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Judges rule in favor of Jefferson County planner

August 22, 2007|By DAVE McMILLION

CHARLES TOWN, W.Va. - Saying there is "not a scintilla of evidence" against him, a three-judge panel has ruled that three local developers failed to make the case that a Jefferson County land planner should be removed from his position.

The panel said there was no evidence that Todd Baldau violated the law or his oath of office, and they described the Jefferson County Planning Commission member as an "informed, smart and conscientious, unpaid citizen member" of the planning commission.

The decision is being heralded by some who say it will protect residents from feeling intimidated about serving on boards dealing with contentious growth issues and other challenges in the county.

Jefferson County developers Herb Jonkers, Gene Capriotti and Louis B. Athey have sought Baldau's removal from his position and an attorney for the developers pointed to a "radical attempt to go beyond the law" in a court hearing for the case earlier this year.

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The developers argued that Baldau claimed that planning commission members can deny housing 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 the developers, said previously that planning commission members must act in a ministerial capacity.

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

The three-judge panel - made up of Fayette County Circuit Court Judge John Hatcher, Marion County Circuit Judge David Janes and Doddridge County Circuit Judge Robert Holland - rejected the developers' case in a 16-page decision.

The judges pointed out that most of the planning commission members vote the same as Baldau.

"However, only the respondent has been singled out for removal by the petitioners. No reasonable, logical or rational explanation was presented by the petitioners as to why they seek to remove only the respondent," the judges wrote.

Looking at the developers' argument on its surface makes it appear that Baldau is the sole member of the planning commission or that he "single-handedly" controls the planning commission, the judges wrote.

That is obviously not the case after examining the facts, the judges said.

"And what would be unusual, improper or even illegal if the respondent were indeed a leader on the JCPC?" the judges wrote.

Despite the firm wording in the decision, Cassell said Tuesday night that his clients disagree with the ruling.

To support their case, Cassell said Baldau and other planning commission members have turned down housing subdivisions that were later approved on appeal in the courts.

Cassell said he and his clients are considering the "legal and appellant options" before them. The ruling can be appealed to the West Virginia Supreme Court of Appeals, Cassell said.

Baldau said in a statement that he was pleased by the judge's decision and was "gratified to have my good name cleared by the false assertions."

Baldau said the case was a blatant attempt to intimidate him and prevent other citizens from volunteering on county boards.

"This decision is a victory for the citizens of Jefferson County," Baldau said.

Lyn Widmyer, a local resident who follows county growth issues, agreed.

"It removes the fear factor for people wanting to serve on public boards. That's two good decisions," Widmyer said.

Widmyer was referring to another recent case in which three county residents were sued for $2.15 million for their opposition to the 595-home Thornhill subdivision near the Shenandoah River.

The suit claimed the three county residents made false statements about Thornhill to delay the project.

Berkeley County Circuit Court Judge Christopher Wilkes ruled against two development companies in the case, and the decision was viewed as significant ruling in favor of people's right to challenge government decisions and development projects.

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