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Developers file 2nd attempt to remove W.Va. planner

November 14, 2006|by DAVE McMILLION

CHARLES TOWN, W.Va. - Three local developers are renewing their attempt to remove Todd Baldau from the Jefferson County Planning Commission over allegations of multiple acts of misconduct, according to court records.

Among the arguments from the developers is that Baldau has claimed that planning commission members can deny subdivisions because they act with discretion - which is using one's own reasoning - rather than acting in a ministerial capacity, which is rendering decisions within standards set up in county land-use laws.

J. Michael Cassell, one of the attorneys representing Eugene Capriotti, Herbert Jonkers and Louis Athey, said planning commission members must act in a ministerial capacity.

Martinsburg, W.Va., attorney David Hammer, who is representing Baldau, agrees planning commission members must act within requirements of county land use regulations. But the developers have never stated when Baldau made discretionary decisions, Hammer said.

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The developers say Baldau has claimed that the planning commission has discretion to deny subdivision applications even if they comply with county land-use laws, according to a petition filed in Jefferson County Circuit Court.

The developers filed an earlier petition to remove Baldau from the planning commission, saying Baldau committed "multiple acts of official misconduct, malfeasance in office, incompetence and neglect of duty."

State law allows for a removal process through a petition and the petition "shall be entered of record" by the court, the judge or chief judge, the petition stated. Then a three-judge panel is formed to hear the case, said court records.

On Oct. 5, a three-judge panel started hearing the case, but it was dismissed on a technicality just as the panel was starting to hear it.

Hammer argued that when the petition was filed and before any summonses were issued, attorneys for the developers needed to ask chief Circuit Judge Gray Silver to review it to make sure certain requirements are complied with.

That was not done in the case, Hammer said.

Agreeing with Hammer, the panel dismissed the case without prejudice, which means another petition can be filed.

Cassell said Monday the petition will be presented to the chief judge to make sure all requirements are complied with.

Then the case will be referred to the state Supreme Court of Appeals, which will name the panel to hear the case, Cassell said.

Cassell said he did not know how long the process will take.

Residential development is a hot-button topic in Jefferson County and during the first hearing, it was standing room only at the Jefferson County Courthouse.

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