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Judge rules against developer in battlefield battle

November 24, 2005|By DAVE McMILLON

charlestown@herald-mail.com

CHARLES TOWN, W.VA. - The head of a group trying to save a Civil War battlefield near Shepherdstown, W.Va., from development is cheering a judge's recent ruling regarding a 100-home subdivision proposed for the property.

There has been widespread support for the establishment of a national park to protect the site where the Battle of Shepherdstown was waged in 1862 off Trough Road.

But the developers of the proposed housing subdivision have been fighting for their plan to build homes on the 112-acre site and recently filed papers in Jefferson County Circuit Court challenging a decision by the Jefferson County Zoning Board of Appeals to deny a conditional use permit to build the homes.

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Attorney Richard Gay, representing Far Away Farm LLC, claimed the zoning board of appeals made errors, including that the board refused to accept evidence by a traffic expert that the traffic impact by the subdivision would comply with the county's land-use laws.

One of the issues surrounding the development was the amount of traffic that it would generate on Trough Road.

The zoning board of appeals also disregarded a development review system which would determine the compatibility of the property for higher housing densities, Gay said in the paperwork.

But in a ruling dated Nov. 16, Jefferson County Circuit Court Judge Thomas W. Steptoe Jr. rejected parts of the developer's challenge.

The developers are challenging the zoning board of appeals decision in several ways, said attorney Nathan Cochran, representing the developers.

One of the requests was to have Steptoe grant a writ of certiorari, which would mean the judge would review all elements of the case before the zoning board of appeals.

Steptoe rejected the request.

In his ruling, Steptoe said the zoning board of appeals found that the development was too dense to be compatible with the surrounding neighborhood.

"Upon review there appears to be sufficient evidentiary basis to permit the board to conclude that the subdivision, as currently proposed, would not be compatible with the roads that it would serve and its surroundings," Steptoe wrote.

"Further, upon review of the board's order, this court cannot agree that the board's findings of fact and conclusions were inadequate to permit meaningful review," Steptoe said.

But Steptoe is continuing to consider the case for a "declaratory judgment," which involves determining the rights of parties involved in a case, attorneys said.

The possible outcomes under declaratory judgment could include sending the case back to the zoning board of appeals, said attorney Linda Gutsell, representing Shepherdstown Battlefield Preservation Association LLC, the group leading the charge to save the battlefield.

Ed Dunleavy, president of the Shepherdstown Battlefield Preservation Association LLC, praised Steptoe's ruling in a e-mail sent to The Herald-Mail Co.

"This is good news, but the effort will have to continue as the court could rule in any number of directions ..." Dunleavy said.

The Battle of Shepherdstown took place Sept. 19 and 20, 1862, on acreage to the west side of what is now Trough Road, including Far Away Farm, according to the National Park Services Web site.

After the Battle of Antietam, Gen. Robert E. Lee began to pull his Army of Northern Virginia back across the Potomac River, crossing at Pack Horse Ford.

Union soldiers arrived on the Maryland side of the river the following morning and began to shoot at southern troops across the water.

There were more than 600 casualties.

Earlier this month, the Jefferson County Commission held a public hearing to gauge public support for establishment of a national park to protect the battlefield, and speakers gave overwhelming support to the idea.

Dunleavy said during the hearing that the owners of the land are asking $3.6 million for the property and that his organization made an offer to purchase it.

The owners made no counteroffer, Dunleavy said.

Dunleavy said Wednesday that "we're kind of scratching our heads" and wondering why the owners have not made any counter offers yet.

"We just have to be patient," Dunleavy said.

Cochran declined to comment on the efforts by Dunleavy's group to purchase the property.

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