According to court records, a case filed against the corporation of Shepherdstown has been dismissed. The case, filed in Jefferson County's Circuit Court Nov. 7, 2011 by Donald and Patricia Burgess, alleged improper enactment and enforcement of the building code in the town.
The counts in the case were included in the opinion as follows:
"Count I seeks a writ of mandamus compelling the Respondents to permit the Petitioners to complete the renovations on property within the corporate boundary, to remove a section from the Codified Ordinances and to revoke any authority to administer a section of the building code.
"Count II seeks a writ of mandamus compelling the issuance of a building permit. Count III seeks a writ of mandamus compelling the Corporation of Shepherdstown to issue written confirmation that the subject property is exempt from the business license requirement.
"Count IV seeks a writ of mandamus compelling issueance of a business license. Count V seeks a writ of prohibition prohibiting the Corporation of Shepherdstown from enforcing the zoning ordinance on the basis that the same was improperly adopted and Count VI seeks an injunction and a writ of mandamus requiring the Corporation of Shepherdstown to prohibit the destruction or deletion of emails, require disclosure of certain emails and require compliance with a state law freedom of information act."
Count VII contained a claim under 42 U.S.C. 1983, a deprivation of rights claim.
The case had been heard prior to its appearance before Judge Gina Groh in the circuit court during an evidentiary hearing where the court dismissed with prejudice Counts I-VI of the petition. A request for a new trial was denied in September by the circuit court which moved the case to the federal venue where the city requested that Count VII be dismissed.
Groh agreed to the dismissal of Count VII because, as her opinion stated, "The Court finds that the Petitioners' remaining 1983 claim must be dismissed at this time. All of the underlying state law claims on which the Petitioners' 1983 claim is premised have been dismissed with prejudice by a state court having jurisdiction of both the subject matter and the parties," the opinion read.
Groh's opinion went on to read, "Without a finding in the Petitioners' favor on the issue of property interests, the Petitioners cannot prevail on their federal due process claim." Groh indicated that do do so would mean re-litigation of of issues already decided by the state court.