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PRESENTATION ON DANIELS FOREST APPEAL

11-15-2001

Introduction

Charles Blackwell et al (see Exhibit 1) are appealing the findings of the Zoning Administrator for we disagree with the LESA scoring by such regarding proximity to schools, public water availability, and public sewer availability. The issue of subdividing a lot that is not a residue will be discussed. We also take issue with the developer’s Support Data for it is inadequate and inaccurate. Finally, the issue of sign placement and the ability to see it within a reasonable standard are discussed.

It is very clear what the Jefferson County Zoning and Development Review Ordinances 1.1 and 1.3 spell out (see Exhibit 2): that growth and development in Jefferson County be in accordance with the adopted Jefferson County Comprehensive Plan, 1994. It is also clear that the State’s objective is conformity of structure to the comprehensive plan and the Ordinance be followed as noted in State Law §8-24-1 and §8-24-36 (see Exhibit 3).

We ask that the Jefferson County Zoning Board of Appeals carefully study our concerns, remedy the errors of the Zoning Administrator, follow the 1994 Jefferson County Comprehensive Plan, and uphold the intent of State Law § 8-24-1 and §8-24-36 as well as the Jefferson County Zoning and Development Review Ordinance. We also ask that a hasty decision not be made but that these complex issues and concerns be carefully studied before issuing a final decision.

Standing

Dr. Jan Cary Kletter, one of the appellants, 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. 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). 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. If this development proceeds as planned, we hope that it is not you lying on the operating table waiting for this surgeon.

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).

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. This does not take into account the new development approved at Harvest Hills where more than 27 homes may go in. If there is concern already about the above problems and, parents already percieve 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 secretary at the Attendance Office of the Jefferson 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). 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 “appropriate,” 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 as well as the Comprehensive Plan. The Zoning Administrator has no sound basis to ignore the requirement of 7.4(d)(18) as well as the requirement to support 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).

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 propsoed 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. 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).

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 (see Exhibit 8).

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. Qunatity 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 also the issue of fire protection that needs to be addressed by the developer and the Zoning Administrator. “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. 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 Zoning Administrator.

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.

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) 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 is 7,439, the number of houses on sewer line is 640, and the houses yet to go number 6,799 (see exhibit 11). 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 Zoning Administrator 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.”

The Issue of Residue

The issue of residue is of great importance and cannot be ignored by the developer and Zoning Administrator. 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 cares), 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), and therefore cannot be subdivided without clearly violating the Ordinance of 5.7 (d) (3) and (4).

Inadequate and Inaccurate Support Data

Regarding the Z01-03 Support Data (see Exhibit 6) 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) leads one to believe that future expansion of the development into lot 2, another nonresidue lot, is a possibility. Are we getting a true description of the developer’s intentions? The Jefferson County Zoning and Development Review 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 is presently in mature corn crop (see Exhibit 14).

#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.”

The developer has inadequate data. If 192 homes are placed in Daniels Forest, no mention is made regarding the effect it would have on the characteristics of traffic patterns or how it will effect the adequacy of the transportation routes. Instead, a sterile formula is used to spit out some numbers that do not translate out so that a reasonable person could make sense of such.

The Comprehensive Plan, 1994 states that traffic problems will emerge with certain types of development such as “...obstructing traffic on public roads with farm equipment.”

It is reasonable to assume that the development of 192 homes on Daniels Forest will increase the traffic on the two laned Flowing Springs Road. Certainly this will not “maintain efficent traffic flow throughout the County,” (III-1) as noted in the Comprehensive Plan. This does not take into account the effect that Harvest Hills will have since it is approved: the doubling of traffic on Flowing Springs Road. One has to be concerned about the possible increase in serious accidents on Flowing Springs Road, which has certain peculiarities that may make it more accident-prone. These peculiarities include the fact that Flowing Springs Road is a two-laned state read with potentially dangerous knolls and high school students that use that road at least 180 days out of the year.

Issue of Sign Placement

The Jefferson County Zoning and Development Review Ordinance, 7.5 (b) states that “The Property shall be posted conspicuously...”

The Jefferson County Zoning and Development Review Ordinance, 10.2 (e) states that “No sign which implies the need or 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 facing the road and not facing traffic. The sign was positioned before a dangerous knoll. In fact, one could not read the sign present on Flowing Springs Road for the traffic flows quickly, nor could one safely pull over and stop to read that sign.

A similar situation existed for the sign on Job Corps Road (see Exhibit 15). The problem was compounded by the fact that weed and brush were covering this sign. A concerned citizen, Mr. Steve Lashley, had to cut away that brush. For that concerned citizen to have to cut away the brush because the sign was inappropriately placed conflicts with the requirement for conspicuousness.

These facts alone violate the ordinances of above.

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 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.

We ask this appeal board to reverse the Zoning Administrator’s erroneous scoring regarding LESA. We ask that the Comprehensive Plan be followed correctly in the context of State Law §8-24-1 and §8-24-36 and that the Jefferson County Zoning and Development Review Ordinances be upheld.