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IN THE CIRCUIT COURT OF JEFFERSON COUNTY, WEST VIRGINIA

Jan Cary Kletter, 266 Equestrian Circle, Shenandoah Jct., WV 25442

Richard Blue, Rt 1, Box 82R, Shenandoah Jct., WV 25442

James Blue, Rt 1, Box 82, Shenandoah Jct., WV 25442

John Blue, Box 112, Shenandoah Jct., 25442

Paul Michael Blue, Rt 1, Box 132, Shenandoah Jct., WV., 25442

Nell Louise Blue, RR1, Box 82L, Shenandoah Jct, WV 25442

Gregory Corliss, Rt, Box 91,Shenandoah Jct, WV 25442

Petitioners

V. Civil Action No. 01-C-331

Jefferson County Zoning Board of Appeals, 110 E. Washington St, PO Box 250, Charles Town, WV 25414

Respondent

BRIEF OF PETITIONERS

Introduction:

One of the goals set forth in the Jefferson County Comprehensive Plan ("Comprehensive Plan") is to "promote the maintenance of an agricultural base in the County at a level sufficient to insure the continued visibility of farming," (I-5). Yet when the Comprehensive Plan, the Jefferson County Zoning and Development Review Ordinance ("Ordinance") and State Law are not followed, then a great disservice is done to the people of Jefferson County.

Since the Comprehensive Plan emanates from the West Virginia Code at Section 8- 24-16 (et seq.) it is essential that the Jefferson County Zoning Board of Appeals ("ZBA") uphold the statutory tenets of such.

This is not the first time that the ZBA has violated the Comprehensive Plan (Gavin v. Jefferson County Planning Commission and Jefferson County Board of Zoning Appeals and United States Cellular Company, Action No. 98--P-44 and Corliss et al. v. Jefferson County Zoning Board of Appeals et al. 01-C-139). It was this Court that overruled a previous ruling that the Board made in reference to the Comprehensive Plan being violated.

By violating the Comprehensive Plan, the Ordinance, and State Law, the Board continues to jeopardize the need to protect farming as well as to plan appropriately for water, sewer treatment, traffic patterns, and school services. As a result, the Blue farm is in jeopardy of being lost if the Daniels Forest development goes forward as planned. In addition, the stress on our water supplies, sewer facilities, traffic patterns, and schools goes unchecked with potentially disastrous consequences. The issue of residue is blatantly ignored by the BZA.

Therefore, these matters are before the Court on a Writ of Certiorari pursuant to WV Code § 8--24--1, § 8--24--36, local law, and the Comprehensive Plan. The Petitioners challenge the decisions made by the BZA regarding Daniels Forest.

Standing

Dr. Jan Cary Kletter, one of the petitioners, is a uniquely aggrieved party. Being the surgeon on-call at Jefferson Memorial Hospital, Ranson, WV puts Dr. Kletter in a unique capacity. Dr. Kletter must be able to respond to surgical emergencies promptly and at all hours. With the increased traffic on Job Corps Road and Flowing Springs Road, which is the route that Dr. Kletter must travel, it is in the interest of this appellant that the development of 192 home in Daniels Forest must not be allowed to proceed. Traffic is already busy on Flowing Springs Road and this proposed subdivision and the future Harvest Hills development will only make it worse (Harvest Hills had been approved at the time Daniels Forest was reviewed by the Zoning Administrator and Board. It had not yet been vacated by the Court. Therefore it was part of the context that needed to be considered). The student drivers from Jefferson High School add another layer of uncertainty to the picture since teen drivers have the highest crash risk rate (see Exhibit 4 of Appeal testimony). The requirement is that Dr. Kletter has 30 minutes from the time of notification to arrival at the hospital. It now takes 20 to 25 minutes depending upon conditions. Allowing the 192 homes in Daniels Forest will further destabilize the road safety issue and impede the time that Dr. Kletter must meet in order to get promptly and safely to Jefferson Memorial Hospital.

Clearly the time factor of having to get to the hospital and the increasing traffic will put Dr. Kletter on the edge of having to move closer to the hospital and therefore for the reasons stated above, Dr. Kletter is a uniquely aggrieved party.

The Blue's, owners of a large farm on Flowing Springs Road, will also be uniquely aggrieved in a different but just as significant way (see Exhibit 5 of Appeal testimony). Petitioner Corliss also farms and is a resident of the area immediately near Daniels Forest. Both the Blues and Corliss must use Flowing Springs Road to traverse from their farm to another vicinity with their tractors and other related equipment in the course of conducting their farming operations. Additionally, farm operations are very much affected negatively by nearby major subdivisions. Particularly with respect to trespassers, noise, smells, chemical use, dogs as well as liability considerations. Certainly the proposed Daniels Forest development may become so incompatible with the Blues' farming operations, it may force them out of business.

LESA Scoring

LESA item 6: The score assesed by the Zoning Administrator was "3" and the score noted by the appellants was "12".

The Jefferson County Zoning and Development Review Ordinance 6.4 (e) states that "the purpose of assessing the proximity of schools to new development is to avoid excessive busing of students." Ordinance 7.4 (d) (18) states: " Distance to the appropriate elementary, middle, and high school." Noted from the The Jefferson County Comprehensive Plan, 1994, are:

"...inadequate planning of current schools and scattered residential growth have all combined to produce a crisis in our schools," (III-62).

" School personnel have been forced to conduct classes in inappropriate areas...," (III-65).

" The crowding of new classrooms into existing space...," (III-65).

If Daniels Forest is allowed to be developed as planned, certainly there will be some children who will be going to TA Lowery Elementary School, Charles Town Junior High School, and Jefferson High School. If there is concern already about the above problems and, parents already perceive an overcrowding problem, then there will be some busing of those students to other schools. Busing of students to another school because it was fueled by some of the problems stated above violates Ordinance 6.4 (e).

Information obtained from the Attendance Office of the Jefferson County Board of Education clearly shows that the number of students enrolled for year 2001 exceeds the building capacity for all the schools in this county except for Blue Ridge Elementary and Shepherdstown Elementary schools. There is no longer any Junior High School capacity as the data shows. The Jefferson High School is over the capacity as well as TA Lowery (see Exhibit 6 of Appeal testimony). These schools` can no longer be "appropriate" in terms of distance from the proposed development in Daniels Forest. The distance to the nearest appropriate school (with no overcrowding or the adjusted design capacity being exceeded) would be Shepherdstown Elementary School, 5.3 miles away, and James Rumsey Technical Institute in Hedgesville, 19.3 miles away respectively.

By not taking into account these issues and the significance of what "appropriate" should accomplish, the Zoning Administrator erroneously assigned a "3" when a "12" should have been assigned. It is incomprehensible how one cannot be concerned about the number of students that have exceeded the building capacities of almost every school in this county and not see how approving Daniels Forest will be violating the intent of the Ordinance. The Zoning Administrator's score and the BZA's upholding of such contradicts the very concern that the plain language of the Comprehensive Plan states: "...inadequate planning of current schools and scattered residential growth have all combined to produce a crisis in our schools," (III-62).

The Zoning Administrator has no sound basis to ignore the requirement of 6.4 (e),7.4(d)(18) as well as the need to address the above concerns in the Comprehensive

Plan. We ask the Court to revisit the issue of school capacity and the way appropriate was intended to be interpreted in light of the Comprehensive Plan.

LESA item 7: The score assessed by the Zoning Administrator was "3" and the score noted by the appellants was "11" (see Exhibit 2 of Appeals testimony).

The Jefferson County Zoning and Development Review Ordinance 6.4 (f) states: "PUBLIC WATER AVAILABILITY (11 points) This criterion assesses the availability of existing public water service with available capacity that is approved by the County Health Department and/or Public Health Service District to the site at the time of the development proposal application.

If there is no public water available, a central water system or private well/wells can be used. The value for a proposed central water system is assigned to the development application recognizing that the system with adequate capacity to serve the development will be approved by the Public Service District, County Health Department and the Department of Natural Resources before preliminary plat or site plan approval occurs. If neither a public or central water system is available, the point value for a private well/wells must be assigned."

Noted from the Jefferson County Comprehensive Plan, 1994 are:

"Adequate protection from fire is greatly dependent on the accessibility of adequate water supplies," (III-22).

"...the economic viability of small systems has been reduced due to the new regulations discussed earlier. This mix of approval and regulation could lead to an increase in the number of systems that must be taken over and managed by the county at a loss," (III-24).

"... the County should continue to require such subdividers to adequately demonstrate that the additional lots can be served without a significant adverse effect on the quality and quantity of the water system," (III-25).

"The County should adopt a policy of encouraging the construction and use of central water systems only in areas that are appropriate and designated for more intensive development by the land use plan," (III-26).

Can additional lots be served without adverse effect on the quality and quantity of the water system? What reasonable evidence exists that would show this lack of adverse impact? Common sense dictates that the proposed 192 homes in Daniels Forest will significantly increase the amount of ground water that will be used in that area. Empiric evidence is not very comforting. Where is the support data that is required from the developer to address these reasonable concerns? Meanwhile, a crisis looms as shown prototypically: on September 30, 2001 Mr. Steve Lashley noted in his letter to the Jefferson County Planning Commission that his creek dried up and one of his neighbors had to drill a new well. Water tables are lower because of increased growth in the area and hence, increased demand (See exhibit 7 of Appeal testimony).

From an economic point of view, one has to be concerned about Jefferson Utilities. This is a small company and one has to question its economic viability as that concern was depicted in the Comprehensive Plan, III-24 . There is a reasonable concern regarding the financial stress the Jefferson Utilities is under. We feel this new information is vital (see Exhibit 8 of Appeal testimony) for the Court to know since it shows that adequate planning for water needs as required by the Ordinance can be reasonably assumed to be questionable. This violates Ordinance 6.4(f) for the plain language of the Ordinance is clear.

The statement from the developer that "Each lot will be served with sanitary sewer provided by the Jefferson County Public Service District, and potable water provided by Jefferson Utilities" is not enough to satisfy these reasonable concerns. It is of concern that III-25 of the Comprehensive Plan is not being implemented. Quantity of water is indeed being affected. In addition, one can argue and say that III-26 of the Comprehensive Plan is not being followed since this is a rural district.

There is the concern that groundwater availability has not been adequately addressed. There is no study that shows there is substantial groundwater resources to support growth in the Daniel's Forest area. With the new ninth grade school, the Harvest Hill development, and the Daniel's Forest development a 12 inch main is being proposed. Yet, the same requirement is being asked of regarding the 3200 home Huntfield development in Charles Town. If that is the case, just how many new users are being proposed? These concerns clearly show the lack of adequate planning.

The developer for Daniel's Forest does not have the ability, it appears, to satisfy this recommendation: "When persons propose to subdivide lots within a development and add these new lots to a development's existing central water supplies, the County should continue to require such subdividers to adequately demonstrate that the additional lots can be served without a significant adverse effect on the quality and quantity of the water system (Comprehensive Plan, III--25). This simply has not been done.

There is also the issue of fire protection that needs to be addressed by the developer . "A mininum water supply of 250gpm shall be available for a 2-hour duration for fire protection to be recognized" as noted in Exhibit 9 of the Appeal testimony. The concern is whether such a surge capacity exists as the Comprehensive Plan, III-22 alludes to. One wonders how the Jefferson County Zoning and Development Review Ordinance 1.1 (a) of protecting the "safety and general welfare of the present and future population..." is upheld when these issues of fire protection are not addressed by the developer and the BZA.

Was this area of Jefferson County meant to be developed more intensively and does that go along with the main theme of the Comprehensive Plan? By not taking into account III-22, III-24, III-25, and III-26 of the Comprehensive Plan and by not foreseeing reasonably what 192 homes in Daniels Forest can do to the adequacy and safety of the water system in this area, the Zoning Administrator erroneously assigned a "3" when an "11" should have been assigned. The common thread is that there is inadequate planning regarding water systems. A lack of a study regarding groundwater availability, lack of adequate planning for fire protection, and an inability of the Daniels' Forest developer to show how additional lots in this area effects the water system indicates poor planning, and as as a result the Comprehensive Plan is being ignored.

LESA item 8: The score assessed by the Zoning Administrator was "0" and the score noted by the appellants was "11".

The Jefferson County Zoning and Development Review Ordinance 6.4 (g) states: "PUBLIC SEWER AVAILABILITY (11 points) This criterion assesses the availability of existing public sewer service with the available capacity that is approved by the County Health Department and/or Public Service District to the site at the time of the development proposal application. If there is no public sewer service available, a central sewer system or private sewer disposal system can be used. The value for a proposed central sewer system is assigned to a development application recognizing that the system with adequate capacity to serve the development will be approved by the Public Service District, County Health Department and the Department of Natural Resources before preliminary plat or site plan approval occurs. If neither a public or cental sewer system can be utilized, assign the point value for a private sewer disposal system."

The Jefferson County Comprehensive Plan, 1994 states:

"Central wastewater treatment facilities are located in these towns and generally have the capacity to accomodate some adjacent development," (III-28).

"...future residential and commercial development must not take place at the expense of water quality, wastewater treatment, or solids disposal," (III-28).

"Building central wastewater treatment plants involves large capital expenditures," (III-31).

The letter that the developer shows from the Jefferson County Public Service District (see Exhibit 10 of Appeal testimony) does not indicate that there is any available capacity that has been approved. In fact, the letter states that "...the District will have to determine whether it is necessary to expand its capacity in order to meet the future growth on its system."

This Board said in its findings on Harvest Hills that only the PSC and the PSD could determine the availability of sewer service. They have made no such determination for Daniels Forest. Therefore the Zoning Administrator acted improperly and was inconsistent with the Board's ruling when he made his own determination that public sewer service was available and assigned "0" points.

The PSD has not yet determined whether capacity is available. The PSC has not even been asked.

If the developer places 192 homes in Daniels Forest, large expenditures will be necessary. The capacity to take on more effluent will be reached and the costs to correct such will be very expensive. Besides expanding treatment capacity, a new pipe would have to be built to carry the effluent to the Shenandoah. The environmental impact will be more pollution and then expensive methodologies to keep the pollution within safe and legal limits.

When LESA was calculated by the Zoning Administrator, the Charles Town sewage treatment plan, used by the county PSD, had capacity to treat about 2,000 homes more than it already served. In fact, the Zoning Administrator agreed with that approximate figure at the Harvest Hill hearing. This approximate level of capacity is confirmed by the comment that the "plant could serve an additional 2,200 household units" as of 3/28/00 (quoted in the Jefferson Circuit Court's final Order on the case of F&M Bank et al vs Jefferson County Planning Commission et al., 00-p-53, 1/2/01, paragraph 19, page 9).

Furthermore, Charles Town is currently discharging all the treated effluent into Evitts run and has been put on notice by the EPA that should the expansion of the Charles Town treatment center be warranted beyond 1.2 million GPD to 1.6 million GPD the effluent will need to be pumped and piped directly to the Shenandoah River. The cost of this diversion is estimated between one to two million dollars, in addition to the cost of treatment plant expansion.

The total number of houses proposed in the subdivision on Exhibit 11 is 7,439, the number of houses on sewer line in these subdivisions is 640, and the houses yet to go number 6,799 in just the subdivisions (see exhibit 11 of Appeal testimony). This number of 6,799 far exceeds the 2,000 or so houses. Any reasonable person can see that the capacity to accomodate 192 homes in Daniels Forest will be prohibitive from an economic point of view but that also the standards regarding wastewater treatment, solid disposal, and water quality are jeopardized.

The developer and the BZA has not considered the problems of meeting sewer capacity, feasability of carrying such out, cost, and impact on the environment. Specifically in regard to public wastwater treatment plants, the Comprehensive Plan states "the plan should also be conscious of the growth policies in Jefferson County. This means that public systems should not proliferate in the farming districts," (III-32). It is very clear that in order to meet the demands of the Daniels Forest development on top of Harvest Hills, public systems will have to proliferate which would then be a violation of the Comprehensive Plan and in essence, State Law §8-24-36. Because of these reasons and the direction that the Comprehensive Plan outlines, a score of "11" should have been assigned to Daniels Forest, not "0."

Recently this Court was "troubled by the disparity between the Ordinance's rather absolute phrasing and the way that the Commission appears to interpret it..."(Corliss et al vs Jefferson County Board of Zoning Appeals, Case No. 01-C-139). Yet the Court went on to say it would not enforce the Ordinance until the County Commission amends it in some way. The County Commission adopted the Ordinance in 1988 and amended this section as recently as 1996. It seems to the Petitioners that the County Commission has been quite clear, and the Petitioners are pleased that the Court reads the Ordinance as "rather absolute."

The Court noted in the same decision that it is a very political decision whether growth must wait for facilities. The state intent is very clear in 8-24-1, and yet the county has some discretion. The County Commission is the appropriate body to decide such political decisions. The County Commission has spoken consistently for 14 years: in the Rural District lack of facilities leads to a higher DRS score, which promotes farm use, and thus weights the decision against dense housing. The lack of facilities is not an absolute bar, since points can be added or subtracted in other parts of the formula. Thus the County Commission has crafted a political compromise. The Petitioners cannot understand the Court's request for a clarifying amendment, with no indication of what needs to be clarified. The language of the Ordinance is clear, absolute, does not require interpretation, and needs only to be enforced.

We pray that this Court will consider it's own statement regarding the absoluteness of the Ordinance and that we are not asking for a 100% commitment as to public sewer service and/or "reserve capacity" by the PSD. Instead we feel that it is necessary and practical for the developer to obtain from the PSD a statement that adequate planning has been accomplished to ensure that the public service can at reasonable cost be provided when required.

The Issue of Residue

The issue of residue is of great importance and cannot be ignored by the developer and the BZA. The Jefferson County Zoning and Development Review Ordinance 5.7 (d) (3) states "Only the residue or parent parcel may qualify under this provision once the original subdivision takes place."

Ordinance 5.7 (d) 4. states "Once the maximum number of lots are created under 5.7 (d), the property cannot be further subdivided unless the Ordinance is amended to allow such."

The original subdivision created 3 lots from the Roderick farm, 1992. This land was a lot of record as of 10-15-1988. It was subdivided into 3 lots: lot 1 (102 acres), lot 2 (102 acres), lot 3-the residue- (110 plus acres). The proposed Daniels Forest is on lot 1 and is not the residue (see Exhibit 12 of Appeal testimony), and therefore cannot be subdivided without clearly violating the Ordinance of 5.7 (d) (3) and (4).

The BZA erroneously argues that the "Conditional Use Permit ('CUP') process allows a prospective subdivider to subdivide the property into greater number of lots with a greater density than may be allowed in the rural district pursuant to section 5.7, Zoning Ordinance. The Board concludes that section 5.7 (d) (3 and 4) does not apply in the stage of the proceedings. The developer seeks to subdivide his property into a greater number of lots than may be allowed by section 5.7. The developer may only do this if he complies with the Conditional Use Permit process and obtains the permit. Therefore the board concludes that the limitation setforth is section 5.7 pertaining to the subdivision of a residue or parent parcel are not applicable at this stage of the process.."

The problem is that the BZA is of the opinion that CUP circumvents the entire process. In other words, their thrust is that the Development Review System (DRS) goes beyond the requirements set forth in Ordinance 5.7 (d). Yet, it is clear that the introduction to 5.7 is just that: an introduction. 5.7 (d) (3) clearly depicts when one can use a DRS-if there are more than 3 lots in five years being created from a 1988 lot or residue. Hence the DRS is used only in a very narrow way as set forth clearly in Ordinance 5.7 (d) (3). The introduction does not overturn the narrower view. Ordinance 1.3 (c) clearly states "where a provision of this Ordinance is in conflict with another provision of this Ordinance the stricter regulation shall apply." Therefore the BZA is erroneous in interpreting the Ordinance since the lot being subdivided is not a residue and as a result, DRS cannot be applied. The narrower view supersedes their broad view.

Inadequate and Inaccurate Support Data

Regarding the Z01-03 Support Data (see Exhibit 6 of Appeal testimony) that is presented by the developer, several inaccuracies exist:

#3 Type of development proposed.

The developer states "The project is primarily a single-family residential subdivision, which encompasses approximately 102 acres of land. This land is proposed to be developed into 192 single-family lots with a minimum lot size of 12,000 square feet."

The road noted on the map (see Exhibit 13 of Appeal testimony) leads one to believe that future expansion of the development into lot 2, another nonresidue lot, is planned. Are we getting a true description of the developer's intentions? Ordinance 7.4 (d) (3) clearly states "Type of development proposed." Such a simple request should be answered fully and clearly so that no doubt exists what the full extent of the development should be.

#5 General description of surface conditions.

The developer states "It is primarily wooded with some areas of dense thick brush."

This statement is inaccurate. A large section of this property was at the time in mature corn crop (see Exhibit 14 of Appeal testimony).

#14 Extent of the conversion of farm land to urban lands.

The developer states "This site has not been recently utilized for agricultural purposes; it is heavily wooded and does not represent a conversion of potential farmland to residential use. It is zoned 'Rural'."

Again this is another inaccurate statement. Exhibit 14 clearly shows that the site has been most recently used for growing corn, an agricultural purpose. There certainly is a conversion of actual farmland to residential use. The woods serve an agricultural basis also. The area indeed is zoned "Rural", as the developer noted, for this is a rural area.

The Comprehensive Plan, 1994 states that "Most citizens recognize that if farms in Jefferson County are forced to liquidate and urbanization happens too quickly, we will permanently lose our 'rural way of life.' Most County residents, even those who are not farmers, want to preserve the farming tradition for aesthetic and environmental reasons. Therefore, we need to recognize that the issues related to agricultural land use are not only economic but also cultural" (III-101).

If 192 homes are allowed in Daniels Forest, does one really believe that we are not eroding the rural flavor of the area? Simply, 192 homes on the proposed parcel do not go along with the Comprehensive Plan as depicted above.

#15 Effected wildlife populations.

The developer states "There are no known rare or endangered species of wildlife indigenous to this site. A letter from the DNR is attached as an exhibit. Wildlife populations will not be affected although some nests or dens of individual animals may be displaced."

The Comprehensive Plan, 1994 states:

"Develop policies and procedures for mitigation of habitat damage," (III-93).

To say wildlife populations will not be affected by putting 192 homes in Daniels

Forest is like saying your house won't burn down when it is on fire. One can be assured that deer, turkey, foxes, groundhogs, possums, and various birds use Daniels Forest. A development like Daniels Forest will indeed remove habitat and reduce the number of these animals. There is nothing in the developer's Support Data that shows any senitivity to the Comprehensive Plan regarding the need to mitigate habitat damage.

#19 Traffic characteristic-type and frequency of traffic; adequacy of existing transportation routes.

The developer states "This site will generate the usual residential and related traffic."

The Jefferson County Zoning and Development Review Ordinance 7.4 (d) (19) states "Traffic characteristics-type and frequency of traffic, adequacy of transportation routes." These items do not effect LESA calculations, so the clear purpose is to provide information for the Compatibility Assessment Meeting. Contrary to the Ordinance, the developer has provided inaccurate, incomplete, and misleading information on these three aspects.

"Type of traffic." Flowing Springs Road ("FSR") is a winding, rural two--laned road, which is the primary road closest to the proposed Daniels Forest development. In it "Traffic Counts and Analysis for Daniel's Forest," the Developer's consultant, Facility Design Group ("FDG") states, "Flowing Springs Road is a major route between Charles Town and Shepherdstown...There also is substantial existing, on-going and proposed development along Flowing Springs Road." In addition, Jefferson County High School, the new Jefferson County Middle School, and the MARC train station are all located along FSR, and they are within close proximity of the proposed Daniel's Forest development. All of these factors and activities generate a number of different types of vehicles other than passenger cars such as construction trucks, school buses, and garbage trucks. By their nature, these types of vehicles tend to be larger, slower, and stop more frequently than passenger cars and therefore they tend to have an adverse impact on traffic flow. This is why the Ordinance requires an accounting of type of traffic. Despite the fact that FDG conducted a traffic count at the intersection of FSR and Job Corps Roads ("JCR"), they did not record in their analysis, or present to the Planning Commission, an accounting of the type of traffic they observed.

"Frequency of traffic." FDG used the following methodology to determine the frequency of traffic: (1) At the intersection of FSR and JCR, they conducted a directional count of traffic on 12/19/01, from 2:55PM until 6:30PM. On 12/20/01 they conducted ths same type of count, at the same intersection from 6:00AM until 9:00AM and again from 2:00PM until 3:15PM. (2) After conducting the counts, FDG indentified the peak morning hour for traffic at the intersection to occur between 7:00AM and 8:00AM and the peak afternoon traffic to occur between 4:00PM and 5:00PM. The traffic counts for these two peaks hours were then used as the basis for all subsequent calculations and assessments. The issue with the traffic counts conducted by FDG is the hours in which they started and stopped. The morning count did not start until 6:00AM. The first MARC commuter train arrives at 5:45AM. the MARC parking lot holds approximately 120 passenger cars (depending on how commuters park) and Petitioners have counted an average of 60 cars waiting for that train and observed an average of 5 additional cars coming and going to drop off commuters. In the evening, three MARC trains discharge passengers with the first one not arriving until 6:24PM. The evening train discharges passengers on the North

side of the track which prevents commuters from reaching their cars until after the train departs. This means that the commuters are not able to reach their cars until after 6:30PM after the time the traffic counts were completed. Because of the times and methodology chosen by FDG to conduct its traffic counts, they did not take into account the impart of the MARC train commuter vehicle traffic. As a result, the basis for their presentation of the frequency of traffic to the Planning Commission was flawed.

"Adequacy of existing transportation routes." FDG used the following methodology to analyze the adequacy of existing transportation routes: (1) After following the methodology for determining the peak hour as described above, FDG generated a number called the Critical Lane Volume (CLV). The CLV was defined as "the sum total of vehicles per hour traversing...within an intersection which is used by the maximum number of vehicles..." The CLV is important because FDG used it as their sole means of establishing thee current and projected Levels of Service (LOS) for the intersection of FSR and JCR. For the morning peak hour, FDG calculated a value of 666 for existing conditions and for the evening peak hour they calculated a value of 550 for existing conditions. LOS as defined by FDG is, "An arbitrary but standard index of the relative service provided by a transportation facility." The LOS grades provided by FDG range from "A" to "F." "A" is defined as "Free and unobstructed flow, no delays and all signal phases sufficent in duration to clear all approaching vehicles." "F" is defined as "Forced flow, in urban areas, flow may cease or approach grid-lock." (2) After establishing the CLV values for the morning and evening peak hours, FDG then used a "short--cut technique" for relating the LOS at intersections to traffic volumes..." This "short--cut technique" assigns a LOS grade of "A" to CLV values of less than 1000 and a grade of "F" to CLV vlaues of 1600 or more. The issue is that this short-cut method of determining LOS, as the sole determining factor, is not an accepted industry practice. This is because, in and of itself, it does not accurately reflect how well traffic is actually flowing through an intersection. For example, the Transportation Research Board ("TRB") in "TRB Special Report Number 209" uses Average Total Delay time in terms of vehicles per second. The State Highway Administration for the State of Maryland (where FDG is located) in Appendix 2 to "Maryland State Highway Administration for Guidelines for Traffic Impact Report/Studies" calls for a "Queuing Analysis" which takes into account factors such as the gap between opposing vehicles in the addition to the CLV. The bottom line is that FDG used a methodology, not accepted even in its own State, to present an inaccurate representation of the adequacy of the intersection of FSR and JCR under current conditions. This misrepresentation becomes compounded as FDG attempts to show the impact of traffic of the Daniels Forest development. In their "Traffic Counts and Analysis" they state that Daniels Forest will increase the morning CLV to 851 which using their "short-cut technique" they again grade as LOS "A." Their obvious interest is to misrepresent the impact of the proposed development on existing traffic conditions in violation of the spirit and intent of the Ordinance. (3) The other benchmark used by FDG to quantify traffic conditions was as estimated "Average Daily Traffic" or ADT. They define ADT as "The average number of vehicles passing a specified point on a highway during a 24-hour period." They calculated it by taking the two-way volume for each leg of the intersection of FSR and JCR and multiplying by 10. This gave them an estimated ADT of 5,800 for the North leg of FSR and 5,660 for the South leg of FSR. They then lowered these numbers to 4,490 and 4,580 respectively because of the "impact of the high school rush." Summarily lowering the ADT in this manner was a blatant attempt to mitigate the impact of Jefferson County High School (JCHS) on traffic, and thus the impact of Daniels Forest. In fact, the spirit and intent of the Ordinance would have FDG not only consider the impact of JCHS, but also the new Middle School which is currently under construction. In addition, FDG should have shown the impact on ADT of not only Daniels Forest but also of the "substantial existing, on-going and proposed development along Flowing Springs Road" mentioned in their "Traffic Counts and Analysis."

The Zoning Administrator and the BZA had no discretionary authority to accept from the developer inaccuarte, incomplete, and misleading information in regards to: "type of traffic," "frequency of traffic," and "adequacy of existing transportation routes." The Zoning Administrator and the BZA exceeded their discretionary authority by not conducting a thorough and reasonable technical review of the Community Impact Statement, and all of its Exhibits. Allowing such information to be used, as the basis for important decisions concerning the welfare of the County is not only a violation of the Ordinance, but it significantly undermines the public trust of elected and appointed officials.

Issue of Sign Placement

The issue of sign placement was downplayed by the Board. Ordinance 7.5(b) states "The Property shall be posted conspicuously..." Yet, the sign on Job Corps Road was covered by weed and brush. A concerned citizen, Mr. Steve Lashley, had to cut away that brush. Obviously, the sign had not been placed conspicuously as required by the Ordinance.

Ordinance 10.2(e) states "No sign which implies the need for requirement of stopping or the existence of danger shall be displayed." The sign for the advertisement of the Compatibility Meeting on Flowing Springs Road was not facing traffic. The sign was positioned before a dangerous knoll and one could not safely pull over to read the sign without the risk of being killed.

These laws were not followed but when brought up at the Appeals meeting, the concerns were downplayed by statements to the effect that advertisement was done in the papers, mailings were done, and so forth. Nevertheless the fact remains that two ordinances were violated since the signs were not placed conspicuously (see Exhibit 15 of Appeal testimony) nor was the sign placement on Flowing Springs Road safe. The law is the law and the fact remains that the other maneuvers the BZA pointed out that had been done do not negate the illegality of the situation.

These facts alone violate the ordinances of above. The BZA downplayed the issue of safe and conspicousness placement of signs as required by the Ordinance.

Conclusion

The developer in his Support Data claims that "We believe that this is the kind of location the Comprehensive Plan anticipated would be developed. It is near to water and sewer services. It is relatively close to existing schools. It is near the existing communities of Walnut Grove, Breckenridge and Briar Run."

Nothing is further from the truth as stated above. The heart of the Comprehensive Plan is gutted by allowing 192 homes to be developed in Daniels Forest. The Comprehensive Plan states to "Promote the maintenance of an agricultural base in the County at a level sufficient to insure the continued viability of farming," (I-5). This cannot happen with 192 homes in Daniels Forest. Such a large number of homes will threaten the farms around that development. For example, the Blues' Farm will be placed in jeopardy because I-5 of the Comprehensive Plan is not being followed properly.

The Comprehensive Plan, 1994, is not being followed if 192 homes are placed in Daniels Forest because the following are being violated:

"To preserve the farm industry and tradition to ensure that Jefferson County has enough agricultural land and services to maintain economically viable farm units," (III- 105).

"To encourage a balance between residential growth and the rural economy."

Does placing 192 homes in Daniels Forest, the area being a rural district, preserve the farm industry and tradition for that area? Does 192 homes in the Daniels Forest area encourage a reasonable balance between residential growth and the rural economy? No reasonable person would say yes. In addition to the proposed Harvest Hills development, there is the problem of continuing a dairy farm between these two large-scale developments. Certainly the agricultural existence of the Blue's farm would be in grave jeopardy. One can be absolutely certain that this is not what the Comprehensive Plan has in mind.

Daniels Forest is close to Breckenridge North. There are 3 to 14 acre lots on Breckenridge North. It does not make sense to place 192 homes in Daniels Forest and ruin the effort to avoid high-density growth. Breckenridge North represents a prototype for sensible growth that goes along with the goals of the Comprehensive Plan while the proposed 192 homes on Daniels Forest represent a runaway growth pattern in a rural district.

The petitioners conclude that the Zoning Administrator, the BZA, and the developer have gone beyond the bounds of what is required by law. Though the BZA has discretionary authority to make decisions one way or another regarding a particular development, it does not have the authority legally to go beyond the reasonableness of the law. As noted above, the BZA seems to have no interest in preserving rural areas and controlling growth as required by the Plan. Instead, growth is haphazard, unplanned, and uncontrolled-all indicators that the BZA has made life easy for developers in Jefferson County. In essence, the BZA ignores the requirements set forth in the Ordinance and does not follow the Comprehensive Plan the way it was intended to be.

Requested Relief

The Petitioners ask the Court to reverse the BZA's decisions regarding the LESA scores, the issue of residue, and the Support Data requirements. The Petitioners ask that this Court rule that the Roderick farm has been divided into 3 lots and that lot 3 is the residue. Therefore, lot 1 cannot be further subdivided, for the Development Review System does not apply here.

We ask the Court to instruct the Zoning Administrator and the BZA to review the Ordinance and the Plan. They need to be instructed that the Comprehensive Plan as a whole must be followed as a vital guide in terms of growing this county in a controlled and purposeful manner. We ask that this Court remind the BZA in an earlier decision made by the Court that the BZA is in "violation of West Virginia Code §8-24-36 and the Jefferson County Comprehensive Plan." (Gavin v. Jefferson County Planning Commission and Jefferson County Board of Zoning Appeals, and United States Cellular Company, Action No. 98-P-44).

The petitioners ask for any other relief the Court finds desirable.

Respectfully submitted,

Jan Cary Kletter

Richard Blue

James Blue

John Blue

Paul Michael Blue

Nell Louise Blue

Gregory Corliss