Court Orders Permit For Houses On Shepardstown Battlefield
By Deborah Fitts
SHEPHERDSTOWN, W.Va. — A long-running effort by a local group to save the Shepherdstown battlefield received a major setback in late April, when the West Virginia Supreme Court of Appeals overturned earlier decisions and gave a developer the go-ahead to build 152 homes at the heart of the battlefield.
“I was totally shocked,” said Ed Dunleavy, president of the nonprofit Shepherdstown Battlefield Preservation Association.
“I thought, having attended the oral arguments, it was obvious the justices were going to rule against us. But my kind of worst case was that they would remand it back to the county to start all over again.
“The fact that they went further, and ordered the Planning Commission to issue the conditional use permit, was a total shock.”
Several years ago Maryland-based developer Windsong Homes purchased the 122-acre tract comprising the core battlefield of the September 1862 action that lies on the west side of Trough Road south of the Potomac River.
Now dubbed Faraway Farms, the land lies in Jefferson County’s rural zone, which allows one house per 10 acres.
Seeking greater density, the developer applied for the conditional use permit and 152 houses. He was turned down by the Jefferson County Board of Zoning Appeals and then, in 2006, by the local Circuit Court, at which point he appealed to the state Supreme Court of Appeals.
Oral arguments were held in March at Morgantown.
“In West Virginia the Supreme Court is elected and it’s highly political,” said Dunleavy. “A major problem we have is that there’s basically one area in the state showing growth — the Eastern Panhandle, including Jefferson County.”
Dunleavy said one of the five justices commented during arguments, “Why are you people in Jefferson County always complaining about residential growth? You should be so lucky. We don’t have it in the rest of the state.”
Dunleavy said another justice commiserated with the developer over continually being stymied by anti-growth opponents.
The justices ruled unanimously against the county, saying the Board of Zoning Appeals inappropriately denied the conditional use permit because the board was using an amended process that was put in place after the developer had filed his application. That meant that it was the Planning Commission, not the appeals board, that should have had jurisdiction, the panel ruled.
Going one step further, the Supreme Court of Appeals ordered the Planning Commission to grant the developer the conditional use permit for his 152 homes.
“That was slightly bizarre,” said Dunleavy. He suggested that it may have been “illegal” for the court to order a commission that wasn’t even party to the lawsuit to undertake an action.
He also noted that the court relied on new information that the developer supplied regarding the amended process — information had not been raised during the case before.
Dunleavy said the association’s lawyer felt it was improper of the judges to weigh evidence that had not been part of the Circuit Court decision or the original denial by the county.
The county had until May 17 (past the CWN presstime) to ask the Supreme Court to reconsider, but Dunleavy feared that the county did not want to do it. “Right now we’re in discussions with our attorney about what to do,” he said.
The association’s goal is to preserve about 300 acres of the 640-acre battlefield. Of that 300 acres, landowners have placed a total of 84 acres under easement.
Besides Faraway Farm, there are another 50 acres under two owners who Dunleavy said so far have not expressed interest in placing easements on their property. And there are 13 acres along the Potomac shore that Save Historic Antietam Foundation is attempting to purchase.
Dunleavy said his group has spent about $70,000, mostly on legal fees, in the four years since its formation. Money comes from the 150 members, a yearly benefit concert, the sale of hats, T-shirts and a book on the battle, and a booth at the Shepherdstown street festival.
“Our hope, and it’s only a hope right now, is that the real-estate market is so bad right now that it’s highly unlikely anyone will build homes on that land in the next few years,” he said.
Meanwhile, efforts are moving ahead in Congress to add the Shepherdstown battlefield as a unit of either Harpers Ferry or Antietam national parks. Legislation could be approved this year authorizing a study to determine the suitability of the notion.
In that case, Dunleavy said, eventually there should be federal funds to buy the Faraway Farm land — if it’s still available.
He pointed out, however, that while the land’s value before the Supreme Court ruling was probably the same as what the developer paid for it — $1.5 million — now, with 152 building lots, the price could skyrocket to $3.5 million or more.
In April the Senate Energy and Natural Resources Committee addressed the bill introduced in June 2007 by Sen. Robert Byrd (D-W.Va.). Byrd’s involvement was successfully sought by the association.
A spokesman for Byrd’s office said a feasibility study could cost “upwards of $250,000.”
The battlefield association has received a transportation-enhancement grant of $125,000 (including $62,500 in matching funds supplied by the Civil War Preservation Trust) for land acquisition. Jefferson County has allocated a further $100,000, and the association has applied for a new grant totaling $250,00, all to buy land.
The fighting near Shepherdstown Sept. 19 and 20, 1862, came in the wake of Antietam, as Robert E. Lee directed the retreat of his Army of Northern Virginia across the Potomac River at Boteler’s Ford, about a mile east of Shepherdstown.
Lee posted artillerist William Pendleton and 34 pieces of artillery on the bluffs overlooking the ford to cover the retreat. But Pendleton fled when Union artillery fired into his position and blue infantry began crossing the river. Although they seized the south bank of the river, Union forces withdrew as night fell.
The next morning Stonewall Jackson with A.P. Hill and his Light Division moved toward the ford, just as a 3,000-man Union force crossed south of the river to reconnoiter for the Confederate army.
The two forces clashed around 10 a.m. about a mile-and-a-half south of the river. Outnumbered two-to-one, the Federals began a retreat to the river, the fighting continuing for four to five hours before they recrossed the ford.
Of 9,000 troops participating, casualties totaled nearly 700, about equally divided between the two armies. |