Sidewinder Appeals, Arsenic at Birdhill, Shepherdstown Snapshot
Published 19 days ago • 15 min read
Observer Weekly
January 15, 2026
Jefferson County, WV news & events
The 2026 legislative session started yesterday in Charleston and we’ve started to look at the legislation that’s being introduced (it’s a long list).
The news this week reminded me of how long The Observer has been covering some of these stories — the Middleway bottling plant since 2024 and the Birdhill Meadows subdivision since 2021.
We’re also trying something new this week with our “Shepherdtown Snapshot.” Let us know if you like it and we’ll work on making it a regular feature of our coverage of all the municipalities in Jefferson County.
Sidewinder Appeals Circuit Court Ruling On Water Bottling Plan
Sidewinder’s plans included the construction of a large-diameter water line through the center of the historic Middleway district (above, during the 2025 Middleway Day celebration).
Sidewinder Enterprises filed an appeal last week challenging Circuit Court Judge Bridget Cohee's decision to uphold the Jefferson County Planning Commission's rejection of the company's proposed water bottling facility in Middleway. Judge Cohee issued the final order in that case on December 12, 2025.
The January 9 Notice of Appeal, filed with the West Virginia Supreme Court of Appeals, asks the state's highest court to reverse Judge Cohee's December 12 ruling that affirmed the Planning Commission's denial of Sidewinder's concept plan for the Mountain Pure water bottling project.
Earlier today the Supreme Court of Appeals issued a scheduling order for the case which calls for the petitioner (Sidewinder) to file its brief by April 15, 2026 and the respondent (the Planning Commission) to file its brief before June 1, 2026.
Background on the Case
The Observer first reported on Sidewinder's plans in October 2024, when the California-based company proposed constructing a one-million-square-foot water packaging facility on the former 3M/Kodak property. The project proposes to extract more than one million gallons of groundwater daily from production wells at Lake Louise.
After an eight-hour public workshop in March 2025 where 122 of 125 speakers opposed the project, the Planning Commission unanimously rejected Sidewinder's concept plan. The Commission cited concerns about compliance with zoning ordinances, impacts to the historic Middleway district, and potential harm to the water table from large-scale groundwater extraction.
Sidewinder filed suit in April 2025, and following a nearly four-hour hearing in November, Judge Cohee ruled that the Planning Commission "acted appropriately" and had authority to deny the project at the concept plan stage.
What Happens Next
Sidewinder's appeal challenges Judge Cohee's legal interpretation of the Planning Commission's authority and argues the Circuit Court exceeded its review powers by making independent factual findings. Once the appeal briefs are filed, the Supreme Court can schedule the case for argument or issue a memorandum decision without hearing arguments.
If Sidewinder wins on appeal, the company could renew its original request for the Planning Commission to compensate its legal expenses. However, according to legal experts familiar with West Virginia law, such awards are extremely rare in administrative cases and require proving the government body acted in "bad faith" — a high standard that courts have defined as acting "vexatiously, wantonly, or for oppressive reasons."
County Commissioner Cara Keys, who represents the Jefferson County Commission on the Planning Commission, previously stated that Judge Cohee's decision "affirms the Planning Commission's ability to deny projects that are in direct violation of our Zoning Ordinances in the interests of public good."
Community Impact
The appeal continues a controversy that has engaged the Jefferson County community for more than a year. In addition to Sidewinder and the Planning Commission, eleven Middleway residents and the Jefferson County Foundation were granted intervenor status in the case.
Sidewinder is represented by attorneys from Jackson Kelly PLLC. The Planning Commission is represented by Jefferson County Prosecuting Attorney Nathan Cochran and James Marshall of Bailey & Wyant, PLLC. The intervenors are represented by attorneys from Fair Shake Environmental Legal Services, Appalachian Mountain Advocates, and Suder LLC.
The Observer will continue to follow developments in this case as it proceeds through the appellate process.
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Arsenic Remediation Plan Proposed For Birdhill Subdivision
Birdhill subdivision (outlined in yellow) showing former orchard area (green)
The Birdhill Meadows subdivision in Kearneysville includes a 35-acre former orchard (image above) that has detectable levels of residue from the arsenic-based pesticides that were used in the orchard until it ceased operation in the 1970s. The developer, Lennar/U.S. Homes LLC, has negotiated a voluntary agreement with the West Virginia Department of Environmental Protection (WVDEP) to remediate this contamination.
The focus of the remediation plan is the former orchard site. In the plan for the subdivision, this area is designated for a stormwater pond and recreation/open space use (image below).
Birdhill subdivision preliminary plan (stormwater area outlined in green, recreation/residual open space outlined in blue)
On January 13, Andrew Hendricks, the remediation specialist hired by the developer, gave a presentation to approximately two dozen residents during a public meeting at the Shepherdstown Public Library. During the meeting, Hendricks and his team described the results of their analysis and summarized the plan for remediation. The main component of the plan is to control any soil that is disturbed by construction activity within the boundaries of the storm water management and open space areas (i.e. keep the soil inside of those areas and away from the residential lots).
Representatives from the WVDEP who also participated in the January 13 meeting described the characteristics of the contamination, noting that most of the arsenic has already leached off the site since the 1970s and that its ability to be absorbed by plants or animals is low (in technical terms, the bioavailability is 22%). As part of the analysis, the WVDEP performed risk assessments for various scenarios that indicate the planned recreation area could be used for passive activities (e.g. walking trails) but would not be recommended for intensive use (e.g. playgrounds or ball fields).
Remediation Concerns Not Shared with Planning Commission
According to project records provided in response to The Observer’s FOIA request, Lennar/U.S. Homes submitted its application to WVDEP for the remediation program in March 2024. The company’s local engineering firm, Integrity Federal Services, presented the concept plan for the site to the Jefferson County Planning Commission two months later, in May 2024.
During the May 2024 meeting, the Integrity representatives, Brooke Perry and Mark Dyck, discussed two waivers that were being requested for the project — a reduction in the block length and a reduction in the minimum frontage — to allow for smaller lots. They argued that the waiver allowing smaller residential lots would enable the developer to include the large open space area at the center of the subdivision as a benefit to residents. They did not disclose the arsenic contamination of that open space area or the remediation plan application at that time.
Public Comment Open Until January 31
The WVDEP representatives said the Site Assessment Report (May 12 2025) and Remedial Action Workplan Report (Oct 10 2025) explain the analysis of the site and the proposed remediation (click on the links to download these files which were provided to The Observer). Public comment can be submitted to the WVDEP project manager Matt Gadd (william.m.gadd@wv.gov) until 5:00 pm on January 31 (this deadline was extended from the original deadline in response to questions raised by The Observer and participants in the January 13 meeting).
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The Shepherdstown Town Council opened its January 14 meeting (image above) with Mayor James Gatz’s remembrance of Peter Folsom Smith, a longtime community leader who passed away earlier this month. For over two decades, Smith contributed his public relations and organizing skills to myriad organizations and initiatives — most recently leading last year’s Beeline March 250th anniversary celebration. A memorial service is scheduled for January 31 at Shepherdstown Presbyterian Church.
Annexation Hearing Set for February
The Council voted unanimously to hold a public hearing during its February 11 meeting on a petition to annex approximately five acres on River Road formerly owned by George Kalathas. The petitioners plan a 55+ condominium development on the property. Neighbors John Aldis and Claudine Lebeau, whose properties border the site, attended to raise concerns about receiving timely notification as the process advances. If approved, annexation would give the Town direct involvement in shaping the property's future use according to Town Attorney Chas Printz.
Election and Infrastructure Updates
Town Council and mayoral elections are scheduled for June 2, and preparations are underway for a smooth election, reported Town Clerk Amy Boyd.
Public Works Director Woody Coe reported on a January 7 incident in which a power outage disabled system alarms, resulting in sewage overflow into Town Run. Crews responded within an hour of notification and system upgrades are underway to provide backup power and prevent a repeat. Coe thanked the town residents who had noticed and reported the incident.
The property bequeathed to the Town by the late Jay Hurley continues its transition to becoming a public park. All but three trailers on the property have been removed, and grading of the open land is expected to be done next week. Three trailers will remain in place under pending lease agreements with the current residents.
According to Finance Director Maged Kirollos, Town revenues are tracking ahead of budget and spending is under, resulting in an operating surplus midway through the fiscal year. Kirollos also reported that the Town is in the final stages of selecting between two vendors for an upgraded Financial Management System, a project that is part of a broader modernization effort.
The Town has welcomed a new Planning Specialist to support the Planning Commission and manage projects: Karl Musser previously worked for the U.S. Department of Agriculture’s National Resources Conservation Service.
Business Comings and Goings
Evolve, the pop-up space at 106 West German Street, has closed after nearly seven years of hosting artists, craftspeople, and more. Expected to replace it is Eclectic, a similar venture by Judy Shepherd. Two new businesses in town come from successful operations in other towns: Stoney’s Pub(also in Martinsburg) has opened on Princess Street, and Slow Down Barbershop (also in Hagerstown) is welcoming customers on German Street in the space formerly occupied by Lucky’s. Rumoured to be coming soon to fill the now-closed China Cafe space on German Street is Bloom Mediterranean, a new dining concept from the team behind MJ's DeliCafe.
Water Analysis Completed For Former School Property
Kay Schultz of the Town Run Watershed Group reported that a mapping analysis of water, floodplain, and wetland patterns has been completed for the seven-acre property formerly occupied by the Shepherd Elementary School. The analysis, which was performed by a volunteer expert, is intended to inform future decisions about the site, with the property's role in flood management a key consideration.
Diana Suttenfield is an accomplished artist who, since she arrived in Shepherdstown in 1963, has been captivated by the beauty of the landscape and the history of the town. Her inspiration “comes from the land but the subject is light" and she finds the light in the familiar structures, hay bales and rolling hills depicted in her work. This exhibit celebrates the landscape and the history of the area, as each painting represents a view of Jefferson County. Her recently published book "Shepherdstown My Way, Creating Art in the Eastern Panhandle Of West Virginia and Beyond” tracks her personal art experiences living and painting in Shepherdstown.
The Book will be available at the exhibit opening.
Yesterday, Governor Patrick Morrisey gave his second “State of the State” speech to a joint session of the West Virginia Senate and House of Delegates. WV MetroNews summarized the Governor’s speech and how lawmakers reacted. The short version: the Governor wants to cut the personal income tax by 10 percent and fund a 3 percent cost of living raise for state employees, along with other priorities that include increased funding for HOPE scholarships, flood mitigation and foster care improvements. Lawmakers say they want to see the budget details and some are skeptical that revenues will grow enough to cover those priorities.
WV Legislators introduce hundreds of bills — It’s always a rush to get bills introduced on the first day of the 60 day legislative session. This year there were 250 bills introduced in the Senate and 395 bills introduced in the House on the first day. Here’s a snapshot of the activity by Jefferson County’s delegation, counting up the bills on which they are listed as sponsors (either their own legislation or signing on to support bill introduced by their colleagues):
Rucker: 38 (school issues, unpaid tax sales, charter school access, senior abuse, solar farms, digital currency, agritourism)
Barrett: 3 (commercial contracts, state police retirement, homestead exemption)
Anders: 1 (medical professional responsibility)
Clark: 1 (tourism)
Funkhouser: 1 (small business growth)
Ridenour: 2 (medical professional responsibility, e-verify)
Ready Sites Program grants awarded — The Governor’s office announced grants totalling $2.1 million for commercial site readiness on January 12. The Berkeley County Development Authority and the Morgan County Development Authorities were each awarded $75,000 grants. The Jefferson County Development Authority (JCDA) was awarded two $75,000 grants. According to the program description, these grants are effectively “block grants” that can be used to fund pre-construction analysis and design work on specific sites that were proposed by the local development authorities. Jefferson County’s designated sites are a JCDA-owned lot in the one Burr business park (the last unsold lot) and a 194 acre privately-owned parcel located off Northport Avenue (just east of the Rockwool facility).
YMCA Plans Berkeley County Facility — At the January 14 meeting of the Berkeley County Development Authority received an update on the YMCA’s plans to build a facility in Berkeley County. As part of the presentation, the YMCA announced that WVU Medicine has offered a site at the Berkeley Medical Center campus adjacent to I-81 Exit 14. According to Chris Colville, CEO of YMCA of Frederick County, the non-profit organization is optimistic it will be able to finalize the local funding commitments within the next two months. That schedule would allow construction to begin in 2027 and the facility to be operational by mid-2028.
Jefferson County Seeks Economic Development Director — The Jefferson County Commission approved a new position that would report to the Director of Engineering, Planning and Zoning. According to the job description, the person hired for this position could also serve as the executive director of the Jefferson County Development Authority, but the details of that arrangement have not yet been discussed by the JCDA board. Applications are due by January 23 (for more information email Jessica.D.James@JeffCoWV.gov or call 304-728-3284.
Volunteers Needed — Point In Time Count. Jefferson County Community Ministries (JCCM) will be conducting a survey of the county’s homeless population on Wednesday, January 28 and Thursday January 29. JCCM is seeking volunteers for various shifts. Volunteers will work in teams to count and survey. No experience necessary — training is provided. The results from this survey will determine the county’s eligibility for federal funding. Contact Jamie@JCCM.us for information.
Upcoming Meetings
Jan 22 (Thu, 6:00 pm): Jefferson County Commission — regular meeting (public comment restricted to agenda items). Location: County Government Building meeting room (393 North Lawrence St, Charles Town — entrance is on the right side of the building).
Come out and dance the winter blues away with Ginada Piñata at the Shepherdstown Opera House on Saturday, February 7. Doors open at 7:30, show at 8:00.
Highlights of upcoming events around Jefferson County:
Celebrating Small Things — A month-long art exhibit featuring award-winning wildlife photography with proceeds supporting the library. Shepherdstown Public Library, 145 Higbee Ln, Shepherdstown. Runs until Saturday, Jan 31 during library hours. Free. Info…
Phaze 2 Gallery: ToUgH sHaPes Opening Reception — Exhibit explores geometric form and perception. Phaze 2 Gallery, Shepherd University, 92 West Campus Drive, Shepherdstown. Gallery is open 4-6 pm M-F. Free. Info…
Rounding Third - A Play About Baseball— Final weekend for the Town Run Theater Company’s production of a play exploring competition, family, and America’s pastime. Shepherdstown Opera House, 131 West German St, Shepherdstown. Friday, Jan 16 and Saturday, Jan 17 at 7:00 pm and Sunday, Jan 18 at 3 pm. $ Tickets & Info…
Level Green Farm Season Opening — Opening weekend features fresh produce and farm goods. 194 Level Green Farm Rd, Ranson. Friday–Sunday, Jan 16–18, 10 am - 2 pm. Free. Info…
Clermont Farm Tour — A 90-minute guided tour of Clermont Farm highlighting its history, operations, and preservation efforts. Clermont Farm, 151 Clermont Ln, Berryville. Saturday, Jan 17, 1:30 pm. $ Tickets & Info…
Diana Suttenfield Art Exhibition – Opening Reception — An opening reception for a new art exhibition by Diana Suttenfield. Bridge Gallery, 8566 Shepherdstown Pike, Shepherdstown. Saturday, Jan 17, 3 - 5 pm. Exhibit runs until Feb 28. Free. Info…
Hot Chocolate Dance — A winter-themed community square dance hosted by the Panhandlers Square Dance Club. Williams Hall (behind church), 110 West North St, Charles Town. Saturday, Jan 17, 6 - 9:30 pm. Free. Info…
Magician Josh Weidner — A live magic performance by Josh Weidner for audiences of all ages. Apollo Civic Theatre, 128 East Martin St, Martinsburg. Saturday, Jan 17, 7 pm. $ Tickets & Info…
Party Game Night — A casual social evening featuring party-style tabletop games. Game Knights, 400 South Princess St, Shepherdstown. Saturday, Jan 17, 7 pm. Free. Info…
Dolly Parton Party — Costume party, Silent Auction, 50/50 and Dolly Parton’s music to raise funds to benefit the Imagination Library. Bender’s Public House & Eatery, 111 & 113 East Main St, Sharpsburg, MD. Saturday, Jan 17, 7 pm. $. Tickets & Info…
Early Morning Bird Walk — Birders of all levels are welcome for this walk at the USGS Leetown property hosted by the Potomac Valley Audubon Society. 407 Reservoir Road, Kearneysville. Registration required. Free/donations accepted. Tickets & Info…
Shepherdstown Farmers Market — Winter-season farmers market featuring local food and vendors. War Memorial Building, Shepherdstown. Sunday, Jan 18, 10 am - 1 pm. Free. Info…
Hagerstown Model Railroad Museum Open House — An open house showcasing detailed model railroad displays for visitors of all ages. Antietam Station, 17230 Shepherdstown Pike, Sharpsburg, MD. Sundays, Jan 11–25, Noon - 4 pm. Free. Info…
Farmer’s Potluck — A community potluck gathering for farmers and their families. Tabler Farm, 482 Billmyer Mill Rd, Shepherdstown. Sunday, Jan 18, noon - 2 pm. Free (potluck dish optional). Info…
Community Square Dance — A community square dance for farmers and community members open to all experience levels. Tabler Farm, 482 Billmyer Mill Rd, Shepherdstown. Sunday, Jan 18, 2 - 4 pm. Free. Donations accepted. Info…
Vision Board Workshop — A creative workshop focused on goal setting through vision boarding hosted by Sister Moon Farm and Skull City Studio, 105 South Princess St, Shepherdstown. Sunday, Jan 18, 1 pm. Free. Food pantry donations accepted. Info…
MLK March & Rally — A community march and rally honoring the life and legacy of Dr. Martin Luther King Jr. organized by the Jefferson County WV NAACP., Jefferson County Museum, 200 East Washington St, Charles Town. Sunday, Jan 18, 2 pm. Free. Info…
Honor Jazz and Wind Festival — A two-day festival for invited high school musicians featuring ensemble performance and instruction with Shepherd University faculty and guest conductors. The Festival concludes with a public concert on Sunday, Jan 18 at 4 pm. Frank Arts Center, Shepherd University, 260 University Dr, Shepherdstown. Concert tickets are $5. Info…
Dr. Martin Luther King Jr. Scholarship Breakfast — A scholarship fundraising breakfast benefiting the Page Jackson Scholarship Fund. Asbury United Methodist Church, 4257 Kearneysville Pike, Shepherdstown. Monday, Jan 19, 9:30 am. $ Contact Delores Foster at 202-415-8769 or Karen James at 240-367-4119.
Community First Aid Class — A hands-on first aid training course for community members. Jefferson County Emergency Services Agency, 419 Sixteenth Ave, Ranson. Tuesday, Jan 20, 6 pm. Free. Info…
Blue Ridge Community and Technical College Information Session — An information session covering academic programs and enrollment options. Shepherdstown Public Library, 145 Higbee Ln, Shepherdstown. Wednesday, Jan 21, 4 pm. Free. Info…
St. Isidore Market — Community market offering locally produced food and goods. St. James Church, 49 Crosswinds Dr, Charles Town. Thursdays, 5:00 - 6:30 pm. Free. Info…
Spotlight — Shepherd University Agricultural Innovation Center
Shepherd University's Agricultural Innovation Center, located at the former “Tabler Farm” property (482 Billmyer Mill Road, Shepherdstown), will host a series of “Farm Business” workshops over the next several months. The workshops, part of the curriculum for the Center’s Incubator Farmers, are also free and open to the public.
There will be eight sessions, scheduled for 5:30 to 7:00 on Wednesday evenings, between January 21 through April 29:
Every week, The Observer digs into the details that matter in Jefferson County. Our content is free for everyone to read, but producing well-researched local news isn’t free.
