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Court dismisses complaint against Ridges of Tuscarora

March 23, 2006|by ROBERT SNYDER

MARTINSBURG, W.VA. - A complaint that relied heavily on new statewide land-use laws in its objection to the Berkeley County Planning Commission's approval last year of a residential subdivision near Martinsburg was dismissed last week in county Circuit Court.

In a 58-page decision signed by Berkeley County Court Judge David Sanders, the court denied a request by a coalition of area residents, called the Concerned Citizens of Tuscarora, to reverse the planning commission's Oct. 17 approval of the planned Ridges of Tuscarora subdivision, a 113-acre development they said threatened their water supply.

The subdivision proposal, which consists of 95 houses on 1-acre lots served by private wells and public sewer, is being developed by Dan Ryan Builders Inc. and Newbraugh Development Co.

Sanders, in also rescinding an order that delayed the planning commission's consideration of the final plat of the project, said State Code Chapter 8A obligates commissioners to approve a developer's application if it is complete and meets the requirements of the county's subdivision regulations.

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"The Planning Commission had no legal duty to do what the petitioners seek to compel. In fact, the Planning Commission had a legal duty to do exactly what it did - perform the ministerial act of approving (the developer's) preliminary plat because it met all of the requirements of the existing Subdivision ordinance," Sanders ordered.

The group's attorney, Garry Geffert disagreed, citing the ordinance's Statement of Purpose section, which outlines broadly the commission's role in community planning. Geffert said the commission is charged with considering economic growth and environmental factors in approving development projects.

"If water doesn't have anything to do with livability then I don't know what does," Geffert said.

But Sanders, who found fault with the citizens' group's reading of a two-gallon-per-minute water standard in the subdivision rules, noted that it applied only to subdivisions serviced by community water. He said the technical requirements laid out in the ordinance trump general policy statements of purpose. Drawing from a proposed order submitted by Dan Ryan attorney Joseph Caltrider, Sanders said the planning commission was correct in approving the project based on a number of engineering studies, one of which showed the area had adequate supplies of groundwater.

According to that document, a Triad Engineering Inc. analysis of the property said the development would extract about 17 million gallons of water annually, much less than the total groundwater recharge amount of 31 million gallons.

Geffert said the study failed to fully account for drought conditions, likening the allowance to develop property that's susceptible to drought as the flip side of prohibitions against building in a flood plain.

"You can't plan for the best-case scenario," Geffert said. "That's not planning, that's wishful thinking."

Planning commissioner Bonnie Stubblefield, who cast the lone vote against the developer's application, noted at the Oct. 17 public hearing that Berkeley County had endured three drought years over 20 years, in 1981, 1999 and 2001.

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