WINFIELD – A group of homeowners fighting to keep a Walmart Neighborhood Market from building in Teays Valley have taken their battle to court.
David Conley, Jennifer Martone, Tim Hill and Ray Burke filed a petition in Putnam Circuit Court earlier this month requesting the court to review the matter and the actions of the Putnam County Board of Zoning Appeals.
Conley is past president of Fox Run Homeowners Association and a member of Keep The Promise, an association of citizens concerned about the store being built near Fox Run along W.Va. 34 in Teays Valley. Martone is a resident of Fox Run and a member of Keep The Promise, according to the petition. Hill is a resident of Fox Run, and Burke is listed as a concerned citizen.
In July, the Board of Zoning Appeals voted 3-1 to grant a permit allowing the construction of a 43,000 square-foot store. The approval came with conditions, such as limiting the store's hours from 6 a.m to 11 p.m.
Debate about the potential store has been a contentious one in Putnam County. Some critics say the store location will cause more traffic problems on an already congested road. Others opposed say the store isn't needed because of several other nearby grocers, including a Walmart Supercenter just down the road in Hurricane.
In the legal filing, the petitioners want the court to review the BZA order. They claim Bencor, the developer working to build the store, failed to meet requirements for zoning. Yet, they claim the BZA still conducted public hearings and granted the permit. They also said BZA Chairman Stephen Sluss closed a public hearing in June, preventing members of Keep The Promise and the public from participating.
The petitioners also claim that the BZA erroneously relied on an inadequate traffic impact study approved by the state DOH, that the board failed to find the application was compatible with C-1 District zoning laws, that the board failed to consider the “substantial and material evidence” presented by Keep The Promise and the public and that the board misapplied the ordinance placing burden of proof on applicant Bencor. They claim the BZA failed to approve the application before the board voted on conditions it had imposed.
“The record contains no evidence presented by Bencor that they complied with the requirements of the ordinance,” the petition states.
The petitioners also claim the BZA violated the Open Government Proceedings Act and the rights of Keep The Promise to due process of law and equal protection of the law. They also claim Sluss and fellow BZA member Patty Schiffour failed to qualify as board members after their appointments because they failed to sign an oath of office.
The petitioners seek to have the petition filed and ask the court to issue a Write of Certiorari to the BZA to produce a certified record to the court. They ask the court to conduct a full review of the matter and that the court order parties file briefs in support of their positions.
They seek oral arguments and, in the meantime, a stay of all proceedings pertaining to the matter. They also want the judge to reverse the July 20 BZA decision or remand the matter to the BZA for further proceedings.
The petitioners are being represented by Charles Town attorney John Michael Cassell of Cassell & Prinz PLLC. The case has been assigned to Circuit Judge Phillip Stowers.
Putnam Circuit Court case number: 15-C-192