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Case closed: Verdict reached in Far Away Farms case

By Staff | Jan 20, 2017

Ogden Newspaper photo by Ron Agnir Faraway Farm, along River Road outside Shepherdstown, is shown last Thursday.

The Circuit Court of Jefferson County ruled in favor of the county planning commission, ending a legal debate regarding property use that has been going on for more than six years.

In 2004, Far Away Farm LLC applied for a conditional use permit from the Jefferson County planning and zoning departments to develop a residential subdivision near the site of the Battle of Shepherdstown.

Part of the controversy stemmed from the historic value of the property, which the Edward Dunleavy, president of the Shepherdstown Battlefield Preservation Association is in the core area of the battlefield.

“The National Park Service, along with two local historians, did a special resources study in August 2014,” Dunleavy told The Journal last year. “The results of the study show that the core of the battlefield was a 510-acre area, and Far Away Farm is right in the middle. It’s in the National Park Service records and historical documents.”

In addition to the dispute over the land itself, Dunleavy and others claimed the planning commissioners violated the West Virginia Open Governmental Meetings Act by going into an executive session with legal counsel at a meeting in 2011.

According to court documents, Dunleavy and others from the Shepherdstown Battlefield Preservation Association (SBPA) filed a petition in the circuit court of Jefferson County against the planning commission on Sept. 21, 2011, requesting that the settlement between the planning commission and Far Away Farm be annulled due to the planning commission’s alleged violation of the West Virginia Open Governmental Proceedings Act.

The case came before the Circuit Court of Jefferson County, Division 1 on Dec. 15, 2016, on a remand from the West Virginia Supreme Court of Appeals.

The court ruled in favor of the planning commission, stating:

“Consequentially the Court does not grant annulment of the settlement agreement between the Planning Commission and Far Away Farms to the Petitioners due to the lack of malicious intent and bad faith of the Planning Commission and the curative meeting held by the Planning Commission. The effect of an annulment of the settlement agreement would just draw this case out for a longer period of time.”

The court upheld the originally negotiated settlement agreement between the planning commission and Far Away Farms, granting three years of equitable tolling from the date of Dec. 15, 2016, to Far Away Farms.

“The judge seemed to ignore the facts, including the West Virginia Supreme Court’s ruling that there were two instances where the planning commission violated the Open Meetings Act. I think Judge Sanders must have felt the violations were not that important,” Dunleavy said in a telephone interview Thursday.

“He preferred not to give us remedy, but I think we (the SBPA) should have been compensated,” Dunleavy continued.

The SPBA petitioners were not granted the attorney fees they had asked for, which planning commission legal counsel Lydia Lehman said was in the amount of $126,000.

Dunleavy said the SBPA will not continue to fight the possible development, citing the expense of going to court.

“We’ve decided the West Virginia judicial system will continue to rule in favor of real estate developers. We’ll drop our efforts to fight this and try to preserve more land around the battlefield,” he said. “The residential real estate business is only in moderate growth in Jefferson County, and I don’t think the developer is actively planning anything.”

Dunleavy said about three years ago, Far Away Farm LLC meet with the Civil War Trust to discuss selling the site to the Trust. However, the appraised value of the property was “lower than the developer would have liked, so they pulled out of the talks,” according to Dunleavy.

At Tuesday’s planning commission, Lehman said she did not know whether Far Away Farms is still planning to move forward with the development, but they can.