Published: October 31, 2008 11:30 pm      

Judge throws out Mabscott annexation

A Raleigh County judge Friday crushed Mabscott’s long and controversial attempt to annex about 1.4 miles along Robert C. Byrd Drive, holding that its map was flawed, town officials lied to get signatures on a petition and one name on it was an apparent forgery.

In some instances, Circuit Judge H.L. Kirkpatrick ruled in a civil suit, town authorities misled some signers into thinking Wal-Mart wanted the annexation on grounds it would pay cheaper business and occupation taxes than if Beckley annexed the same area.

Kirkpatrick decided in an 18-page order the annexation “cannot stand and must be stricken, voided and held for naught.”

“It’s a relief,” county commission president Pat Reed said. “I think we had to go through these tests just for what is proper for the judge to make the decision. That decision has been made in light of how we felt it should have been in the very beginning. I’m very happy with the decision. He made the right decision.”

Mabscott’s attorney, Kin Sayre, found the judge’s ruling “disappointing” and wasn’t sure what step the town would take next.

“Until I see the actual decision and see what grounds he found to dismiss the petition, I wouldn’t really be able to comment, if we’re going to appeal it or not,” Sayre said from his Martinsburg law office.

Mabscott triggered the controversy in an Oct. 28, 2004, public hearing by adopting an ordinance to swallow up part of Byrd Drive from the turnpike overpass to the town limits of Sophia.

But the county commission balked initially at approving the petition on grounds that the map was in error and some names on the petition were questionable.

Kirkpatrick, however, ruled in favor of the town, based on a state law that says a city’s annexation petition cannot be challenged by a commission. Rather, he ruled, the law holds that a commission must, in a sense, “rubber stamp” any municipality’s petition.

The commission appealed, however, only to lose on the same grounds at the state Supreme Court.

That promoted Commissioner John Aliff to lament in one meeting, “If a municipality brought us a petition with the names of Elvis, Ray Charles and Osama bin Laden on it, we’d have to certify it.”

Once the commission’s legal battles ended, however, a civil suit was undertaken by businesses and individuals to challenge Mabscott’s effort to take them under the town’s umbrella.

That suit was filed by Gray Lumber Co.; Bub’s Cycle Center; Don Priddy of Priddy’s Realty Co., Priddy’s Mini-Storage and Priddy’s Lumber and Building Supply; Riffe Enterprises; Analabs; Rhodes Reality; Lorin Walls, doing business as Lorin Walls Insurance Agency; Go-Mart; MacArthur Skating Rink; Billy Riffe; John and Jane Doe, known but unidentified individuals; and ABC Inc.

Mabscott’s only signer identified as a voter on its petition, Janet Shufflebarger, has a business in the targeted area, but has never lived there and, in fact, is a resident of Beckley, the judge held.

In court, the woman testified she felt “intimidated” by Mabscott police Capt. Jason Kerr and another officer when they solicited her signature on the petition, the judge said.

A day after she signed, Shufflebarger asked that her name be scratched, but the town refused, Kirkpatrick’s order said.

Kirkpatrick found that Ed Hamrick, identified as a “freeholder” on the petition, doesn’t own any land in Raleigh County and is not a qualified voter in the proposed annexation area, the judge said.

There were discrepancies with other names, and the map itself included property owned or occupied by people who weren’t proper petitioners, the judge said.

One man who leased some business property, in fact, resides in Oak Hill, the judge’s order noted.

One resident was told by Mabscott police that 50 businesses were located on the road in question and that as many as 95 percent signed the petition in favor of annexation, but that information was false, Kirkpatrick held.

When Wal-Mart bought 30 acres for its MacArthur store, the landowner, Gray Lumber Co., sold it under the condition that it not be incorporated in any town, the judge said. But Mabscott police told residents the retail outlet preferred to have the land taken in by Mabscott to get a cheaper B&O rate than Beckley might collect, the judge said.

Another name, Denzil Cook, appeared on a petition of eligible voters, even though he lives in Oak Hill.

“The signature attributed to Denzil Cook on joint Exhibit 6 is therefore a forgery,” Kirkpatrick said.

In his findings, Kirkpatrick said the petition turned in by Mabscott was “wholly deficient and violative of law,” in that it failed to contain the name of one qualified voter and did not properly represent and prove a majority of freeholders of the targeted territory properly asked to be annexed.

This doesn’t mean the issue is dead, however.

Kirkpatrick said the annexation needs to proceed by another legal route, such as an election.

“The process of annexation without an election should not be utilized by the municipality as a device to cram an unwanted annexation down the throats of bitterly opposed property owners and businesses,” he said.

— E-mail: mannix@register-herald.com