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Legal Advice on Role of Planning Commission & Zoning Board of Appeals after
Kletter & Jefferson Utilities Decisions

November 1, 2004

Via E-Mail

Leslie D. Smith
County Administrator
County Commission of Jefferson County
P.O. Box 250
Charles Town, West Virginia 25414

Re: Your Memo dated October 29, 2004

Dear Ms. Smith:

Your request for an opinion dated October29, 2004, pertains to the Conditional Use process The Board of Zoning Appeals is the public body which should issue a Conditional Use Permit The Planning and Zoning Commission may continue to proceed with hearings related to Compatibility Assessment Meetings In my opinion, the Planning and Zoning Commission should attach as a condition that any Conditional Use Permit must be granted by the Board of Zoning Appeals. This would clarify the process.

Compatibility Assessment Meetings should proceed pursuant to the Zoning Ordinance unless and until our Ordinance is amended or repealed.

It is my understanding that the County Commission has selected a procedure for Conditional Use Permits which the Commission intends to enact in a future amendment to the Zoning Ordinance Your Memo does not provide me with the procedure selected by the Commission. Nonetheless, I recommend that the Commission set forth in the Zoning Ordinance the Conditions required to issue a Conditional Use Permit The Ordinance should contain Conditions to provide Notice to Applicants and the public regarding the expected issues pertaining to a Conditional Use Permit Application.

Finally, the County Commission should understand that Judge Broadwater found our Compatibility Assessment process to be constitutionally valid The County Commission may recall that the West Virginia Supreme Court reviewed the delegation of the Compatibility Process to the staff of the Planning and Zoning Commission. The Supreme Court found the process to be valid and enforceable. Your Memo mentions the Kietter Decisions I cannot answer your questions without reference to other Decisions which directly impact my opinion.

I thank you.

Very truly yours,
J. Michael Cassell
Assistant Prosecutor

Cc: Mike Thompson, Prosecuting Attorney
Brandon Sims, Assistant Prosecuting Attorney
Paul Raco,, Executive Director of Planning, Zoning and Engineering