A lawsuit filed in state court in Berkeley Springs seeks to push back a planned April 18 hearing on Blue Water’s proposal to drop 350 RV camp sites and a theme-style amenities area with miniature golf, water slides and an Aquabana near the upper lake at Cacapon State Park.
The lawsuit, in the form of a writ of mandamus, alleges that the West Virginia Department of Natural Resources (DNR) failed to file timely notice with the West Virginia auditor’s office.
West Virginia law requires all state agencies, beginning July 1, 2022, to publish legal notices “on a public notice database. . .maintained by the State Auditor.”
Earlier this week, Morgan County USA reached out to the DNR to ask why the notice was not posted on Auditor’s web site, as required by law twenty days before the scheduled April 18 meeting. There was no response.
But this morning, four days before the scheduled April 18 meeting, the notice did appear on the auditor’s web site.
DNR did publish the printed legal notice twenty days before the meeting in the Martinsburg Journal, a newspaper based in Berkeley County.
The legal notice was not published in the only local newspaper, the Morgan Messenger, a paper thousands in Morgan County get and read. Cacapon State Park is in Morgan County.
“Should WVDNR award a contract on April 19, 2023 to a private company on this defective notice, the public’s right to be heard under the law will forever be taken away,” the lawsuit alleges.
The lawsuit asks the court to issue a rule to show cause to the director of the DNR “why the Court should not grant a writ of mandamus ordering the director to (1) cancel the hearing on April 18, 2023, until the director complies with the public notice statute, (2) follow the public notice statutes and all other laws designed to protect the public in all future cases, and (3) grant the petitioner any and all further relief allowable by law.”
Cacapon State Park officials were told a number of years ago that the state wanted to transform Cacapon, a Civilian Conserviation Corps (CCC) park, into “a major profit center” for the state.
But former Cacapon State Park Superintendent Tom Ambrose, in a letter last month to the Morgan Messenger, wrote that “parks were never intended to be major profit centers.”
Opposition Blue Water’s 350 RV proposal has been growing. The Morgan County Commission, the Morgan Messenger and both members of the House of Delegates from the area have come out opposed to the proposal.
More than 120 citizens gathered on April 10 at the upper lake to express their opposition to the proposal — up from about 90 citizens who gathered on April 3 and about 70 at the first meeting on March 27. And more than 900 people have signed a petition calling on West Virginia government officials to withdraw the RFP. (savecacapon.org).
“We in Morgan County believe that when a large out of state developer teams up with our state government, which changed state law in an attempt to make it easier for this development to occur, that is the time to watch closely and complain when it seems you are not being heard,” said attorney Larry Schultz who filed the case on behalf of Morgan County resident Dale Kirchner. “We have filed a court case seeking an order that the WV Division of Natural Resources violated the code provisions regarding notice of the public hearing they intend to hold on April 18, and we intend to follow through in similar fashion whenever we think our rights are endangered for so long as the DNR persists in trying to make the Cacapon State Park the largest ‘town’ in Morgan County.”
“If they are permitted to put 350 campsites for RVs in Cacapon State Park, and it fills up, that campsite will be larger in population than the town of Bath,” Schultz said. “Most of us do not go to state parks to see more population density than there is in our county seat.”
“But regardless of our preferences we want the law followed in all respects, and we will make noise and seek redress when the laws are not followed.”
(A copy of the lawsuit, Dale Kirchner v. Brett McMillion, director West Virginia Division of Natural Resources, can be found here.)
[Update April 16, 2023 12:15 pm: There will be a court ordered show cause hearing on the motion for writ of mandamus on Monday April 17, 2023 at 4 pm at the Morgan County Courthouse before Judge Debra McLaughlin.
“Petitioner has argued that the language is mandatory and the failure to post the notice until 4 days before the hearing voids the public notice required to be given,” Judge McLaughlin wrote. “Petitioner has requested a writ of mandamus seeking the canceling of public meeting on April 18 and an order compeling Respondent to comply with public notice requirements.”
“The Court having reviewed the same and found these to be meritorious legal and factual issues raised therein does hereby order the Respondents to show cause, if any they can, why the Court should not find that the legal notice of public hearing set for Morgan County on April 18, 2023, is faulty as a matter of law,” Judge McLaughlin wrote in a show cause order.]