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Developers say Baldau oversteps the law

January 31, 2007|by DAVE McMILLION

CHARLES TOWN, W.VA. - An attorney for three local developers trying to remove Todd Baldau from the Jefferson County Planning Commission over alleged misconduct argued in Jefferson County court that he could show there was "radical attempt to go beyond the law."

The developers have argued 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, has 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 never have stated when Baldau made discretionary decisions, Hammer has said.

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Hammer further defended Baldau Tuesday, saying dealing with the county's subdivision regulations is a complex job.

After a first attempt to remove Baldau was dismissed on a technicality last year, the same three-judge panel that was assigned to hear the case began hearing it again Tuesday in the Jefferson County Courthouse.

After a day of testimony, Fayette County Circuit Judge John Hatcher, Marion County Circuit Judge David Janes and Doddridge County Circuit Judge Robert Holland told attorneys in the case they had 60 days to submit written closing arguments.

The three-judge panel then will issue a decision.

Part of the testimony Tuesday revolved around the controversial 42-lot Benview subdivision proposed near a federal firearms training facility in the Harpers Ferry, W.Va., area.

Planning commission members rejected final plat approval for the Benview subdivision by a 5-4 vote after a lengthy public hearing in which speaker after speaker spoke against the subdivision, which the developers wanted to build near the intersection of Bloomery Road and U.S. 340.

Planning commission members who voted against final plat approval were worried about nearby historical sites that could be "forever damaged" if the subdivision is approved, traffic that would be added to an already congested area around Bakerton Road and concerns about the subdivision that were raised by U.S. Customs and Border Protection.

At the meeting, Baldau said he could not see voting for Benview when federal officials urged county officials not to vote for it.

Benview was rejected by the planning commission even though its own staff had approved the subdivision's preliminary plat, according to testimony Tuesday.

"There's a radical attempt to go beyond the law," said Charles Town attorney Jim Campbell, who also is representing the three developers in the case.

Athey testified that Baldau once wanted him to do a hydrological study on the Sunnyside Industrial Park he was proposing. Athey said there never has been a requirement for such a study in county land-use laws.

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