THIS MATTER came on for Court's consideration this 14th day of February, 2002, upon the papers and proceedings formerly read and had herein; upon the Court's Order entered June 29, 2001, after a show cause hearing held July 23, 2001, at which the Court granted certiorari herein and granted motions to intervene by Sue Ellen Myers as a party petitioner and by William and Ginger Henderson ("the Hendersons") and Arcadia Development Company, Incorporated ("Arcadia") as Intervenors; and upon the Court's Order entered July 30, 2001,

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setting a briefing schedule in this matter.

In reaching its decision, the Court has carefully considered the arguments and memoranda of the parties, with attached exhibits and affidavits, the certified record of the proceedings had below, and pertinent legal authorities. In support of its decision, the Court makes the following findings of fact and conclusions of law:

1. This case arises on petition for a writ of certiorari to have the Court review, pursuant to W. Va. Code Section 8‑24‑59 et seq., two decisions of the Jefferson County Board of Zoning Appeals ("BZA"). The decisions were made at an appeal hearing held before that body on April 19, 2001, and were supported by written findings of fact and conclusions of law issued by the BZA and dated May17, 2001.

2. Petitioners challenge the BZA's denial of their appeals of the Jefferson County Planning Zoning Commission's actions, under Jefferson County's Zoning & Development Review Ordinance ("Ordinance"), with respect to a proposed subdivision to be known as Harvest Hills.

3. Upon appeal of a decision of the BZA, this Court must apply the following standard of review:

While on appeal there is a presumption that a board of zoning appeals acted correctly, a reviewing court should reverse the administrative decision where the board has applied an erroneous principle of law, was plainly wrong in its factual findings, or has acted beyond its jurisdiction.

Syl. Pt. 2, Harding v. Board of Zoning Appeals of City of Morgantown, 159 W. Va. 73, 219 S.E.2d 324 (1975) (quoting Syl. Pt. 5 of Wolfe v. Forbes, 159W. Va. 34, 217 S.E,2d:899 (1975)).

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4. The Jefferson County Planning and Zoning Commission, acting as an advisory body to the County Commission and with authority to administer and implement the county's land use ordinances, has broad responsibility and authority, stated as follows:

It is the object of this article to encourage local units of government to improve the present health, safety, convenience and welfare of their citizens and to plan for the future development of their communities to the end that highway systems be carefully planned; that new community centers grow only with adequate highway, utility, health, educational and recreational facilities; that the needs of agriculture, industry and business be recognized in future growth; that residential areas provide healthy surroundings for family life; and that the growth of the community is commensurate with and promotive of the efficient and economical use of public funds.

W. Va. Code Section 8‑24‑1.

5. As an integral part of land use policy and regulation, Jefferson County has adopted a Comprehensive Plan. The Comprehensive Plan contains an overview of the county, projects trends and future problem areas with which county planners will need to contend, and contains statements of policy goals for the county's planners. Authority for the promulgation and enactment of the Comprehensive Plan is directly tied to the grant of zoning power itself, and emanates from the West Virginia Code at Section 8‑24‑16 et seq. (this being "part and parcel" of the broad grant of land use police powers given counties and cities by all of Chapter 8, Article 24, entitled "Planning and Zoning").

6. The term "Comprehensive Plan" is defined as "a complete and comprehensive plan or any of its parts such as a comprehensive plan of land use and zoning, of thoroughfares, of sanitation, of recreation and other related matters, and including such ordinance or ordinances as may be deemed necessary to implement such complete comprehensive plan

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or parts thereof by legislative approval and provision for such rules and regulations as are deemed necessary and their enforcement." W. Va. Code Section 8‑24‑3(b).

7. Based upon this statutory definition of a comprehensive plan, it is evident that Jefferson County's Comprehensive Plan is part of a regulatory scheme that "includes" the land use ordinances. Consequently, the Court interprets the ordinances in pari materia with the Comprehensive Plan and should, to the extent feasible, construe the ordinances to be consistent with the Comprehensive Plan.

8. As the Petitioners point out, the Comprehensive Plan contains many statements bearing upon the role of agricultural land in the county vis a vis land use planning.

9. Citing the rural character of the county, the Comprehensive Plan states, in the Section entitled "Residential Land Use":

YJefferson County must make a commitment to preserve agricultural land if it is to maintain its quality of life. Hence, the County needs to continue to do the following things.

o Channel new development into designated "growth areas" designated by the Zoning Map.".

Jefferson County Comprehensive Plan (1994), at page III‑110.

10. In the Section of the Comprehensive Plan entitled "Agricultural Land Use," the Plan includes the following among its goals:

o To preserve the farm industry and tradition to ensure that Jefferson County has enough agricultural land and services to maintain economically viable farm units.

o To promote the concept of protecting farmers from unreasonable restraints while they are doing their work and managing their land ("right to farm" concept).

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and the following among its recommendations:

o The LESA system of farmland evaluation should be continued and modified so that the most valuable farmland is preserved while allowing some rural land to be developed into low density.

Jefferson County Comprehensive Plan (1994), at page III‑105, III‑106.

11. The Zoning and Development Review Ordinance sets forth the following as its purposes:

(a) Protect and encourage the health, safety and general welfare of the present and future population of Jefferson County.

(b) Help guide the future growth and development of Jefferson County in accordance with the adopted Comprehensive Plan.

(c) Encourage growth and development in areas where sewer, water, schools, and other public facilities are or will soon be available in order to provide services in the most cost effective manner.

(d) Insure that growth and development are both economically and environmentally sound.

(e) Encourage the maintenance of an agricultural base in the County at a level sufficient to insure the continued viability of farming.

(f) Encourage and support commercial, industrial, and agricultural activities while maintaining land use, order and compatibility.

(g) Encourage an improved appearance of Jefferson County with relationship to the use and development of land and structures.

(h) Encourage the conservation of natural resources.

(i) Provide a guide for public action in the orderly and efficient provision of public facilities and services.

(j) Provide a guide for private enterprise in developing and building a strong economic community.

(k) Encourage historic preservation.

Ordinance, Section 1.1.

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12. As proposed, Harvest Hills would consist of approximately 392 single‑family houses and would be developed from property owned by the Hendersons. Harvest Hills is located near the village of Duffields, West Virginia, and is thus in an unincorporated area of the Shepherdstown District of Jefferson County, in the zoning district "Rural/Agricultural." Harvest Hills is located along West Virginia Route 17, known as Flowing Springs Road, and is approximately one‑half mile from Jefferson High School, the county's only public high school

13. Access to the proposed Harvest Hills subdivision is only available via Flowing Springs Road. Flowing Springs Road is classified as a "local service" route within the Highway Classification System (see Comprehensive Plan at III‑3). A railroad line, dating from the early 19th Century, runs along the property's northern border. In addition to the freight trains that traverse the railroad line, daily commuter train service to Washington, D.C. is provided from a stop at Duffields.

14. Prior to being subdivided the first time, the Henderson property consisted of two parcels of land containing approximately 164 and 256 acres respectively. Mr. Henderson farmed the property (and the property is still farmed, at least in part). The record reflects that Mr. Henderson found continued farming operations economically difficult to sustain, and decided to develop his property.

15. In 1988, a portion of the parcel containing 164 acres was subdivided to be developed into single‑family lots. This parcel, which the Court will designate separately as "Harvest Hills Phase One", and consisting of 45.5 acres more or less, is located in the south‑west corner of the Henderson property, near, but not adjacent to, the property's western border, which

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is contiguous to Flowing Springs Road. The subdivision of Harvest Hills Phase One proceeded under the section of the Ordinance that grants certain lot rights to properties in the Rural/Agricultural District as a matter of right. It appears from the record that title to Harvest Hills Phase One, containing in excess of twenty lots, is currently vested in Arcadia, but it has not yet been developed into single‑family houses.

16. Subsequently, the Hendersons and Arcadia (hereafter, the "Developers") decided to seek approval to develop the remainder of the Henderson farm. The earlier subdivision had, however, used up the property's available development rights in the Rural/Agricultural District. With the proposal's size and density, location in the Rural/Agricultural Zoning District, and with the rural district lot rights having already been utilized by developing Harvest Hills Phase One, the Ordinance would require a special procedure to be undertaken so that the Commission could evaluate whether to allow the development to proceed in that location.[1] This process is known as the conditional use permit process.

17. In the terms of zoning law, a "conditional use" is a "use authorized by ordinance but requiring specific approval by a body of the local government. The use is permitted by ordinance when conditions are met." Yokley, Zoning Law and Practice, Vol. 1, Section 2‑6, text at notes 55‑59 (Lexis, 4th ed., 2000 Revision); see generally Anderson, American Law of Zoning Section 14.03. A "conditional use" stands in contrast to a "variance" because it does not involve a departure from the terms of an Ordinance, but rather,

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compliance with it, under conditions stated in the ordinance. Harding v. Board of Zoning Appeals of City of Morgantown, 159 W. Va. 73, 219 S.E.2d 324 (1975) (identifying W. Va. Code Section 8‑24‑55 as source of authority for consideration and issuance of conditional use permits)

18. The Ordinance describes the purpose of the Rural District as follows:

The purpose of this district is to provide a location for low density single family residential development in conjunction with providing continued farming activities. This district is generally not intended to be served with public water or sewer facilities, although in situations where the Development Review System is utilized, it may be. A primary function of the low density residential development permitted within this section is to preserve the rural character of the County and the agricultural community. All lots subdivided in the Rural District are subject to Section 5.7(d) Maximum Number of Lots Allowed. The Development Review System does allow for higher density [if] a Conditional Use Permit is issued.

Ordinance Section 5.7, Rural District, Introductory Paragraph.

19. The Developers made application to the Commission, on December 19,2000, for a conditional use permit with respect to their proposal to develop the remainder of the Henderson property, consisting of 371 acres, more or less, into a subdivision of approximately 392 single‑family houses. (For simplicity's sake, the Court will refer to this second, larger, proposed subdivision merely as "Harvest Hills," because it is the subject of the instant certiorari proceeding.).

20. As part of its application for the Permit, the Developers submitted a package of support data, required by the Ordinance at Section 7.4(d), which the Court has reviewed as part of the record.

21. The Ordinance provides a detailed procedure to be undertaken by the Commission and its

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staff in order to evaluate whether a particular property should receive the conditional use permit. The Ordinance prescribes two types of notice to be given of the pendency of a conditional use permit application: notice by registered mail to adjacent/confronting property owners; and public notice through newspaper advertisement and the posting of a sign on the property for which the change is sought. Ordinance, Section 7.4. The Ordinance describes, as part of the process generally entitled "Development Review System," how the Commission staff will evaluate the subject property using a complex numeric rating system (the "Land Evaluation and Site Assessment," or "LESA,") which consists of two components: the soils assessment (25%) and the amenities assessment (75%). Under the numeric rating system, a score of less than sixty (60) qualifies the property to proceed to the next stage in the Development Review System: the Compatibility Assessment Meeting. A score of sixty (60) or above indicates that the subject property is less suitable for development and more suitable for agriculture, and basically stops the project.[2] The purpose of the Development Review System, as stated in the Ordinance at Section 6.1, is "to assess a particular site's development potential based on criteria which determine the agricultural longevity of the parcel in combination with the presence of and compatibility with public services adjacent and in close proximity to the site."

22. In acting upon the conditional use permit application and pursuant to the Ordinance, the

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Zoning Administrator[3] performed a Land Evaluation and Site Assessment ("LESA") upon the property on February 1,2001. Raco's evaluation resulted in the property receiving a score of 57.47 (19.47 for soils assessment and 38 for amenities assessment). The certified record of the proceedings below includes two worksheets that record Raco's LESA scoring of Harvest Hills. One worksheet, the "Land Evaluation" component (25% of the total LESA score), deals with the type and quality of soils on the subject property and is not challenged in the instant proceeding. The other worksheet, which is challenged in part, is entitled "Site Assessment" (75% of the total score), and contains nine ratings (each derived from the Ordinance at Section 6.4, entitled "Amenities Assessment") which were totaled to produce Raco's score of 38 for this component. The nine ratings assess: size of site; adjacent development; distance to growth corridor; comprehensive plan compatibility; proximity to schools; public water availability; public sewer availability; roadway adequacy; and emergency service availability. Four of these nine ratings are challenged and will be discussed in detail further herein.

23. As the LESA score for Harvest Hills was less than sixty (60), the proposed development was permitted to proceed to the Compatibility Assessment Meeting.

24. On February 28, 2001, the Commission held a Neighborhood Compatibility Meeting for Harvest Hills (the meeting having been duly advertised in a local newspaper, as required by the Ordinance, on February 8 and 15, 2001), at which the Petitioners, among other interested county residents, appeared and spoke as to the compatibility issues raised by the

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placement of the proposed development in the existing neighborhood of Duffields.

Concerns that were raised at this meeting are summarized in the Staff Report: "restoration of the historic train station density; water and sewer availability and service; buffers; traffic problems; sharp curve on Route 17; lighting; soils; fencing of property; preservation of farmland; impact on schools and services; stream and wetland protection; noise buffers; stormwater management; maintenance of subdivision roads; homeowner's association; impact on adjacent farms; voluntary impact fees; surveys of liability of development on adjoining property owner; trespassing on to adjoining properties from proposed subdivision; and incompatib[ility] with surrounding neighborhood."

25. Following the Ordinance, the Staff Report then goes on to divide the issues raised into two groups, and concluded that seventeen of the issues had been resolved and that six remained unresolved. The unresolved issues were scheduled to be heard at a Commission public hearing on May 22, 2001.

26. Petitioners Burke and Stine filed an appeal of the LESA Score (01‑AP‑1) with the BZA on March 2, 2001. Petitioners alleged that the Commission and/or Raco had misapplied the Ordinance in reaching the LESA score for the property of 57.47. Petitioners contend that had the Ordinance been applied correctly with respect to the following four[4] factors: (a) adjacent development; (b) proximity to schools; (c) public water availability; and (d) public sewer availability, the LESA score for the property would have been higher ‑ petitioners contend the score should have been 89.47 ‑‑ which, being over sixty, would have caused the property to be designated less suitable for development (and, conversely,

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more suited for continued agricultural use).

27. Petitioners Myers and Burke filed an appeal (0l‑AP‑2) with the BZA on March 7, 2001, alleging that the Commission had violated the Ordinance, the Comprehensive Plan, and state law by accepting support data from the Developers that was legally insufficient.

28. The BZA held a single public hearing on the two appeals[5] on April 19, 2001. At the hearing, Petitioners Myers, Stine, Corliss, Burke and Saum presented their arguments on both the alleged errors in four challenged areas of the LESA score, and on the allegedly inadequate support data. Intervenors moved to intervene and submitted argument; and Paul Raco appeared and presented the Commission's position. Raco suggested that the BZA dismiss the appeal on the basis that the Petitioners had not demonstrated how they were "aggrieved." A motion to dismiss the LESA appeal died for lack of a second. The BZA then voted, 3 to 2 to deny the appeal on the LESA score and voted 4 to 1 to deny the appeal on the support data.

29. On May 17, 2001, the BZA issued Findings of Fact and Conclusions of Law in support of both of its decisions to deny the Petitioners' two appeals. The BZA's findings and conclusions have been given careful consideration by the Court, and its conclusions are repeated here, for the sake of completeness.

30. Regarding the appeal of the adequacy of the support data, the BZA concluded:

Conclusion 4. The sketch plan of the Harvest Hills project filed December 19, 2000 provides adequate information pursuant to Section 7.4(b).

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Conclusion 5. The support data filed for the Harvest Hills project on December 19, 2000 provides adequate information pursuant to Section 7.4(d).

Conclusion 6. Section 7.4(g) states that the Zoning Administrator shall determine if the sketch plan and support data are adequate. In this case the Board concludes that the Appellants fail to demonstrate that the Zoning Administrator abused his discretion or failed to render his determination regarding the adequacy of the plan and support data in conformity with Section 7.4. The Board rejects the Appellants contention that the support data and sketch plan are wholly inadequate for an informed public discussion regarding this project.

31. Regarding the appeal of the LESA score for Harvest Hills, the Board's conclusions will be repeated below, separately for each of the four contested items.

32. On the appeal of the LESA score for the "Adjacent Development" factor, the BZA concluded:

Conclusion 5. The Board concludes that the assessment of points for Adjacent Development should be calculated by measuring the boundaries of adjacent parcels and then determining the uses of each adjacent parcel The Board rejects the Appellants' contention that the land area or acreage of the adjacent parcels of land should be the proper method of measurement.

Conclusion 6. The Board concludes that the operative language contained in Section 6.4(b) is adjacent development and adjacent land The word adjacent is defined by Websters New World College Dictionary, Fourth Edition. 1999, as that which is adjoining, ie,: something that touches something else at some point or along a line.

Conclusion 7. The Board concludes that Section 6.4(b) does not specify land area or acreage as the proper measurement of adjacent land or adjacent development. The Board would farther note that specific definitions of land area and lot area are contained in the Definition section of the Ordinance.

Conclusion 8. Therefore, the Board concludes that the Zoning

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Administrator's assessment of points of adjacent development is in conformity with Section 6.4(b) and should be affirmed.

33. On the appeal of the LESA score for the "Proximity to Schools" factor, the Board concluded:

Conclusion 9. The Board further concludes that the Zoning Administrator's assessment of points for proximity to schools is in conformity with Section 6.4(e) and should be affirmed.

Conclusion 10. The Board rejects the Appellants' contention that the Board should interpret Section 6.4(e) to include an analysis of the current student capacity at each school before the Board would consider whether or not to use that school to assess a score fur proximity to school The Board would note that this change would require an amendment to the Ordinance; the Board does not have thc power to amend the Ordinance.

34. On the appeal of the LESA score for the "Public Water Availability" factor, the Board concluded:

Conclusion 11. The Board concludes that the Zoning Administrator's assessment of points for public water availability conforms with Section 6.4(f) and should be affirmed. The Zoning Administrator is informed that Jefferson Utilities will provide water service to the project. Subsection (f) requires an assessment of three (3) points where central water is proposed.

35. On the appeal of the LESA score for the "Public Sewer Availability" factor, the Board concluded:

Conclusion 12. The Zoning Administrator's assessment of point for public sewer availability conforms with Section 6.4(g) and should be affirmed. Jefferson County Public Service District provides sewer service to a parcel of land adjacent to the Harvest Hills project. The Public Service District further indicates that they would be required to extend public sewer service to the Harvest Hills project subject to the approval by the Public Service Commission.

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Conclusion 13. The Board rejects the Appellants' contention that the Board should consider the total number of living units proposed across the entire county to analyze the available public sewer capacity. The Public Service District cannot 'reserve' capacity for future developments. Therefore it is unnecessary to consider proposals for construction of housing units and other subdivisions around the county to determine the availability of public sewer capacity.

Conclusion 14. The Public Service Commission and the Public Service District have jurisdiction to determine the availability of public sewer capacity. The Board concludes that the Public Service Commission and Public Service District are the appropriate governmental entities to determine the availability of public sewer capacity.

36. Their appeals before the BZA having been denied, Petitioners commenced this action in circuit court on May 18, 2001 under W. Va. Code Section 8‑24‑59 which provides for review by certiorari procedure of any decision of the BZA. No stay of the underlying proceeding regarding Harvest Hills was applied for.

37. On May 22, 2001, the Commission held a meeting referred to as "Public Hearing on the unresolved issues and action on the Conditional Use Permit for the Harvest Hills Subdivision." After bearing the Developers' proffers as to the unresolved issues from the Compatibility Assessment Meeting, the Commission voted, 8 to 3, to approve the issuance of the Conditional Use Permit.

38. The Court wishes to note that the above‑cited findings of fact and conclusions or law that were issued by the BZA are sufficient, for purposes of this Court's review in the present case, of the particular issues appealed and heard before the BZA which occurred prior to the Commission's May 22, 2001 decision to issue the conditional use permit for Harvest Hills. From the Court's review of the Harding case, however, it appears clear that the

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administrative body charged with the responsibility to evaluate a request for a conditional use permit and make a decision whether to issue that permit ‑‑ and under the Ordinance at Section 6.2, that body is the Commission[6] ‑ should issue written findings in support of its decision to grant or deny a conditional use permit. 219 S.E.2d at 330.

39. Despite the obvious importance of the "compatibility" issues as set forth in the Ordinance, the ordinance does not require the Commission to make any other formal determination of a project's "compatibility" with the surrounding area than reposes in the vote on the conditional use permit itself. Since the Commission voted in this matter, 8 to 3 to approve the conditional use permit, it apparently found the project compatible. Although Petitioners' allegations of error revolve around specific determinations made by the Commission and the Board (support data, LESA scores for adjacent development, schools, water and sewer), the Court understands Petitioners to be attempting to raise the issue of the project's compatibility with the surrounding neighborhood as well as the project's consistency with the Comprehensive Plan. Authorities in jurisdictions other than West Virginia have recognized that in determining whether a conditional use conforms to the comprehensive plan, "the nature of the surrounding area and its compatibility with the proposed use is a factor to be taken into consideration," and indeed, the Ordinance reflects this concern in the compatibility assessment provisions. See generally "Requirement that Zoning Variances or Exceptions be Made in Accordance with Comprehensive Plan," 40 A.L.R.3d 372 (1971, current through June, 2000), at Section 11.

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Discussion: Standing

40. At the outset, it is necessary to resolve a disputed issue regarding the petitioners' standing to challenge the BZA's decisions. In their brief, Intervenors continue to press this claim (although the same argument did not prevail before the BZA), so the Court will address it. There are six Petitioners in total: Corliss, Burke, Stine, Saum, Morgan and Myers. Burke and Stine had appealed the LESA Score for Harvest Hills, while Burke and Myers had appealed on the basis that the Developers submitted inadequate support data for Harvest Hills. The Court notes that at the appeal hearing on April 19, 2001 before the BZA, a motion to dismiss the appeals died for lack of a second. This motion appeared to be predicated upon the issue of Petitioners' standing. Of the six Petitioners, there is uncontroverted evidence in the record[7] that Myers, Stine and Corliss are farmers and residents of the area immediately surrounding Duffields, where Harvest Hills would be located. It appears that Myers, Stine and Corliss (or persons in their employ) of necessity must upon occasion utilize Flowing Springs Road to traverse from one portion of their farm to another with tractors and related implements. (It appears that Petitioner Morgan operates Rippon Lodge Farm, which is in Jefferson County but is further away from the Duffields area than the other Petitioners). (The record contains no suggestion that Petitioners Saum or Burke are engaged in farming.).

41. The Intervenors strenuously argue that petitioners' only interest in the Harvest Hills

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project arises from concerns about residential growth, overcrowded schools, inadequacy of essential public services such as sewer and water service, a lowering water table, and increased and congested traffic, that are the general types of interests of concerned citizens, that are not particularized or concrete in nature, and that are undifferentiated from the interests of other Jefferson County residents. These types of concerns, with reference to Harvest Hills, have indeed been raised by Petitioners and are reflected throughout the record.

42. Petitioners do not make the argument that their standing in this matter could arise from the mere fact that Petitioners chose to appear and remonstrate before the Commission and the Board, but the Court's opinion is that in fairness, the Court should not ignore this consideration, either. CF. Myers v. Circuit Court, 64 W. Va. 444,63 S.E. 201 (1908) (dicta) (reversing circuit court's decision to permit protestant before county court to proceed in certiorari to obtain review of county court's grant of liquor license; decision unreviewable for other reasons) ("And if the matter were of such nature as to be the subject of litigation beyond the county court, such protestant would be such a party to the proceeding and have such interest as would enable him to prosecute a certiorari.").

43. The Court is persuaded by Petitioners' testimony at the Compatibility Assessment Meeting and at the Appeal Hearing, and by Petitioners' reply brief with its attached "Affidavit on Standing of Farmers," that Petitioners Myers, Stine, and Corliss have an interest in this matter that is different from the interests of other citizens at large. Myers, Stine and Corliss are engaged in farming; their farms are close to, if not adjacent to, Harvest Hills; and they or others in their employ must traverse Flowing Springs Road with their farm

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equipment in the course of conducting their finning operations. Myers has alleged that her business consists in raising soybeans, hay, other crops, and warmblood horses, and has testified to her prediction that the presence of the proposed development would be so incompatible with her farming activities that it would drive her out of business.

44. With the possible exception of Petitioner Myers, Petitioners are not "adjacent/confronting property owners"( in the language used by courts of other jurisdictions in considering this issue, "abutters") ‑ from a review of Appendix D (at page 67 of Petitioners' Opening Brief), which lists the record title holders of all parcels adjacent to Harvest Hills (according to Petitioners' research) only Myers could be considered to hold an interest in property adjacent to the Harvest Hills property (based upon her leasehold interest in her father's farm) ‑ but Intervenors do not seriously contend that "abutter" status is a prerequisite[8] to having standing to challenge BZA decisions regarding a proposed development.

45. The Ordinance suggests a rather broad reading of the standing issue. Notice of the pendency of a conditional use permit application is required to be given, not only to adjacent/confronting property owners, but also to the "interested public" by way of a sign posted on the property and an advertisement in the newspaper. With respect to the appeal regarding the alleged inadequacy of the Developer's support data, the Ordinance states:

The Zoning Administrator shall determine if the sketch plan and support data are adequate. Once the Zoning Administrator places

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the advertisement in the paper, any interested party has thirty days to appeal the inadequacies of the sketch plan and/or support data to the Zoning Board of Appeals.

Ordinance at Section 7.4(g). The Ordinance invites an appeal by any "interested party."

46. The Court is also mindful of our Supreme Court of Appeal's statement that: "In West Virginia the slippery doctrine of standing is not usually employed to avoid a frontal confrontation with an issue of legitimate public concern." State ex rel. Erie Fire Ins. Co. v. Madden, 204 W. Va. 606, 515 S.E.2d 351, 364 n.6 (1998) (per curiam) (quoting State ex rel. Alsop v. McCartney, 159 W. Va. 829, 838, 228 S.E.2d 278, 283 (1976)).

47. Intervenors stress that the statute granting this Court review of the BZA's decisions, W. Va. Code Section 8‑24‑59, gives standing only to persons "aggrieved" by a decision or order of the BZA, and Intervenors urge the Court to find that under Barker v. City of Charleston, 134 W. Va. 754,61 S.E.2d 743 (1950), the Petitioners have not shown how they are "aggrieved," i.e., how as a result of the challenged actions of the BZA, they stand to suffer any peculiar damage beyond that which other members of the community may suffer.

48. Petitioners also point to this circuit court's prior decision in Walnut Grove /Security Hills Citizens Assoc. v. Jefferson County Planning and Zoning Commission, Case No. 90‑P‑81 (Order dated January 4, 1993), which dismissed a petition for a writ of certiorari in a land use case on the ground of lack of standing. The Barker and Walnut Grove opinions are distinguishable because here the Court simply finds that the Petitioners have made the requisite factual showing of alleged "distinct" or "peculiar" harm. So long as a credible allegation of a "distinct and peculiar injury" is made, Barker supports a finding of

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standing. In addition, the Court does not believe that the Barker case should be read in isolation. Snyder v. Callaghan, 168 W. Va. 265, 284 S.E.2d 241, 248 (1981) (riparian rights suit by trout stream users challenging state agency's procedures) ("In order to have standing to sue, a party must allege an injury in fact, either economic or otherwise, which is the result of the challenged action and show that the interest he seeks to protect by way of the institution of legal proceedings is arguably within the zone of interests protected by the statute, regulation or constitutional guarantee which is the basis for the lawsuit.").

49. This Court holds that individuals such as petitioners who live in close proximity to the project, who farm, and who demonstrate that their farming activities are at risk of being deleteriously affected or even terminated by conditions expected to be generated or worsened by the project, such as increased traffic, a lowering ground water table, crowding, and the myriad problems that would appear to attend the juxtaposition in close proximity of farms and farmers with more or less suburban‑style residents of single‑family houses (including, as has been suggested, liability exposure, nuisance lawsuits, noise, dust and smell complaints, cut fences, and children enticed to play with horses or other livestock),[9] have standing to challenge the major decisions of the county's local governing bodies approving a conditional use permit that would permit the placement of a large residential development in the immediate vicinity of the Petitioners' farms, which are located in an area that carries the zoning designation Rural/Agricultural.

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50. The Court rules that Petitioners Stine, Myers and Corliss are aggrieved by the decisions of the BZA and thus have standing in this matter.[10] Recognizing the doctrine of dependent standing that has been found applicable in other jurisdictions in zoning matters, the Court finds it unnecessary to evaluate the standing of the other Petitioners. See. e.g., Lindsey Creek Area Civic Assoc. v. City of Columbus,. 249 Ga. 488, 292 S.E.2d 61, 63 n.4 (citing 3 Rathkopf, The Law of Zoning and Planning at Section 43.05); Cohen v. Zoning Bd. of Appeals of Plymouth, 35 Mass. App. Ct. 619, 624 N.E.2d 119, review denied 417 Mass. 1102, 631 N.E.2d 58(1993).

Discussion: Allegedly Inadequate Support Data Provided by Developers

51. The Ordinance provides a detailed listing of categories of information that a developer must submit, as "support data," with the application for a Conditional Use Permit. A certain time‑frame is set forth in the Ordinance during which the developer's application, sketch plan, and support data are required to be held both for "public review" and for "adjacent and confronting property owners to review the application and receive any technical advice they would like to secure before the [Compatibility Assessment] meeting." Ordinance, Section 7.4 (in part).

52. The Ordinance requires support data from the developer on the following twenty‑three categories of information:

(1) Name and address of owner/developer.

(2) Name and address of contact person.

(3) Type of development proposed.

(4) Acreage of original tract and property proposed to be

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developed.

(5) General description of surface conditions (topography).

(6) Soil and drainage characteristics.

(7) General location and description of existing structure.

(8) General location and description of existing easements or rights‑of‑way.

(9) Existing covenants and restrictions on the land.

(10) Intended improvements and proposed building locations including locations of signs.

(11) Intended land uses.

(12) Earth work that would alter topography.

(13) Tentative development schedule.

(14) Extent of the conversion of farm land to urban uses.

(15) Effected [sic] wildlife populations.

(16) Ground water and surface water and sewer lines with 1320 feet.

(17) Distance to fire and emergency services that would serve the site.

(18) Distance to the appropriate elementary, middle, and high school(19) Traffic characteristics ‑‑ type and frequency of traffic; adequacy of existing transportation routes.

(20) Demand for school services created by this development.

(21) Proximity and relationship to historic structure or properties within two hundred (200) feet.

(22) Proximity to recreational facilities.

(23) Relationship of the project to the Comprehensive Plan.

Ordinance at Section 7.4(d), Procedural Requirements for Review.

53. The Court has reviewed the packet of support data that the Developers submitted with the application for a conditional use permit for Harvest Hills. It is 30 pages long. The lengthiest portion of the support data packet (23 pages) consists of material regarding soils (an excerpt from a soils survey of Jefferson County, which accompanies a soils map designating soil types on the Henderson property). The support data packet also includes copies of two letters from the West Virginia Division of Natural Resources (DNR). The letters, apparently a response to a request by the Developers for the DNR to review its

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files for records of rare, threatened or endangered species and wetlands for the Henderson property, state that there is "no record of wetlands within the project area" and further state that the known [rare loggerhead] shrike nest adjacent to the project area "does not appear to be close enough to warrant concern." The remainder of the support data package consists of four typewritten pages containing headings for each of the twenty‑three support data points sought by the Ordinance (quoted above), with narrative material under each of the twenty‑three headings. Petitioners challenge the adequacy of the support data for at least 10 of the 23 headings.[11]

54. Under "Soil and drainage characteristics," [Item 6] the support data narrative divides the soils on the site into four different groupings and identifies both the slope associated with that soil type and the degree of limitation with regard to the installation of septic systems and the location of buildings sites. For one series the limitations are "slight to moderate"; for another, "moderate to severe"; and for the third and fourth soil series identified the limitations are "severe." According to the Court's analysis, and by making reference to the "Land Evaluation" worksheet (not challenged in the instant proceeding), the soil series having only "slight to moderate" limitations with regard to the installation of septic systems and the location of building sites occupies 59.6% of the site's land area; "moderate to severe" occupies 15.8%; and "severe" occupies 24.5%.

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55. Under "Intended improvements and proposed building locations including locations of signs" [Item 10] the support data contains a one‑paragraph description that does not touch upon the location of signs.

56. Under "Effected [sic] wildlife populations" [Item 15] the support data states that "There are no known rare or endangered species of wildlife indigenous to this site."; references the DNR's two letters, and further contains the assertion that "wildlife populations will not be affected although some nests or dens of individual animals may be displaced."

57. Under "Ground water and surface water and sewer lines within 1320 feet" [Item 16] the support data does not touch upon ground water.

58. Under the category "Traffic characteristics‑type and frequency of traffic; adequacy of existing transportation routes" [Item 19] the support data contains a one‑paragraph narrative referencing the site's proximity to the commuter rail stop at Duffields, and the Developers' plan to share in the cost of removal of curves on Flowing Springs Road to the south of the property. The narrative does not address the "type and frequency of traffic" or the "adequacy of existing transportation routes."

59. Under the category "Relationship of the project to the Comprehensive Plan" [Item 23] the support data contains a one‑paragraph narrative referencing the proximity of the site to:

water, sewer, schools, transportation [railroad] and existing community of Shenandoah Junction and states "We believe that this is the kind of location the Comprehensive Plan anticipated would be developed."

60. The record contains a memorandum dated April 19, 2001 from the Zoning Administrator to the BZA regarding support data. The letter states:

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The Appellants have failed to show how they have been aggrieved by alleged inadequacies of the support data. Even if it was inadequate they were not injured by it because they addressed the issues in their appeal

Even so, this has been addressed by this Board in the past. The Ordinance simply lists things to address. It doesn't explain what is acceptable. In this case the developer addressed them to the best of his ability. Unless it contains untrue statements it should be adequate.

61. The Court notes from the record the Zoning Administrator's interest in assuring that the Commission and the BZA apply the rules consistently from time to time and from developer to developer, and this is certainly a valid concern. The desire to apply the law in an even‑handed manner, however, does not stand in the way of correcting, in an individual case and upon proper challenge, the way in which the law is being interpreted and applied.

62. The Court is compelled to a different conclusion from the BZA on several aspects of the support data appeal. The BZA's conclusions on this point rely too heavily upon the Zoning Administrator's determination of adequacy. Since that was itself what was being challenged, it begs the question to state, as the BZA did, that "Appellants fail to demonstrate that the Zoning Administrator abused his discretion" or that the BZA "rejects the Appellants' contention that the support data and sketch plan are wholly inadequate for an informed public discussion regarding this project." The Ordinance, assuredly, gives the initial determination of "adequacy" to the Zoning Administrator. But the standard for the BZA's determination of this issue on appeal is, alter all, adequacy, not to affirm the Zoning Administrator's determination unless an appellant could prove that the support data was "wholly inadequate for an informed public discussion."

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63. The support data packet submitted by the Developers failed to address the following specific items required by the Ordinance: type and frequency of traffic; adequacy of existing transportation routes; locations of signs; and did not contain a discussion of ground water or of the project's effect upon wildlife populations. These omissions, and the abbreviated nature of the support data narrative in general, are inconsistent with the purposes for the requirement of providing support data set forth in the Ordinance, i.e., "public review" in preparation for a dialogue as to "compatibility" and as material upon which the Commission will base, in part, its decision whether to issue the conditional use permit.

64. The record contains the suggestion that Petitioners cannot prove the inadequacy of support data when they in fact appeared at the Compatibility Assessment Meeting armed with their own arguments and data, but the Court does not agree.

65. The responsibility for determining the "adequacy" of the support data submitted rests with the Zoning Administrator in the first instance, but his determination of adequacy is reviewable by the BZA, in this Court, and in the Supreme Court of Appeals. The Court recognizes that it is sometimes difficult to assess the sufficiency of data. The Court suggests that for the future, in implementing the support data sections of the Ordinance, the Commission, in concert with the Zoning Administrator, might consider developing forms containing a number of questions keyed from the 23 points in the Ordinance that will prompt thorough responses, with supporting data, on the required data points.[12]

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66. The record suggests that despite an appeal taken on this very issue, no serious review of the adequacy of the support data was made. The Court has noted the failure of the support data to address certain specific items that are already contained within the Ordinance's 23 data points. (Just to take one example, the category "Effected [sic] wildlife populations" is not limited in scope to an inquiry as to rare, threatened or endangered species, but would appear intended to require a discussion of the effect upon wildlife that is actually to be found on the site. The conversion of a few hundred acres from farming and/or open ground to residences would tend to displace wildlife.) Pointing out these insufficiencies, however, is not meant to suggest that the remainder of the support data was adequate. The support data is required prior to the holding of the Compatibility Assessment Meeting. It is easy to see that the purpose of the requirement of support data is to reveal issues relating to compatibility and to provoke discussion among the developer/landowner, the interested public and the county's land use officials as to matters that would be relevant to compatibility.[13] If the support data is attenuated,

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as it was in this case, it could stifle discussion of important issues and/or unfairly shift the burden of gathering data required for an informed discussion away from the developers and onto other parties. It would also deprive the Commission and its Staff of necessary background information.

67. The Court has determined that the support data submitted for the Harvest Hills subdivision was inadequate, at least as to type and frequency of traffic, adequacy of existing transportation routes, locations of signs, ground water, discussion of the effect of the project upon wildlife populations, and relationship of the project to the Comprehensive Plan; and that the determination of adequacy made by the Commission and the BZA was error. The Court further finds that the support data should have addressed the means by which the Developers planned to deal with the areas of the property having "severe" limitations with respect to the location of building sites. Based upon the record and the issues raised, the Court is unable to rule upon any other specific ways in which the support data was inadequate, although the Court's opinion is that for a project of this size, the intent of the Ordinance's support data provisions is not served by the submission of four pages of narrative containing a mere 103 lines of responsive material (aside from the soils data) in addressing the 23 data points as to which information is sought.

Discussion: Alleged Errors in Determining the LESA Score

Public Sewer Availability

68. Petitioners contend that the Zoning Administrator violated the terms of the Ordinance by granting zero (0) points for Public Sewer Availability. A score of zero is the "best" score in the sense that it is the best rating for development purposes. Petitioners contend that

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the score on public sewer availability should have been the "worst,"[14] or eleven (11) The Ordinance provides three choices of score for this category as follows:

AVAILABILITY POINTS

Existing Public Sewer Service is available or public sewer will be built to the site 0

Central Sewer Service is Proposed 3

Private Sewer Disposal System must be Utilized 11

The thrust of Petitioners' claim here is that the expectancy that public sewer service will be provided for Harvest Hills is unsupported by any contractual commitment and unlikely considering the factual context of Jefferson County's rapid growth and the magnitude of demands for sewer service that are already pending at the plat stage, and that consequently, such an expectancy is unreasonable. In making their argument, Petitioners point to the letter from the Jefferson County Public Service District, dated July 12, 2000, from Calvin Fleming, Jr., General Manager of PSD, which is in the certified record of the proceedings below, which states, in pertinent part: "This letter will serve to confirm that the [PSD] is in the process of evaluating sewage collection service for [Harvest Hills]." The letter explains that the PSD does not reserve capacity fur proposed developments, but will endeavor to provide service in an economical fashion. Petitioners contend that because the PSD's letter "commits to nothing," it could not be the basis for awarding the "highest" score ‑ zero ‑ because the Ordinance states "public sewer will be built to the site" and also because in the opening paragraph on the Public Sewer Availability component of the Site Assessment, the Ordinance states that: "This criterion assesses the

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availability of existing public sewer service with available capacity that is approved by the County Health Department and/or [PSD} to the site at the time of the development proposal application." Petitioners contend that when one compares the tentative nature of the commitment from the PSD in its July 12, 2000 letter with the rather absolute phrasing in the Ordinance (terms such as "will" be built; "existing" service with "available" capacity "at the time" of the "application"), the Commission staff violated the Ordinance by merely assuming that public sewer service will be available for Harvest Hills.

69. Respondent and Intervenors contend that it is unnecessary and impractical for a developer to be expected to obtain firm commitments from the PSD at this early stage in the subdivision approval process. They argue that what Petitioners are really seeking is "reserve capacity," which is unrealistic and far beyond what the Ordinance requires. Respondent points out that if Harvest Hills were to proceed it would be required, under the Subdivision Ordinance, to satisfy the Commission that the developer had obtained "appropriate agreements between the [PSDJ and the developer" See Jefferson County Subdivision Ordinance at Section 8.1(b)(24). Thus, a developer who cannot show that sewer service is certain to be provided will not gain approval at the preliminary plat stage.

70. The Court is troubled by the disparity between the Ordinance's rather absolute phrasing and the way that the Commission appears to interpret it, but nonetheless finds the Respondent's and Intervenors' point on this issue persuasive. Petitioners' reading of the Ordinance appears to expect too much and to be very close to asking the Court to require "reserve capacity" by the PSD. The record suggests that a firm commitment as to public sewer service and/or "reserve capacity" is unrealistic at this early stage in a proposed

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development, and that if the developer were unable to assure the Commission that appropriate sewer service will be provided at the preliminary plat stage, the development would not be permitted to proceed at that time. Given the stark choices in the Ordinance: a score of 11 (private sewage disposal), 3 (centralized sewage disposal) or 0(public sewer "available" or "will be built to the site"), the Court finds no error in the score of zero for Public Sewer Availability. To require more at this early stage of the project would seem to require the Ordinance to be amended to be more explicit. The Court rejects this claim by Petitioners.

Public Water Availability

71. This alleged point of error is similar to the claim regarding public sewage service. Petitioners contend that the Zoning Administrator violated the Ordinance in assessing points for public water availability. Petitioners argue that Harvest Hills should have received a score of eleven (11), not zero (0) (again, zero being the "best" score for development purposes), for the LESA score as to water availability. Petitioners question the adequacy of a letter in the record, date‑stamped as received by the Commission on April 19, 2001 (the date of the hearing on Petitioners' two appeals), and dated November 10, 2000, from Jefferson Utilities. The letter "confirms" that Jefferson Utilities is able to, and will (under an Alternate Main Line Extension Agreement to be consummated between the utility and the Developers) provide "public water service" to Harvest Hills. The BZA found that this "written commitment" was "persuasive" on the issue.

72. Regarding the LESA score for planned water service to a proposed development, the Ordinance states, in language that echoes that regarding sewer service:

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This criterion assesses the availability of existing public water service with 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 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 the 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.

AVAILABILITY POINTS

Existing Public Water is Available or public water will be built to the site 0

Central Water is Proposed 3

Private Well/Wells must be Utilized 11

73. Here the Ordinance expressly states what appears to be implied under the Ordinance's public sewer availability heading: "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 (appropriate authorities] before the preliminary plat or site plan approval occurs." (liven the early stage of this project, the letter from Jefferson Utilities, and this cautionary statement in the Ordinance, the Court finds no error in the LESA score of zero for the category "public water availability" and rejects this claim by Petitioners.

Proximity to Schools

74. Petitioners contend that the Zoning Administrator violated the Ordinance by granting a score of three (3) for the Proximity to Schools factor. The Ordinance provides the

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following choices of score for this category:

DISTANCE POINTS

Site located less than 7 miles from facility 12

Site located less than 6 miles from facility 9

Site located less than 5 miles from facility 7

Site located less than 4 miles from facility 5

Site located less than 3 miles from facility 3

Site located less than 2 miles from facility 0

Development located within the Residential‑Growth Area 0

Ordinance at Section 6.4(e) (in part). In the introductory paragraph, the Ordinance also states that "The purpose of assessing proximity of schools to new development is to avoid excessive busing of students. . . An average of distances for elementary, middle, and high schools shall be computed."

75. The score of 3 given Harvest Hills for Proximity to Schools was based upon the average of distances from Harvest Hills to TA. Lowery Elementary, Shepherdstown Junior High, and Jefferson High School Petitioners do not contend that these three schools are not the schools to which students from Harvest Hills would ordinarily be directed. Rather, Petitioners claim that the intent of the Ordinance is to measure the distance to an "appropriate" school, which, in Petitioners' view is one that could actually take the additional students, i.e., that was not already at or over capacity and that could actually enroll the additional student population generated by this development. At the BZA appeal hearing, Petitioners put on evidence (unchallenged as to its accuracy) to the effect that the listed schools were all at or over their capacities. Petitioners contend that the Ordinance contemplates measuring the distance to schools with existing capacity for students. To buttress their argument, Petitioners point out that in the Ordinance at

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Section 7.4(d)(18), support data is required from the developer that would provide the "distance to the appropriate elementary, middle, and high school." (Emphasis added.)

76. Respondent and Intervenors contend that this is beyond what is required by the Ordinance. On this issue the BZA also found that Petitioners' position, that the Ordinance require an analysis of current school capacity for each school prior to that school being utilized in the Proximity to Schools factor, would require an amendment to the Ordinance.

77. The Court is of the opinion that Petitioners are putting undue weight upon the word "appropriate" in the support data section of the Ordinance. The Court agrees that the Ordinance does not require any evaluation of the appropriateness of the schools listed in terms of capacity, but only requires, with the term "appropriate" being used in Section 7.4(d)(l 8), that the developer identify the schools to which students from the development could be expected to be sent in the ordinary course of things. It is true, as Petitioners point out, that the purpose of the Proximity to Schools factor in the LESA score is expressed "to avoid excessive busing of students"; but the Court reads this purpose as being served by the scoring system itself (i.e., an average distance of six miles or greater from the elementary, middle, and high schools that would serve the development would result in a score of twelve (12), the "worst" score for development purposes). The plain terms of the Ordinance appear to have been satisfied in this respect and to have required nothing further.[15] The Court finds no error in the LESA score of three (3) for proximity

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to schools.

78. The Court has now rejected the three alleged points of error raised by the Petitioners that all relate to the issue of the inadequacy of the County's infrastructure and/or essential public services to serve the proposed Harvest Hills development. The Court‑is prompted to make these additional observations. Numerous statements made in the Code, the Comprehensive Plan, and even in the Zoning and Development Review Ordinance and Subdivision Ordinance indicate that a principal purpose of land use planning is to assure that new developments grow only with adequate essential public facilities in place to serve the expected new populations. This Court stated in an earlier case that "the interplay of the West Virginia Code at Section 8‑24‑1 et seq. with the Subdivision Ordinance suggests that it would be within the Planning Commission's authority, under appropriate circumstances, to. . . reject a proposed development outright." Final Order entered January 2, 2001 in F&M Bank et a!. v. Jefferson County Planning Commission et a!., Jefferson County Civil Action No. OO‑P‑53, page 37.

79. In the instant case, the Petitioners seem determined to find reflected in the Ordinance ways to deal with the realities of lack of currently available infrastructure to match the demands of growth. Petitioners have pointed, not just to the Harvest Hills development, but to other developments that are "in the pipeline" at some point in the approval process, as causes for an impending crisis in the County's provision of essential public services and

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facilities. Petitioners appear to be arguing that if county officials were following the mandate of W. Va. Code Section 8‑24‑1 to the letter, they would have no choice but to reject farther development ‑‑ until, presumably, some future time when adequate plans will have been made to handle the County's growth.[16] The Court does not find the Ordinance's terms so restrictive. However, the Court finds, as could be expected, that the Zoning & Development Review Ordinance is part of a consistent regulatory framework which does provide county officials with the authority, acting on behalf of the county's citizens and in the public interest, to refuse to permit new developments for, among many reasons, lack of adequate infrastructure.

80. Viewed from this perspective, it appears to the Court that the Petitioners' complaints regarding the Commission's continued approval of development after development without adequate existing or planned infrastructure and/or essential public facilities is more in the nature of a political problem than strictly a legal issue as to whether the Ordinance's precise requirements have been met. It is not the Court's role to render opinions that are merely advisory. The Court must adhere tightly to the precise legal challenges that are raised in a given case. The Court agrees with the BZA that for the Ordinance itself to operate with greater force with respect to the adequate public facilities issues, it would need to be amended.

Adjacent Development

81. The last of Petitioners' claims regarding the LESA score challenges the Zoning

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Administrator's assessment of six (6) points for "Adjacent Development." There are three sub‑issues. The first sub‑issue involves Petitioners' claim that the Zoning Administrator made inaccurate boundary measurements. As Petitioners concede that even under their own boundary measurements, the LESA score for Adjacent Development would not change, the Court declines to discuss this sub‑issue. The second sub‑issue challenges the Zoning Administrator's categorization method, and asserts that it violates Section 6.4(b) by failing to calculate two different percentages and then take their average. The third sub‑issue challenges the Zoning Administrator's measurement method, and asserts that it violates Section 6.4(b) by measuring adjacent land by linear boundary instead of by land area

82. The Ordinance provides:

This criterion assesses a combination of the percentage of land in actual agricultural use (including timber or pasture land) and percentage of adjacent land that does not indicate that there is development pressure. Intense development pressure includes more than a 5 lot subdivision and commercial or industrial uses. An average of the two will yield a percentage of land adjacent to the property that is either farmed or not intensely developed.

PERCENTAGE OF LAND POINTS

86‑100 10

76‑85 8

61‑75 6

51‑60 4

41‑50 2

26‑40 1

0‑25 0

Ordinance at Section 6.4(b).

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Second Sub‑issue: Categorization Method

83. Petitioners complain that the Zoning Administrator failed to create two percentages and then average them as required by Section 6.4(b) of the Ordinance.

84. The Court has wrestled with this issue at some length and has found the Ordinance's terms somewhat difficult to interpret.

85. The parties agree that this subsection of the Ordinance creates categories: "actual agricultural use"; "not intensely developed"; and "intense development pressure" and requires the Zoning Administrator to make a study of all land adjacent to the parcel sought to be developed and to sort the adjacent land into the categories.

86. Since this is an issue that has drawn the Court into an exposition of the meaning of this subsection of the Ordinance, it would appear advisable to explain what the Court's conclusions are with respect to the meaning of the subsection's terms. This is necessary because: first, the Petitioners' challenge on this issue is that the Ordinance's plain terms are controlling; and second, the Ordinance is drafted imprecisely in some respects.

87. The Court concludes that when the Ordinance states "percentage of land in actual agricultural use" it means "percentage of adjacent land in actual agricultural use."

88. The Court finds that the Ordinance requires the Zoning Administrator to make a study of all parcels of land adjacent to the proposed development. The Ordinance's plain terms would require that this study be done twice, measuring for different uses of the adjacent land both times, with the resulting percentages averaged to reach the final percentage that will be plugged into the point range set forth in the Ordinance.

89. The Court finds that first, the Ordinance would require the Zoning Administrator to

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determine what percentage of the adjacent parcels are in actual agricultural use (including timber or pasture land). The Court will refer to this category of use as "W." Thus, of 100% of the adjacent land, W% will be in "actual agricultural use" and X% will be not in actual agricultural use. W+X will equal 100.

90. The Court finds that next, the Ordinance would require the Zoning Administrator to make a study of all adjacent parcels a second time.

91. The Court further concludes that when the subsection states "percentage of adjacent land that does not indicate that there is development pressure" it is referring to the converse of adjacent land indicating "intense development pressure."

92. The Court finds that the Ordinance defines adjacent land indicating intense development pressure as land encompassing any of the following: a subdivision of greater than 5 lots and commercial or industrial uses.

93. The Court further concludes that the Ordinance would require the Zoning Administrator to make a second study of all adjacent parcels to determine what percentage of adjacent land indicates intense development pressure. This would yield a percentage, Y% which, when subtracted from 100, would yield the second percentage sought by the Ordinance: percentage of adjacent land not indicating intense development pressure, or Z%. Y+Z will equal 100.

94. The Court further concludes that the Ordinance would require that after the Zoning Administrator has derived the two percentages, the percentage of "adjacent land that does not indicate that there is development pressure" is meant to be averaged with the percentage of "adjacent land in actual agricultural use." The Ordinance would require

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that the resulting average be plugged into the Ordinance's point range to reach the LESA score for adjacent development.

95. The Court has made a study of the record and has attempted to reconstruct the method used by the Zoning Administrator to reach the percentage of 72.4% for the final percentage sought by the Ordinance. (This score, being between 61 and 75, produced a LESA. assessment of 6 for adjacent development.).

96. It appears from the record that in making his determination under this part of the Ordinance, the Zoning Administrator followed a short‑cut or a somewhat more streamlined procedure than that required by the Ordinance's precise terms. He appears to have calculated the percentage of adjacent land indicating intense development pressure, which he determined (measuring by boundary lengths[17]) to be 27.6%, and then subtracting that from 100, reached a percentage of other land (in actual agricultural use or not indicating intense development pressure) of 72.4%. The 72.4% was then plugged that into the Ordinance to reach the assessment of 6.

97. The Petitioners complain that the Zoning Administrator did not find two percentages and then take their average, as required by the Ordinance.[18]

98. The Court finds that the purpose of the Adjacent Development subsection of the

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Ordinance is simply to determine what portion of adjacent land is subject to intense development pressure as opposed to the portion of adjacent land fitting into the other categories (actual agricultural use and/or not indicating intense development pressure). The higher the percentage of adjacent land found to be subject to intense development pressure, the lower the score will be (consistent with the other eight categories of the Amenities Assessment provisions of the Ordinance's Site Assessment segment of the LESA score; i.e., a lower score is the "better" score for development purposes).

99. The Court finds that the final textual sentence in the Ordinance ‑ "An average of the two will yield a percentage of land adjacent to the property that is either farmed or not intensely developed." ‑‑ is inconsistent with the clear purpose of the Ordinance and the Adjacent Development criterion, because taking an average of two overlapping percentages merely depresses the percentage and does not accurately reflect what is sought to be measured, i.e., the percentage of adjacent land (a) in actual agricultural use and/or (b) not indicating intense development pressure.

100. The Court finds that the Zoning Administrator's method of categorizing the adjacent land and finding the percentage to be plugged into the Ordinance, whether it be considered a "shortcut" or not, is consistent with the intent of the Ordinance and implements the Ordinance correctly. The Zoning Administrator's categorization method correctly generates a percentage breakdown, under Section 6.4(b), between adjacent land indicating intense development pressure versus adjacent land either farmed or not intensely developed. This categorization method implements the Ordinance appropriately. The Court will not enforce the Ordinance's provisions requiring an average to be taken in

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Subsection 6.4(b) because the Court perceives the taking of an average to run counter to the purpose of that subsection and indeed all of Section 6.4 of the Ordinance.

Third Sub‑Issue: Method of Measuring "Percentage of Land"

101. The other sub‑issue raised by Petitioners under Section 6.4(b) of the Ordinance has to do with the method of measurement to be utilized by the Zoning Administrator in generating the percentage breakdown between adjacent land indicating intense development pressure versus adjacent land either fanned or not intensely developed.

102. The Ordinance specifies no measurement method.

103. The Zoning Administrator measured the adjacent land by linear boundaries.

104. Petitioners assert that the adjacent land should have been measured by land area, or acreage.

105. As Petitioners point out, the Ordinance repeatedly uses the phrase "percentage of land." Petitioners ask: may the requirement to measure a "percentage of land" be satisfied by measuring just one boundary of that land?

106. Petitioners point out that the Ordinance defines the word "land" to include "water surface and land under water," Section 2.1, suggesting what one would, after all, already expect: that the term "land" refers to a two‑dimensional surface.

107. The record reflects that the Zoning Administrator has followed the linear boundary method of measurement in this context for many years, and that it is also the method he has utilized in evaluating land usage in the context of other conditional use permit requests under the Ordinance.

108. Respondent and Intervenors have treated this issue as one testing the discretion of an

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administrative agency official, charged with the responsibility of administering an ordinance, to choose a reasonable method of implementing the ordinance.

109. In denying the appeal on this issue, the BZA relied upon the term "adjacent" in the Ordinance, and found that "adjacent" was defined as something touching something else along a line. This satisfied the BZA that the linear method of measurement was sufficient. The BZA further found that if the intent of the Ordinance were to require measurement by land area, the Ordinance would have so specified.

110. Petitioners assert that the Zoning Administrator's method of measurement is not the method contemplated by the Ordinance's term ("percentage of land") and that the Zoning Administrator's method of measurement is in conflict with the stated purposes of the Code, the Comprehensive Plan and the Ordinance. Petitioners allege that, had the Zoning Administrator assessed this factor using land area, the resulting percentage of land in actual agricultural use and/or not intensely developed would have been higher than the 72.4% determined by the Zoning Administrator. Petitioners claim that had land area instead of boundary been utilized, Harvest Hills would have received a score of ten (10) (again, the "worst" score for development purposes) under this criterion.

111. Without agreeing with Petitioners' calculations, the Court sees the Petitioners' point.

112. The linear method of measurement appears reasonable at first blush. It permits a determination of the uses being made of the adjacent parcels and it is reflective of the size of the adjacent parcels, at least as to width if not depth. Yet Petitioners strenuously argue that the linear method of measurement favors development and disfavors farmland preservation. Citing many provisions of the Code, the Comprehensive Plan, and the

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Ordinance, Petitioners assert that the preservation of farmland and the protection of farmers engaged in farming from unreasonable restraints are express policy goals of the county's land use laws, and that even if an administrative agency official has discretion to implement ordinances when the precise means of implementation are not specified, and even if such a chosen method is reasonable, the chosen method must also be one that is not inconsistent with the purpose and intent expressed in the Code, Comprehensive Plan and Ordinance.

113. The Court has given this matter careful consideration and is compelled to agree with Petitioners that while the Ordinance fails to specify a method to be used, the land area method of measurement appears, in this context, to be much more consistent with the expressed purposes and intent of the Development Review System, Conditional Use Permit process, the Comprehensive Plan, and the Code. The Court agrees with Petitioners that the boundary method of measurement appears to disfavor farmland preservation and to favor development. The Court believes this is because the boundary method of measurement fails to take account of the depth of the adjacent parcels. The Court sees no reason that a method of measurement should be used which, although it is simpler than measuring by land area, ignores the true size of the adjacent parcels.

114. Respondent argues that "The Petitioners would have the Court adopt general policy statements and legislative purposes in the place of enumerated powers and authorities granted to the Planning and Zoning Commission and the Board of Zoning Appeals." Yet reference is traditionally made to the accompanying policy statements and expressed goals of legislation when the Court is faced with a matter of interpretation that is not resolved

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by reference only to the terms of the legislation itself. This practice suggests itself as well when the Court is called upon to construe the terms of a local regulation such as the Ordinance.

115. "While the interpretation of a statute by the agency charged with its administration should ordinarily be afforded deference, when that interpretation is unduly restrictive and in conflict with the legislative intent, the agency's interpretation is inapplicable." Syl Pt. 5, Hodge v. Ginsberg, 172 W. Va. 17, 303 S.E.2d 245 (1983) (interpreting state‑wide agency rule as opposed to county‑wide ordinance).

116. The Court finds that the Zoning Administrator erred by using the boundary method of measuring adjacent land for purposes of the Ordinance at Section 6.4(b), and that he should have used a method of measurement that takes account of the land area occupied by the adjacent parcels. The measurement of adjacent parcels by land area is required in order to take a true measure of the size of those parcels and to avoid running counter to the purposes of the Ordinance (to encourage maintenance of an agricultural base in the County at a level sufficient to insure the continued viability of farming; support agricultural activities); the purposes of the Development Review System (to determine the agricultural longevity of the parcel); the Comprehensive Plan (to preserve the most valuable agricultural land and the farm industry and tradition); and the West Virginia Code at Section 8‑24‑1 (that the needs of agriculture be recognized in future growth).

117. As an alternative argument, which was made before the BZA,[19] Respondent and

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Intervenors contend that even if the Court were to agree with Petitioners that Section 6.4(d) requires measurement of land by land area, the ruling would not make a difference in the outcome of this matter for the following reason. Harvest Hills' northern border coincides for a long distance with the railroad track. Reasoning that the railroad track is surely an "industrial or commercial" usage of property, Respondent and Intervenors argue that the Zoning Administrator would be entitled to re‑characterize the calculations he had made, which had measured as "adjacent farmland" the parcels lying on the other side of the railroad track from Harvest Hills, and instead treat the railroad track itself as the "adjacent parcel" for its length. Permitting the railroad track to be designated the "adjacent parcel" with a "commercial" use would so alter the "adjacent development" calculation and reduce the LESA score that it would, in Respondent's and Intervenors' view, render Petitioners' contention that the percentage of adjacent land should be measured by land area, not boundary, irrelevant.

118. The record reflects dispute among the parties as to the proper characterization of the railway line as a "parcel," and "easement," "right‑of‑way," etc. The railroad track has been in that location since the early part of the 19th Century. Regardless of the precise legal term used to characterize the railroad company's interest, however, the Court is of the view that the Ordinance intends that land use analysis ignore the railroad track's presence. This view is supported by the fact that the Ordinance, in defining "adjacent/confronting property owners" for purposes of the notice provisions regarding

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conditional use permit applications, instructs that such owners include owners of "properties across any road, right of way or easement". Ordinance, Definitions Section, page 4. The Court rules that the presence of the railroad line on the northern border of the Harvest Hills property should be ignored for purposes of the Zoning Administrator's characterization of the use made of land adjacent to the Harvest Hills property.

119. Based upon the errors that the Court has found in the determination of the adequacy of the support data and in the interpretation of the Ordinance's provision regarding adjacent development, the Court must remand this matter to the Commission for further proceedings. Because the Commission's subsequent decision might have been affected by these errors, the Court must also vacate the May 22,2001 Order of the Commission granting the Conditional Use Permit for Harvest Hills.

It is therefore ADJUDGED and ORDERED that the decisions of the Jefferson County Board of Zoning Appeals in Appeals 01‑AP‑l and 01‑AP‑2 be, and hereby are, VACATED. It is further ADJUDGED and ORDERED that the May 22, 2001 decision of the Jefferson County Planning and Zoning Commission to issue a conditional use permit for Harvest Hills be, and hereby is, VACATED. It is further ADJUDGED and ORDERED that this matter be REMANDED to the Jefferson County Planning and Zoning Commission for further proceedings not inconsistent with this opinion, including the re‑submission, within thirty (30) days (or within such extended time period as the Commission shall direct) of support data for Harvest Hills, and for the holding of a second duly noticed compatibility assessment meeting, all as directed by the Commission.

This is a final Order, from which any party may seek an appeal to the West Virginia

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Supreme Court of Appeals under applicable rules. The Clerk is directed to close this case, retire it from the active docket of this Court, and place it among causes ended.

The Court notes the timely exception of all parties to any and all adverse rulings herein contained.

The Clerk shall enter this order as and for the day and date first above written and shall transmit attested copies thereof to the following pro se parties and counsel of record:

Gregory A. Corliss

Rte. l, Box 9lShenandoah Junction, WV 25442

Janet Stine

Rte. 2, Box 782

Shepherdstown, WV 25443

Paul Burke

P.O. Box 1320

Shepherdstown, WV 25443

Archibald M.S. Morgan III

Rippon Lodge Farm

Rippon, WV 25441

Lillian Potter Saum

23 Winners Circle

Shenandoah Junction,, WV 25442

Michael Cassell, Esq.

P.O.Box 782

Charles Town, WV 25414

Counsel for Respondent

[1].The following alleged point of error that has been raised by Petitioners will not be discussed further: that the property owner, having used up all his development rights with Harvest Hills Phase One, cannot "double‑crop" the remainder of his farm for high density development. As the Court understands the regulatory scheme and the conditional use permit process, such a result is contemplated if the Commission gives its approval.

[2].From the record of this case the Court has the impression that this is generally so, although the Ordinance provides that "A score of more than 60 points may be evaluated by the Board of [Zoning] Appeals before it can be advanced to the Compatibility Assessment Meeting Stage." Section 6.2.

[3].The Zoning Administrator refers to Paul Raco, whose title is actually Executive Director of the Jefferson County Department of Planning, Zoning & Engineering.

[4].Of the nine ratings described in paragraph 22, above.

[5].The two appeals having been consolidated before the BZA, they were consolidated upon appeal to Circuit Court as well.

[6].unless the LESA score were over 60 in which case it appears referral to the BZA is a possibility.

[7].The Court is referring here to the tape recordings of the Compatibility Assessment Meeting and the BZA appeal hearing. Petitioners also submitted, with their Reply Brief, an "Affidavit on Standing of Farmers," which the Court has reviewed and considered though it is technically outside of the record, due to Intervenors' continued challenge based on standing.

[8].lndeed, in Barker v. City of Charleston, relied upon by Intervenors, the Court framed the test for "standing" disjunctively, as either showing an "interest or right" [such as being an abutting landowner] showing that petitioners "have suffered. . . injury, prejudice or inconvenience not suffered by others in the community.. ." 134 W. Va. 754, 61 S.E.2d 743, 745, 747 (1950).

[9].Problems echoed in the Comprehensive Plan: "conflicts [between residents and farmers] include complaints about farmers operating equipment late at night, spreading manure on fields adjoining residences, and obstructing traffic on public roads with farm equipment, while farmers often complain of damage to fences and crops adjoining residential areas." Page III‑103.

[10].Consequently the Court also rejects Intervenors' argument that Petitioners are not the "real parties in interest" under West Virginia Rules of Civil Procedure Rule 17(a).

[11].Respondent argues that Petitioners have improperly inserted new evidence and argument in their appeal to this Court that were not raised or introduced below. The Court is satisfied by Petitioners' response to this contention that Petitioners addressed, either in their comments at the Compatibility Assessment Meeting or in their testimony before and submissions to the BZA, each of the areas challenged by Respondent. The Court declines Respondent's request for oral argument, finding the record sufficient to reach a decision.

[12].Matters that are within the Commission's expertise and that were of intense interest to the persons appearing at the Compatibility Assessment Meeting ‑‑ an example would be drainage ‑‑ would be best left to the Commission in the first instance to determine the appropriate data to seek from the developer in the support data submission. But the Court does not find Petitioners' position, that a developer should be required not just to label the drainage capacity of the various soil types found on the proposed site, but also to discuss existing drainage of the property and how the developer intends to handle drainage as he builds on the site, to be unreasonable.

[13].This is why the Court is not persuaded by the suggestion that since this is only the first stage of a multi‑step process, and since the Developers will have to abide by the Subdivision Ordinance, including submission of a Community Impact Statement, which in some respects overlaps with the information sought in the Zoning and Development Review Ordinance as support data, that it is unnecessary to engage in a comprehensive discussion of all aspects of the proposal subdivision at this early stage in the progress of a proposed subdivision. Issuance of a conditional use permit in a case like this prompts a change in the use made of property that will be permanent in nature. A broad range of factors bear upon compatibility, and that is the reason for the Ordinance's requirements that the developer address the 23 points.

[14].Which is conversely the "best" score for agricultural preservation.

[15].The Court is not insensitive to the dilemma of inadequate school capacity in making this ruling. Petitioners ask a cogent question: why do the county's land use officials continue to approve developments that will inexorably increase the demand for school services without being assured of adequate plans for the expansion of the county's schools to handle the load? The Court is simply of the view that the solution to this difficult question cannot be found in the"Proximity to Schools" subsection of the Ordinance (Section 6.4(e)). But it is true, as Petitioners point out, that the Code cites one of the principal purposes of land use planning, and consequently, the responsibility of the county's planning officials, to see that "new community centers grow only with.. adequate highway, utility, health, educational and recreational facilities..." W. Va. Code Section 8‑24‑1.

[16].The argument reminds the Court of a claim, made in the F&M Bank case, cited above, that in rejecting a Developer's CIS the Commission had surreptitiously enacted a so‑called "adequate public facilities" ordinance.

[17].These boundary length measurements are noted on a large plan which is part of the record, entitled "Concept Plan Showing Harvest Hills," by Appalachian Surveys, Inc., and marked as part of the Commission's Zoning File Z00‑06. At the top of the plan appear the numbers 5950 and 21,539, and the corresponding percentage 27.6, which, when subtracted from 100, yielded the Zoning Administrator's determination of the percentage of land in actual agricultural use: 72.4%.

[18].This point was not specifically addressed in either Respondent's or Intervenors' brief.

[19].Without addressing any of its conclusions to this issue, the BZA stated among its findings of fact: "The Board farther finds that the CSX Railway Co. owns a parcel of land adjacent to the Northern boundary of the Harvest Hills project. The railroad property is a commercial use. Both the Appellant and the Zoning Administrator made their calculations based upon the analysis of the parcels of land on the other side of the Railroad property." Finding #8.