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IN THE CIRCUIT COURT OF JEFFERSON COUNTY, WEST VIRGINIA

AUBREY E. HENRY,

Petitioner,

vs. CIVIL ACTION NO. 04-C-_372___

JEFFERSON COUNTY PLANNING AND ZONING COMMISSION,

Respondent.

PETITION FOR WRIT OF PROHIBITION AND/OR MANDAMUS

For his Petition, Aubrey E. Henry, states as follows:

1. Your Petitioner is, and at all times relevant hereto was, a freeholder and an applicant for a Conditional Use Permit, which application is pending in the Jefferson County Planning and Zoning Commission.

2. The Respondent Jefferson County Planning and Zoning Commission is the body legally created by the Jefferson County Commission pursuant to the authority of W.Va. Code 8-24-1, now found at W. Va. Code 8A-2- 1.

3. Your Petitioner is the co-owner in fee simple of that certain parcel of real property containing 11.69 acres, more or less, and situate in the Shepherdstown District of Jefferson County, which is known by the postal address of 4038 Kearneysville Pike, Shepherdstown, West Virginia.

4. From 1968 until 1992 your Petitioner's family operated a family style residence on the premise, which restaurant burned to the ground in February of 1992.

5. The Jefferson County Commission enacted the Zoning and Development Review Ordinance, which became effective on October 8, 1988, and which zoning regulation included the subject real property in the Rural Zone. Thereafter, the ongoing restaurant business was regarded as a nonconforming use.

Intending to rebuild the family restaurant, which business provided your Petitioner's primary source of income, your Petitioner consulted Mr. Paul Raco, Zoning Administrator, of the Jefferson County Office of Planning, Zoning and Engineering, in April of 1992. The Petitioner also hoped to use the remainder of the 11.69 acres for townhouses.

7. Your Petitioner was advised that, because of the 1988 enactment of county-wide zoning, he would not be able to rebuild the family restaurant, a commercial use, but that the subject 11.9 acres would be eligible for a Conditional Use Permit for the residential townhouse development.

8. In reliance on the information imparted to him by Mr. Raco, your Petitioner pursued the plan for a townhouse development on the 11.69 acres, and expended substantial sums to prepare the necessary plans, studies and documentation to make an application for a Conditional Use Permit for the development to be known as "Town Run Commons."

9. The Petitioner submitted his application in January of 1994, but, because of objections expressed by members of the community, and sixteen specific concerns of the Jefferson County Planning Commission, the Commission voted to deny the Conditional Use Permit necessary to the townhouse project. The Petitioner appealed to the Jefferson County Board of Zoning Appeals ("BZA"), which rejected the appeal. The Petitioner appealed the denial of the permit to the Circuit Court, which affirmed the BZA. Ultimately, the Petitioner appealed to the West Virginia Supreme Court of Appeals, which held that the BZA's decision was unsupported by sufficient findings of fact and conclusions of law, and remanded the matter for further proceedings. See, Henry v. Jefferson County Planning Commission, 201 W. Va. 289, 296 S.E.2d 239 (1997).

10. The Petitioner resubmitted his application for a Conditional Use Permit, but it was again denied by the Planning Commission, the BZA and the Circuit Court. The Petitioner appealed, but his petition for writ of certiorari was refused by the West Virginia Supreme Court of Appeals.

11. On January 12, 2001, your Petitioner again applied for a Conditional Use Permit for the Town Run Commons project.

12. At the time of your Petitioner's first application for a Conditional Use Permit in 1994, the properties in the near vicinity of the subject 11.69 acres were primarily rural and agricultural; however, in the intervening eleven years, every adjacent and nearby property, save two, has been committed to residential or commercial development, and/or commercial use. The one notable exception is the Morgan Grove Park, which is owned by the Shepherdstown Men's Club, and which occupies the adjacent parcel to the northeast of the subject 11.69 acres.

13. The support data submitted with the Petitioner's 2001 application was reviewed and evaluated by Mr. Raco, the Zoning Administrator, under the LESA

4scoring protocol, and received a score of 39.04 out of 100. Under the Ordinance requirements then in force, a proposal for a Conditional Use Permit for property in the Rural Zone that scored 60 points or less on the LESA calculation was deemed to pass for development and to be eligible to proceed for consideration for the grant of the permit.

14. The Petitioner's application advanced to proceedings before the Planning Commission, which requested that certain issues be addressed as conditions of the approval of the Conditional Use Permit. All of the unresolved issues were resolved by the Petitioner's concession, including reducing the number of units from 76 to 50. The Planning Commission ultimately approved the permit application by a 8-0 vote.

15. Six parties appealed the decision of the Planning Commission, granting the Petitioner's Conditional Use Permit, to the BZA. Those parties were Miriam Wilson,(1) William and Joyce Lewandowski,(2) Ledge Lowe Homeowners Association,(3) Richard Super(4) and the Shepherdstown Men's Club.

16. The BZA was unable to render an official decision on the appeal, because only three of its five members were present to hear the case, and of those three members two voted for the permit and one voted against.

17. Because of the BZA's inability to act, the appeal was certified to the Circuit Court of Jefferson County. See, Shepherdstown Men 's Club, ci al. v. Jefferson County Planning and Zoning Commission, found at Civil Action No. 02-C-SO.

18. By Order entered on the 27th day of June, 2003, the Circuit Court held that the Planning Commission had failed to enter written Findings of Fact and Conclusions of Law to support its decision to grant the Conditional Use Permit. The Circuit Court accordingly reversed and ordered that the matter be remanded to the Planning Commission for the entry of the necessary Findings of Fact and Conclusions of Law, with or without additional proceedings. See, Order of July 27, 2004, attached hereto as Exhibit A.

19. Coincidental to the ongoing county regulatory proceedings, on or about July 31, 2003, the Petitioner filed an action in the U.S. District Court for the Northern District of West Virginia, at Martinsburg, in which he asserted federal causes of action against Jefferson County, as well as a number of other parties.(5) The federal court complaint asserted violations of the Petitioner's federal statutory and Constitutional rights in the local regulatory proceedings. Despite the anticipation of future procedures in the Planning Commission in accordance with the Circuit Court's Remand Order, and the continuing hope that the land use matter would be resolved in those proceedings, the federal civil action was filed as necessary to preserve the federal claims under the applicable statute of limitations.

20. The Planning Commission scheduled the matter on the agenda of its special meeting of September 2, 2003, and provided notice to the Petitioner of same. Counsel to the Board, Assistant Prosecuting Attorney J. Michael Cassell, advised the Planning Commission of the Circuit Court's Remand Order of June 27, 2003, and its two options thereunder. See, Minutes of Special Meeting of September 2, 2004, attached hereto as Exhibit B.

21. The Planning Commission discussed its options, and voted to conduct additio~a1 proceedings on the Conditional Use Permit application. The staff was directed to schedule a public meeting, and the matter was placed on the agenda for the October 22, 2003, meeting.

22. By subsequent order of the Circuit Court, dated October 1, 2003, the Remand Order of June 27, 2003 was modified and amende&to stay further proceedings before the Planning Commission pending the Petitioner's filing of a Petition for Writ of Certiorari to the West Virginia Supreme Court of Appeals, in light of the then-recent decision in Corliss v. Jefferson County Board of Zoning Appeals, 214 W. Va. 535, 591 S.E.2d 93 (2003).

23. The West Virginia Supreme Court of Appeals denied the Petition for Writ of Certiorari on January 14, 2004.

24. When, by July of 2004, the Planning Commission still had not placed the matter on its agenda for rehearing, the Petitioner went to the Planning Office to request that the matter be placed upon the agenda for proceedings upon the Conditional Use Permit application. He was advised that the request must be made to Board counsel, Assistant Prosecuting Attorney J. Michael Cassell.

25. By letter dated July 21, 2004, then-counsel for the Petitioner asked Mr. Cassell to place the matter upon the agenda of' the Planning Commission. See, letter of July 21, 2004. attached hereto as Exhibit C. When, after some time, there had been no response, Plaintiff's counsel again wrote to Mr. Cassell. See, letter of September 5, 2004, attached hereto as Exhibit D. Mr. Cassell advised the Petitioner's counsel that the request to place the matter on the agenda of the Planning Commission had to be made to the Planning Commission staff.

26. Accordingly, the Petitioner, by letter dated September 10, 2003, wrote to the Planning Commission staff and requested that the application for the Town Run Commons Conditional Use Permit be placed on the agenda of the Planning Commission. See, letter of September 10, 2004, attached hereto as Exhibit E.

27. The staff placed the matter on the agenda~for the September 28, 2004 meeting. The published agenda indicated that your Petitioner's appearance before the Planning Commission would be, "Request by Gene Henryfor consideration by the Planning Commission to redocket the Conditional Use Permit for Town Run Commons." See, Agenda of September 28, 2004, attached hereto as Exhibit F, at No. 12. Emphasis added. In point of fact, your Petitioner asked to appear so as to request that the Planning Commission obey the Remand Order and docket the matter for decision, not that the Planning Commission consider doing so. Your Petitioner believes that compliance with the Remand Order is not a matter of choice left to the discretion of the Planning Commission, but an order of a Circuit Judge that must be obeyed.

28. The Petitioner appeared through undersigned counsel at the Planning Commission meeting on September 28, 2004. and requested that the matter be placed upon the agenda of the next meeting for proceedings pursuant to the Remand Order.

29. The members of the Planning Commission, including the Chairman, who had been present at the September 2, 2003 meeting, denied having any knowledge of the Remand Order of June 27, 2003, and declined counsel's offer to show a copy of said Remand Order to the Commission.

30. Upon the recommendation of Mr. Raco, the members of the Planning Commission concluded that they needed to know the status of the pending federal court matter before deciding whether or not to place the Petitioner's application on the agenda for decision. Counsel for your Petitioner related that Judge Broadwater of the District Court had stayed the federal action, pending the conclusion of proceedings before the Planning Commission. See, Order of Scheduling Conference, attached hereto as Exhibit G. Your Petitioner's counsel argued to the Planning Commission that the federal civil action was unrelated to the duty of the Planning Commission to obey the Remand Order and to docket the pending application for the Town Run Commons Conditional Use Permit. Counsel argued that the Planning Commission was obliged to obey the Circuit Court's Remand Order, under which the only decision was whether to proceed on the record previously made, or reopen the hearings on the matter.

31. The members of the Planning Commission concluded that they needed to hear from counsel for all parties in the federal action before deciding whether or not to schedule the Town Run Commons Conditional Use application for proceedings before the Planning Commission. The Planning Commission instructed Mr. Raco to contact Assistant Prosecuting Attorney Cassell and counsel appearing in the District Court case, Michael Lorensen. Counsel for your Petitioner objected to the continuing delay.

32. Mr. Raco did contact Mr. Cassell and Attorney Michael Lorensen by letter. See, Letters of October 5, 2004, collectively attached hereto as Exhibit H.

33. On or about October 4, 2004, your Petitioner telephoned the Planning Commission to confirm that the Town Run Commons application would be placed upon the agenda for the October 12, 2004 meeting, so as to allow aforesaid counsel to speak to the Planning Commission's questions, and that the decision to proceed upon the prior record or to reopen the evidence could be made and the matter scheduled. Your Petitioner was advised that the application was not on the agenda for the October 12, 2004, meeting. Petitioner's counsel was likewise advised in a second telephone call to the Planning Commission office.

34. Counsel for the Petitioner wrote to Mr. Raco to inquire as to why the matter had not been included on the agenda for the October 12, 2004, meeting. See, Letter of October 5, 2004, attached hereto as Exhibit I.

35. On October 7, 2004, Mr. Raco telephoned counsel for the Petitioner to explain that the matter was not placed on the agenda because the other counsel would not be available to consult with the Planning Commission until the meeting scheduled for November 9, 2004. Mr. Raco explained that Mr. Cassell had responded to his October 5 letter by telephone call, wherein Mr. Cassell stated to Mr. Raco that he did not wish to respond in writing or attend a meeting, but that the Planning Commission should place the matter on the agenda. However, Mr. Raco stated that Mr. Lorensen had stated that he wished to consult with the Planning Commission, and chose to attend the November 9, 2004 meeting to do so. Your Petitioner's counsel requested that the matter be placed upon the agenda for the October 12, 2004, meeting so that counsel could place upon the record the Petitioner's continuing objection to the delay in compliance with the Remand Order of June 27, 2003. Mr. Raco advised counsel that he had entered the matter as number 11 on the agenda.

36. Your Petitioner and undersigned counsel attended the October 12, 2004 meeting of the Planning Commission. When the matter was called, counsel advanced to the podium. The Chairman of the Planning Commission, Arnold Dailey, did not acknowledge counsel. Instead, the Chairman asked Mr. Raco to relate to the Commission his contact with other counsel. Mr. Raco responded that Mr. Cassell chose not to submit written remarks or to attend. Mr. Raco also related that Mr. Lorensen elected to attend the Planning Commission meeting of November 9, 2004, and to confer with the members at that time.

37. Immediately following Mr. Raco's remarks, member Renny T. Smith announced that, as a member of the Shepherdstown Men's Club, she had to recuse herself from discussion about the Town Run Commons application. She thereupon left the room.

38. Planning Commission member William Lewandowski thereupon announced that he also was a member of the Shepherdstown Men's Club, and a party to the pending federal action, but that he would not recuse himself. Mr. Lewandowski then spoke for several minutes, criticizing your Petitioner personally, accusing him of attempting to violate the Constitutional rights of citizens of Jefferson County, and referring to the pending federal matter as a "SLAPP" suit. Mr. Lewandowski asserted that, in the federal civil action, your Petitioner is suing for twenty million dollars, which assertion is untrue. At no time during Mr. Lewandowski's diatribe did the Chairman or any member of the Planning Commission attempt to stop the continuing flow of his remarks, or suggest that, as an interested party and an opponent of record against your Petitioner's Conditional Use Permit application, he was required to recuse himself from discussion about the project.

39. When Mr. Lewandowski concluded his improper remarks, the Chairman continued to ignore your Petitioner's counsel. Counsel objected on a point of order, and pointed out that, being the party who had requested to be placed upon the agenda, she was entitled to be heard. Counsel objected to Mr. Lewandowski's refusal to recuse himself from the discussion and to the content of his remarks. Counsel objected to the continuing refusal of the Planning Commission to place the application upon the agenda for consideration, in compliance with Judge Silver's June 27, 2003, Remand Order, and argued that the continuing refusal of the Commission to comply with the Order could constitute contempt of same. Counsel also objected to the Planning Commission's stated intention to consult with Mr. Lorensen in executive session on November 9, 2003, insofar Mr. Lorensen was without authority to supercede the order of a sitting Circuit Judge. Counsel additionally and, as learned later, incorrectly asserted that the Planning Commission was not a party to the federal civil action.(6)

40. Both Mr. Raco and the members of the Planning Commission continued to deny having any knowledge of the Circuit Court Order, and Commissioner Kane criticized your Petitioner's counsel for not presenting it at that time, despite that the Commission had declined counsel's offer at the previous meeting. Only Commissioner Roper expressed concern that the Commission might be ignoring a court order, and stated emphatically that if the Remand Order did require the Planning Commission to act, it should do so without further delay.

41. Notwithstanding counsel's objection to the participation and earlier remarks of Mr. Lewandowski, Mr. Lewandowski again commenced a commentary of several additional minutes' duration against your Petitioner's position. It was not until he had concluded his remarks that Chariman Dailey asked Mr. Raco if Mr. Lewandowski should recuse himself. Mr. Raco did not provide a direct answer but suggested that the Planning Commission did have its own By-Laws.

42. The conduct of the Planning Commission at the meetings of September 28, 2004 and October 12, 2004, clearly and convincingly demonstrate that there exists among the members of the Commission a bias and prejudice against your Petitioner such that he can have no expectation of a fair and objective consideration of any aspect of his Conditional Use Permit application and townhouse proposal. In addition, the remarks of Commissioner Lewandowski are such that any reasonably prudent person would conclude that the Planning Commission had been irreparably tainted in relation to your Petitioner's application for a Conditional Use Permit.

43. Pursuant to State law, as stated in this Court's Opinion Orders in Jefferson Utilities, Inc. v. Jefferson County Board of Zoning Appeals, Civil Action No.03-C-278 and Kletter v. Jefferson County Zoning Board of Appeals, Civil Action No. 02-C-217. your Petitioner is entitled to have his Conditional Use Permit heard and decided by the Board of Zoning Appeals, and not the Planning Commission. Nonetheless, your Petitioner was willing to abide by the Remand Order and pursue the conclusion of the matter in the Planning Commission, so as to promote expediency and, hopefully, to bring to an end with the greatest dispatch and economy to all parties all outstanding controversies regarding his townhouse proposal. The conduct of the Planning Commission generally, and of Commissioner Lewandowski specifically, leaves your Petitioner with no choice but to suffer additional delays and to seek a hearing in the Board of Zoning Appeals.

44. The circumstances as they now exist leave your Petitioner with no means to pursue his application for a Conditional Use Permit through the county regulatory process. The Remand Order places your Petitioner's application in the breast of the Planning Commission, which has refused to act upon it with reasonable timeliness. And, because the Planning Commission refuses to address the application, your Petitioner cannot even ask that the Planning Commission enter a decision referring the matter to the Board of Zoning Appeals. Moreover, the conduct of the Planning Commission evinces an intention to ignore its duty to afford to your Petitioner a fair and impartial consideration of any aspect of the proposed Town Run Commons townhouse project.

45. W. Va. Code 53-1-1 provides

The writ of prohibition shall lie as a matter of right, in all cases of usurpation and abuse of power, when the inferior court has not jurisdiction of the subject matter in controversy, or, having such jurisdiction, exceeds its legitimate powers.

46. A writ of prohibition will lie

...from a superior court not only to inferior judicial tribunals properly and technically so denominated but also to inferior ministerial tribunals possessing incidentally judicial powers, such as are known in the law as quasi judicial tribunals, and even in extreme cases to purely ministerial bodies, when they attempt to usurp judicial functions.

Syll. Pt. 1, State ex rel. Brown v. Corp. of Bolivar, 209 W. Va. 138, 544 S.E.2d 65 (2000).

47. Rightly or wrongly, the Jefferson County land use regulations and ordinances bestow upon the Planning Commission incidental powers that are decidedly quasi-judicial in character relative to applications for Conditional Use Permits and the development of land.

48. The Planning Commission, by its stated intention to consider its posture in the civil action now pending in the U.S. District Court as relevant to its duty to obey the Remand Order, has constructively declared that it condition your Petitioner's right to a hearing upon his application for a Conditional Use Permit upon its own interests. Accordingly, the Planning Commission has declared that it has a conflict of interest relative to your Petitioner, such that it would be an abuse of power for the Planning Commission to exercise its quasi-judicial power relative to any aspect of the proposed Town Run Commons.

49. Additionally, the Planning Commission is without authority to hear and decide applications for Conditional Use Permits, which are issues exclusively within the scope of the zoning, not planning, authority, as these applicaitons involve the determination of the use to which property may be put. Singer v. Davenport, 164 W. Va. 665, 672. 264 S.E.2d 637, 642 (1980)("[T]here is a distinction between regulating the manner in which a subdivision can be constructed and regulating where land can be devoted to subdivision use. The former is the province of a planning commission, while the latter is exclusively the province of a zoning commission" Emphasis added.).

50. Mandamus will lie to

...compel performance of a nondiscretionary duty of an administrative officer though another remedy exists, where it appears that the official, under misapprehension of law, refuses to recognize the nature and scope of his duty and proceeds on the belief that he has discretion to do or not do the thing demanded of him.

51. Because it is without authority to hear and decide your Petitioner's application for a Conditional Use Permit, the Planning Commission has a nondiscretionary duty to refrain from further action thereon.

52. It is axiomatic that a member of a board or commission that has a personal interest in a matter coming before such board or commission cannot participate in the consideration of the matter. Accordingly, the Planning Commission has a nondiscretionary duty to prevent any Commissioner who has a personal interest in a matter before the Planning Commission from participating in the consideration of the matter, even if such Commissioner refuses to remove himself.

53. The Planning Commission had a nondiscretionary duty to prevent William Lewandowski from speaking on the record and as a Commissioner with respect to your Petitioner's appearance on the agenda of the October 12, 2004, Planning Commission meeting. Moreover, because Mr. Lewandowski is a Commission member who must abstain from any participation in consideration of the Town Run Commons proposal, the Planning Commission has a nondiscretionary duty to refrain from receiving any comments from him at any time regarding your Petitioner's proposal, as any comments would constitute impermissible ex pane communication. Therefore, if the Planning Commission is not prohibited from taking further action upon your Petitioner's application for a Conditional Use Permit, it must be mandated to exclude any interested person, such as Lewandowski, therefrom.

54. Due to the circumstances described in the foregoing paragraphs, your Petitioner will continue to be subjected to violations of his right to unlawful processes in relation to his application for a Conditional Use Permit unless this Court grants the extraordinary relief sought herein.

WHEREFORE, in view of all of the foregoing, your Petitioner prays that this Honorable Court:

1. Issue a Writ of Prohibition prohibiting the Jefferson County Planning Commission from taking any further action with respect to Aubrey E. Henry's application for a Conditional Use Permit for the Town Run commons proposal, or a Writ of Mandamus compelling said Commission to refrain from such further action;

2. Issue a Writ of Prohibition prohibiting the Jefferson County Planning Commission from taking any further action relative to any aspect of the Town Run Commons townhouse development proposal, or a Writ of Mandamus compelling said Commission to refrain from such further action;

3. Issue a Writ of Mandamus compelling the Jefferson County Planning Commission to prevent any member with a personal interest in the proposed Town Run Commons townhouse development, including, but not limited to William Lewandowski, from participating in any proceedings before the Planning Commission in which said development is at issue;

4. Issue a Writ of Mandamus compelling the Jefferson County Planning Commission to refrain from receiving, outside of public hearings, any comments from any member or person who has an interest in the proposed Town Run Commons townhouse development, including, but not limited to William Lewandowski;

5. Enter such Order and award such additional relief as may be necessary to protect your Petitioner's right to due process in his pursuit of a Conditional Use Permit and other such approvals and permits as may be necessary to the proposed Town Run Commons townhouse development and to effectuate the purpose of the Writs sought herein;

6. Award to your Petitioner all of his costs incurred in the prosecution of this Petition, including his reasonable attorney's fees; and,

7. Retain this matter upon the docket of this Court pending the conclusion of all County land use administrative proceedings so as to permit the Petitioner to seek such further relief as may be necessary to insure compliance with the Orders sought herein.

AUBREY E. HENRY, The Petitioner, By counsel.

Linda M. Gutsell (WVSB #5774)

Trump & Trump L.C.

700 E. Washington St.

Charles Town, WV 25414

1. Who operates a commercial venture on the adjacent property to the southwest of the subject 11.69.

2. Who are residents in a medium density subdivision across Rt. 480 from the subject property, which subdivision displaced a farm of approximately 100 acres.

3. Ledge Lowe is the subdivision in which the Lewandowski's reside.

4. Mr. Super is a resident of the subdivision "Morgana," a medium density residential development located two properties to southwest of the subject 11 .69 acres, and which was built upon the former White farm.

5. The Shepherdstown Men's Club, Ledge Lowe Homeowners Association, William E.

Lewandowski, Joyce Ann Lewandowski, Miriam Wilson and Richard Super were the named

Defendants who, at this time, are still parties to the federal action. In or about September of

2003, an Amended Complaint was filed in the federal civil action which included the Jefferson

County Planning Commission as a party Defendant.

6. Counsel's remarks on this point were based upon a check of four different sources of information regarding the identity of the parties in the federal action, which check was conducted as a conflict check for potential representation of the Petitioner therein. Having since learned that the Planning Commission is a party to the federal civil action for money damages, undersigned counsel no longer plans to move to appear as substitute counsel in that case. Counsel did, however, immediately attempt to confirm Mr. Lorensen's status as counsel to the Planning Commission in a letter faxed October 13, 2004, which letter has yet to receive a response. See, Letter of October 13, 2004, attached hereto as Exhibit J.