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Judge sides with Morgan County planners in Dollar General waiver suit

By Kate Shunney

The Morgan Messenger

BERKELEY SPRINGS, W.Va. — Morgan County Planner Alma Gorse notified county officials Thursday, Oct. 1, that a Morgan County Circuit Court judge has issued a ruling in their favor in a civil land-planning suit.

The suit, which was filed by six county property owners in March, claimed that the Morgan County Planning Commission had not followed its own procedural rules when it granted seven waivers to developers interested in creating a commercial building lot for a proposed Dollar General store in the Oakland Overlook residential subdivision.
The waivers allow developers to wait until a final plat hearing to submit well, sewer, highway entrance and stormwater management permits for their project.

Planners also waived the current requirement for single-family lots to be at least one acre in size.

When the original housing development was approved in 2007, the county’s rules only required the lots to be one-half acre in size. The waiver will let the developer keep current underground utilities, roadways, property lines and erosion-control features in place.

With the waivers, the developers were permitted to create a Planned Unit Development – a mix of eight residential lots and one 2.5-acre commercial lot.

Attorney Larry Schultz represented the six residents who brought the suit against the Planning Commission – Robert Donadieu, Rita Donadieu, George Sparks, Patience Sparks, Donna Fallin and Marta MacNamara.

The six argued that the developer hadn’t provided sufficient documentation to support their request of planning waivers.

They also argued that planning board members hadn’t properly notified the public about waiver hearings, and hadn’t given opponents sufficient opportunity to voice their concerns.

Morgan County Circuit Court Judge Christopher Wilkes rejected those arguments in his September 28 decision, which was issued without a hearing.

In the 35-page ruling, Judge Wilkes said the Planning Commission “did not apply an erroneous principle of law, was not plainly wrong in its factual findings, or acted beyond its jurisdiction.”

The ruling denies the request by the petitioners of the lawsuit to overturn the Planning Commission’s time waivers for developers.

Judge Wilkes rules that the Planning Commission had acted within its legal discretion in granting the development waivers, and had followed its rules of procedure in reviewing the waiver requests.

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