CHARLES TOWN – The Planning Commission has filed a notice of appeal in the recent ruling by Jefferson County Circuit Judge David Sanders, which found that it had violated the Open Government Proceedings Act, according to statements made by Assistant Prosecuting Attorney Stephanie Grove at last week’s County Commission meeting.
The ruling followed the Planning Commission’s decision to accept a settlement in its legal dispute with the developers of Far Away Farms, a proposed 122-acre subdivision near Shepherdstown that has been the subject of controversy among some adjoining land owners who want to see the site of the onetime Osborn Farm on which the development is proposed preserved as a battlefield site.
As part of the deal with the developer, the planning commission approved the re-issue of a three-year conditional use permit for the project and allow a completed impact statement serve as a concept plan. In turn, the developer, Faraway Farms LLC agreed to proceed under the terms of the county’s new subdivision regulations.
Sanders ruled that the Planning Commission “violated both the letter and the spirit of the Open Government Proceedings Act” when it accepted the deal because the possibility of voting for a settlement was not on the agenda posted for the meeting and its terms were not published until months after the deal had been accepted.
Grove said the Planning Commission will appeal the decision because of worries that Sanders’ interpretation of the law would seriously hamper the ability of the prosecuting attorney’s office to give timely legal advice to the public bodies it represents.
“The problem that we saw with the order is the agenda requirement that there be some specific notice as to what you’re going to discuss in executive session,” Grove said. “In this particular instance, the Planning Commission received an offer the day of the meeting. The offer was going to expire. (Counsel) couldn’t wait another month to discuss it with the Planning Commission. There was a legal advice and update. We went in and discussed whether the Planning Commission should settle that.”
“I feel like this order imposes conditions that are beyond the Open Government Proceedings Act and beyond what even the case law requires,” Grove told county commissioners during a recent meeting. “I feel like it will impair our ability to adequately represent you and still comply with our ethical duties to timely present offers and timely present legal advice.”
“We feel like it conflicts with our ethical obligations to timely present valid offers to our clients. I don’t always have time to put it on the agenda, even if you meet weekly.”