Planning commission grants waiver for Dunham family transfer after debate on precedent

Berkeley County Planning Commission on an undetermined April meeting date approved a waiver to the subdivision and land use ordinance that will allow the Dunham Family Transfer to create four residential lots served from an existing private right-of-way.

Planning staff told the commission the project (file 2502-048) proposes four family-transfer lots on 19.23 acres to be served by private well and septic and asked the commission to waive subsection 302.1.d.0.1 of the subdivision ordinance, which requires a 50-foot right-of-way to a West Virginia Department of Highways right-of-way. Staff recommended approval contingent on increasing the right-of-way to 50 feet along the newly proposed lots and requiring proposed Lots 1 through 4 to enter a road maintenance agreement to ensure future repair and maintenance of the road.

The applicant was represented by Mike Roberts of Roberts Land Surveying. Roberts confirmed a factual point during the discussion: “That is correct,” in response to a staff clarification about the existing private right-of-way condition.

Commissioners debated the waiver’s broader implications. Several commissioners and commenters said the private 30-foot right-of-way was created in 1982 and noted that forcing acquisition of additional width from multiple intervening property owners would be impractical. Other commissioners warned the waiver could be cited in future requests for larger subdivisions and urged caution about creating a de facto precedent. One commissioner asked whether approval now could limit the county’s ability to require full 50-foot rights-of-way for later, larger developments.

After discussion, Commissioner Lewis moved and Commissioner Goff seconded a motion to accept staff recommendations: approve the waiver with the conditions that the new lots provide a 50-foot right-of-way on the proposed lots and that Lots 1–4 enter a road maintenance agreement. The motion carried with no recorded objections.

The commission’s action approves the waiver only for the current family-transfer application; commissioners noted that any future major subdivision would be subject to separate review and could still require full right-of-way acquisition or additional waivers.

Planning staff indicated the waiver request was narrowly tailored to address an existing private road condition and the limited scale of the family transfer; staff also noted similar waiver requests under the new subdivision ordinance language may appear again and said the department will refine ordinance wording as needed.