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Berkeley County could fall prey to zoning lawsuit, clerk warns

February 22, 2008|By MATTHEW UMSTEAD

MARTINSBURG, W.Va. - Berkeley County Clerk John W. Small Jr. warned county commissioners on Thursday that they might be named in a lawsuit that challenges the primary election results because residents of Martinsburg and Hedgesville, W.Va., are not being allowed to vote on the proposed zoning ordinance in May.

"We feel sure they're going to sue you on that," said Small, who cited sources he considers reliable.

Acting on the advice of legal counsel Norwood Bentley, who reviewed state code governing the adoption of zoning ordinances, the County Commission decided earlier this year only to allow voters who reside outside of Berkeley County's two municipalities to vote on the proposed land-use regulations.

According to Chapter 8A-7-7, an election on a zoning ordinance can be placed on the ballot for consideration by "... qualified voters residing within the entire jurisdiction of the governing body, if the proposed zoning ordinance is for the entire jurisdiction; or in the specific area to be zoned by the proposed zoning ordinance, if the proposed zoning ordinance only applies to part of the governing body's jurisdiction."

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The code also notes that the state's election laws apply to any election on zoning ordinance.

After talking with the commission, Small and Deputy County Clerk Bonnie Woodfall, the county's voter registration supervisor, said they fielded phone calls from city residents who own property in the county wondering why they will not be given the opportunity to vote.

Both Hedgesville and Martinsburg have zoning ordinances, but it wasn't immediately clear how their land-use rules compared to the county's proposal, which would also have an impact on property owners along the boundaries of both municipalities, if adopted.

Dawn Warfield, a deputy attorney general with West Virginia Attorney General Darrell McGraw's office, declined to give an opinion on the state code, which appears to allow the exclusion of county taxpayers who reside in the city from voting on a measure that would increase the size of county government.

If the zoning ordinance is approved in May, for example, County Planning Director Stefanie Morton projected the need to hire a zoning administrator and a zoning inspector in her 2008-09 budget, which she presented to commissioners on Thursday.

Though the zoning question has already been placed on the primary election ballot, County Commissioner William L. "Bill" Stubblefield left open the possibility of not having the vote take place in May.

Woodfall doubted how the zoning question could be removed from the ballot, given that the deadline had already passed for it to be finalized and was sent to the printer.

"That will cost ya," Woodfall said.

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