Shepherdstown Battlefield Group Is Out Of Appeal Options
By Kathryn Jorgensen
(December 2008 Civil War News)
SHEPHERDSTOWN, W.Va. — The Shepherdstown Battlefield Preservation Association (SBPA) did not get the U.S. Supreme Court to take up its appeal of a West Virginia Supreme Court of Appeals decision ordering a permit allowing 152 homes to be built on core area of the battlefield.
SBPA attorney Linda M. Gutsell said being turned down was not unexpected given how many thousands of cases are presented for court consideration. Saving a battlefield doesn’t rank with something like an antitrust case that touches thousands of people, she explained.
The basis of the appeal, for which SBPA president and vice president Edward E. Dunleavy and Edward R. Moore were petitioners, was the state court’s order that the Jefferson County Planning Commission (JCPC) must issue a Conditional Use Permit (CUP) for the proposed development of the 123-acre Far Away Farm, which is zoned rural.
Michael Boltz of Windsong Homes, the Woodsboro, Md., developer, had sought a CUP from the county but was denied on the grounds that the plans were not suitable for a rural area with average lot sizes of 14 acres and inadequate roads.
Boltz appealed to the state Supreme Court of Appeals after a Circuit Court upheld the zoning board.
Gutsell’s petition to the U.S. Supreme Court said the state court had no jurisdiction over the county planning commission and the court should have dismissed the appeal or remanded it back to the commission. Because it failed to do either the court deprived the petitioners of due process under the 14th Amendment to the Constitution.
The U.S. Supreme Court was the only avenue for appeal, said Gutsell. The case punctuates the importance of judges and courts at every stage getting the law right, she commented. “The decision was simply so dramatically flawed that it’s just a shame.”
She described her clients as people “who are very sensible, reasonable and don’t just have a knee-jerk reaction about development. There was a reason to oppose this development.”
She added, “They recognized from the beginning that the owner had rights to be respected and no one expected him to walk away from his property without just compensation. Their intent was to find appropriate funding to purchase it at fair market value.”
Gutsell hasn’t given up hope. “All kinds of things still present an opportunity, including the sensible thing which would be to sit down and negotiate a fair market sale.”
If that doesn’t happen, the developer still has to satisfy subdivision, federal water and erosion and other requirements.
Earlier this year West Virginia U.S. Sen. Robert Byrd filed Senate Bill 1633 authorizing the Secretary of Interior to study the feasibility of making Shepherdstown Battlefield part of Harpers Ferry National Historical Park or Antietam National Battlefield.
The county and state also have the right of eminent domain. The public at large would benefit from preservation of this battlefield, said Gutsell, “It would be a good expenditure of public funds.”
Shepherdstown was the third battle in the Maryland Campaign, fought Sept. 19-20, 1862, after South Mountain and Antietam. According to SBPA the battle action covered one square mile, 84 acres of which are protected by conservation easements granted by members who are property owners.
Gutsell noted the irony that “For the first time we see an African American ascend to president at the same time the State of West Virginia has rejected the strict application of its own zoning laws.”
President Lincoln issued the Emancipation Proclamation on Sept. 22, 1862, after the Shepherdstown battle ended the Maryland Campaign, “and West Virginia is about to destroy the last battle of the campaign that caused Lincoln to sign that document in the same year. It is an irony of historic proportions.”
The two Maryland battlefields, South Mountain and Antietam, have been preserved. The fact that the third battlefield is not being preserved, and is in West Virginia, is not lost on Gutsell.
“This is one of those times West Virginia deserves the jokes about it,” she commented, saying she’s embarrassed as a West Virginian.
According to Gutsell, burials from the battle, at which there were 677 casualties, may remain on the farm. The family that owned the farm had slaves and there could be slave burials there.
“Shame on the people who would buy a house that is sitting on the bones of fallen soldiers,” she said. “What kind of person would do that?”
For information about Shepherdstown go to www.battleofshepherdstown.org. The only history of the battle, Shepherdstown: Last Clash of the Antietam Campaign September 19-20, 1862 by Thomas A. McGrath is sold on the site. Donations are invited at P.O. Box 3359, Shepherdstown, WV 25443.
Edward Dunleavy’s Preservation News column about efforts to preserve the battlefield was published in the July 2008 issue and can be found under “Preservation Columns & Opinion” at www.civilwarnews.com
|