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Project gets nod again - one year later

April 19, 2006|by ROBERT SNYDER

MARTINSBURG, W.Va. - A year didn't make much of a difference in the outcome of a vote for a proposed housing development in northern Berkeley County, W.Va., that nearby residents opposed then and continue to oppose.

The residents' opposition to the development will continue, however, all the way to the state's Supreme Court.

Following nearly two hours of sometimes lively discussion Monday between the opponents of and representatives for the planned 100-acre Greensburg Estates residential subdivision near Whiting's Neck, the nine members of the Berkeley County Planning Commission voted to do what last year's commission did- approve the 44-lot project's preliminary plat application.

The commission, six members of which are relative newcomers to the panel, was seeing it for the second time following a decision late last year by Berkeley County Circuit Court Judge Christopher Wilkes, who reversed the planning commission's June 2005 approval of the PVW Enterprises, LLC-owned development.

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In an 11-page decision filed last October, Wilkes said the commission failed to abide by the county's subdivision regulations because the project hadn't been properly advertised and because the developer hadn't yet received approval of its proposed sanitary sewage disposal system by the West Virginia Bureau of Health, Environmental Engineering Division.

And it still hasn't, opponents contend, arguing that the developer has only applied for, but not yet been granted, a permit for the project by the state Department of Environmental Protection.

Project engineer Andy DiMagno said the Concerned Citizens of Whiting's Neck, the coalition of residents who petitioned the court against the project, were primarily interested in stopping the subdivision from being built.

"Everytime we've thought about something, something else enters the mix," DiMagno said of past efforts to stall the project, even as the commissioners entertained tabling the application for a month.

On Monday, residents raised concerns about traffic, that soil at the site of the former agricultural land could be contaminated, and that the homeowners' association's covenant failed to spell out responsibility for the maintenance of the special clustered septic system that will serve about half the development's homes.

The suggestion to table the project drew an angry response from the developer's attorney, Greg Bailey, who said the commission had no choice but to approve the plat.

"What you're really doing is telling a Circuit Court judge we don't care what you rule, we're going to do what we're going to do," Bailey said ahead of the 5-3 vote to approve the application.

Bailey said the group's issues have been addressed.

In his decision last year, Wilkes rejected a number of the petitioners' other complaints, notably about the failure to establish an entity to oversee the community's septic system.

Earlier this year, the group filed an appeal of Wilkes' decision with the West Virginia Supreme Court, alleging the court failed to consider the absence of a maintenance contract for the septic system, that the developer shifted responsibility of the decentralized septic system from the homeowners' association to individual residents. Key to their appeal, they argue, is a request to force the commission to abide by its own rules and consider the public's input when it makes its decisions.

Opponents of the project say they are not against the development but want to fix a broken process that requires citizens' groups to do the work of their government.

"Why do so many concerned, and I might add, scared citizens need to do the research and ask the questions and investigate the inconsistencies and so-called mistakes of misstatements," said Whiting's Neck litigant Tom Conlan from a prepared statement. "This is your duty."

The approval by the planning commission last year did initiate a number of changes, becoming both the decision around which opponents demanded and got the removal of several longtime commissioners and one that compelled the commission to consider preliminary and final plat approvals at two separate meetings. Wilkes' ruling also led to the cancellation of a month's worth of planning commission hearings in December, resulting in a January proposal to eliminate public notice requirements from the county's subdivision regulations.

County Commissioner Ron Collins, who voted to approve the project, later defended the work of the planning department.

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