Judge rules against Grill in video challenge

January 10, 2006|by ROBERT SNYDER

MARTINSBURG, W.Va. - A Berkeley County judge has ruled against a Martinsburg restaurant that challenged a city citation for installing gambling machines in an upstairs lounge despite a contested city zoning board prohibition.

In an 11-page decision signed Jan. 6, Circuit Court Judge David Sanders denied a petition filed last month by The Counsellor's Grill's manager Matthew St. Martin and Tatra Restaurant Inc. owner Carter Craft, which sought to prevent Martinsburg city officials from prosecuting them for placing video lottery machines in the restaurant at 100 N. College St./200 W. Burke St.

The men filed a petition last month against Planning Director Mike Covell, Code Enforcement Officer John Whitacre and the Martinsburg Board of Zoning Appeals after city officials issued a citation Nov. 29 charging the restaurant with a misdemeanor offense of "illegal placement of gambling machines without proper zoning," according to a copy of the citation included in the case's court file.


During a court hearing last week, the business owners argued the machines were installed legally, and that by not opening a lounge and bar as had initially been sought, had complied with a ruling by the city's zoning board.

In his decision, however, Sanders noted Craft submitted an Assurance of Zoning Compliance to the West Virginia Lottery Commission two months before appearing before the Board of Zoning Appeals and said he was not persuaded by the restaurateurs' argument that the introduction of the gambling machines was merely a continuation of the present nonconforming use of the restaurant, which had been previously opened as the Peppermill, specializing in catering and banquets.

"On the contrary, the Court finds that the introduction of video lottery machines is not a continuation/extension of a prior existing, non-conforming special exception, rather; it is an expansion of a non-conformity that has never been in existence," Sanders wrote in the concluding remarks of his order.

St. Martin, in an application filed Sept. 26 in the city's planning office, sought to reopen a full-service restaurant in the building as well as an upstairs executive lounge, which would have been separated from the downstairs dining and contain a bar, five slot machines and lounge seating.

Meeting the next month, the Martinsburg Board of Zoning Appeals allowed St. Martin to expand the restaurant to a non-conforming use, but voted 3-2 against plans for a second floor executive lounge and martini bar. While the board's decision did not specify that slot machines were prohibited, three members, before voting said they opposed slot machines being placed in the restaurant.

The citation issued by the city carries a penalty of up to $300 a day for each day the machines remain in place.

The machines were installed later that month, and a license to operate the video lottery terminals was issued Oct. 4, 2005, St. Martin testified at last week's hearing.

During last week's court hearing, attorney Michael Scales, representing Craft, noted the citation was issued one day after the city passed an ordinance prohibiting video lottery terminals from opening within 1,000 feet of schools, churches, parks or playgrounds, but city officials called the ordinance irrelevant, focusing instead on the violation of the appeals board's decision.

Sanders also sided with city officials' position that the restauranteurs failed to appeal both the zoning board's ruling, and a requirement by the city's planning department that they would have to apply for a special exception to raise the establishment's non-conforming use.

At last week's hearing, Scales said no appeal was made because the board's decision did not mention video lottery terminals.

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