Go to: OVERVIEW (SaveOurCounty) DETAILS (listener) PLANNING SCHOOLS ENVIRONMENT EROSION     Report corrections & broken links to Webmaster Get updates on local issues

IN THE CIRCUIT COURT OF JEFFERSON COUNTY, WEST VIRGINIA Civil Action No. 01-C-139

Gregory A. Corliss, Rt 1, Box 91, Shenandoah Junction, WV 25442
Janet Stine, Rt 2, Box 782, Shepherdstown, WV 25443
Paul Burke, PO Box 1320, Shepherdstown, WV 25443
Archibald MS Morgan III, Ripon Lodge Farm, Rippon, WV 25441
Lillian Potter Saum, 23 Winners Circle, Shenandoah Junction, WV 25442
Petitioners

vs.

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

PETITION FOR A WRIT OF CERTIORARI [as amended]

1. This Petition is brought before the Circuit Court under Sections 8-24-59 through 8-24-64 of the West Virginia Code.

2. The petitioners ask for a Writ of Certiorari on the April 19, 2001 denial of two Appeals by the Jefferson County Zoning Board of Appeals (henceforth "Board") concerning the Harvest Hills Subdivision. The first appeal, AP-01-01, was by Paul Burke, Janet Stine, et al. relating to LESA scoring (Land Evaluation Site Assessment). The second appeal, AP-01-02, was by Suellen Myers and Paul Burke in connection with inadequate support data.

3. The Board in processing these appeals violated state and local law as discussed below:

a. The Jefferson County Zoning and Development Review Ordinance (henceforth "Ordinance") requires a calculation based on adjacent "land," in section 6.4(b). The Ordinance uses the term "land" repeatedly to mean surface area, and defines it to include even water surfaces (section 2.2). Dictionary definitions of land include:

Webster's Collegiate Dictionary (1942) "7. Law. a any ground, soil, or earth whatsoever, regarded as the subject of ownership. b An interest or estate in land; loosely, any tenement or hereditament."

American Heritage College Dictionary (1993) "6. Law. a. A tract that may be owned, together with everything growing or constructed on it. b. A landed estate."

The Board ignored the ordinance requirement that they measure "adjacent land" and considered only the linear boundaries of the development property itself.

b. The Board counted parcel 1 on Tax Map 24B, Shepherdstown District, as non-agricultural and subdivided, when there was un-rebutted sworn testimony that it was still in actual agricultural use, and the Tax Office stated that a subdivision plat had not been filed.

c. The Board did a single calculation of "agricultural use" and "not ... development pressure", instead of calculating each separately and averaging the result, as required by Ordinance section 6.4(b).

d. The Board evaluated the property as having adequate public sewer capacity. There was no approved existing capacity "to the site at the time of the development proposal application" as required in Ordinance section 6.4(g). The letter in the file from the Public Service District specifically addressing the Harvest Hill Subdivision carefully commits to nothing.

e. The Board assessed the property as having a central water proposal that could be "approved by the Public Service District, County Health Department and the Department of Natural Resources before preliminary plat or site plan approval occurs" as worded in Ordinance section 6.4(f). There was no documentation available to support this determination. Additionally, it should be noted that the water service for Harvest Hills will be from ground water resources vice surface Shenandoah River water. This water provided by Jefferson Utilities from Bardane and Shenandoah Junction will be utilized by Harvest Hills Subdivision and three schools and others and then put into the Charles Town sewer system for processing and will eventually flow into the Shenandoah River. This loss of ground water to the local water table, at the approximate rate of 100 million gallons a year, represents five percent of the water that otherwise would flow into the water table from annual rainfall. The lowering water table in the County is already a problem for well water residents and farmer users and will be even further negatively impacted by more developments depending on ground water service.

f. The Board utilized the distance to closest schools that currently have no space available for students. The Ordinance in 7.4(d)18 requires "Distance to the appropriate elementary, middle and high school." The Vice President of the Board of Education testified there was no room in two of the schools designated, and that the only high school with available space is in Hedgesville, which is 19 miles away.

g. In response to Ordinance Section 7.4(d)5, the Board accepted an inaccurate description of surface conditions on the land, stating that the stream edges are well defined and stable, in the face of photographs and un-rebutted sworn testimony that this description was inaccurate and that parts of the land are marshes, and that there is a spring not mentioned in the developer's submission.

h. In response to Ordinance Section 7.4(d)6, the Board accepted a description of soil and drainage characteristics in the developer's Community Impact Statement (CIS) that documents "severe limitations" on building, without defining "severe," Additionally, the discussion fails to address how the problems of "severe" will be resolved, and provides a sketch plat that shows houses & roads seamlessly laid over "intermittent drainage ways" and soils with "severe limitations".

i. The Board accepted support data without locations for signs, i.e. signs for the subdivision entrances, church, school, train station, and roads. Two sections of the Ordinance at Section 7.4(d)10 and Section 10.4(e) specifically require the locations of signs at this stage of processing.

j. The Board accepted support data that indicated not a single animal or plant will be affected by development of 392 homes, a school, church, train station, parking lot and roads, on 371 acres, including streams and wetlands. This is ludicrous. A major purpose of the support data is to inform citizens so they can comment intelligently at the Compatibility Assessment Meeting. One needs expertise to anticipate effects on wildlife, which the Ordinance at Section 7.4(d)15 requires the developer to provide. The Board and developer restricted public comment by not providing this and other information.

k. The Board accepted developer support data with no information on groundwater, a requirement of Ordinance Section 7.4(d)16. Providing such information would be crucial, since the 392 homes will be served by ground water wells instead of surface river water, and numerous existing wells will be negatively affected.

l. In response to Ordinance Section 7.4(d)19, the Board accepted traffic data which did not cover all traffic-generators, i.e. three schools and a Subdivision Church. Further, the developers chose not to evaluate the dangers of travel on adjacent Route 17, that they think exist.

m. In response to Ordinance Section 7.4(d)21, the Board accepted history data which did not describe "proximity and relationship" to historic land, historic markers and the oldest railroad line in the country.

n. In response to Ordinance Section 7.4(d)23, the Board accepted an evaluation of compatibility with the Comprehensive Plan that ignored specific language in the Plan directing the County to consider the below factors:

"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."

"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."

"farmland and farming are being threatened by accelerated growth"

"measures which minimize the conversion of farmland to urban uses"

"Unregulated growth is one of the major problems for local farmers, particularly strips and islands of residential development in remote areas of the County"

"The LESA development system should be revised to encourage the development of less dense lots in the rural zone as opposed to all high density development"

"Maintaining and improving Jefferson County's education system is one of the most important and urgent challenges we will face during the implementation of a comprehensive plan."

"funding... regulations... planning... and scattered residential growth have all combined to produce a crisis in our schools."

"emotional issue because it concerns the future of our children and grandchildren."

"School personnel have been forced to conduct classes in inappropriate areas"

"every school in the county lacks the space to accommodate all of the required classes or services."

"Hallways become unable to handle the increased traffic"

"Jefferson County currently has limited options for raising money for public schools. Bond issues are the main option."

"Educational facilities should be designed and constructed to meet state standards and provide adequate space for educators, staff, and support personnel."

"The impact of new developments upon educational services should continue to be assessed when residential land use is being planned, and, where appropriate, revised to assist the Board of Education in future planning for facilities."

p. The Ordinance prohibits additional subdivision under Conditional Use Permits or any other method, since the property was previously subdivided to the maximum extent allowed under section 5.7(d)2. Ordinance Section 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."

4. All the petitioners are aggrieved because from one end of our small county to another, we are all affected by what happens. This subdivision at the heart of the county will cause traffic problems, overloaded schools or higher taxes for school bonds, new demands for emergency services, loss of ground water and wildlife resources, and negative impacts on farming. The fact that we have county-wide zoning reflects the County Commission's recognition that all residents are affected by all changes throughout the county. All the petitioners live in the same Rural Agricultural zone as the Harvest Hills Subdivision. The Ordinance recognizes the right of "all other interested property owners" to participate in the "Compatibility Assessment Meeting", which is directly tied to these Appeals. Petitioner Corliss leases a farm on Flowing Springs Rd, and Petitioner Stine owns a farm on the same road, and the subdivision would increase difficulty in moving farm equipment and hay.

5. State law section 8-24-63 says the Board must return "papers as may be called for in the writ." The petitioners ask that the writ call for the maps and photographs that we presented in the hearing before the Board on April 19, 2001, so that the court can see the evidence presented.

6. The petitioners respectfully request the Court to issue a Writ of Certiorari. As a consequence of the writ, we ask the Court to review the Board decisions, reverse them, and instruct the Board to re-score the Harvest Hills LESA evaluation as 89.47, as described in the attached documents, so that the subdivision is not eligible for a Conditional Use Permit. It is further requested that the Jefferson County Planning and Zoning Commission be directed to re-evaluate the utilization of LESA as an appropriate zoning tool requiring modification or to eliminate the utilization of LESA, with a return in Jefferson County to basic zoning.

Attachments are not amended and were attached to the original petition

Respectfully submitted,