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ZONING PROPOSAL B: Full Replacement of Old Ordinance, Big Increases in Business, Mixed Use, Natural & Historic Sites (Click for Zoning Proposal A: minimal change in Raco Proposal 1)

More readable copy if needed Comments by Cassell & Raco Write your comments/questions

This implements ALL Recommendations of the Comprehensive Plan, except those which apply to the Subdivision Ordinance and other parties. An annotated list of Plan Recommendations is attached.

FACT SHEET

Amendment process. Zoning amendments are governed by the rules in 8A-7-8(b),

'8A-7-8(b) Before amending the zoning ordinance, the governing body with the advice of the planning commission, must find that the amendment is consistent with the adopted comprehensive plan. If the amendment is inconsistent, then the governing body with the advice of the planning commission, must find that there have been major changes of an economic, physical or social nature within the area involved which were not anticipated when the comprehensive plan was adopted and those changes have substantially altered the basic characteristics of the area.

The County Commission, with the advice of the planning commission, can find that this amended zoning ordinance is consistent with the adopted comprehensive plan, because it opens the way for landowners to develop all kinds of farming and businesses throughout the county, while protecting the natural, cultural and historic rural environment. There are virtually no restrictions on the kinds of businesses which can take place in the rural area. Even large businesses can be established, as long as they are on large enough campuses to buffer their effects.

Thus the Ordinance shifts the focus of growth from housing to business, while it still promotes a diversity of housing, since more homes are allowed if they are small. For every 3,000 square feet of housing allowed, a landowner may build one home of 3,000 square feet, or two of 1,500 each, or four apartments of 750 each. For existing small lots, only one house may be built, but with no limit on size. The Ordinance promotes clustered, pedestrian friendly, livable communities by removing all restrictions on the size of new lots, allowing small setbacks between houses, allowing low impact businesses mixed in with houses, and having no limit on walk-in customers. All these choices are open to the landowners. While individual homes can be small and affordable, the ordinance does effectively limit the total number of houses in unincorporated areas, to reduce the strain on public services and commuting routes, meanwhile compensating by vastly increasing the business uses allowed.

The Ordinance minimizes future road expansion costs by requiring deep setbacks from roads, so roads can be expanded into this unbuilt area in the future. It accommodates utilities, while protecting viewsheds and the night sky. It protects historic sites primarily through setbacks, screening new businesses with evergreens, and allowing adaptive re-use of historic sites (suggestions for other ways to protect historic sites are particularly welcome).

Transferrable Development Rights would be a valuable addition to this ordinance if the legislature removes the 10-year expiration requirement (7-1-3(mm)). Housing and businesses cannot be built on 10-year development rights.

Examples:

Lot Size	Proposed Lower Density District	Proposed Higher Density District
2 acres	small business with up to 12 arrivals/day, 6,000sf & 15' wide evergreen buffer. Or a house of any size	small business with up to 24 arrivals/day, 8,000sf & 15' wide evergreen buffer. Or a house of any size
10 acres	a 3,000sf house, or two 1,500sf houses, or four 750sf apartments.	two 3,000sf houses, or four 1,500sf houses, or eight 750sf apartments.
10 acres	business with up to 60 arrivals/day, 30,000sf & 75' wide evergreen buffer.	business with up to 120 arrivals/day, 40,000sf & 60' wide evergreen buffer.
100 acres	large business with up to 600 arrivals/day, 300,000sf & 100' wide evergreen buffer. Or it may have 40 apartments averaging 750sf, and keep 95% of the farm in farming. Or any proportions of business, housing and farm.	large business with up to 1200 arrivals/day, 400,000sf & 100' wide evergreen buffer. Or it may have 80 apartments averaging 750sf, and keep 90% of the farm in farming. Or any proportions of business, housing and farm.
No restrictions on lot size except setbacks (and health dept if using septic).

ZONING ORDINANCE

1. The goals of this ordinance include the following as required by 8A-7-2(a):

(1) Promoting general public welfare, health, safety, comfort and morals;

(2) A plan so that adequate light, air, convenience of access, and safety from fire, flood and other danger is secured;

(3) Ensuring attractiveness and convenience is promoted;

(4) Lessening congestion;

(5) Preserving historic landmarks, sites, districts and buildings;

(6) Preserving agricultural land; and

(7) Promoting the orderly development of land.

2. Basic Zoning Rules (Table 1)

	Permitted Uses	Height, area of buildings, bulk	Vegetated setback from roads / sensitive areas^A / historic site / other property lines	Evergreen buffer^B from roads, property lines, streams	Other
Authority in State Law, Chapter 8A-7-2(b)	2(b)(1) Regulating the use of land and designating or prohibiting specific land uses;	2(b)(8) Regulating the height, area, bulk, use and architectural features of buildings	2(b)(10) Preserving green spaces and requiring new green spaces, landscaping, screening and the preservation of adequate natural light;		2(b)(5) Establishing design standards and site plan approval procedures;
Rural Development District (R) - All areas previously zoned Rural, and Higher Density Development District (H) - All areas previously zoned Residential Growth, Residential/Commercial/ Light Industrial, and Village Industrial District (I) - All areas previously zoned Industrial
R	Housing. Land which scores under 60 in LESA system may double its density to the level allowed in the AH@ district (below)	3,000sf per 10ac or 1 house of any size per lot. <40' high	50' / 100' /300' / 10'		50% more sf allowed if roads stay at level of service A, and schools will have space for children at buildout^D Wells 50' from farm & foundation, 100' from termite treatment
H	Housing	6,000sf per 10ac or 1 house of any size per lot. <40' high	50' / 100' /300' / 10'		Only 3,000 sf allowed if roads would worsen below level of service C^D
R, H	Businesses inside houses, which cannot be seen, heard or smelled outside the house, and do not generate more than 3 extra arrivals in any one day	no limits, except on the housing itself, as shown above
R, H	Group Residential Facility, 8A-11-2	same limits as housing in respective zones
R, H, I	Farms & Horse facilities	<1 animal unit/acre average year round	structure height		Farming permitted; side effects will disturb residential development.
R, H, I	Horse & farm processing & product sales with over half raised on site, by value	3,000sf/ac. <40' high	50' / 100' / 300' / 40'	10' where within 200' of another property	Waste disposal methods (e.g. compost, septic, hauling) need approval by county health department
R	All businesses, except those listed separately, with <30 arrivals/week/acre^C On property lines: sound <60dB; light <10 footcandles; no distinctive odors, vibration, heat or smoke	2,000sf/ac. <40' high	50' / 100' / 300' / 40'	0.25' per arrival per week min 15' max requirement 100'	Retain 10-yr storm, to drain into ground within 10 days
		3,000sf/ac. <40' high			Also retain 100-yr storm
H	All businesses, except those listed separately, with <60 arrivals/week/acre^C On property lines: sound <60dB; light <10 footcandles; no distinctive odors, vibration, heat or smoke	3,000sf/ac. <40' high	50' / 100' / 300' / 40'	0.1' per arrival per week min 15' max requirement 100'	Retain 10-yr storm, to drain into ground within 10 days
		4,000sf/ac. <40' high			Also retain 100-yr storm
I	All businesses, except housing, adult, & essential utility equipment. On district boundary: sound <60dB; light <10 footcandles; no distinctive odors, vibration, heat or smoke	<50% impermeable surface. <75' high	50' / 100' / 300' / 40'		Retain 10-yr storm, to drain into ground within 10 days
		<75' high			Also retain 100-yr storm
I	Adult businesses	<40' high	50' / 100' / 300' / 40'		1500' from District boundary, 1500' from lot with house, church, school, human care, 2500' from other adult business or its sign. Not visible from any historic site or from Potomac R., Shenandoah R., or Opequon Cr.
R, H, I	Fences, mailboxes, newspaper tubes, sheds, historic markers	<6' high
R, H, I	Fences 6' to 10' high, school bus & mailbox shelters	<10' high	2' (need not be vegetated)
R, H, I	Freestanding signs	<40' high	10' / 100' / 300' /sign ht		Lighting aimed down & not in drivers= eyes. Not visible from any historic site or from Potomac R., Shenandoah R., or Opequon Cr.
R, H, I	Flag poles	<40' high	10'		No upward lighting
R, H, I	Easements	No restrictions on easements which prohibit uses. Easements which permit uses are allowed, but the uses must also meet zoning restrictions (e.g. utility easements)
R	Clearing of over 50% of timber on site
R, H	Businesses which do not meet the limits above may be allowed by Conditional Use Permit if they meet the criteria given in the section on Conditional Uses.
	The following essential utilities & equipment are permitted in all zones, as required by 8A-1-2(f) 8A-7-3(e)
R, H	Water & sewer plants	3,000sf/10ac <40' high	50' / 100' / 300' / 40'	300'	Not visible from any historic site or from Potomac R., Shenandoah R., or Opequon Cr.
I	Water & sewer plants	<75' high	50' / 100' / 300' / 40'	300' from District boundary only	Not visible from any historic site or from Potomac R., Shenandoah R., or Opequon Cr.
R, H, I	New overhead utilities	<200' high. Below tree line of Blue Ridge	2X pole ht / 40' / 300' / 0'		Transmission towers over 40' and cleared pathways between them shall not be visible from any historic site or from Potomac R., Shenandoah R., or Opequon Cr.
R, H, I	Other towers (cell & water) (Note windmills with moving blades are not just a Atower@ and are regulated with AAll businesses, except those listed separately@)	<200' high. Below tree line of Blue Ridge	2X tower ht / 100' / 300' / 2X tower ht	20'	Not visible from any historic site or from Potomac R., Shenandoah R., or Opequon Cr. Cell tower & antenna must be >1000' from lot with house, church, school, human care. Private cell tower >40' must provide bond for removal.
R, H, I	Underground utilities, phones, call boxes, hydrants, traffic signals		2' (need not be vegetated)		Trenches need waterstop every 100'. Sewer lines need leak detection system.
R, H, I	Regulating & measuring devices & structures in which they are housed	<20' high	twice structure height

^A Sensitive areas are: streams; ponds; sinkholes; rock fissures over 5' deep, wetlands; habitat supporting rare, threatened or endangered species. Note the Floodplain Ordinance also regulates uses along floodplains. Historic sites are property listed on the West Virginia or National Register of Historic Places, or battlefields identified by Millard Bushong=s History of Jefferson County or Jefferson County Confederate Veterans= Historic Markers.

^B At least half the trees included in the evergreen buffer initially must be fast growing, sized to become nearly opaque from grade of road/stream/property line to 6' above said grade within 2 years, and to grow at least 30' above said grade at maturity. Heights may be partly or entirely achieved by berms. Mix must include at least 4 species, no one species starting at over 30% of plants. Thinning for growth may alter mix, but once the buffer has become nearly opaque at a particular height, that height must be maintained or the business closed until it is restored. Width during the first 10 years is measured to the size the tree crowns are expected to reach in the 10th year, and at actual width after 10 years. This is not in addition to vegetated setback; the same land can count for both. Parking must be behind the evergreen buffer, not outside it.

^C Arrivals count motorized vehicles, but not pedestrians or bicycles (8A-7-2(b)(11)). Limits are applied each week, not averaged over a longer period.

^D Level of service will be determined along most direct main road to closest of: Martinsburg, Winchester, Hagerstown, Frederick, Leesburg. Both roads and school space will be evaluated at time of final plat approval, based on state definitions of levels of service and on the traffic & children expected if 80% of unbuilt lots with final plat approval up to that time are built.

3. Parent-Child Transfers

An individual or a married couple who own land in their own name(s) or through a corporation of which they own at least 90%, may set aside an acre or more and up to 2,000sf of housing for each of their children or parents, even if this limit exceeds the limits in Table 1. The recipient may not sell the property for five years. The original landowner may take advantage of this exception only once for each child or once for each parent, only on land they have owned over ten years, and only if they lack enough land to make similar provision without the exception.

4. Rules Applicable Everywhere:

Uses may be combined proportionately.

When square feet are limited per acre, the acres needed to support a certain number of square feet shall be identified by easement, shall be in the same zoning district, and may not be double-counted to support additional square feet at the same time.

Business customers may not park on public roads or subdivision roads, except up to 2 special occasions per year; business must provide enough parking off street.

No flashing lights (except holiday lights for up to 2 consecutive weeks/yr)

No signs larger than 1sf per 1000sf of floor area

No light across property lines brighter than 10 footcandles (10 candles 1 foot away, typical of a hallway)

Roof may overhang up to 3' into setback

Decks, porches and windows may project into setback up to 3' and no more than 30sf per structure

Antennas, chimneys and other projecting equipment, totaling up to 0.1% of structure volume, may extend above 40', but not above 75', except when eligible as Aessential utilities and equipment@ which has its own limits.

5. Development around Existing Vegetation

The AH@ district is considered urban as the term is used in 8A-7-10(c), and an owner may not reduce tree cover below 50% of tree cover on the effective date of this ordinance, nor below 25% of the site, whichever rule preserves more tree cover. If an owner in another district does so, he or she may not change the use of the site for 10 years thereafter.

The following limits apply to all lands east of the Shenandoah River and all lands within 1,000 feet of the Potomac and Shenandoah Rivers and Opequon Creek.

Weighted Average

Slope of Land Percentage of Land To Be

Percent Maintained in Natural, Undisturbed Condition

10 ‑ 14.9 25

15 ‑ 19.9 40

20 ‑ 24.9 55

25 ‑ 29.9 70

30 ‑ 34.9 85

35+ 100

6. Elements Required by State Law

This ordinance does, as required by 8A-7-2(c)

(1) Create a board of zoning appeals;

(2) Specify certification requirements for zoning district maps that are consistent with the governing body's comprehensive plan;

(3) Adopt procedures and requirements for nonconforming land uses;

(4) Adopt procedures and requirements for variances; and

(5) Adopt procedures and requirements for conditional use permits.

a. Board of Zoning Appeals;

There is hereby created a board of zoning appeals with authority and duties as provided in 8A-8.

b. Zoning District Maps

Zoning district maps shall be certified by the County Clerk of Jefferson County, also known as the Clerk of the County Commission, after verifying that they conform to the comprehensive plan and that the boundaries of the industrial zone match the official copy in his or her records. In case of any doubt, maps shall not be certified, and questions shall be referred to the County Commission.

c. Nonconforming Land Uses

c1. As required by 8A-7-10(c) and (d), land, buildings or structures in use when this zoning ordinance is enacted can continue the same use so long as the use of the land, buildings or structures is maintained. An interruption of a year means the use is no longer maintained, except a duly designated historic landmark, historic site or historic district is considered to maintain its historic use as long as it remains registered.

c2. This ordinance permits:

- alterations or additions to or replacement of buildings or structures owned by any farm, industry or manufacturer,

- the use of land presently owned by any farm, industry or manufacturer but not used for agricultural, industrial or manufacturing purposes,

- and the use or acquisition of additional land which may be required for the protection, continuing development or expansion of any agricultural, industrial or manufacturing operation of any present or future satellite agricultural, industrial or manufacturing use.

c3. Where existing uses do not exceed the limits allowed in Table 1, uses may be increased to those limits. Where existing uses exceed any limit in Table 1, no more use may be added which would cause that limit to be further exceeded.

c4. Vested property right shall be provided in accordance with 8A-5-12

d. Variances

d1. Variance Procedures. Variances shall be requested from the Zoning Board of Appeals on forms specified by that board.

The board shall conduct an evening hearing to hear oral comments, and shall accept written comments up to the beginning of the hearing. The Board may conduct another hearing if needed to clarify issues.

Staff shall post the application on internet and announce it at least 60 days before the hearing by (a) putting an ad in a weekly paper distributed and available in the county, (b) sending an email notice to anyone who has provided an email address for that purpose, and (c) posting on the property a sign clearly visible and legible from a public road, with lettering of the same size as street name signs for the road.

Each of the three methods of public notice shall give the date, time and place of the hearing, general nature of the variance, url and street address where the application can be seen, an identifier to use in correspondence, and the address to receive comments.

If the property is not visible from a public road (e.g. on a private subdivision road) two such signs shall be posted instead of one: on the property where it has the greatest chance of being seen; and on a public road as close to the property as possible, with directions to the property in addition to the other required information.

In addition the legal ad and the internet posting shall include a legible map showing a 5-mile square, with the location marked.

d2. Variance Requirements. In accordance with 8A‑7‑11:

(a) A variance is a deviation from the minimum standards of the zoning ordinance and shall not involve permitting land uses that are otherwise prohibited in the zoning district nor shall it involve changing the zoning classifications of a parcel of land.

(b) The board of zoning appeals shall grant a variance to the zoning ordinance if it finds that the variance:

(1) Will not adversely affect the public health, safety or welfare, or the rights of adjacent property owners or residents;

(2) Arises from special conditions or attributes which pertain to the property for which a variance is sought and which were not created by the person seeking the variance;

(3) Would eliminate an unnecessary hardship and permit a reasonable use of the land; and

(4) Will allow the intent of the zoning ordinance to be observed and substantial justice done.

e. Conditional Use Permits

e1. Conditional Use Permit Procedures. As described above for variances.

e2. Conditional Use Permit Requirements. A business use may exceed the limits shown in Table 1 if it meets the following conditions: Noise may exceed the decibel limits if it does not exceed the average daytime and nighttime noise from neighboring uses during the day and night, respectively. Light may go outwards up to 50' into a neighboring site to the same degree that light comes inwards from that particular neighboring site. Arrivals may exceed the limits shown if they are directly from a public street and do not exceed the arrivals of any adjacent site or other site within 100' of where the vehicles will be (driveway, parking, etc.). Odors, vibration, heat or smoke may be permitted if they are no more distinctive or objectionable than odors already in the area (e.g. a restaurant next to an existing restaurant).

The Zoning Board may disallow a permit, even if it technically meets the conditions above, based on Areasonable@ use, as the term is used in Morris v. Priddy, 1989, 383 S.E.2d 770. After a business opens, it may be compelled to suspend activity (e.g. turn off lights or stop all noise for a few minutes), no more than once every six months, to allow testing of these conditions, if necessary, and if there is reasonable doubt that they are being met.

7. Enforcement

Anyone may bring alleged violations of this ordinance to the attention of the Planning and Zoning Commission, or staff it designates. They shall take action in accordance with 8A‑2‑11(12) and 8A-10, including recommendations to the County Commission for action under 8A-10-1. The County Commission may also act without waiting for the Planning and Zoning Commission, under 8A-10-1.

8. Status

These regulations apply to all the unincorporated area of Jefferson County, West Virginia; and do not apply to incorporated areas.

Should any article, section, subsection or provision of this Ordinance be declared by a court of competent jurisdiction to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the Zoning Ordinance as a whole or any part thereof other than the part so declared to be invalid or unconstitutional.

Any ambiguities may be referred to the Zoning Board of Appeals by any person. The Zoning Board of Appeals shall recommend any clarifications it deems appropriate to the County Commission whenever necessary, and at least by July 1 each year.

If multiple rules appear to apply, they shall all be applied.

This text replaces the entire previous Jefferson County Zoning and Development Review Ordinance, and becomes effective on passage.

This may be referred to as the Jefferson County Zoning Ordinance.

9. Definitions Terms not defined here may be defined in the footnotes of Table 1 and in Chapter 8A (such as Afarm@).

Ac - Acres

Animal unit - one or more animals which weigh no more than 1,000 pounds and produce no more manure per day than an average dairy cow.

Area of buildings - As measured outside the building, including finished and unfinished space, walls and halls. Excludes areas less than 4' high or filled with trusses (e.g. crawl spaces and attics).

Business - an activity which is not housing. The term business includes non-profits and government.

Child & parent - including biological and legally adopted children of either spouse, but not foster children.

Housing - a building or group of buildings which are used by households and their guests for cooking, sleeping, and other activities of daily life, either year-round or on occasion. Rentals where the average stay is at least three months are housing. Housing can include necessary storage for staff and residents, and work areas for staff, in the same building as the residence(s). Housing can include outside storage buildings of no more than the volume of the average housing unit on the same site. Group residential facilities are not housing, but have the same rights as housing. Time-shares, hotels, college dormitories, and nursing homes are examples of uses which are not housing. Household members may include non-relatives who stay for at least three months on average, such as students sharing a unit.

Human care - Business where non-employees sleep at night, including hotels, hospitals.

Half raised on site - Half the days the animals or plants were alive have been spent on site. For example 100 plants brought on site at 1 month old, and sold at 2 months old, or 50 plants germinated and entirely grown on site along with 50 plants brought on site for immediate resale, or any combination.

Roads - state roads, city roads, subdivision roads and rights of way. The term excludes railroads, walking paths, and any route which accesses only a lot or lots owned by a single entity.

Sf - square feet

Site - a tax parcel or group of tax parcels which touch one another or are only separated by a road and have the same owner or leaseholder.

Visible - by unaided normal human eye. Antennas on a pre-existing tower shall be deemed not visible, even if a human eye can actually see them.

10. LESA formula

[as in Proposals 1 & A]