Quotes

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Quotes from Minutes and Court Cases of Concern in Blackford Subdivision

SUPREME COURT DECISION ON HARVEST HILLS 10/10/03 Click here

CIRCUIT COURT HEARING 11/5/03 (Click for full text of hearing)

STEPTOE: The Corliss decision as I remember, did not mandate the use of the linear method. All the Supreme Court decision says was when the Board of Zoning Appeals decided to apply a particular case, the Circuit Court did not have the authority to tell them they were wrong, simply because the Court felt there was a better method...

Then it [attorneys' first draft of an order for the Judge to sign] goes on further to say that, "The Zoning Administrator shall recalculate the LESA evaluation consistent with the authority mandated by the West Virginia Supreme Court of Appeals and forward such evaluation to the Petitioner on or about November 15th".

There is nothing in the Corliss decision in the Court's opinion that mandates that. And I think it would, the concern I have is that that would give the, in my opinion, the Board an incorrect opinion of what their responsibilities are...

MR. CASSELL: The Corliss decision does not mandate the linear method ...

STEPTOE: The Supreme Court never said that the linear method was the only method that the Board can consider...

CASSELL: we selected the word "remanded for rehearing" to leave it to the Board to decide how to deal with it from there. We didn't want to qualify that any more. That was the problem we had drafting this was, how do we describe what it's being remanded to do? So we selected the word remanded for rehearing. And if the Court would think about that as well, I think that describes with enough leeway for the Board to hear it on the issues and take evidence and so forth. For a rehearing we felt that was the best way to do it. Then the Board can take a look and see what it needs to do...

THE COURT: But is he [Raco] required to recalculate?

MR. CASSELL: Well, Judge, that's a good question, you know.

THE COURT: The ordinance does not indicate, if I recall correctly, the ordinance does not indicate -does not require the linear method or the acreage method.

MR. CASSELL: That's correct.

MR. CAMPBELL: I believe Mr. Raco's position is that given what Corliss means, he has an opportunity to recalculate and I believe that he intends to.

THE COURT: But you would have me mandate that he recalculate it.

MR. CASSELL: Only to the extent that he would be required to do so consistent with Corliss.

THE COURT: But Corliss, you know, unless I'm totally misreading Corliss, Corliss doesn't endorse either the linear or acreage method. It just says, "Circuit Court where the Board is not acting illegally by adopting the linear method". You cannot say that the acreage method is better...

THE COURT: Shouldn't the Court also say that, "This matter is hereby remanded for rehearing before the Jefferson County Zoning Board of Appeals consistent with the West Virginia Supreme Court of Appeals in the case of Corliss vs. The Jefferson County Board of Zoning Appeals, Number 331119 plus the Kletter decision to the extent that it is not inconsistent with Corliss"?

MR. CASSELL: Sure. Judge, that's going to be, when we come back on the Kletter case, it's going to be very interesting for us to discuss those 2 decisions and conform them. That's -- we're looking forward to doing that...

THE COURT: I would want a copy of this order to go not only to the attorneys, but also to the parties including individual copies to members of the Zoning Board of Appeals...

THE COURT: It's my position, gentlemen, that it's up to the Zoning Board to decide whether to have Mr. Raco recalculate it.

MR. CASSELL: That's fine.

THE COURT: I'm remanding it to the Board. I'm not remanding it to Mr. Raco. It's just a procedural thing, but it's up to the Board then to decide how they wish to proceed.

CIRCUIT COURT ORDER 11/5/03

03-C-111, Brown Shop Road LLC., v. Jefferson County Zoning Board of Appeals

CONSENT ORDER FOR REMAND TO THE JEFFERSON COUNTY BOARD OF ZONING APPEALS

THIS MATTER came on for hearing on November 5, 2003 on the appearance of the Petitioner by its counsel, James P. Campbell and Campbell Miller Zimmerman, P.C., and on the appearance of the Jefferson County Zoning Board of Appeals by its counsel, J. Michael Casgell, in relation to the agreement of the parties to remand this proceeding to the Jefferson County Zoning Board of Appeals; and

IT APPEARING that this case was stayed pending the determination by the West Virginia Supreme Court in Corliss v. Jefferson County Board of Zoning Appeals, No. 31119, which decision was issued on October 10, 2003; and

~~IT APPEARING that Corliss reversed the authority relied upon by the Zoning Board of Appeals in the underlying proceeding; and~~

IT APPEARING that the parties agree that remand to the Zoning Board of Appeals is appropriate; it is hereby

ORDERED and ADJUDGED that this matter is hereby remanded for rehearing before the Jefferson County Zoning Board of Appeals consistent with authority from the West Virginia Supreme Court of Appeals in Corliss v. Jefferson County Board of Zoning Appeals, No. 31119; and Kletter v. Jefferson County Board of Zoning Appeals, 02-C-217, to the extent that Kletter is not inconsistent with Corliss, supra.

it is further ORDERED and ADJUDGED that the Zoning Administrator shall recalculated the LESA evaluation consistent with the authority mandated by the West Virginia Supreme Court of Appeals in Corliss partially forthwith, and forward such evaluation to the Petitioner on or before November 25, 2003.

ZONING BOARD MINUTES 11/20/03

8 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) 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

Mr Rockwell motioned, outside the context of the Blackford appeal, that the Board instruct Counsel to file a motion in the Kletter case asking the Court to reconsider the Order in light of the Corliss decision filed on October 10, 2003, which is approximately a month after Judge Steptoe entered his opinion on Kletter Mr Bresee seconded the motion which carried unanimously.

Mr Rockwell stated he was recusing himself from the Brownshop Road LLC (Case No 03-C111) Mr Bresee was not appointed to the Board until May of 2003 and could not decide this matter which left the Board without a quorum present to discuss the issue Mr Campbell stated administratively the matter should be deferred to the Staff to recalculate the points based on the Corliss decision.

ZONING BOARD MINUTES 12/18/03

1 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). Mr Cassell gave a history of the project and referred to the Kletter and Corliss decisions. James Campbell spoke on behalf of Brownshop Road LLC and asked that the Board either decide the matter or send it back to the Staff. The Board took no action on the matter.

CIRCUIT COURT 1/7/04

03-C-111, Brown Shop Road LLC., v. Jefferson County Zoning Board of Appeals

CONSENT ORDER FOR REMAND TO THE JEFFERSON COUNTY BOARD OF ZONING APPEALS

THIS MATTER came on for hearing on January 7, 2004, on the appearance of the Petitioner by its counsel, James P. Campbell and Campbell Miller Zimmerman, P.C., and on the appearance of the Jefferson County Zoning Board of Appeals by its counsel, J. Michael Cassell, in relation to the Motion for Reconsideration of the Order of November 5, 2003, and the Agreement of the parties to vacate said Order and remand this matter to the Jefferson County Board of Zoning Appeals; and at the parties request

It is hereby ORDERED that the Order entered on November 5, 2003, in this proceeding is hereby VACATED in accordance with the Agreement of the parties; and it is further

ORDERED and ADJUDGED that this case is hereby remanded to the Jefferson County Board of Appeals for further proceedings. The Clerk shall place this matter among the causes ended.

ZONING BOARD MINUTES 1/15/04

4 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). Mr Rockwell excused himself from the meeting room for this portion of the meeting. Mr Cassell stated the Order is not productive in language and it is up to the Board as to what they would like to have reheard. James Campbell on behalf of Brownshop Road LLC stated they believe it should be remanded back to the Board to recalculate the points or direct the Staff to do the same. Mr Raco stated the approach taken in the Harvest Hills decision was to remand the matter back to the person who initially calculated the points. Mr Rockwell returned to the meeting room

4 Mr Bresee motioned to direct Mr. Raco to (1) recalculate the linear feet on the undeveloped portion of land, and, (2) have Mr Raco re-review the calculations for the rest of the LESA scores and report back to the Board at the next meeting of his findings for Blackford Farms/Brownshop Road LLC. Mr Trumble seconded the motion which carried with a vote of 3 for and 1 abstention (Mr Rockwell).

ZONING BOARD MINUTES 2/19/04

6 Correspondence. Memo from the Zoning Board of Appeals to Mr Raco directing him to recalculate the linear feet on the undeveloped portion of land for Blackford Farm/Brownshop Road LLC, and, (2) have Mr Raco re-review the calculations for the rest of the LESA scores and report back to the Board at the March 18, 2004 meeting of his findings. Mr. Bresee motioned for Ms. Hine to sign the memo and forward the same to Mr. Raco. Mr Trumble seconded the motion which carried with a vote of 3 for and 2 abstention (Mr Rockwell and Mr Wiegand).

LETTER FROM ZONING BOARD TO RACO 2/19/04

Please find attached a copy of the approved Minutes of the Board for the January 15, 2004 meeting. The Board accepted these Minutes at the February 19, 2004 meeting. Please see item #4 on page two of the Minutes and provide your response to us at the upcoming meeting on March 18, 2004.

If you have any questions, please give Mr Cassell a call for clarification or direction Thank you for your attention to this matter.

ZONING BOARD MEETING ATTENDANCE (to help understand who voted when)

	Bresee	Groh	Hine	Rockwell	Trumble	Wiegand
March 2004		-	x	x	x	x
February	x	-	x	x	x	x
January 2004	x		x	x	x	-
December 2003	x	x	x		x	-
November	x		x	x	x	-
October	x	x	x	x	x	-
September			x	x	x	-
August	x	x	x	x	x	-
July	x		x	x	x	-
June						-
May	x	x	x	x	x	-
April 2003	-	x	x	x	x	-
	- Not a Board Member

SELECTIONS FROM TAPE OF ZONING BOARD 3/18/04, CONCERNING BLACKFORD

...

Zoning Administrator RACO: It's kind of odd. It's a remand to re-calculate the points based on the Harvest Hills decision, primarily about adjacent property

...

Attorney CASSELL: It has been sent back to you. The issue of what to do with it I think is exactly what you must decide here today. The next step in the process, and of course this is all speculation until we know what Mr. Raco's calculation is. I do not see any legal problem with your receipt o the information, nor with Mr. Raco's announcing that information today at your hearing, because that's what you asked to happen. At that point you need to decide if staff should then be directed to proceed with the process, and then everybody has an opportunity to examine what he's done, decide if they want to appeal, attend the public hearing (inaudible)

...

CASSELL: I think you should receive the information. But this is not a public hearing on this. If that's what Paul is saying then I agree with that. You receive information. Then you decide what you want to do with it. At that point, the next step in the process is to advertise (inaudible)

...

RACO: The Circuit Court remanded it to here, because of the Supreme Court case that changed the way. I used to score it one way

(Cassell & board member Wiegand inaudible)

RACO: I used to calculate adjacent development based on a linear measure. OK. That at one point was appealed, that I should be using adjacent acreage measure of what's in farm and what's not in farm. That was appealed all the way to the Supreme Court - a lot of appeals. The Supreme Court said, No, you should go back to what Raco was doing, linear measure. OK so Blackford was judged based on the acreage measure because in between then the Circuit Court ruled Raco is wrong; acreage method. 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.

...

Board chair HINE: This is my opinion. I think at this point in time we let Mr. Raco tell us what he found, We end this whole thing this evening. I've had enough. We would just like your decision and we're going to end it.

RACO: It passes for development, compatibility hearing, 54.3

...

VOICE: Provided that if it goes on to compatibility the applicant will withdraw the appeal (inaudible)

...

Board vice-chair TRUMBLE: My question to you; is there a problem with Mr. Wiegand not having heard the original discussion?

Secretarial support BURNS: This is a whole new thing. I don't think so.

HINE: Right.

BURNS: I don't think so.

HINE: No, because you've got new data in front of you.

BURNS: Yes, and this body may not see this ever again.

TRUMBLE: Move to

BURNS: To allow staff to move forward with the process

TRUMBLE: Yes

BURNS: If that is what you're inclined to do. Is that a motion?

TRUMBLE: inaudible

BURNS: Is there a second?

inaudible

HINE: So there's a motion to. What do we need?

BURNS: Staff to proceed with the process as outlined in the Ordinance.

HINE: Oh God, it's a long evening already. We have a motion on the floor recommending to staff to go ahead and proceed with the process to compatibility

BURNS: as outlined in the Ordinance

HINE: as outlined in the Ordinance. We have this one so messed up we apologize on this one. There is a motion and a second on the floor. All in favor. Unanimous

VOICE: Can we make that direction instead of recommendation?

HINE: I am going to promise you that Becky will have this in verbiage that is proper.

SELECTIONS FROM TAPE OF ZONING BOARD 3/18/04, CONCERNING UNIWEST SEWAGE PLANT

Board member ROCKWELL: Move that the decision of the Planning and Zoning Commission to deny the Conditional Use Permit for Uniwest be set aside and that this matter be remanded to the Planning Commission to conduct a public hearing in accordance with section 7.6e of the Zoning and Development Review Ordinance to resolve / to address the five unresolved issues reported by the Planning and Zoning Director on the Community Assessment Meeting.

TRUMBLE: Second

(passed by Hine, Rockwell, Trumble)