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Judge to rule on city-restaurant dispute in Martinsburg

April 13, 2006|by ROBERT SNYDER

MARTINSBURG, W.Va. - A Martinsburg Municipal Court judge said Wednesday he will rule on a case involving a downtown restaurant that installed gambling machines in an upstairs lounge last year even as he acknowledged that a possible decision by the state Supreme Court could deny the city court jurisdiction on the case.

Recognizing the unusual circumstances in the case as a result of procedural meandering that saw a decision against the restaurant already issued by a higher court, city court Judge Steven Kershner said he would rule in two weeks on the city's prosecution of restaurant owner Carter Craft and Tatra Restaurant Inc.

The restaurant's owner placed a set of limited video lottery machines in a second-story room at the Counsellor's Grill restaurant last year, despite what city officials contend was a vote by the zoning appeals board prohibiting them.

This week's hearing was the first in city court even as the case awaits possible review by the West Virginia Supreme Court, which is being asked to overturn a ruling by Berkeley County Circuit Court Judge David Sanders, who denied a request by the company in January to prevent the city from prosecuting it.

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At issue is whether the city's Board of Zoning Appeals' approval last year of a continuation for a special use of the building at 100 N. College St./200 W. Burke St. included a prohibition of the video lottery machines, and whether the city is able to cite the company when an ordinance regulating the machines' use hadn't been passed when the special use exemption was sought.

Tatra Restaurant attorney Michael Scales, who submitted a trial memorandum to the court at the hearing's start, said the city began its prosecution of the company in November one day after the passage of the ordinance that now regulates their use.

"We believe what the city has attempted is to zone out video lottery machines before the ordinance came into effect," said Scales, calling the city's effort to forbid the machines a violation of state code and an attempt to usurp the state's ability to license them.

In his memorandum submitted to the court, Scales said the city is unable to consider the addition of the machines as an expansion of a nonconforming use and noted the city's zoning ordinance permits the extension of a nonconforming use in an establishment, which, Scales said, operated continuously as a restaurant.

"The city can't regulate the continuation of a nonconforming use as long as that use hasn't ceased," Scales said.

City prosecutor Andy Blake called the city's new video lottery machine ordinance irrelevant and said the company failed to abide by the board's decision that disallowed the expansion of the restaurant's use.

"The (Board of Zoning Appeals) has the power to regulate uses," Blake said in an interview after the hearing. "(The board) can put any condition on a property that it deems necessary to protect the surrounding neighborhood."

During Wednesday's hearing, Blake noted that Sanders, in denying the company's appeal, ruled in January that the placement of the machines was not a continuation of the nonconforming use of the restaurant, which previously opened as the Peppermill and specialized in catering and banquets.

Blake said prior uses of the restaurant did not include video lottery machines.

Scales indicated the city's ordinance does not distinguish between types of restaurants and said the zoning appeals board only forbade a lounge and bar and is silent on whether to allow the gambling machines.

The restaurant, which closed in February, grossed $2,534 on more than $14,800 played on five machines during the two months they were in operation last year, according to the West Virginia Lottery Commission's Limited Video Lottery Monthly Revenue Web site.

In testimony Wednesday, Craft's former business partner, Matt St. Martin, said payouts by the company totaled less than $500. Martinsburg city officials dismissed charges against St. Martin in February in exchange for his testimony.

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