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MAJOR RECENT ZONING DECISIONS, updated 4/14/04

SUMMARY

Citizen boards are very important in WV government. Please consider volunteering to serve. Board members need time and patience to understand the issues, and confidence and determination that good solutions will be found if they keep looking and working on them.

The Jefferson County Zoning Appeals Board is one of the most important. At the end of all our work in writing plans and zoning rules, the Zoning Board can decide whether a project goes forward or stops. They can revive a stopped project. Even the WV Supreme Court defers to the Zoning Board.

The Zoning Board has recently voted to let three harmful projects move forward, and created one procedural nightmare. On each decision they could have chosen better.

A. DANIEL’S FOREST. The Zoning Board (Bresee, Hine, Rockwell, Trumble) voted in November 2003 to re-open appeals on three subdivisions (600 homes on Flowing Springs Rd from Country Club Rd to Job Corps Rd). Citizens had managed to stop these subdivisions in court, and the Zoning Board re-opened the court case. The Board had a hard legal problem to solve, but they had other options short of re-opening a good decision.

B. UNIWEST. The Zoning Board (Hine, Rockwell, Trumble) voted in March 2004 to overturn a Planning Commission decision. The Planning Commission had said a sewer plant in a rural area between 340 and Millville Quarry would harm the community. The Zoning Board did not explain why this harm could be ignored.

C. WRITTEN TESTIMONY. The Zoning Board (Hine, Rockwell, Trumble) voted in September 2003 to require citizens to file all written testimony and documents in Zoning Board cases a day after the sign goes up to let people know about the case. The Circuit Court had already criticized Zoning Board procedures, and this rule made them infinitely worse.

D. BLACKFORD. The County Zoning Board (Hine, Trumble, Wiegand) voted in March to allow the Blackford subdivision (700 homes on Rt 9 from Bardane to N. Jefferson school) to proceed with further reviews. It had been stopped by the Zoning Board in April 2003. No Court ordered the Zoning Board to change the April 2003 decision. The Zoning Board in fact lacks the votes to change its April 2003 decision, so it is encouraging Blackford to proceed, while leaving standing the earlier decision that Blackford should not proceed. Citizens directly affected have the right to appeal if they do it quickly.

GENERAL ISSUES. The Zoning Board has five members, and can only act when three members agree. When only three members are voting, each one has a veto, because every motion needs three Yes votes to pass. All votes discussed here were unanimous, but they involved less than the full 5-member board, because of absences or possible conflict of interest. This report is based on the official minutes, and on the tape of the March 2004 meeting, for which minutes are not yet available (http://listeners.homestead.com/files/bminc.htm ). If anyone can provide quotes from earlier meetings to clarify anything that happened, that would be very helpful.

A common thread in A, C, and D is that the Zoning Board did not obtain a full range of advice on these important decisions. They listened to one-sided and inaccurate advice from developers and from county staff who are sympathetic to developers. They had the right at any time to notify interested parties of a hearing and get wider, better advice.

A. DANIEL’S FOREST – 600 HOMES

Daniel’s Forest was a major case won by citizens Jan Kletter, Greg Corliss, and the Blue family, stopping three subdivisions with 600 homes on Flowing Springs Road. The three subdivisions included are Daniel’s Forest, Forest View, and Aspen Green. The Circuit Court’s September 9, 2003 decision in Daniel’s Forest had overturned some 2001-2002 Zoning Board decisions, and stopped the three developments.

On November 20, 2003 the Zoning Board (Bresee, Hine, Rockwell, Trumble) asked the Circuit Court to reconsider the citizens’ victory in the Daniel’s Forest case for consistency with Harvest Hills, a case decided by the Supreme Court in October 2003.

A November 5, 2003 Circuit Court order had told the Board to make a decision in the Blackford case (discussed below) consistent with both Daniels Forest and Harvest Hills. This was a hard task, but there were alternatives short of re-opening the Daniel’s Forest victory. They could have asked their attorney and other parties in the three cases for ideas and recommendations. That would be needed anyway, even with the path they chose of reopening Daniel’s Forest, because no court decision in Daniel’s Forest would tell anyone exactly how to handle Blackford. One of the key issues in Blackford, how to measure adjacent land, was not even raised in Daniel’s Forest.

Blackford itself took yet another alternative, asking the Circuit Court to reconsider the November 2003 order on Blackford, and the Court did so in January 2004.

The November 2003 Zoning Board minutes show legal advice to the Board only from Blackford’s attorney, advice which was not taken (to send the scoring back to Raco) and which did not concern Daniel’s Forest. The Board’s attorney, Mike Cassell, was also present in November 2003. If he advised the re-consideration, his advice should be in the minutes, and it is not. Anyway, getting advice from just one attorney, who argued to support development in the Daniel’s Forest and Harvest Hills cases, on behalf of previous Zoning Boards, would have been too limited.

The motion to reconsider Daniel’s Forest was made by Rockwell and seconded by Bresee, and it was “outside the context of the Blackford appeal.” However Daniel’s Forest was not on the agenda, and both Cassell and Campbell (attorney for Blackford) later said the Board was expecting the Daniel’s Forest reconsideration to give the Board guidance in handling Blackford. Otherwise Rockwell has recused himself from every discussion of Blackford, and Bresee was recusing himself in November 2003. It is striking that they were the people who moved for reconsidering Daniel’s Forest, and no reason was ever given, except to help with the decision on Blackford.

Legal positions of government agencies like the Zoning Board are entitled to change and often do change when members change. If Trumble and Bresee approved the court decision in Daniel’s Forest, they did not need to ask for it to be reconsidered. Or if Bresee and Rockwell were recusing themselves from Blackford, they needed to be sure Daniel’s Forest was on the agenda before taking action.

B. UNIWEST – SEWER PLANT

In December 2003 the Planning Commission turned down a 75,000 gallon per day sewage treatment plant in an area zoned Rural between 340 and Millville Quarry, because of incompatibility with the community. The Planning Commission ruled that the developer had not proved the sewer plant was compatible with the community overall, as the Zoning Ordinance requires. Therefore the Planning Commission did not try to resolve five specific disagreements between neighbors and Uniwest.

On March 18, 2004 the Zoning Board (Hine, Rockwell, Trumble) overturned that decision, and sent it back to the Planning Commission. The Zoning Board did not say how the developer proved compatibility, but said the Planning Commission must address or resolve the five disagreements. The Zoning Board heard testimony from Raco, Vicki Faulkner, and the Quarry that the issue was incompatibility, and the Planning Commission made its decision based on incompatibility, but the Zoning Board did not explain why it set aside that ruling of incompatibility.

One aspect of incompatibility is that small (and large) sewage plants periodically fail to process the raw sewage right, and release pollution downstream. Another aspect is that a new sewer plant in that rural area will open hundreds of acres to high density houses.

There was a lot of testimony about the five disagreements. The Ordinance says the public may talk to the Planning Commission only about these five issues. However the Circuit Court has said the public may also address overall compatibility (Moses v. Planning Commission 00-C-65). In any case the Ordinance does not limit Planning Commissioners themselves to those five issues. In fact Ordinance section 4.1, cited at the Zoning Board, says the Planning Commission must base its decision on compatibility, not just specific issues. Nevertheless the Zoning Board overturned the Planning Commission’s decision without discussing compatibility.

C. WRITTEN TESTIMONY – ALL ZONING CASES

On September 18, 2003 the Zoning Board (Hine, Rockwell, Trumble) adopted a new rule that all Apapers and documents” for the Board to consider in a hearing must be submitted two weeks before the hearing.

Since most citizens only learn about a hearing when the sign goes up 15 days before the hearing, this new rule prevents them from submitting documents. Developers of course have been working on a project for months or years in advance, so they can have their documents ready. Even when citizens bring an appeal and know the hearing date six weeks in advance, they have only four weeks to prepare documents, which is a nearly impossible task, in the face of developers with enormous time and resources.

On September 9, 2003, the Circuit Court in Daniel’s Forest had criticized that in Zoning Board hearings,

“the Petitioners have only thirty minutes to present their case. This allows barely enough time for the Petitioners to identify their specific challenges, let alone to flesh them out with evidence. The Petitioners attempt instead to present their evidence in documentary packets, which they don’t have time to explain and the Board, apparently believing itself compelled to announce a decision at the end of the hearing, doesn’t have time to review.

“... in the normal course of legal proceedings, the hearing is the proper place for the proffer of evidence, not the pleadings. See, July 18, 2002, hearing (Kletter 2). Upon adequate notice pleading, the Petitioners are entitled to present their evidence at the hearing

“…The hearings are scheduled on the agenda of regularly-scheduled Board meetings, and, therefore, compete for time with numerous other issues on that agenda. All in all, the hearings are simply not likely to produce the quality of proof that the County and the Intervenors attempt to demand of the Petitioners.”

(9/9/03 Opinion Order Kletter et al. v. Jefferson County Zoning Board of Appeals Consolidated 01-C-331, 02-C-217, 02-C-348, page 76)

The Zoning Board said the reason for requiring documents two weeks before the hearing was to read the documents in advance of a complex case and be ready to decide at the hearing. This does not address the Court’s other criticisms of the process, and freezes most of the public out of submitting anything. The Court Order mentioned above recognized that documents are the only practical way to present proof.

A much better alternative is to allow the full time before the hearing for document preparation, and see documents in the context of oral explanations at the hearing. If a case is too complex to decide then, the Board can read the material later, and decide at a special meeting or at the next regular meeting.

D. BLACKFORD - 700 HOMES

BACKGROUND

Rural land in Jefferson County can have high density houses only if various conditions are met. One condition is a low score, using a formula in the Zoning Ordinance, called Land Evaluation and Site Assessment (LESA).

Part of this score in the Zoning Ordinance reflects the percent of adjacent land which is farmed or not, and the percent which is intensely developed or not. Some people measure the percent of land farmed by comparing the area farmed and not farmed. Others measure the common boundary with farmed and non-farmed land. There have been two recent arguments on whether to measure the adjacent land by its area or boundary.

Using surface area to measure land in the formula tends to restrict development. The reason is that adjacent farm parcels are wider than subdivision lots, so farms are a larger percent of the total when area is used. On the other hand if the Zoning Board endorses boundaries, it facilitates development in this and all future calculations.

Blackford is a proposed subdivision for 700 homes on the south side of route 9, from the Industrial Park on Brownshop Rd to North Jefferson Elementary School and the Fox Glen development.

BLACKFORD APPEAL

On April 17, 2003 the Zoning Board (Groh, Hine, Trumble) told the Blackford developer that the Zoning Administrator (Raco) was correct when he measured adjacent land by the surface AREA of adjacent parcels. This area approach contributed to a score which made the property NOT eligible for high density houses.

The developer wanted adjacent parcels to be measured by their boundaries, not their area, and appealed to the Circuit Court on this and other issues.

COURT SETTLEMENT

On January 7, 2004 the Zoning Board, through its attorney, Mike Cassell, agreed with the Blackford developer to bring the case back from Circuit Court to the Zoning Board Afor further proceedings.” The attorney acted on his own, without instructions from the Zoning Board.

On January 15, 2004 Cassell told the Zoning Board that the Court “Order is not productive in language and it is up to the Board as to what they would like to have reheard.”

RE-HEARING

At that same Zoning Board meeting on January 15, 2004, Zoning Administrator Raco told the Board that in Harvest Hills (a previous case decided by the WV Supreme Court October 10, 2003 http://listeners.homestead.com/files/dufsc.htm ) the case was sent “back to the person who initially calculated” the LESA score. That would be him, as Zoning Administrator. He misspoke. Harvest Hills was never sent back to him, since neither the Circuit Court nor the Supreme Court asked for the LESA score to be recalculated. Both Courts directed their orders to the Planning Commission, which was told to deny or issue the Permit for the subdivision to proceed. Harvest Hills had proceeded past the scoring stage to an actual approval.

COURT RULINGS ABOUT MEASURING LAND

The Supreme Court said in the Harvest Hills case that the Circuit Court must defer to “the expertise the administrative entities involved in this case have developed with regard to land measurement and its consequent obligation to accord such expertise/judgment a significant level of deference barring any clear error.” The administrative entities are the Zoning Board and Zoning Administrator. The Supreme Court also stated, apparently approvingly, that the AOrdinance specifies no measurement method.” So it sounds as if the Zoning Board could use its “expertise/judgment” to measure either boundaries or area and expect to be upheld.

The Supreme Court mis-stated that the Board had a “long term approach to this issue of measuring adjacent parcels of land for purposes of calculating one aspect of the LESA score.” In fact Harvest Hills and Blackford are the only times the Board has decided the matter, and the decisions went in opposite directions. The Zoning Administrator claims to have had a long term approach of looking at the surrounding boundaries, not surface areas, but the Supreme Court did not say the Board had to give deference to the Zoning Administrator.

Furthermore in Blackford, the Zoning Administrator started out using AREA in evaluating the project, and the Board upheld him on April 17, 2003, so both administrative entities were united in using area. Board member Hine said at the April 2003 hearing that she did not feel bound by the Harvest Hills Circuit Court decision (to use area). She supported area in Blackford on its own merits. According to the Supreme Court she and the Board as a whole deserved deference in that decision.

Courts defer to Zoning Boards, because the specialized Board is assumed to have expertise. It is certainly reasonable to expect a Zoning Board to have some expertise in what “land” means, when the Ordinance says adjacent “land” should be measured. Both Raco and I testified at the original hearing about measuring land by its surface area. The Ordinance even defines “land” in terms of “surface.”

RESULT OF RE-HEARING

The January 2004 minutes do not show any legal advice from the Zoning Board’s attorney, except as quoted before, “it is up to the Board as to what they would like to have reheard.” Blackford’s attorney advised them to have the score recalculated, which they did. They did not announce a hearing to listen to anyone else, such as participants in the original hearing or in the court cases.

The tape of the Zoning Board meeting in March 2004 may elucidate what the Board was thinking. The tape includes comments by Raco telling the Zoning Board what he thinks the Courts said:

“The Circuit Court remanded it to here, because of the Supreme Court case… The Supreme Court said, No, you should go back to what Raco was doing, linear measure… The Supreme Court overruled the Circuit Court and said, No, linear method is better. They remanded back here, Circuit Court, and said instruct Raco to do it again, taking into account Harvest Hills.”

However the Circuit Court did not give that or any instruction. In fact in an earlier order, November 2003, the judge had personally crossed out wording which would have said the Supreme Court’s decision took away the basis of Blackford. He also crossed out an instruction that the LESA score needed to be changed. I assume Board members would make sure they see court orders addressed to them, so they would have seen this wording crossed out in November. (http://listeners.homestead.com/files/bminc.htm ) Furthermore both Courts said the “Ordinance specifies no measurement method” so they did not say linear was better than area, as a general rule. The Supreme Court did say the Circuit Court should have let the Zoning Board’s and Zoning Administrator’s decision stand.

On November 20, 2003 the Zoning Board had asked the Circuit Court how Harvest Hills affected Daniel’s Forest, a case discussed above. Yet the Zoning Board decided on their own how Harvest Hills affected Blackford.

On January 15, 2004, the Zoning Board (Bresee, Hine, Trumble), voted to tell Raco specifically to “recalculate the linear feet on the undeveloped portion of land,” and review the other scores. Nine months earlier, a different three votes (Groh, Hine, Trumble) had ruled on the Blackford appeal, supporting Raco in using area rather than boundaries.

On February 19, 2004 the Board (Bresee, Hine, Trumble) confirmed its January 2004 decision by approving a letter to Raco telling him to re-score Blackford, using boundaries, and checking the rest of the scores, by March 18, 2004.

On March 18, 2004, as instructed, Raco provided a new score, measuring boundaries of adjacent farms and non-farms, not their areas. This new score would make the land eligible for high density houses.

On March 18, 2004 the Board (Hine, Trumble, Wiegand) voted to treat the new score as final, making the land eligible for high density houses. The wording was, “recommending to staff to go ahead and proceed with the process to compatibility as outlined in the Ordinance.”

STATUS OF ORIGINAL APPEAL

The Board did not officially overturn its decision from April 2003 that Blackford failed LESA and was ineligible, and the Board does not have enough votes to overturn it. The Board needs three votes to pass any motion, and only two board members remain, of the three who heard the original case.

The tape of the March 2004 Zoning Board meeting includes a comment from an unidentified voice about the applicant withdrawing the appeal. It does not seem plausible for an applicant to be able to withdraw an appeal, when it has already been decided against them. Many others who lose legal cases would like to withdraw the cases they lose.

NOTICE

The public agenda for the January 2004 meeting simply said, “Discussion and/or action by the Board and Staff on the Order of the Circuit Court of Jefferson County for Brownshop Road LLC (Case No 03‑C‑111).” This was the same wording as on the November and December 2003 agendas which had referred to the November 5, 2003 order. The January 2004 agenda wording “the Order” explicitly concealed the fact that there was a new order.

Under this agenda item the Board had decided in November 2003 not to take action until the Circuit Court issued a decision in Daniel’s Forest, expected sometime this spring. They took action in January 2004, because they had a second, more open-ended court order, but there was no way for the public to know that and participate, without an announced public hearing.

The February 2004 agenda merely used the word “Correspondence” to cover the fact that they were going to vote on final approval of instructions to Raco to re-score the property by measuring boundaries instead of surface.

QUORUM

There is an issue of who participated in the January, February, and March 2004 meetings. In November 2003 the board had discussed a November 5, 2003 court order on Blackford. That court order has limited significance now, since it was replaced by the January 7, 2004 court order. However two things happened in the discussion that are significant: Mr. Raco “excused himself from the meeting room for the remainder of the meeting and for this item specifically because it was his decision being appealed.” Furthermore, Board member Bresee “could not decide this matter,” because he had not been on the Board to hear the original issues on Blackford.

Why did Raco and Bresee participate in January 2004, when they couldn’t, for good reasons, participate in November 2003? The Board has 5 members, and the other two members at each stage did not participate for unrelated reasons. Every decision must be agreed by 3 people, so lack of Bresee’s participation would have left the original Blackford decision from April 2003 undisturbed. Why did they not let the decision stand, or announce a hearing to consider arguments on both sides? Or a full hearing on everything, so new Board members could hear the issues and participate properly in a new decision?

Raco’s participation in March 2003 was substantial, misquoting court orders and dominating the discussion. His secretary, Rebecca Burns, ran the vote on Blackford, asking for the motion, wording it, and asking for a second, while Board Chair Hines followed along.

The November 2003 Circuit Court order had told the Board to rehear Blackford and be consistent with Harvest Hills and a third case, Daniel’s Forest. However both of these instructions were removed in January 2004.

Even in November 2003, the Circuit Court refused to say the Harvest Hills case overturned the basis of the Zoning Board’s Blackford decision and refused to order a recalculation of LESA. The Circuit Court left them the option to stick with the original decision stopping the development.

Quotes from Minutes and Court cases concerning Blackford are at http://listeners.homestead.com/files/bminc.htm

Transcript of the 11/5/03 Court hearing is at http://listeners.homestead.com/files/bminc2.htm