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Votes on explosives facilities challenged

January 01, 2009|By MATTHEW UMSTEAD

MARTINSBURG, W.Va. -- The Berkeley County Planning Commission's votes in December to revisit and then reverse a June 2008 decision against a company's plan to build storage facilities for explosives and blasting agents on North Mountain is being challenged in circuit court.

In a petition filed Dec. 23 in Berkeley County Circuit Clerk Virginia M. Sine's office, attorney Braun A. Hamstead asked the court to overturn the planning commission's 5-3 vote in favor of Geological Technologies Inc. (GTI) and reinstate the June (4-3) decision against the Falling Waters, W.Va.-based company.

Gina M. Groh, 23rd Judicial Circuit judge, is expected to review the Petition for a Writ of Certiorari, which is a request for the court to hear an appeal of the planning commission's decisions in December.

Hamstead filed the petition on behalf of John R. Labovitz, Margaret C. Labovitz, C. Stanley Dees and The Sharon K. Cagley Revocable Trust.

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In his statement of grounds for appeal, Hamstead claims no procedure exists in the county ordinance or state code for GTI to request reconsideration of the initial variance request, which was denied in June.

The company asked the county planning board to be allowed to build a private driveway in an area that had slopes of 30 percent or greater.

"My only comment is, I think Mr. Labovitz is incorrect (in his claims)," planning commission legal counsel Norwood Bentley III said this week. "I believe what the planning commission did, it had every right and authority to do, and we will defend the suit with great vigor."

Hamstead also claimed in his petition that a variance request denied by the planning commission only can be appealed to circuit court within 30 days after the decision, and that a petition for reconsideration applies to denial of approval of major subdivisions and land development plats.

Even if the planning commission had the authority to "reopen" the variance request, Hamstead said the commission failed to meet advertisement, posted notice and public hearing requirements that applied to the initial request.

GTI proposed to build the driveway to serve storage facilities on 126 acres it purchased off Tuscarora Pike.

An attorney for the company said at the planning commission's Dec. 8 meeting that less than 6.5 acres would be disturbed for the development.

Labovitz and other residents have voiced concern about truck traffic on Tuscarora Pike, a narrow, curvy road. Company officials have said additional traffic on the road would amount to several standard-size pickups, a couple of larger trucks and an occasional tractor-trailer trip to and from the storage site.

In his petition, Hamstead also noted Planning Commissioner Gary Phalen's vote in favor of the variance request in December after previously being absent for the June vote and requesting a meeting on his own with GTI officials. In the June meeting, commission President Donald Fox said Phalen, being a new commission member, did not know he wasn't allowed to request such a meeting with the company about a pending case. Phalen is a former Jefferson County commissioner.

Joining Phalen in voting for the variance in December were Eric Goff, who voted against the project in June, and Commissioners H. Daniel Gantt, John Jeans and Ted Bostic.

Goff said a "confidential" memo that planning commissioners received from Bentley influenced his decision to support the variance request, but he declined to be more specific about what the attorney advised.

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