Go to: OVERVIEW (SaveOurCounty) DETAILS (listener) PLANNING SCHOOLS ENVIRONMENT EROSION Report corrections & broken links to Webmaster Get updates on local issues
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--P--___
Jefferson County Zoning Board
of Appeals, 110 E. Washington St, PO Box 250, Charles Town, WV 25414
Respondent
PETITION FOR A WRIT OF
CERTIORARI
1. This Petition is brought
before the Circuit court under sections 8-24--59 through 8--24-64 of the West Virginia Code.
2. The petitioners ask for a Writ of Certiorari on the November 15,
2001 denial of the Appeal by the Jefferson County Zoning Board of Appeals
(henceforth “Board”) concerning the Daniels Forest Subdivision. This appeal was
by Charles Blackwell, Jan Kletter, Richard Blue, et al.
Attached to this petition, as
evidence is the document that was presented on the Daniels Forest Appeal
11-15-2001 at the Board.
3. The Board in processing
this appeal violated State laws §8--24--1, §8--24--36, local law, and have not implemented the intent of the Jefferson
County Comprehensive Plan (henceforth “Plan”) as discussed below. Not
implementing the intent of the Plan is an error that the Board continues to
perpetuate for it was this Court that overruled a previous ruling that was
“...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 key phrase here is the reference to
Jefferson County being in violation of the Comprehensive Plan.
a. The law is very clear as stated from the Jefferson County
Zoning and Development Review Ordinance (henceforth “Ordinance”) 5.7(d)(3)
states: “Not in addition to subsections 5.7(d)1 and 5.(d)2 above, any property
that was a lot of record as of October 5, 1988 may create 3 total lots
(including the residue) during any five year period. Applications which exceed
this number during any five-year period shall be processed utilizing the Development
Review System. Subdivisions involving transfers of land between parent and
child shall not be subject to this section. All lots that qualify under this
section must meet subdivision requirements. Only the residue parent parcel may
qualify under this provision once the original subdivision takes place.”
And 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.”
As we understand it, the
Board’s argument is that the Development Review System (DRS) applies and thus
somehow the ordinance regarding the issue of non- residue magically becomes
null and void. The Board tries to get around the problem by saying it is okay
for DRS to kick in regarding lot 1. We disagree. The prevailing provision states otherwise since it is only the
residue, not the non-residue that may qualify for DRS utilization once the
original subdivision has occurred.
The facts are indisputable. 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). Now the proposed Daniels Forest is on
lot 1 and is not the residue. This is indisputably shown as Exhibit 12.
Therefore, lot 1, a non-residue lot, cannot be subdivided any further. DRS
cannot apply. Yet the board ignores these simple yet crystal clear facts.
Subdividing lot 1 clearly violates Ordinance 5.7(d)(3) and (4).
b. Ordinance 7.4(d)(18)
states “Distance to the appropriate elementary, middle, and high school.” Yet
the Ordinance is being violated when “appropriate” is not being taken into
account in its entirety from a definitional point of view. Evidence
overwhelmingly shows the number of students enrolled for the year 2001 exceeds
the building capacity for all the schools in Jefferson County except for Blue
Ridge Elementary and Shepherdstown Elementary schools. How can the crowded schools
be “appropriate” just in terms of distance? The law did not say distance was
the only factor that determined appropriateness.
The Plan states
“...inadequate planning of current schools and scattered residential growth
have all combined to produce a crisis in our schools,” (page III--62). “Many of the schools were not designed to
easily accommodate new construction or to adapt to changing needs for
nonclassroom space.” (page III--67). “Encourage growth and development in areas
where sewer, water, schools, and other public facilities are available or can
be provided without excessive cost to the community,” (pages I--5).
How then can the Plan, and
hence the State law, be followed by allowing 192 homes to be put into Daniels
Forest and not take into account the grave impact that it will have upon the
school system. Common sense dictates that developments like Daniels Forest will
indeed be costly to the community.
The Board’s acceptance of the
low score assigned by the Zoning Administrator is based upon the erroneous
principal of law and simply being wrong in its factual findings.
c. The Board erroneously
accepted the low scores the Zoning Administrator assigned to the items of
public water availability. Ordinance section 6.4(f) has not been followed since
the Board has no documentation available to support the statement that
Jefferson Utilities can adequately serve the needs that would be required.
Additionally, there is a concern that Jefferson Utilities may not be
financially solvent (see Exhibit 8-information received from Public Service
Commission).
The Board did not see the
important issue of fire protection. Ordinance 1.(a) states that protecting the
“safety and general welfare of the present and future population...” is a vital
objective. Exhibit 9 indicates the type of surge capacity that is required. The
issue of fire protection is discussed in the Plan (page III--22). One wonders
how Ordinance 1.1(a) can be upheld lawfully without addressing this issue.
d. The Board erroneously
accepted the 0 score the Zoning Administrator assigned to public sewer
availability when in fact Ordinance 6.4(g) is being violated. The Public
Service District has not yet determined if the capacity is available at Daniels
Forest or has the Public Service District even been asked. Yet the Ordinance
says “...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.
e. The Board ignored
Ordinance 7.4(d)(3), which clearly states “Type of development proposed.” This
very short but simple law is being violated since the full extent of the
development regarding Daniels Forest is not clear. Exhibit 13 shows the road on
the map. One is led to believe there will be future expansion of the
development into lot 2, another non-residue lot.
f. The Board ignored the
simple misstatement that the site being proposed for development is not for
agricultural purposes. Yet Exhibit 14 shows the property in mature corn crop at
the time the picture was taken.
“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.” (III--101)
If the Daniels Forest goes
forward as planned, the Blue’s farm will be negatively impaired and that a
farming family of 3 generations will be threatened. Is that what III--101 of
the Plan calls for-the strong possibility that there may be loss of valuable
farmland and a way of life?
“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)
Again, does the development
of 192 homes at Daniel’s Forest preserve the farm industry and a tradition?
Between the proposed development of Harvest Hills and Daniels Forest, the Blue farm
will be squeezed out of existence. The Blue farm is the prototypical farm whose
existence is under threat with these types of developments. Is the goal of
III--105 to jeopardize the Blue farm-a prototype of what should be preserved by
the Plan?
g. The Ordinance 7.4(d)(19)
states “Traffic characteristics-type and frequency of traffic, adequacy of
transportation routes.” With 192 homes going into the proposed Daniels Forest
and the proposed homes going into the Harvest Hills development that bring the
number up to approximately 400 new homes. When one takes into account the fact
that the plat on the Daniels Forest development indicates that there is a
planned phase II and perhaps phase III,
it is not unreasonable to assume another 400 or so homes may be built. Common
sense would dictate that the traffic would easily double on Flowing Springs
Road. The Board ignores these concerns and as a result ignores the Plan which
states “maintain efficient traffic flow throughout the County,” (page III--1).
The Plan states “Of all the problems to be addressed in a Comprehensive Plan,
transportation is one of the most urgent,” (III--1).
Taking this one step further,
the doubling of traffic on the two--laned state road will possibly lead to an
increase in the incidence of serious accidents. Flowing Springs Road has
certain peculiarities that may make it more accident--prone. Some of these
features include the well known dangerous knolls and the fact that high school
students frequent Flowing Springs Road at least 180 days out of the year.
Exhibit 4 shows that teen drivers have the highest crash risk of any age.
Therefore it is difficult to see how the Board can justify their decision to
allow 192 homes to be developed on Daniels Forest which is on top of the
Harvest Hills development. This does not make sense for the Plan states:
“...while insuring overall public health, safety, and general welfare,” (page
I-5). The safety and general welfare are not being insured--common sense says
so.
h. 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 place conspicuously (see Exhibit 15) nor was
the sign placement on Flowing Springs Road safe. The law is the law and the
fact remains that the other maneuvers the Board pointed out that had been done
do not negate the illegality of the situation.
4. The petitioners
respectfully request the Court to issue a Writ of Certiorari. As a consequence
of the writ, we ask the Court to review the Board’s decisions, reverse them,
and instruct the Board to carefully study the Plan and Ordinance so as to
understand intent so that proper implementation of such will occur henceforth.
We ask that the Court order the Board to uphold State Laws §8--24--1 and §8--24--36, the Ordinance, and to follow the Plan.
We also ask the Court to
order that the 30-day time limit on the Court appeals process relative to Board
action should start after the findings of fact and conclusion of law are issued
by the board, in line with the court’s ruling on appeals from the planning
commission in case 00-P-53, F&M Bank v. Planning Commission.
Respectfully submitted,
Jan Cary Kletter
Richard Blue
James Blue
John Blue
Paul Michael Blue
Nell Louise Blue
Gregory Corliss