DATE: Tuesday, November 11, 1997            TAG: 9711110236

SECTION: LOCAL                   PAGE: B5   EDITION: FINAL 

SOURCE: BY TONI GUAGENTI, STAFF WRITER 

DATELINE: VIRGINIA BEACH                    LENGTH:   38 lines

SUPREME COURT REFUSES TO HEAR APPEAL IN CASE OF ROAD DAMAGE

The state's highest court has refused to hear the case of Colechester Road, a country lane that had been damaged earlier this year by the hauling of sand from a nearby fish pond excavation.

A special panel of Virginia Supreme Court justices ruled three weeks ago that there was ``no reversible error in the judgment'' of Virginia Beach Circuit Court Judge Edward W. Hanson Jr., who ordered the hauling to stop in March.

Hanson had said the trucking of sand from Steve Barnes' fish pond would remain stopped until Barnes and the hauler, Thompson's Grading Co., obtained a permit to take the sand from the site off McClannan Lane.

Before Hanson ruled, negotiations involving the city, Barnes and the hauler proved fruitless.

The city repaired the road, which had been marred with potholes, in May at a cost of $65,000. The hauling from Barnes' property had turned the lane into one of the Beach's most often-repaired roads.

Neil Lowenstein, Barnes' attorney, said Monday that he has asked the state's highest court to reconsider its denial.

The next stop, if the reconsideration is refused, would be the U.S. Supreme Court. Lowenstein said: ``We're looking at all of our options.''

Lowenstein's argument for his clients was that Barnes and Thompson's didn't have to apply for a hauling permit because the city adopted the ordinance that requires such a permit months after Barnes had received permission from the city and state to dig. Lowenstein argued that the ordinance was unconstitutional.

The city has contended that the issue has been the safety of the road and the people who use it.

``They've got to get a permit to haul,'' said L. Steven Emmert, the attorney representing the city in the case. ``If they come in with a satisfactory application, we'll give them a permit.''

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