charleston, represented Hurricane.

Harold Albertson, of Albertson and Jones in Charleston, represented the McClures.

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