HARPERS FERRY – The Harpers Ferry Town Council voted 4-3 to end its efforts to contest the legality of Senate Bill 657, a state law enacted in March that gave state officials oversight over the proposed and long wrangled-over redevelopment of the Hill Top House Hotel property in town.
“We need to drop this, this legal case,” said Recorder Kevin Carden, reflecting the view of the council majority during a council meeting last week. “I don’t think we should be wasting our time and resources on pursuing this bill.”
Carden joined council members Nancy Case, Christian Pechuekonis and Jay Premack in voting to abandon the town’s planned legal challenge to SB 657.
Pechuekonis said he had faith in the ability and intent of state officials to make fair decisions related to the Hill Top project after listening to town residents. He pointed out how several state officials, ranging from the secretary of state to the attorney general to the West Virginia Supreme Court, intervened to properly protect the voting rights of the town’s residents, particularly the four voters who cast provisional ballots that were initially rejected.
“I welcome the expertise and assistance from the state of West Virginia,” he said.
Councilwoman Barbara Humes disagreed, saying she’s watched state
officials make bad decisions over “environmental matters” and the horse racetrack in Charles Town.
However, Mayor Wayne Bishop, a leading figure among residents resisting the Hill Top in general and its current revamped redevelopment plans in particular, warned that SB 657 unlawfully usurps the town’s self-governing authority. The law allows state commerce officials to consider, but not necessarily follow, extensive and detailed zoning and development standards the town adopted in 2017 specifically for the Hill Top property, the mayor pointed out.
“Basically this will override our laws, our ordinances, our processes and our zoning, and I just would never agree to that,” he said.
Bishop said the Hill Top project would have been well underway by now if the property’s owners and developers hadn’t drafted redevelopment plans that rely on taking ownership of town streets and rights of way crossing the property.
Harpers Ferry’s zoning and development standards for the Hill Top property were fashioned after about eight years of discussion, debate and multiple revisions by the town’s residents and elected officials.
“You’re defending something, and that’s fine, you have the votes to do that,” Bishop said. “But I’m telling you, the citizens of Harpers Ferry do not want the state to preempt our laws and vacate our laws and take over and tell us what we’re going to do.”
Bishop voted with Humes and Councilman Hardwick “Hardy” Johnson against abandoning the town’s challenge to the law.
Bishop pointed to opinions from a Charleston land-use attorney, Mark Sadd, and a constitutional lawyer, West Virginia University law professor Robert Bastress, whom the town hired to prepare a legal case in court against SB 657.
Sadd and Bastress agree that the law is troublesome and unconstitutional, Bishop said. “They outline the same things over and over and over again that these things are unconstitutional and they will never stand in a court of law,” said the mayor. “Don’t you want to know that they’ll stand up constitutionally? That’s not going to ruffle too many feathers, right? Let’s just find out, and that’s always been the idea.”
In March, Bastress agreed to represent the town for free to dispute the constitutionality of SB 657 before the West Virginia Supreme Court. The council previously voted to cap the town’s expenses at $5,000 to challenge the law.
Except for a notice that the town plans to challenge SB 657 in court, no legal action has occurred. Bishop said no legal action has been taken because no redevelopment application has been filed by the Hill Top’s owners, Fred and Karen Schaufeld of Leesburg, Va.
Humes proposed a motion to table the action abandoning SB 657 and to hold a workshop and hearings to explain the law and its implications to town residents.
“The community really needs to understand what this law does, and if we can be transparent about this and give the community an opportunity to discuss this, we would be much better off than arbitrarily deciding to vacate the challenge,” she said.
Her motion, supported by Bishop and Johnson, was voted down by the other four council members.
As a council member who voted to drop the pending legal challenge, Case said the council’s action to drop its legal case against SB 657 doesn’t prevent town residents from individually challenging the law in court. But she added that the town’s action represented merely another delay tactic by Hill Top opponents to continue hindering the hotel project after more than a decade.
“This project is widely viewed by residents, businesses and leaders both locally and across the state as a very important project,” she said. “That’s even more true when it’s a consensus view across the state that we engaged in a fool’s errand of litigation for 14 months over an election which the West Virginia Supreme Court and the local courts all but said was stolen. We cannot go through another 14 months or heaven knows how long on suing the entire state government.”
Case and Bishop have been next-door neighbors on East Ridge Street for five years. During last week’s council meeting, she said Bishop admitted more than once to her and her husband — even before Bishop became mayor — that he planned to continually oppose the Hill Top project with legal actions and maneuvers orchestrated to delay the Hill Top project and pressure the Schaufelds to abandon their redevelopment plans.
Case was elected to the Town Council in July after pursuing more than a year of appeals and court challenges to count what became 15 votes on four disputed provisional ballots cast during the town’s last election in June 2019.
Her election by a single vote reversed a majority bloc of council votes viewed as obstructing the $140 million Hill Top project.
Bishop, Humes and Johnson were among four town officials who pursued legal efforts to prevent the provisional ballots that temporarily blocked Case’s election win.
Last week’s council vote on SB 657 marked the third undoing of the previous council’s one-vote majority of decisions and procedures. The first step involved firing the town’s contract attorney, Euphemia “Effie” Kallas, who was hired by Bishop without any oversight from town’s council. The second step involved curbing the mayor’s control over council agendas.
But the discussion over SB 657 sparked the fieriest verbal confrontation between Case and Bishop since Case became a council member three months ago.
At one point, Case accused Bishop of lying while testifying during a state senate hearing before SB 657 was enacted. She said she attended the hearing in Charleston as a citizen and a resident of Harpers Ferry.
“And I watched you, under oath, lie to the Senate committee,” Case said, directing her comment squarely at Bishop.
“That’s libelous and that’s a false accusation,” the mayor quickly interjected.
“I have the transcript,” Case went on. “I’ve had senators from West Virginia tell me that they knew that you were being dishonest.”
Bishop further denied Case’s charge of dishonesty during the Senate hearing.
“To make a false accusation and libel because you can’t defend the position — you can’t defend the position, so you stand up here and make accusations about those things,” he said. “That’s terrible. That’s a horrible thing to say to somebody, and I take exception to that. You can’t slander and libel people and get a free pass on that.”
Bishop also went on to accuse Case of working with the Schaufelds — and traveling with them to Charleston — to lobby lawmakers to support SB 657. “And we wrote letters to the lobbyist that represented you that they were being dishonest to the committee,” the mayor said.
At that point, Case, after asking why Bishop didn’t invite her to travel to Charleston to attend the hearing as he did with Humes, “called the question” under Roberts Rules of Order governing the official conduct of meetings to stop the debate to direct the council to vote on two motions related to the matter of SB 657.
After the council voted to abandon the town’s legal action against the law, Bishop turned the meeting over to Carden to preside and signed off the Zoom conference call.