Duf sup reply

I. INTRODUCTION

Arcadia proposes 392 houses in the agricultural heartland of Jefferson County. The necessary infrastructure support is beyond the current and planned capacity of schools, sewage treatment and water supplies.^[1] This type of growth harms the operation of farms and hinders the County’s ability to provide for other more supportable growth. The County followed West Virginia law to zone this land rural/agricultural. Under that zoning the County has already approved a 27-home clustered development, compatible with continued farming, on the same land for the same developer. This is a case about the rules of local Zoning versus a large national developer who wants a 392-home development covering the entire farm.

Arcadia’s proposal would destroy agricultural land forever, land which is highly valued in the Comprehensive Plan and protected by the Zoning Ordinance.

Many people believe that when new houses like these are built, property taxes on the houses pay for the government services the residents need. However in any county, property taxes on businesses actually pay a large share of the local cost of public schools and other government services. Therefore taxes on houses do not pay the full local cost of schools and other services the residents need. A large increase in houses, with no increase in business, exacerbates the problem. Revenues fall short in such “bedroom communities.” Schools and other services decline, or tax rates rise, so it becomes even harder to attract business.

The proposed housing would almost double the traffic on Flowing Springs Road (Route 17), the county’s main north-south connection from Charles Town and Ranson to Shepherdstown and Shepherd College, a two-lane road with dangerous 90-degree turns.^[2]

The proposal is on the site of Civil War fighting, next to the second oldest train station in the United States, on the land of a Revolutionary War leader, and near the oldest tombstone in West Virginia.^[3]

Finally, the question should be raised as to who is most benefitting from residential development in Jefferson County. In this instance the State is again being “raped” by out of state business interests. Large developers buy cheap land and build houses and laugh all the way to the bank.

I. a. Legal Issues

This case is about four basic issues raised by Arcadia and the Board of Zoning Appeals (BZA).^[4]

i. Whether the Circuit Court erred as a matter of law when it ruled that percentages of “land” used for farming or other purposes in Zoning Ordinance §6.4(b), should be measured by surface area, rather than boundary lengths?

a. It did not err. “Land” in normal parlance means the surface of a parcel. Furthermore Ordinance §2.1 defines land in terms of surface, so land should be measured by surface area. (This addresses Arcadia assignment of error C)

b. It did not err, for a second reason. The Circuit Court properly used the County’s Comprehensive Plan for guidance, since the Plan and its enforcing ordinances together govern land use in a county, pursuant to Supreme Court precedents; Ordinance §1.1(b) and §1.3(a); and W. Va. Code article 8-24, §§1, 3(b), 18, 30(2), and 36. (BZA assignments 1, 2. Arcadia assignment A)

ii. Whether the Circuit Court erred as a matter of law in ruling that the developer did not address certain topics^[5] required by Ordinance §7.4(d)?

a. It did not err. Ordinance §7.4(a) requires submission of 23 items as listed in §7.4(d), and states this information “will enable the project to be evaluated.”^[6] The developer did not provide this information. (Arcadia assignment D)

iii. Whether the Circuit Court erred as a matter of law and fact in ruling that people are “aggrieved” when their businesses will be severely hurt by a subdivision, much more so than any other business in the county?

a. It did not err. The record shows the harm to Corliss, Morgan et al., and precedents show that people in this situation have a right to judicial review. (Arcadia assignments E, F)

iv. Whether the Circuit Court erred as a matter of law and did not give a presumption of correctness to the BZA?

a. It did not err. In fact the Circuit Court noted very carefully what the BZA gave as its reasons,^[7] and found that the BZA decisions did not legally comply with the Ordinance.^[8] (BZA assignment 3. Arcadia assignment B)

I. b. Chronology (Footnotes show any errors in Arcadia and BZA summaries)

Date Filed		Pages in Record*
3/22/00^[9]	First Phase of Arcadia’s development: 27 homes on a 45-acre portion of the original 417 acres^[10]	23y-23z, 4gg, 15qq, 15ppp, 38 maps filed 6/2/03
12/19/00	Arcadia applied for conditional use permit (CUP) with “support data” for 392 more homes	4dd, 4gg-4jj, 38
2/1/01	Zoning Administrator, Paul Raco, scored project at 57.47 (on scale of 0-100, where 100 is ideal farm land), and accepted support data for processing	4e, 38
3/2/01	Burke, Stine, Corliss, Saum, Myers, and 52 others appealed score to BZA^[11]	4e-4n
3/7/01	Myers and Burke appealed support data to BZA	4z-4cc
4/19/01	BZA held 2 hearings and denied both appeals:^[12] Findings on scoring Findings on support data Motion to dismiss (based on citizens not being aggrieved) failed for lack of a second.	17h-17m 17n-17o 17k, 17s
5/17/01	Corliss, Morgan, Stine, Burke, Saum appealed BZA decisions to Circuit Court.^[13] Myers moved to intervene on their side (5/18/01).	4-4jj, 9-9c, 5-5e
5/22/01	Planning and Zoning Commission held hearing and granted CUP. (Ordinance allowed continued processing at developer’s risk, while case is in court.)^[14]	38
6/29/01	Circuit Court agreed to review the two BZA decisions, and added Myers, Hendersons and Arcadia Building Company as Intervenors	12, 12a
9/10/01	Brief of Corliss, Morgan, et al	15-15ppp
10/29/01	Brief of Arcadia	28-28y
11/2/01	Brief of BZA	17-17s^[15]
11/30/01	Reply Brief of Corliss, Morgan, et al.	23-23dd, 24-24g
2/14/02	Circuit Court issued order (a) agreeing with Corliss, Morgan, et al. on Adjacent Land and support data, (b) agreeing with Arcadia on Schools, Water, Sewer, and (c) vacating the CUP because it was based on the preceding flawed steps	26-26vv
2/26/02 3/6/02	Corliss, Morgan et al. requested reconsideration, asking Circuit Court to direct its instructions to BZA, not Planning Commission.	29-29b, 35, 35a, 35yy
3/25/02	Circuit Court denied reconsideration	37-37c

*Ultimate citation is often an unnumbered page in item 38 of the Record, a brown envelope. Where possible citations refer to copies that were attached to filings below, so they were individually paginated by the Circuit Clerk and much easier to find in the Record than the loose sheets in envelope 38.

II. AUTHORITIES RELIED UPON AND APPELLEES’ ARGUMENT

II. a. Standard of Review

As Arcadia quotes from Public Citizen:

In reviewing challenges to the findings and conclusions of the circuit court made after a bench trial, a two-pronged deferential standard of review is applied. The final order and the ultimate disposition are reviewed under an abuse of discretion standard, and the circuit court’s underlying factual findings are reviewed under a clearly erroneous standard. Questions of law are subject to a de novo review.^[16]

The last sentence is clarified in Martin:

We review de novo the conclusions of law and application of law to the facts.^[17]

Most of this case is about the application of law to the facts. Garretson says similarly:

Interpreting a statute presents a purely legal question subject to our de novo review on which neither party bears the burden of proof.^[18]

Hodge addresses agency interpretations:

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.^[19]

Wolfe and Harding are specific cases on reviewing a BZA:

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.^[20]

II. b. Adjacent Land

a. Ordinance Wording

a. It did not err. “Land” in normal parlance means the surface of a parcel. Furthermore Ordinance §2.1 defines land in terms of surface, so land should be measured by surface area.

(Arcadia assignment C)

The Ordinance includes the following rule as part of a scoring system for conditional use permits^[21] (emphasis added):

§6.4(b) ADJACENT DEVELOPMENT (10 points) 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.^[22]

Percent of land Points

86-100 10

76-85 8

61-75 6

51-60 4

41-50 2

26-40 1

0-25 0

The Ordinance defines “land” in terms of surface area, in case one had any doubt:

§2.1 ...The word “land” shall include water surface and land under water.

For conditional use permits in Jefferson County, points are given by §6.4(b) and added to points from other parts of §6.3 and §6.4^[23] to reach a total score of 0 to 100, where 100 is ideal for farming – good soil, large parcels, surrounded by other farms, far from towns, schools and other services, etc.

Using the scoring system in §6.4(b), Corliss, Morgan, et al. and the Circuit Court found that 91-98% of the adjacent land area was “farmed or not developed.”^[24] Those values are in the top range of §6.4(b) above, 86-100%, so the Ordinance assigns 10 points.

On the other hand, Arcadia and the BZA measured only the length of common boundary between the proposed subdivision and each piece of adjacent land.^[25] Arcadia’s previous subdivision on this land is adjacent to the new proposal. It has only 4% of the adjacent land^[26], but it was created with a long boundary, 21% of the total boundary.^[27] Therefore the percent of this boundary “farmed or not intensely developed” is below 76%,^[28] and earns 6 points.

Arcadia’s approach does not measure land; it measures boundary. When Arcadia buys and sells land, or when the county regulates land use, they buy, sell, or regulate areas, not just a segment of a boundary. When the Ordinance refers to a “percentage of land” its plain meaning, and also its definition in the Ordinance, is “surface,” which is measured by area. It is the BZA, not the Circuit Court, which tried to re-write §6.4(b) and §2.1 to ignore land surface.^[29]

The BZA speculates about a nonexistent 1,000-acre parcel which could dominate the calculations on some other hypothetical development.^[30] The Record shows no evidence that Jefferson County has any parcels even approaching 1,000 acres.^[31] The largest adjacent parcel in this case is 191 acres,^[32] which is 17% of the adjacent land. Arcadia is not being dominated by one hypothetical parcel, but is in the center of a whole farming community. Furthermore the whole score for adjacent development is still only 10 points out of the total of 100 points.

The BZA says “All parties agree that the only process available to the Hendersons to develop their land is the Development Review System and the LESA Evaluation [the objective scoring system described above]”^[33] In fact all parties agree that the Hendersons have already developed their land to the maximum allowed by Ordinance §5.7(d)2.^[34] They did this subdivision in 2000.^[35] There is no real evidence in the record about any financial difficulties of Mr. Henderson.^[36] Even if there were, it is not the public’s job to solve his financial problems. Rather it is the public’s job to apply the Ordinance to ensure the rule of law for all landowners and residents. Hypotheses, unsupported in the Record, about property values^[37] are not the legal basis for decision.

The Circuit Court found that Ordinance §2.1 and §6.4(b) mean land surface, not boundary, and found that the BZA did not apply the Ordinance, because the BZA measured boundaries, not surface.^[38] The correct measurement, using surface area, raises the score by four points, from 6 to 10, so the total score rises from 57.47^[39] to 61.47. Since this is above 60, the project is not eligible for a conditional use permit.^[40]

b. Role of Comprehensive Plan

(BZA assignments 1, 2. Arcadia assignment A)

Several sections of W. Va. Code establish the role of the Comprehensive Plan (emphasis added).

§8-24-3(b) defines the plan to include the implementing ordinances:

“Comprehensive plan” shall mean a complete comprehensive plan or any of its parts... and including such ordinance or ordinances as may be deemed necessary to implement such complete comprehensive plan or parts thereof...

§8-24-18 says ordinances enforce plans:

...hold a public hearing on the plan and the proposed ordinance for its enforcement...

§8-24-30 says subdivision approvals must be consistent with the plan:

§8‑24‑30 In determining whether an application for approval shall be granted, the commission shall determine if the plat provides for...

(2) Coordination with and extension of facilities included in the comprehensive plan;

§8-24-36 says “A structure shall not be located” except in conformance with the Plan:

§8‑24‑36 After a comprehensive plan and an ordinance containing provisions for subdivision control and the approval of plats and replats have been adopted and a certified copy of the ordinance has been filed with the clerk of the county court as aforesaid... A structure shall not be located and an improvement location permit shall not be issued for a structure on unincorporated lands within the jurisdiction of the county planning commission unless the structure and its location conform to the county’s comprehensive plan and ordinance.^[41]

In 1980 the Singer decision said the plan laid the groundwork for zoning. That decision also distinguished between subdivision and zoning regulations:

...the comprehensive plan is to be used by the Planning Commission to aid them in drawing up their subdivision ordinances. The comprehensive plan was never intended to replace definite, specific guidelines; instead, it was to lay the groundwork for the future enactment of zoning laws. Where the lower court’s two-step inquiry into the validity of a rejection of a subdivision proposal seems to suggest that the comprehensive plan has any effect as a legal instrument, we respectfully disagree...

The purpose of zoning is to provide an overall comprehensive plan for land use, while subdivision regulations govern the planning of new streets, standards for plotting new neighborhoods, and the protection of the community from financial loss due to poor development...

Certainly, there is a distinction between regulating the manner in which a subdivision can be constructed and regulating where land can be devoted to subdivision use. The former is the province of a planning commission, while the latter is exclusively the province of a zoning commission.^[42]

In 1993 McFillan said this distinction was obliterated (emphasis added):

The subdivision control provisions are part of a larger statutory scheme dealing with planning, zoning, and development of a comprehensive plan. See W. Va. Code, 8‑24‑1, et seq...

It is clear from the comprehensive nature of the provisions in W. Va. Code, 8‑24‑1, et seq., that the historic distinction we have made between zoning and planning has been largely obliterated because both concepts are now incorporated into a comprehensive plan. W. Va. Code, 8‑24‑39 (1988), gives broad zoning authority power over a variety of different subjects. Moreover, a comprehensive subdivision plan under W. Va. Code, 8‑24‑28, may contain both zoning and building restrictions through its use of the term “comprehensive plan.”^[43]

In 1996 Garretson noted a general need to consider the goals of legislation:

A statute is interpreted on the plain meaning of its provision in the statutory context, informed when necessary by the policy that the statute was designed to serve.^[44] See State ex rel. McGraw v. Scott Runyan Pontiac‑Buick, Inc., supra^[45] (the court should look not only to the particular statutory language, but to the design of the statute as a whole and to its object and policy). [other citations omitted]^[46]

The Zoning Ordinance in the case at bar specifically instructs the County to follow the Plan:

§1.1 Purpose

The purpose of this Ordinance is to...

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

§1.3 Application and Interpretation

(a) The terms of this Ordinance shall be applied to promote the intent in Section 1.1 and the Comprehensive Plan.

The Zoning Ordinance also identifies which particular goals apply in the rural district where Arcadia’s proposal is:

§5.7 Rural District

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 5.7d Maximum Number of Lots Allowed. The Development Review System does allow for higher density [if] a Conditional Use Permit is issued. [emphasis added]

Even on the technical issue of measuring land by surface area, goals of the Ordinance and Plan in preserving farmland are important because, as the Circuit Court said,

...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.^[47]

Arcadia and the BZA are in high dudgeon that the Circuit Court considered the goals of the Plan and did not mention Singer’s view of the “limited purpose of the comprehensive plan.”^[48] Neither Arcadia nor the BZA themselves mentioned Singer in the Circuit Court, even though the opening brief which Corliss, Morgan, et al. filed in Circuit Court was full of quotations from the Plan.^[49]

The Circuit Court was correct in using the Plan to bolster its interpretations of the Zoning Ordinance. McFillan notes the very close ties between ordinances and the comprehensive plan. Garretson expresses the general principal of trying to do what the legislature intended. While that was a state law, it is probably even more important to look at the intent behind county ordinances, which are drafted with very limited resources and may be vague (though not in this case).

Arcadia cites an 1875 case, which says not to use a preamble to contradict the main body of a law.^[50] Aside from the fact that even that case says, “The preamble may be consulted in some cases to ascertain the intentions of the Legislature,” the preamble being disparaged was a background statement, not a goal statement. It mentioned people willing to pay to move the state capital to Wheeling. The Supreme Court said this background information was not crucial in interpreting the law.

The Circuit Court’s written opinion in the Corliss, Morgan, et al. case highlights the Plan and Ordinance goals of protecting agriculture. These are appropriate goals to emphasize in this case, since Arcadia wants to build a high density subdivision in an area zoned “Rural/Agricultural.”^[51] Ordinance §5.7, quoted above, shows the goals of the Rural/Agricultural District are farming, low density and rural character. Other goals are met in other districts. That is the point of zoning: a place for everything and everything in its place.

Besides these goals, the proposed subdivision also would undermine many other goals in Ordinance §1.1:^[52] (d) “Economically and environmentally sound,” (f) “order and compatibility,” (g) “improved appearance,” (h) “conservation of natural resources,” (i) “efficient provision of public facilities,” and (k) “historic preservation.” School^[53] and sewer^[54] capacity for such a large subdivision can only be produced at great expense; water production can only harm other users of wells; wildlife will be destroyed; and tourists interested in Civil War and railroad history will stay away.

Moving beyond the question of goals and recent precedents like McFillan and Garretson, two aspects distinguish the Corliss, Morgan, et al. case from Singer. First, the ordinance being considered in Singer was self-contained. It laid down regulations, and there was never any allegation that the ordinance itself instructed the County to follow the Plan or seek guidance there.^[55] However the Zoning Ordinance in the case at bar explicitly instructs the county to follow the Plan. Even if state law did not require consistency with the Plan, the local Ordinance does. Arcadia and the County have not alleged that §§ 1.1(b) and 1.3(a) are unlawful. They ignore them.

Second, Singer applied to a subdivision ordinance. The county had no Zoning Ordinance at the time. The Supreme Court said the Plan would “lay the groundwork for the future enactment of zoning laws.”^[56] The Plan did lay that foundation. The county now has a Zoning Ordinance, built on the Plan, and it is only reasonable to interpret the Ordinance consistently with the Plan that is its foundation.^[57]

The BZA says that Jefferson County’s current Comprehensive Plan, adopted in 1994, is not “legislative history”^[58] of a 1988 Ordinance. This is true. The Plan is a living interpretive guide. The 1994 Plan, based on earlier plans dating back to 1972, is the current plan, adopted by the County Commission as the most recent enactment of the community’s goals. When they enacted it in 1994, the Ordinance already said that growth and development should be “in accordance with the adopted Comprehensive Plan” and “the terms of the Ordinance shall be applied to promote ... the Comprehensive Plan.”^[59] The Commission is presumed to know its previous acts. It must be presumed the Commission wanted this revised Plan to be the guiding document for interpreting the Ordinance. The Plan does not replace any specific words in the Ordinance. It gives clarification when any specific words need clarification.

In summary the specific words of the Ordinance itself are perfectly clear about measuring adjacent land in terms of area. The Plan and the goals of the Ordinance reinforce this specific wording of the Ordinance.^[60]

II. c. Information Required from Developers

ii. Whether the Circuit Court erred as a matter of law in ruling that the developer did not address certain topics^[61] required by Ordinance §7.4(d)?

a. It did not err. Ordinance §7.4(a) requires submission of 23 items as listed in §7.4(d), and states this information “will enable the project to be evaluated.”^[62] The developer did not provide this information.

(Arcadia assignment D)

The Zoning Ordinance requires 23 categories of information, listed in §7.4(d) under the heading “Support Data.”^[63] Under a previous heading, “Filing the Application,” §7.4(a), the Ordinance says:

Fifteen (15) copies of a sketch plan detailing the project shall be submitted with an application and fifteen (15) copies of the support data, that will enable the project to be evaluated by the Development Review System ... and provides time for the adjacent and confronting property owners to review the application... [emphasis added]

Thus the Support Data are required as part of the application. Some of the 23 items have subcategories, like “type and frequency of traffic; adequacy of existing transportation routes.”^[64] On traffic, Arcadia’s application said,

This site will generate the usual residential traffic. It is anticipated that many of the home buyers, at least the ones who are commuters, may take advantage of the proximity to the rail stop and commute to their jobs by train. The developer has been talking to the West Virginia State Highway Department for several months about removal of the curves to the south of the property. The developer expects to share in the cost of this work.^[65]

This may be useful additional information, but it ignores the three required elements: type of traffic,^[66] frequency of traffic, and adequacy of routes. Another example is the requirement to describe “Ground water and surface water and sewer lines within 1320 feet.”^[67] Arcadia’s application said,

Elk Branch borders the northern property boundary. This stream is well defined with, stable, vegetated banks. There are no sewer lines within 1320 feet.^[68]

As the Circuit Court noted, Arcadia’s application does not address ground water.^[69] In the topic of surface water it omits the swamps and spring house with pond, along Elk Branch.^[70] Similar gaps occur throughout the application, and some of the other gaps were noted by the Circuit Court.^[71]

Arcadia’s brief says they do not know how much information is required.^[72] The ordinance should be complied with, and the developer should provide everything required in the list of 23 items. It would also be appropriate to read the Plan and address the concerns there that relate to these 23 topics. Arcadia states they want to provide information later.^[73] However the Ordinance requires this information at this initial stage. It is not up to the applicant to exempt itself from these simple Ordinance requirements. Furthermore this is the only stage of the development process conducted under the Zoning Ordinance. This is the only application before a conditional use permit is approved or disapproved, and this is the information the county desires in order to make that decision. The decision-making process includes a public meeting, where the public raises issues and concerns about the project,^[74] and a hearing where the Planning Commission considers the project.^[75] The 23 items are very important for both the public and the Planning Commissioners to be informed on and consider at the meeting and the hearing. Providing the information later, under the Subdivision Ordinance, would be too late to affect the issuance of a conditional use permit.

The BZA brief ignored the issue of support data.

The Circuit Court’s decision in Corliss, Morgan, et al., concerning application information, is consistent with a recent decision by another judge in the same circuit, MacElwee et al., v. Jefferson County Board of Zoning Appeals, Jefferson Circuit Court 02-C-40 (4/15/03). That decision involved different citizen-petitioners, different developers, and a different judge, who reached the same conclusion: an application that fails to cover the topics in the Zoning Ordinance is incomplete.

II. d. Aggrieved Parties

a. It did not err. The record shows the harm to Corliss, Morgan, et al., and precedents show that people in this situation have a right to judicial review.

(Arcadia assignments E, F)

W. Va. Code says:

§8‑24‑59 ...Any person or persons jointly or severally aggrieved by any decision or order of the board of zoning appeals may present to the circuit court of the county in which the premises affected are located a petition duly verified, setting forth that such decision or order is illegal in whole or in part, and specifying the grounds of the alleged illegality...

The Zoning Ordinance describes who can participate in the underlying process leading up to a conditional use permit:

§7.6 Compatibility Assessment Meeting

(a) The Compatibility Assessment Meeting allows the adjacent and confronting property owners and all other interested parties the opportunity to hear the developer’s presentation and proposal. In his presentation he will address the compatibility of his project to the existing areas adjacent to the site. Following the developers presentation, those who are in attendance may ask questions. Any discussion shall be limited to the proposal’s compatibility as presented rather than whether the site should be developed by any other use. At the end of the discussion, the staff shall summarize the positions presented by those in attendance to determine if his account of the issues are accurate. [emphasis added]

Arcadia raised the issue of whether Corliss, Morgan, et al. are aggrieved parties.^[76] The BZA brief ignored the issue of aggrieved parties, and in fact the BZA recognized the parties’ standing. A motion to deny standing at the BZA died for lack of a second.^[77]

The Ordinance’s broad picture of who has the right to raise issues about an application, “all other interested parties,” suggests that anyone, certainly anyone who participated in the compatibility meeting,^[78] has standing. However the following paragraphs show how the parties are very personally aggrieved by this proposal.

The farm that Appellee Myers rents from her father^[79] is adjacent to the proposed subdivision for 2,693 feet.^[80] She testified that she raises young horses there.^[81] Children from a large subdivision would reasonably be expected, from time to time, to try to enter the field where the young horses are. Children in a large field with young horses would result in a constant risk of injuries to children and horses, and an inability to continue raising young horses, or probably any horses, there. Reasonable observers would recognize that she would need to change her business if this subdivision is approved. She is uniquely situated, as the only neighbor who has been identified as raising young horses on land adjacent to the subdivision.

While Myers has a long term lease on this land, rather than owning it, the Supreme Court does not discriminate against renters, as it said in Snyder:

one who is in possession and control of land as a tenant has an estate or property interest in the land and may enjoy, assert and protect all the rights incidental to the ownership of the land, including riparian rights, not reserved by the landlord.^[82]

Snyder, which was cited by Arcadia below,^[83] is a particularly apposite case. It concerned standing for mandamus, which is another extraordinary remedy like certiorari. The plaintiffs were (a) two tenants half a mile downstream from a construction project, and (b) a watershed association with 1,500 members, about 900 of them living “in the area of” the construction project, and an unknown number of them living on the stream affected. They had standing. The standard was, as Arcadia indicated below,

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.^[84]

The fact that everyone downstream (similarly situated) had standing to sue did not bother the Court. In fact the Court welcomed the participation of the watershed association, since it was easier to deal with one case than many separate cases from individuals, each of whom would have standing (p. 252). The Snyder case involved residents whose land abutted the stream affected, but abutting was not mentioned as a requirement for standing in the Snyder rule, as just quoted.

Snyder uses the term “injury in fact.” In Snyder, the Supreme Court accepted that merely lack of a hearing was an injury. The Virginia and West Virginia Digest ‑ Words and Phrases vol. 23 cites a 1995 case in the Southern District of West Virginia,

To have standing, intervenor must suffer ‘injury in fact,’ i.e., sufficiently concrete interest in outcome of suit to make it a case or controversy subject to federal court’s Article III jurisdiction. (State of W. Va. v. Moore, 902 F.Supp 715).

Myers also has a farm on the other side of Flowing Springs Rd (Route 17), the road that would serve the proposed subdivision.^[85] Doubling traffic on this two-lane road^[86] would greatly increase the danger to her and her employees when they move farm equipment between the two locations. Appellee Corliss similarly has farms on both sides of the proposed subdivision.^[87] He also faces increased danger when moving farm equipment. These two farmers are the only ones identified in the record with this situation of moving farm equipment between farms on opposite sides of the proposed subdivision, so they are uniquely situated.

Arcadia’s brief cites dozens of cases from around the country, but ignores Myers’ horse-raising business next to the proposed subdivision, as well as Myers’ and Corliss’ need to move farm equipment between farms on opposite sides of this subdivision.

Myers and Corliss, as well as Appellees Saum and Stine all depend on ground water,^[88] and their wells (plus a stream and spring on the Stine farm) are close enough to the proposed subdivision that they will be affected if central wells supplying the new subdivision excessively lower the water table in this part of the county.

The Circuit Court’s Order gives numerous broader precedents for standing in cases like this.^[89] There is a narrow view of standing in Beckley,^[90] cited by Arcadia, because it is an annexation case, and the Supreme Court bases its Beckley reasoning on precedents about annexation which do not apply to other topics.

In Walnut Grove,^[91] cited by Arcadia, petitioners did not explain in detail how their proximity to a proposed subdivision aggrieved them individually. Judge Steptoe said that was the reason he ruled differently in Corliss, Morgan et al. from Walnut Grove. On the other hand in a very similar Jefferson County zoning case, MacElwee et al.,^[92] the petitioners did explain in detail how they were aggrieved, and Judge Silver recognized their standing. There is total consistency within the Circuit and with the Supreme Court’s rulings.

The horses, traffic, wells, and other issues qualify the parties as “aggrieved”. These are not necessarily reasons to stop this or any subdivision. They are reasons why the parties have standing to call for proper enforcement of the Zoning Ordinance. That enforcement will certainly improve how the county reviews the subdivision. The subdivision will then proceed or not, depending on the rules of the Zoning Ordinance.

II. e. Side Issues

Arcadia notes the Planning Commission is not a party^[93] but received instructions in Judge Steptoe’s order.^[94] While true, it seems harmless at this stage. When Corliss, Morgan, et al. raised this issue,^[95] and suggested language to fix it,^[96] the legal representative of both the BZA and Planning Commission said there was no problem, and the Planning Commission would follow the order.^[97] On that basis the Circuit Court decided no correction was needed.^[98] If the Planning commission does not object, Arcadia has scant standing to object. This is less significant than the fact that Arcadia Development Company, contract buyer of the land,^[99] made all filings in Circuit Court, although it was not an Intervenor. Arcadia Building Company, the developer,^[100] was granted Intervenor status.^[101] There is no evidence of the legal relationship between the two companies, but it is presumably close.

Arcadia’s comments on Dillon’s Rule and powers of municipalities,^[102] are not relevant, since no one in this case has questioned the county’s power to adopt its Ordinance and Plan, just how to apply them. Attorney P. Chakmakian has long said this is a Dillon’s Rule state. Judge Steptoe found in an unrelated case^[103] that West Virginia’s rule, while related, is not explicitly Dillon’s Rule.^[104] It appears Mr. Chakmakian is trying to appeal that ruling in this case, where it is irrelevant. Dillon’s Rule was not mentioned in this case at Circuit Court.

Appendix: QUOTATIONS FROM COMPREHENSIVE PLAN

These quotations were used in the opening brief in the Circuit Court.^[105] Underlining is in the original. Bold has been added. The full text and tables (though without maps or page numbers) are at and .../jefplan1.htm and .../jefplan3.htm

Page I-3 Why Should We Plan?

... Community planning gives elected and appointed officials a rational basis for making their decisions based on what results are desired, what future conditions are likely to occur, and how various independent actions can relate to each other and be mutually beneficial.

Advanced and comprehensive planning will save money. Careful consideration of the many interrelated factors of the total community will assure, as much as possible, that every new development in the county is properly located and properly designed so that it will not have to be torn up and replaced or moved before it is worn out. Timely planning can also prevent costly mistakes as to the location of county facilities and the provision of county services.

Farsighted and innovative planning will preserve natural amenities and enhance property values. Good planning, coupled with equitable enforcement of control measures, will provide a property location for all required uses of land in the county. It will also prevent undesirable intermingling of conflicting uses of land.

A sound plan that recognizes current land use and anticipated needs is essential to a smooth‑flowing transportation system of roads and highways. Transportation may be considered the link to overall development of the county. Industry, education, health, recreation, and housing depend on an efficient transportation system for development and survival.

Planning affords much‑needed protection of unincorporated portions of the county surrounding existing communities. Much of the new residential growth in the county is taking place outside the municipal boundaries. An all‑embracing plan can prevent undesirable and costly scattered development that becomes a heavy burden to the taxpayers.

Page I-5 Statement of Goals:

Encourage growth and development in areas where sewer, water, schools and other public facilities are available or can be provided without excessive cost to the community.

Promote the maintenance of an agricultural base in the County at a level sufficient to insure the continued viability of farming.

Promote the conservation of the natural, cultural, and historical resources and preserve the County’s scenic beauty.

Give citizens a chance to affect the course of planning activities, land development, and public investment in Jefferson County

[ADJACENT LAND]

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

Page III-105 To promote the concept of protecting farmers from unreasonable restraints while they are doing their work and managing their land (“right to farm” concept).

Page III-106 Paragraph 11: 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.

[SEWER CAPACITY]

Page III-28 paragraph 1. Central wastewater treatment facilities...have the capacity to accommodate some adjacent development....municipal and county needs will have to be carefully coordinated.

Page III-28 paragraph 4. For these reasons, future residential and commercial development must not take place at the expense of water quality, wastewater treatment, or solid disposal.

Page III-31 paragraph 5. Building central wastewater treatment plants involves large capital expenditures.

[CENTRAL WATER PROPOSAL]

Page III-18 paragraph 4. It would not be possible or desirable to recover all of the available ground water through wells. Under no circumstance should the ground water withdrawal exceed the recharge rate to the aquifer ... the annual recharge to the carbonate aquifer is eight inches per year (Hobba and others, 1976)

Page III-23 paragraph 3. The challenge is to ... monitor what portion of a particular aquifer is already committed to domestic or industrial use and how much may be an adequate buffer to ensure an adequate supply in times of severe drought or other natural disaster.

Page III-24 paragraph 2. economic viability of small systems has been reduced due to the new regulations discussed earlier. This mix of approval and regulation could lead to an increase in the number of systems that must be taken over and managed by the county at a loss.

Page III-25 paragraph 4. When persons propose to subdivide lots within a development ... the County should continue to require that such subdividers adequately demonstrate that the additional lots can be served without a significant adverse effect on the quality and quantity of the water system.

Page III-26 paragraph 3 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.

Page III-28 paragraph 4. Once ground water becomes polluted, the condition is virtually irreversible. Growth and development may stop, the local economy may suffer, and public health may be jeopardized. For these reasons, future residential and commercial development must not take place at the expense of water quality...

Page III-102 paragraph 1. Water resources needed for industrial, commercial, and residential growth may not be available if open space is not preserved for collecting rain and reducing contamination.

[APPROPRIATE SCHOOLS]

Page III-59 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.

Page III-62 funding... regulations... planning... and scattered residential growth have all combined to produce a crisis in our schools.

Page III-65 School personnel have been forced to conduct classes in inappropriate areas

Page III-65 every school in the county lacks the space to accommodate all of the required classes or services.

Page III-65 Hallways become unable to handle the increased traffic

Page III-67 Jefferson County currently has limited options for raising money for public schools. Bond issues are the main option.

Page III-68 Educational facilities should be designed and constructed to meet state standards and provide adequate space for educators, staff, and support personnel.

Page III-69 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.

[LACK OF ADEQUATE SUPPORT DATA]

Page III-1 Of all the problems to be addressed in a Comprehensive Plan, transportation is one of the most urgent.

Page III-1 To achieve and maintain efficient traffic flow throughout the county.

Page III-21 Although the County possesses substantial groundwater resources, they are easily accessible and susceptible to damage.

Page III-22 Policies adopted by the County and other agencies should provide for the optimum management and protection of groundwater.

Page III-25 In agricultural areas served by private wells, the County should review minimum lot size requirements and setbacks to ensure the continued availability of potable groundwater.

Page III-85 Floodplains serve as routes for dispersing certain species and in maintaining the quality of habitats along stream and river edges. Floodplain forests are very productive and contain a wide range of tree species. Large floodplains also may support wetlands. Flood plains need to be protected from (1) development, (2) deforestation, (3) siltation from adjoining uses and (4) draining or filling of wetland areas.

Page III-87 Wetlands provide habitat for a wide range of flora and fauna species, help maintain water quality, reduce flood damage and generally are aesthetic.

Page III-87 Streams and rivers are the ultimate recipients of any solids or liquids which runoff from the above‑cited habitats. They need to be protected from (1) sediments, (2) excessive nutrients, (3) harmful substances, (4) bank erosion and (5) removal of riparian strips.

Page III-88 The key to species protection ... is habitat preservation and extension

Page III-91 The natural pharmacology of local plants ... is another reason to protect biological diversity.

Page III-93 Develop policies and procedures for mitigation of habitat damage.

Page III-94 Jefferson County ... was settled by Europeans before 1720 and was probably inhabited by Indians for at least 10,000 years.

Page III-94 Jefferson County played an important part in the development of early transportation

Page III-94 historic ... buildings and landmarks enhance our quality of life. They are part of what draws people to our county and makes them want to stay.

Page III-95 Concrete markers of 25 sites of Civil War skirmishes, originally erected in 1910, have been restored [marker 9 is across the railroad from the Henderson farm, and the descriptive text is in the handout to the Board, page 33 of the Petition]

Page III-96 many of the less obvious sites worthy of preservation or exploration can be identified and the significance of other, more visible, sites can be better appreciated.

Page III-105 To encourage conservation and to avoid pollution of our County’s natural resources...

Page III-110 if developments are crowded onto poorly drained land, groundwater may become polluted.

Page III-114 Development of signs and support structures as an integral part of commercial design and in harmony with adjacent land use.

[MAXIMUM NUMBER OF LOTS EXCEEDED]

Page I-3 Good planning, coupled with equitable enforcement of control measures, will provide a property location for all required uses of land in the county. It will also prevent undesirable intermingling of conflicting uses of land.

Page III-93 Develop incentives, such as the cluster concept, to encourage preservation of the natural habitats.

Page III-102 If farming is to continue, the best agricultural land needs to be preserved. Unfortunately, some of the most effective ways, such as controlling the way farmland is bought and sold, are also the least acceptable approaches at this time. However, measures which minimize the conversion of farmland to urban uses prematurely, such as consolidating urban growth and creating agriculture districts as special resource areas would begin to address this problem.

Page III-105 To encourage a balance between residential growth and the rural economy.

[IMPACT OF PROPOSED SUBDIVISION]

Page III-89 pastoral scenery ... should be recognized and preserved wherever possible for their inherent value to the quality of life in this area.

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

^[1]R. at 4r-4x

^[2]R. at 23h. This and preceding issues show harm to health, safety and general welfare, contrary to BZA brief p. 17

^[3]R. at 15lll-15mmm. Memorial to General Darke is shown in colored photos filed 6/2/03, which the Supreme Court added to the Record 6/11/03.

^[4]Side issues about the Planning Commission not being a party (Arcadia assignment G) and Dillon’s Rule (Arcadia assignment H) are addressed at the end of this brief

^[5]traffic, signs, ground water, wildlife, relationship to Plan, soils; R. at 26bb

^[6]R. at 15ggg

^[7]R. at 26k-26n

^[8]R. at 26y-26bb. “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,” R. at 26z. “[N]o serious review of the adequacy of the support data was made” by the BZA, R. at 26aa. “[A]rea is required in order to take a true measure of the size of those parcels,” R. at 26ss.

^[9]First phase was developed not in 1988, but in 2000, contrary to BZA brief p. 3; see R. at 23y

^[10]Remaining portion is not 420 acres, but 371 (R. at 4gg), contrary to BZA brief p. 3.

^[11]Two appeals were filed at the BZA, contrary to BZA brief p. 4

^[12]Statements that CUP was appealed to and upheld by the BZA are wrong in Arcadia’s docketing statement p.3 and “additional sheet;” and in Arcadia’s brief pp. 1, 4, 21, and 42-43. Note the CUP was issued 5/22/01, after the BZA hearings on 4/19/01

^[13]One petition to Circuit Court covered both BZA appeals, contrary to Arcadia’s brief pp. 1, 15

^[14]CUP was issued by Planning Commission, not Zoning Administrator, contrary to docketing statement p.3; and Arcadia’s brief p. 21.

^[15]Note that R. at 17-17s is identical to R. at 27-27s

^[16]Syl. Pt. 1, Public Citizen v. First National Bank in Fairmont, 198 W. Va. 329, 480 S.E.2d 538 (1996)

^[17]Martin v. Randolph County Bd. of Ed., 195 W. Va. 297, 304, 465 S.E.2d 399, 406 (1995), quoted in Wood County Bd. of Ed. v. Smith et al., 502 S.E.2d 379 (1998)

^[18]Syl. Pt. 1, WV Human Rights Com’n v. Garretson, 196 W. Va. 118, 468 S.E.2d 733 (1996) case cited by BZA

^[19] Syl Pt. 5, Hodge v. Ginsberg, 172 W. Va. 17, 303 S.E.2d 245 (1983) (interpreting statewide agency rule as opposed to countywide ordinance).

^[20]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, 159 W. Va. 34, 217 S.E,2d:899 (1975)).

^[21]Harding v. Morgantown, 159 W. Va. 73, 219 S.E.2d 324, defined conditional uses.

^[22]The Circuit Court did not enforce the last sentence in this paragraph, about an average (R. at 26oo-26pp). The sentence did not affect the decision. Average or not, the percent of land that is farmed or not developed is at least 91% (R. at 4p, 15nnn), which yields 10 points on this part of the score.

^[23]R. at 15bbb-15fff

^[24]R. at 4p, 15nnn

^[25]R. at 15nnn and large folded “Concept Plan” in R. at 38

^[26]Arcadia’s 45.36 acres shown in R. at 15ooo, is 4% of total adjacent area, 1102 acres shown in R. at 15nnn

^[27]Arcadia’s 4348 feet shown in R. at 15ooo, is 21% of the total boundary of 20459 feet shown in R. at 15nnn

^[28]R. at 15nnn shows 74-76%. Zoning Administrator calculated 72.4% (R. at 26nn)

^[29]contrary to BZA brief p.18

^[30]BZA brief p. 20. They say “farm” not parcel, but if a farm contains multiple parcels, all that is required is to measure adjacent parcels, not remote parcels on the same farm.

^[31]If it did, the ordinance wording would still presumably represent the will of the County Commission.

^[32]R. at 4p, 15nnn, 15ooo

^[33]BZA brief p. 6

^[34]Total acreage of Phase 1 (45.36, R. at 4gg, 4p) plus the current proposed development (371, R. at 4gg) is 416. At one home per 15 acres, this acreage permitted 27 lots under §5.7(d)2b.1 “A property owner may subdivide one (1) lot for every fifteen (15) acres he/she owns” (R. at 15aaa). Therefore the record shows the full development rights have been used under 5.7(d)2.

^[35]not 1988 as stated in the BZA brief p. 3; see R. at 23y

^[36]BZA brief p. 19

^[37]BZA brief p. 16

^[38]R. at 26ss

^[39]R. at 4e

^[40]Ordinance §6.2; R. at 15bbb

^[41]In §8-24-36 the phrase “shall not be located” is separate and in addition to the phrase about improvement location permits. Therefore it must refer to other stages of the process besides just building permits. “[S]ignificance and effect shall, if possible, be accorded to every word” (Bullman v. D&R Lumber 464 S.E.2d 771 (1995), case cited by BZA). It makes sense that zoning and subdivision decisions – which control the location of many structures – must conform to the plan, as building permits do. Otherwise a subdivision which does not comply with the plan would be approved but would not be eligible for building permits. This would be a recipe for conflict, because once a lot is created, some economic use for it must be allowed (McFillan v. Berkeley County Planning Commission, 438 S.E.2d 801 (1993)). The solution is to ensure that subdivisions and zoning comply with the Plan.

^[42]Singer v. Davenport, 164 W. Va. 665, 264 S.E.2d 637 (1980); not p. 239, as stated in BZA brief p. 2. The quoted paragraphs are on pp. 668, 669, 672 in the W. Va. printing

^[43]McFillan v. Berkeley County Planning Commission, 438 S.E.2d 801 (1993) footnote omitted

^[44][footnote 5 in Supreme Court opinion, citations omitted:] It is well‑established that “[i]n expounding a statute, we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy.”

^[45]State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W. Va. 770, 461 S.E.2d 516 (1995)

^[46]WV Human Rights Com’n et al. v. Garretson, 196 W. Va. 118, 468 S.E.2d 733 (1996)

^[47]R. at 26rr

^[48]Arcadia’s brief p. 17

^[49]R. at 15d-15rr; also included as an appendix to this brief

^[50]Slack v. Jacob, 8 W. Va. 612 (1875), cited in Arcadia’s brief p. 19

^[51]The district is called “Rural/Agricultural” in Ordinance §5.1 and “Rural” in §5.7, so both titles are correct.

^[52]R. at 15xx

^[53]R. at 4x, 21a

^[54]R. at 4r-4s

^[55]The subdivision ordinance of that time is in the Singer file, 77-C-156, at the Jefferson Circuit Court.

^[56]Singer p. 668

^[57]In Singer the Jefferson County Planning Commission gave three reasons for turning down a subdivision (Rockwell brief for Appellee p. 2). None of those reasons cited the Plan (Singer pp. 667-668). However Mr. Chakmakian’s brief defending that Planning Commission tried to say the decision was based on the Plan (pp. 7-8), an approach which both Circuit Court and Supreme Court rejected. The Singer briefs are in the Supreme Court’s file for case number 14199.

^[58]BZA brief p.9

^[59]Ordinance §1.1(b) and §1.3(a), R. at 15xx-15yy

^[60]The present case does not stop “most development in Jefferson County” contrary to Arcadia’s brief pp. 15, 28, 42. The case does not stop development in areas zoned for residential growth, where a conditional use permit is not needed. The case does not stop development by right in the rural/agricultural zone under Ordinance §5.7(d)1 and 2, such as the first phase of Arcadia’s development. The case does not stop complete applications which are properly scored in the CUP process.

^[61]traffic, signs, ground water, wildlife, relationship to Plan, soils; R. at 26bb

^[62]R. at 15ggg

^[63]R. at 15ggg-15hhh

^[64]Ordinance §7.4(d)(19), R. at 15ggg

^[65] R. at 4jj

^[66]The opening brief below said, “types of traffic need to be broken down to categories that have major distinctive impacts. For these purposes there is no need to distinguish a Ford from a Subaru, but either is enormously different from an ambulance or a heavy trash truck or a walking child.” R. at 15kk-15ll

^[67]Ordinance §7.4(d)(16), R. at 15ggg

^[68]R. at 4ii

^[69]R. at 26x, 26z, 26bb

^[70]Colored photos filed 6/2/03, which the Supreme Court added to the Record 6/11/03

^[71]R. at 26w-26bb

^[72]Arcadia’s brief p. 28

^[73]Arcadia’s brief p. 27

^[74]Ordinance §7.6(e), R. at 15iii; Ordinance addresses “issues and concerns raised at the Compatibility Meeting” not just “questions,” contrary to Arcadia brief p.9

^[75]Ordinance §7.6(e)-(g), R. at 15iii

^[76]Arcadia brief pp. 29-38

^[77]R. at 17k, 17s

^[78]Corliss, Myers, Stine, Saum, Burke, plus many others not parties to this case.

^[79]R. at 5a, 23f-23g

^[80]R. at 15nnn, 23g

^[81]R. at 23k

^[82]Matthew and Francine Snyder et al. v. David C. Callaghan 284 S.E.2d 241 (WV 1981), 248-9

^[83]R. at 28i

^[84]Snyder p. 248

^[85]R. at 15rr, 24-24a

^[86]R. at 23h

^[87]R. at 15rr, 24b

^[88]R. at 15rr, 24a-24b

^[89]R. at 26q-26t, including, “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). Street closings in the cases cited by Arcadia may not be issues of legitimate public concern. However the location of 392 homes and a public school in the middle of a farming area, which is zoned rural/agricultural, is an issue of legitimate public concern.

^[90]In re the Petition of the City of Beckley to Annex, by Minor Boundary Adjustment, West Virginia Route 3 Right-of-way Beginning at the Present Corporate Limits, 194 W. Va. 423, 460 S.E.2d 669 (1995), cited in Arcadia’s brief on p. 38.

^[91]Walnut Grove/Security Hills Citizens Assoc. et al. v. Jefferson County Planning and Zoning Com’n et al. Jefferson Circuit Court 90-P-81 (1/4/93) attached as exhibit A after p. 43 of Arcadia’s memorandum in support of petition for appeal.

^[92] MacElwee et al., v. Jefferson County Board of Zoning Appeals, Jefferson Circuit Court 02-C-40 (4/15/03)

^[93]Arcadia assignment G. Brief pp. 40-41

^[94]R. at 26uu

^[95]as a clerical error under RCP 60(a). R. at 35a

^[96]R. at 35yy

^[97]R. at 34a, first full paragraph

^[98]R. at 37a

^[99]R. at 10

^[100]R. at 4gg, 38

^[101]R. at 12-12a

^[102]Arcadia assignment H. Brief pp. 41-43

^[103]F&M Bank et al. v. Jefferson County Planning Commission et al. Jefferson Circuit Court 00-P-53 (1/2/01) paragraphs 35-41

^[104]citing Syllabus point 2, State ex rel. State Line Sparkler v. Teach, 187 W. Va. 271, 418 S.E.2d 585 (1992).

^[105]R. at 15d-15rr

Bullman v. D&R Lumber, 464 S.E.2d 771 (1995)	13
F&M Bank et al. v. Jefferson County Planning Commission et al., Jefferson Circuit Court 00-P-53 (1/2/01)	25
Garretson – see WV Human Rights Com’n
Harding v. Board of Zoning Appeals of City of Morgantown, 159 W. Va. 73, 219 S.E.2d 324 (1975)	8, 9
Hodge v. Ginsberg, 172 W. Va. 17, 303 S.E.2d 245 (1983)	8
In re the Petition of the City of Beckley to Annex, by Minor Boundary Adjustment, West Virginia Route 3 Right-of-way Beginning at the Present Corporate Limits, 194 W. Va. 423, 460 S.E.2d 669 (1995)	24
MacElwee et al., v. Jefferson County Board of Zoning Appeals, Jefferson Circuit Court 02-C-40 (4/15/03)	20, 24
Martin v. Randolph County Bd. of Ed., 195 W. Va. 297, 304, 465 S.E.2d 399, 406 (1995)	8
McFillan v. Berkeley County Planning Commission, 438 S.E.2d 801 (1993)	13-16
Public Citizen v. First National Bank in Fairmont, 198 W. Va. 329, 480 S.E.2d 538 (1996)	8
Singer et al. v. Davenport et al., 164 W. Va. 665, 264 S.E.2d 637 (1980); not p. 239, as stated in BZA brief p. 2	13, 15-17
Slack v. Jacob, 8 W. Va. 612 (1875)	15
Snyder et al. v. David C. Callaghan, 168 W. Va. 265, 284 S.E.2d 241 (1981)	22-23
State ex rel. Alsop v. McCartney, 159 W. Va. 829, 838, 228 S.E.2d 278, 283 (1976)	24
State ex rel. Erie Fire Ins. Co. v. Madden, 204 W. Va. 606, 515 S.E.2d 351, 364 n.6 (1998) (per curiam)	24
State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W. Va. 770, 461 S.E.2d 516 (1995)	14
State ex rel. State Line Sparkler v. Teach, 187 W. Va. 271, 418 S.E.2d 585 (1992)	25
Walnut Grove/Security Hills Citizens Assoc. et al. v. Jefferson County Planning and Zoning Com’n et al., Jefferson Circuit Court 90-P-81 (1/4/93) attached as exhibit A after p. 43 of Arcadia’s memorandum in support of petition for appeal	24
Wolfe v. Forbes, 159 W. Va. 34, 217 S.E,2d:899 (1975)	8
Wood County Bd. of Ed. v. Smith et al., 502 S.E.2d 379 (1998)	8
WV Human Rights Com’n v. Garretson, 196 W. Va. 118, 468 S.E.2d 733 (1996)	8, 14-16