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W.Va. high court won't hear restaurant case

June 04, 2006|by ROBERT SNYDER

MARTINSBURG, W.Va. - The West Virginia Supreme Court has declined to hear a downtown restaurant's appeal of a lower court's ruling that gave Martinsburg officials the green light to prosecute the restaurant for alleged zoning violations.

West Virginia Supreme Court justices on May 24 voted 5-0 against hearing Tatra Restaurant Inc.'s appeal of a decision by Berkeley County Circuit Judge David Sanders.

Sanders ruled in January that city officials could prosecute the restaurant company after citing it last year for installing gambling machines in an upstairs lounge despite a contested city zoning board prohibition.

In November, city officials issued a citation to the restaurant's owner, Carter Craft, charging him with the misdemeanor offense of installing a set of limited video lottery machines in the establishment without proper zoning.

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With the high court's decision not to hear the restaurateur's appeal, the case returns to Municipal Judge Steven Kershner.

Kershner was denied an opportunity to rule last year after Craft and former business partner Matthew St. Martin filed a complaint in Circuit Court against the city's Board of Zoning Appeals, Planning Director Mike Covell and Code Enforcement Officer John Whitacre.

Craft declined Wednesday to indicate what he would do in light of the high court's rejection of his appeal without first getting a decision from the city court.

"We still haven't heard from Municipal Court," Craft said. "They haven't rendered a decision yet."

Craft's attorney, Michael Scales, said an unfavorable ruling could result in an appeal to Circuit Court, this time to seek to overturn a possible misdemeanor conviction and to get a different order if Kershner agrees to let the city fine the restaurateur $300 per day for each day the machines remained in operation.

After hearing the case in Municipal Court in April, Kershner, who acknowledged then that a possible decision by the state's high court could deny the city court jurisdiction in the case, said he anticipated having a decision by the end of that month.

On Wednesday, a city official said a ruling by the judge was expected in about a week.

The restaurant, at 100 N. College St./200 W. Burke St. and called The Counsellor's Grill, since has closed. It reopened last month, under new management, as The Islands.

At April's hearing, the sides continued to battle over whether the zoning board's approval of a continuation for a special use of the building prohibited the video lottery machines. They also debated whether the city could prosecute the restaurant for installing the gambling machines in the absence of an ordinance regulating them at the time the company filed for a special exception.

The restaurant was cited one day after the City Council passed an ordinance prohibiting video lottery terminals from opening within 1,000 feet of schools, churches, parks or playgrounds.

Last year, the city's Board of Zoning Appeals approved continuing the nonconforming use for the restaurant, 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 said before they voted that they opposed slot machines being placed in the restaurant.

In April, Scales called the city's prohibition of the machines an effort to zone out video lottery machines and an attempt to usurp the state's ability to license them.

Scales called the addition of the machines a continuation, but not an expansion, of the property's nonconforming use, and said the machines should have been allowed because the property was operated continuously as a restaurant.

At that hearing, city legal counsel Andy Blake noted that Sanders ruled in January that the placement of the machines was not a continuation of the then-nonconforming use of the restaurant, which previously was opened as The Peppermill, and specialized in catering and banquets.

Blake called the passage by City Council of the ordinance regulating the lottery machines irrelevant to the case.

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