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HARPERS FERRY – Harpers Ferry officials plan to challenge the legality of the West Virginia Tourism Development Act, a law enacted two weeks ago allowing state officials to usurp the town’s authority to review and approve the Hill Top House Hotel redevelopment project.

“Is it or isn’t it constitutional? Is it or isn’t it lawful? We need to know,” Mayor Wayne Bishop said about the law also known as Senate Bill 657.

Before the council voted to pursue the lawsuit, however, Harpers Ferry resident Sharon Garvey presented a petition signed by 103 of the town’s residents and business owners. The petition asked town officials not to spend any town funds in pursuing litigation against SB 265.

But a 4-3 vote majority of town officials supported pursuing litigation after agreeing to accept free legal assistance from West Virginia University law professor Robert Bastress, who is known in academic circles for his expertise in state constitutional law.

“His feelings are that this state law that has passed is unconstitutional in many ways,” Bishop said of Bastress’s initial consideration of SB 657.

Bishop said he talked with Bastress earlier in the week to obtain his offer to represent the town for free, except for any out-of-pocket expenses such as travel costs or court filing fees.

Bishop also said the town’s contract attorney, Effie Kallas of Shepherdstown, would serve as a legal liaison for the Supreme Court litigation. Her hourly fee will be $225 an hour.

The mayor and council unanimously agreed to limit the town’s litigation expenses such as legal advice and court fees to $5,000 without approval from the council.

Three council members who support allowing the Hill Top project to move forward opposed the litigation. The group includes council members Jay Premack and Christian Pechuekonis and Recorder Kevin Carden.

“I believe we’re opening a Pandora’s box to many more legal fees over time,” Pechuekonis said, reading prepared remarks he wrote. “We don’t have the money and we don’t have the time to waste to try to delay the Hill Top hotel.”

Pechuekonis, who, with his wife, operates a bed and breakfast in town, said the town faces multiple serious and pressing issues that the lawsuit would likely distract town officials from addressing. He said those issues include rebuilding a pedestrian walkway over the Potomac River — a part of the Appalachian Trail hikers, bikers and walkers rely on — that was destroyed by a train derailment in December.

Those issues also involve a temporary shutdown planned for U.S. 340, an access road to the town for tourists; a Route 9 construction project underway in Hillsboro, Va.; and the coronavirus pandemic — all of which could discourage people from visiting the town, Pechuekonis said.

During another recent meeting, Pechuekonis, a council finance committee member, presented financial figures on the town’s spending on legal matters related to the Hill Top. Last year, the town spent more than $88,500 on related legal and consulting fees alone. During the previous eight years the town spent between $7,300 to $21,000 on legal fees.

Before voting in favor of pursuing the litigation, Councilwoman Barbara Humes agreed with Bishop that SB 657 violates the town’s rights and undermines its years of work on the Hill Top project.

“It just takes everything away from what we have had in place over the years to make Harpers Ferry what it is,” Humes said of the law. “I too would agree that if we were engaging in wasteful and unsustainable … spending that would be a fallacy to do so. But I don’t think it’s wasteful to protect our town’s rights.

“We do have here an opportunity that is not going to draw on our resources.”

SB 657 allows the West Virginia Department of Commerce to control the tourism developments with up to five special districts the department could establish within municipalities of 2,000 or fewer residents. The law’s supporters and opponents openly acknowledge that the Hill Top will be the first tourism project that economic development officials will take over, leaving town officials as bystanders.

Bishop has objected to the law as unlawfully “vacating” the town’s ordinances and forcibly taking of its land. He pointed out that state officials could ignore the town’s zoning ordinances developed in detail over eight years to regulate the redevelopment of the Hill Top property.

Delegate Paul Espinosa (R-Jefferson), the House Majority Whip who voted for SB 657, said bills enacted by the legislature and the governor are legally presumed to be constitutional until the Supreme Court rules otherwise.

Gov. Jim Justice signed SB 657 into law on March 5. Sen. Patricia Rucker (R-Jefferson), whose senatorial district includes Harpers Ferry, sponsored the legislation.

Any lawsuit to strike down SB 657 on constitutional grounds might be filed either in Jefferson County Circuit Court or directly before the West Virginia Supreme Court, depending on legal options attorneys could choose, said Jennifer Bundy, the Supreme Court’s public information officer.

As with most other decisions related to the Hill Top project in recent years, the 4-3 vote over SB 657 followed familiar factions between town officials.

The same one-vote majority of Bishop, Humes and council members Hardy Johnson and Charlotte Thompson taking consistent issue with certain matters related to the Hill Top project—whether that be the use of public rights of way or other objections, more than a decade after the project was initiated—supported pursuing the litigation.

Those town officials also controversially voted several times not to count four provisional ballots in the town’s last election in June. The votes cast on those ballots could mathematically change the election outcome over who should or should not be currently sitting on the council, including Johnson and Thompson. The three council members are appealing a Jefferson County Circuit Court judge’s order to accept the ballots is pending before the West Virginia Supreme Court.

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