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Citizens group files appeal over development ruling

November 30, 1999|By ROBERT SNYDER

MARTINSBURG, W.Va.

A citizens group opposed to a residential subdivision in northern Berkeley County has filed a petition with the West Virginia Supreme Court of Appeals to overturn a ruling by a county circuit court.

Members of the Concerned Citizens of Whiting's Neck, who filed suit last year against the county's planning commission after that group's approved a 44-home subdivision along Greensburg and Scrabble roads, have asked the state Supreme Court to reverse the circuit court's ruling related to a cluster of sewage disposal systems proposed for the project.

Residents contend Circuit Judge Christopher Wilkes erred in ruling last November that the project met a requirement that a homeowners association for the 100-acre community be formed ahead of plat approval for the project.

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"We think there is absolutely no proof of any such entity," said attorney Garry Geffert, who is representing the subdivision's opponents.

The development, called Greensburg Estates, is being developed by George Van Wagner and Maryland-based PVW Enterprises LLC.

In a 19-page petition filed last month, Geffert said the county's subdivision rules require that a homeowners association be established prior to plat approval being granted.

At issue is a proposed clustered septic system for a number of lots in the development that residents worry could contaminate groundwater if they're not properly maintained. They cite a letter to the project's septic system installer from former county health department sanitarian Rick Hertges that said a maintenance contract is required as part of the application process.

Wilkes' ruling last year reversed the planning commission's final plat approval of the subdivision, saying the West Virginia Bureau of Health, Environmental Engineering Division should have reviewed the project, as well as the county's health department.

However, Wilkes sided with the planning commission's application of the subdivision ordinance on the establishment of a homeowners association, and found the approval of covenants and restrictions approved for the project were sufficient, citing a letter by the group's legal counsel Patrick Henry.

Henry was unavailable for comment, and a representative from his office cited a policy of not speaking to the media.

Geffert contended that the court erred in its reading of the covenant, noting that it requires that individual residents whose lots tie into three decentralized septic systems, not a homeowners association, are responsible for maintaining the system.

The circuit court did agree last year with the petitioners that the project was not properly advertised.

That ruling led to the cancellation of a full month's worth of planning commission hearings in December, and resulted in January in a proposal to eliminate public notice requirements from the subdivision regulations.

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