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Shepherdstown Battlefield Preservation Association Inc. Press Release

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  • edunleavy921
    For Immediate Release – June 26, 2008 Contacts: Edward E. Dunleavy (304) 876-7029 Edward R. Moore (304) 876-3194 Linda M. Gutsell (304) 724-1465 Preservation
    Message 1 of 1 , Jun 26, 2008
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      For Immediate Release – June 26, 2008
      Contacts:
      Edward E. Dunleavy (304) 876-7029
      Edward R. Moore (304) 876-3194
      Linda M. Gutsell (304) 724-1465


      Preservation Group Will File an Appeal with the U.S. Supreme Court

      Shepherdstown, WV – The Shepherdstown Battlefield Preservation
      Association Inc. (SBPA) announced today that Edward E. Dunleavy and
      Edward R. Moore, President and Vice President respectively, of SBPA,
      acting as appellees, will file an appeal with the United States
      Supreme Court contesting the April 2008 decision of the West Virginia
      Supreme Court of Appeals (WVSCA) to allow 152 houses to be built on a
      123 acre farm that is in the core of the site of the 1862 Battle of
      Shepherdstown.

      Linda M. Gutsell, the SBPA attorney and the attorney for the
      Jefferson County Board of Zoning Appeals (BZA) had asked the WVSCA to
      stay the issuance of their final decision. Yesterday, the WVSCA
      denied the stay. SBPA's attorney contends that the WVSCA's April
      decision denies the appellees due process of law. In May, the
      attorneys had asked the WVSCA for a rehearing of their decision
      citing substantial errors of state and Federal laws. The request for
      a rehearing was denied on June 11 with no reasons offered by the
      Court. In addition, SBPA's attorney was not notified of the decision
      to deny the rehearing until 5 days after that decision was rendered.

      By way of background, in 2005, the Jefferson County Board of Zoning
      Appeals (BZA) denied an application for Conditional Use Permit (CUP)
      to build on the farm that is in the core of the site of the Battle of
      Shepherdstown. The reasons for denying the CUP were that the farm is
      in an area of the County that is rural, with an average lot size of
      about 14 acres and with an inadequate and unsafe road system for such
      a large development. The applicant for the CUP, a Maryland-based real
      estate developer, appealed the BZA's decision and, in 2006, the
      Circuit Court upheld the BZA decision. In 2007, the developer
      appealed the Circuit Court decision to the WVSCA.

      Oral arguments were heard by the WVSCA in March 2008. "The reputation
      of the WVSCA as a political court and not a legal body, was
      reinforced after listening to justice's questions and remarks at that
      hearing", said Dunleavy. "One Justice actually said that the rest of
      WV would be happy to have the kind of residential development that
      Jefferson County is enjoying; not exactly a cogent legal comment and
      certainly not relevant to the case before the Court", remarked
      Dunleavy. Moore observed that:
      "Perhaps this decision is an example of why the WV legal system has
      a reputation of being near the worst in the US." "The decision did
      not come as a surprise," said Gutsell, "considering that the Court's
      decisions in recent years have consistently sided with development in
      rural Jefferson County."


      The WVSCA ruled that the BZA did not have the authority to deny the
      CUP and further directed the Jefferson County Planning and Zoning
      Commission to issue the CUP. An odd ruling since there is no
      Jefferson County Planning and Zoning Commission. There is a Planning
      Commission and a Board of Zoning Appeals, each with different powers
      granted by the WV Code. In asking for the rehearing, Gutsell's filing
      pointed out that state law gives the BZA, and only the BZA authority
      to decide a CUP. In addition and importantly, if the WVSCA meant to
      direct the Jefferson County Planning Commission (JCPC) to issue the
      CUP, that ruling is also odd because the JCPC was neither a party to
      either the original decision to deny the CUP nor a party to the
      Circuit Court's decision. By ordering the JCPC to issue the CUP
      without hearing any evidence or public comment, Gutsell contends that
      both Dunleavy and Moore will be denied due process of law.

      Gutsell plans to file the appeal with the United States Supreme Court
      within the next 60 days.

      The Shepherdstown Battlefield Preservation Association Inc. (SBPA) is
      a 501(c) (3) organization dedicated to saving and preserving the site
      of the 1862 Battle of Shepherdstown. The battle was fought on
      September 19-20, 1862 involving approximately 9,000 troops and
      resulted in 677 casualties. The battle was fought over about one
      square mile east of Shepherdstown, WV. SBPA has preserved 84 acres by
      way of conservation easements granted by members who own property on
      the site. For more information see: www.battleofshepherdstown.org
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