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Ruling in W.Va. suit preserves right to fight growth

May 19, 2007|By DAVE McMILLION

CHARLES TOWN, W.Va. - For a while, the fierce debate over growth in Jefferson County threatened to carry a hefty price tag for some residents.

Richard Latterell, Sherry Craig and Mary MacElwee had faced a $2.15 million lawsuit, filed against them by two development companies.

Latterell, Craig and MacElwee were among a group of people who had expressed concerns about Thornhill, a proposed 595-home subdivision near the Shenandoah River. They also were involved in an appeal filed over a decision by Jefferson County's zoning administrator that allowed the project, which is under litigation, to proceed.

Last month, Berkeley County Circuit Judge Christopher Wilkes threw out the suit filed by Thornhill and Highland Farm.

The judge's decision was hailed as a significant ruling in favor of people's right to challenge government decisions and development projects, said Martinsburg attorney David Hammer, who represented the three residents.

The two sides

Some opponents of the development have expressed concern about the 1,200 vehicle trips the subdivision is expected to generate daily and its impact on recreation on the Shenandoah River.

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Part of the Thornhill site along John Rissler Road is wooded and has been a favored site for bird watching, according to the appeal. Eagles and blue herons have been seen in the area, and it is a popular spot for canoeing, white-water rafting and fishing, according to the opponents' appeal.

The developers plan to cut through the shoreline, replacing woodlands with houses and playing fields, according to the appeal.

The controversy over Thornhill could have been like any number of similar debates over other development proposals in Jefferson County in recent years.

What made this one different was the legal steps the developers took against Latterell, Craig and MacElwee.

When Latterell, Craig and MacElwee did not back down after they received a letter from Thornhill developers offering them a chance to withdraw their appeal, the developers filed a $2.15 million lawsuit against them, Hammer said.

The suit, filed by the Thornhill LLC and Highland Farm LLC companies, alleged that Latterell, Craig and MacElwee made false statements about Thornhill to delay the project.

The suit went to Wilkes, who, in an April 27 decision, ruled against Thornhill and Highland Farm.

Wilkes said Latterell, Craig and MacElwee have an "inherent right, privilege, and immunity to appeal before county boards."

There have been similar cases in other parts of the country, including a Colorado Court of Appeals case in which the court upheld the dismissal of a suit filed by a developer who claimed interference with business, Wilkes said in his ruling.

In the Colorado case, the developer filed a complaint against several property owners who opposed a variance given to the developer, according to Wilkes.

"As distinguished from suits between private parties, interested persons who protest governmental action have a lawful right to do so, and the motive, even if malicious, is unimportant if legal grounds existed upon which to predicate their protest," said Wilkes, citing a federal case.

The suit caused concerns among county residents, some of whom felt they no longer could express concerns about local development for fear of being sued, Hammer said.

One longtime county resident who works as a land planner in Montgomery County, Md., said the suit was an example of the "hostile" environment that seems to persist in Jefferson County's growth debate.

Lyn Widmyer said government planners and developers in Montgomery County debate issues all the time, but there is a sense of collegiality. Widmyer said the suit against Latterell, Craig and MacElwee perpetuates the perception of "us against them" in Jefferson County.

"I don't understand in Jefferson County why everything immediately has to go to hostile," Widmyer said.

MacElwee said the experience would not cause her to back down from public participation in local issues.

"I care about the community," MacElwee said. "You can't just sit back and do nothing."

Craig declined to comment on the case.

Jim Campbell, who filed the suit on behalf of Thornhill and Highland Farm, previously defended the action as necessary to protect the interests of builders Herb Jonkers and Gene Capriotti.

Campbell previously said he does not take exception to county residents attending public meetings and becoming interested in growth issues.

"The view of the public is important," Campbell said. "We encourage that."

But when a party makes false statements about a project and forces it to be delayed, corrective action needs to be taken, Campbell said.

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