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Storage business sues Berkeley County Planning Commission

October 25, 2011|By MATTHEW UMSTEAD | matthew.umstead@herald-mail.com

MARTINSBURG, W.Va. — A storage business has sued the Berkeley County Planning Commission, claiming it violated two Berkeley County Circuit Court orders when the county ordered the company to submit a site plan for an existing operation.

Attorney Richard G. Gay filed the lawsuit on Oct. 19 on behalf of L&H Mobile Storage LLC and C. Lee Ridgely, the owner of property in question at 615 Pack Horse Ford Road south of Martinsburg, according to the 14-page civil action.

Members of the Berkeley County Planning Commission, each of whom are named in the lawsuit, declined to comment after their regular meeting Monday night.

Norwood Bentley III, the planning commission’s legal counsel, also declined to comment, saying he had not reviewed the lawsuit or been notified by the court that it had been filed.

The lawsuit alleges the planning commission’s order for the company to submit a site plan for operations at 615 Pack Horse Ford Road “is in direct violation of the prior court orders and constitutes a collateral attack on the final court orders of circuit court of Berkeley County.”

The suit contends the planning commission is essentially using the county’s planning ordinance as a zoning ordinance by ordering a site plan and forcing the business to adhere to regulations adopted in 2004 that would eliminate the business use of the property because Pack Horse Ford Road is not 40 feet wide. The road width is required for such a property under the 2004 regulations, according to the lawsuit.

The complaint contends that eliminating the business use of the property would amount to a violation of the state constitution that would damage the business.

In the lawsuit, L&H Mobile Storage also contends the planning commission made the decision without holding an impartial hearing in violation of the business’ due process rights, and claims it has been damaged by the county board’s actions and is entitled to damages, pre- and post-judgement interest, costs and attorneys fees.

The civil action comes a little more than four months after 23rd Judicial Circuit Judge Christopher C. Wilkes issued a final order denying a nuisance claim that was filed in 2005 by James and Barbara Farrell, neighbors of Ridgely’s business.

Wilkes ruled in June 2011 that Ridgely’s business activities at the Pack Horse Ford Road property were “reasonable” and that flooding on the Farrells’ property and adjoining properties in the Pikeview Acres subdivision was not being caused by any negligence on Ridgely’s part, according to court documents.

In 2007, an agreed order signed by 23rd Judicial Circuit Judge David H. Sanders indicates Ridgely ultimately complied with the “procedural requirements” of the Berkeley County Planning Commission and provided a stormwater plan that was deemed to be acceptable to the county engineering department, according to the lawsuit.

The order dismissed a lawsuit that was filed in 2004 by the county concerning Ridgely’s compliance with stormwater planning and compliance with land-development unit regulations for commercial property, according to court documents.

In 2008, Wilkes signed an order approving a “global” settlement agreement concerning the placement of storage containers by the company at six locations, including the Pack Horse Ford Road property.

The agreement was meant to abandon the appeal of a legal issue in that case “in exchange for a settlement of all of the issues between the parties,” according to the court order.

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