Groh dismisses suit against vote allowing explosives storage facility

December 04, 2009|By MATTHEW UMSTEAD

MARTINSBURG, W.Va. -- A lawsuit that challenged the Berkeley County Planning Commission's vote to allow storage facilities for explosives and blasting agents to be built on North Mountain has been dismissed by 23rd Judicial Circuit Judge Gina M. Groh.

Groh signed an order Nov. 23 dismissing the suit against the planning commission after the court was notified that Geological Technologies Inc. (GTI) withdrew its request for a variance that would have allowed the company to proceed with the project off Tuscarora Pike.

The lawsuit challenged the planning commission's split vote in December 2008 to grant the company the variance to the subdivision regulations, which have since been rewritten.

The company is expected to resubmit its project for county review under the current rules, which were finalized earlier this year and are "a lot less strict," County Commission legal counsel Norwood Bentley III said Friday.


GTI will not need to request any kind of waiver, Bentley said.

After the planning commission's vote in December, attorney Braun A. Hamstead asked the court to overturn the planning commission's 5-3 vote in favor of GTI and reinstate the commission's 4-3 decision in June 2008 against the Falling Waters, W.Va., company.

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

Hamstead claimed no procedure existed in the county ordinance or state code for GTI to request reconsideration of the initial variance request.

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.

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

An attorney for the company said that less than 6.5 acres would be disturbed for the development.

Labovitz and other residents have voiced concerns about truck traffic on Tuscarora Pike, and company officials have responded by saying any 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.

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