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Request denied to lift blockade around Martinsburg restaurant

November 01, 2007|By MATTHEW UMSTEAD

MARTINSBURG, W.Va. - A judge on Wednesday said he could not order the owners of a Berkeley County shopping plaza to end their blockade of a neighboring restaurant because deed records indicate the affected business is operating on property apparently obtained through a "defective" deed.

23rd Judicial Circuit Judge Christopher C. Wilkes denied the temporary restraining order, preliminary injunction request by attorneys for Tucker Properties LLC and ruled that the law appeared to be on the side of defendants, Brent Jackson of Berkeley Plaza LLC and his attorney, Michael Scales.

Scales told Wilkes that his client would not deny that he had the property blockaded with buses, construction equipment, cross ties and other large objects, beginning Sept. 18.

Attorneys for Tucker claimed in their lawsuit that the blockade created a health hazard and argued their client's deed maintained rights to use to the parking in Berkeley Plaza.

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Aside from access to the parking and the restraining order, Tucker's lawsuit also asks the court to award damages and other relief.

Prior to the opening of Trula B's Coffee House in May, the property at 715 Williamsport Pike in the plaza had been used as a bank, attorneys for both sides agreed in the hearing. Scales noted his client didn't have a problem with Tucker's purchase of the property until the restaurant was opened.

The deed for the former BB&T branch bank and former bank branches that operated there restricted the property's use to a bank, but Tucker Properties LLC owner James Tucker said previously that he had the covenant removed to allow the restaurant when he purchased the 20,150-square-foot property in June 2006.

Wilkes, however, determined that the restriction was not removed because Frederick (Md.) Business Properties Co., the shopping plaza owner at the time of Tucker's purchase, did not allow the property-use restriction to be lifted, which is a requirement of the 1973 deed.

"Somebody got a release from a nonowner," Wilkes said of a release submitted by Tucker's attorneys. That document was signed by a former shopping plaza owner before the Frederick company bought the property, Wilkes determined after reviewing deed records.

Scales told the judge that his client's company was recorded in May 2007 as the owner of the shopping plaza off U.S. 11 north of Martinsburg and reiterated the property owner's first right of refusal concerning purchase of the property and the change of covenants, including access to the plaza's parking lot.

Wilkes' ruling did not appear to entirely end the civil proceeding, but the judge told Tucker's attorneys he could not grant relief to someone who didn't appear to be entitled to it.

"I'm not willing to find that there's a substantial likelihood that the petition will prevail when there's a substantial defect in the (property) title," Wilkes said.

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