Developers at the corner of US 522 and Oakland Road, ten miles south of Berkeley Springs, West Virginia in south Morgan County, have begun preparing the site for a proposed Dollar General store.
The early excavation work is being conducted by First Fruits Excavating of Ridgeley, West Virginia.
Dump trucks, backhoes and front loaders were seen working the site earlier this week.
Residents have sued the Morgan County Planning Commission to block Dollar General’s path to developing the site. That litigation is pending before Morgan County Circuit Court Judge Christopher Wilkes.
And today those same residents asked Judge Wilkes to intervene and stop the excavation work at the site until the judge can weigh in on the underlying case.
Larry Schultz, the lawyer representing the residents, wrote in the filing that he was told by Dick Gay, the attorney for the Planning Commission, that “no site work on the project would proceed until improvement location permits were issued.”
Schultz says that had he been told that had there would be site work, he would have “approached the Court earlier to seek stay” the work.
“The owner’s or the developer’s precipitous commencement of the site work necessitates this motion,” Schultz wrote.
The underlying lawsuit alleges that in granting its approval to the developer earlier this year, the Planning Commission violated its own subdivision rules and “failed to adequately establish a proper record of the information it considered when reaching its decision.”
In the motion to stay the excavation work, Schultz argues that “given the serious and patent violations of petitioners’ rights evidenced in the record and the briefs already filed, there is no reason for the work to proceed at this time.”
“This is a preliminary plat approval for a commercial development, in a residential neighborhood on a piece of property for which the restrictive covenants prohibit commercial development.”
Schultz called on the judge to “preserve the status quo.”