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MAJOR COMMENTS on zoning proposals A & B [& replies by Burke] 1/20/05

The County Commission asked for comments from Planning Director Paul Raco, from Assistant Prosecutor Mike Cassell, and from the Planning Commission. The major comments are first, followed by the full set of comments. [Replies by Burke are in brackets.]

Mr. Raco: It (Proposal B) is inconsistent with at least Comprehensive Plan recommendation number 3.21. This recommendation states that a study of zoning methods should take place ONLY AFTER LESA is modified.

[3.21 does NOT postpone all study; it just calls for more study in the future:

"Once Recommendation 3.20 is accomplished should review different zoning methods to see if LESA is still the zoning of choice for the County."

In fact recommendation 3.19 calls for "innovative planning" including clustering, traditional neighborhoods, & mixed uses; all get innovative treatment in this proposal, but not in proposal 1.

Proposal 1 also violates: 3.03 "address the Ordinances in their entirety" 3.12 "incentives which ensures that cluster subdivisions are the preferred means by all parties when developing rural tracts" 3.13 "preservation of historic resources... adaptive re-use of historic buildings" 3.15 "night sky" 3.16 "affordable housing" 3.17 farm "side effects".]

The Planning Commission voted that all 3 proposals are consistent with the Plan, because none had a fatal inconsistency.

Mr. Cassell: It is difficult to imagine how a cap on square footage for a residence could relate to the public health, safety and welfare.

[Larger houses tend to use more water, create more waste & traffic. Larger houses create larger, more intense, fires, which require more firefighters and firefighting equipment, and put them in greater danger. 8A-7-2(b)(8) specifically allows "Regulating the height, area, bulk, use and architectural features of buildings". If square feet are not possible, a similar limit on number of homes would be possible, though it would give owners less flexibility, e.g. to create granny flats.]

Mr. Cassell: reductions in allowed densities could result in a claim that reduced density constitutes a down zoning of the property.

[There does not seem to be a definition or regulation against "down zoning." Proposed section 6.c.4 carries out state law in protecting people's rights under the old ordinance (vesting). The nature of zoning amendments is to change allowed uses. This proposal adds business density & reduces housing density.]

FULL COMMENTS BY MR. RACO

Zoning Proposal A

1. Limiting density by square footage when processing a Conditional Use Permit.

Density caps are policy decisions and should be made by the County Commission. However, as presented these numbers are not feasible for several reasons.

a. Land costs/value in Jefferson County makes it cost prohibitive to do small houses.

b. 1,000 square feet houses arc not reasonable or marketable.

c. To maximize units, this proposal would make it conducive to do townhouses in the Rural Zone which does not achieve the goal of rural preservation.

[Townhouses are tight clusters, which many want (Plan 3.12), keeping the rest of the land open. Farmers can provide small apartments for workers, and replace them with larger houses whenever desired. Changing market will indeed determine what is built. ]

2. Limiting density in the Growth District.

Considering housing demands, limiting density to 4 units per acre in the growth district will consume the land quickly and force growth into the rural zone prematurely. This is what is happening now because of the high cost of land in the growth district. Because of this LESA is being modified to force growth into the growth corridor. [As Mr. Raco says, rural land is now being consumed, so it needs tighter density limits to lessen this consumption.]

If you modify LESA to encourage growth into the growth district and then limit density, you virtually stop growth. This should not be the primary function of zoning. The primary function of zoning is to protect public health, safety and welfare. [With over 60,000 acres of open land, we are nowhere close to stopping growth. State law 8A-7-2(a) requires considering the goals of "convenience of access... safety from fire... attractiveness... Lessening congestion". These, along with groundwater protection, are all health, safety & welfare issues which are advanced by density limits. ]

Limiting density in the growth district does not follow the tenets of "Smart Growth". [In the eye of the beholder. The term is not defined or recommended in state law or the comprehensive plan]

3. Make administration conform to Law.

Limiting the duties of the staff will make it impossible to serve the needs of the public. [Proposal leaves current Ordinance unchanged.]

Zoning Proposal B

A. General Comments.

1. It is inconsistent with at least Comprehensive Plan recommendation number 3.21. This recommendation states that a study of zoning methods should take place ONLY AFTER LESA is modified. [see page 1]

2. The proposal contains a lot of subdivision ordinance and site plan standards that should not be in a zoning ordinance. [State law 8A-7-2(b) allows all these things in the zoning ordinance, to keep rules together for easy public understanding, as in Plan p.99, measurement of recommendation 3.03: "developer and public understanding of the documents improves".]

3. The proposal places a lot of limitations on the uses that are permitted making it difficult to achieve the use. [Limits should be discussed, to be as light as possible on business, while not hurting neighbors.]

4. Setbacks and intervisibility requirements make it prohibitive for some of the permitted uses.

5. A 7 page zoning ordinance is not possible. A shift to conventional zoning requires a tremendous amount of definition, direction and detail. Loudoun County's ordinance is over 500 pages. [3.03 "developer and public understanding of the documents improves... most concise terms possible"]

6. This proposal contains provisions for adequate public facilities. [State law 8A-7-2 requires or allows: (a)(4) "Lessening congestion" (b)(2) "protect... physical qualities of the community" (b)(6) "performance standards" (b)(11) "Regulating traffic flow and access" Plan 3.20 says LESA revision must consider "availability of certain services"]

B. Specific Comments.

1. Parent to Child transfers limit housing to less than 2000 square feet. This is not fair or practical. [County Commission can set limit at 1 unit or any number of square feet.]

2. The County Clerk should not verify the zoning map. The County Commission is charged with that task by code. [Where in the code? Alternate approach to certification would be welcome, but Mr. Raco has always said Clerk has the only official copy. 8A-7-2(c)(2) requires ordinance to "Specify certification requirements for zoning district maps that are consistent with the governing body's comprehensive plan". Proposal 1omits this requirement entirely.]

3. According to the Circuit Court, procedures are to be written by the Board of Zoning Appeals. [Not exactly. 8A-7-2(c) requires the Ordinance to "Adopt procedures and requirements for variances... conditional use permits"

8A-8-9-6 gives authority to Zoning Board on "process and forms for the appeal... applications... notice... conduct of hearings". Notice should be dropped from all three Ordinance proposals.]

4. Defining only 12 terms is deficient. [Definitions to be added where needed.]

In my opinion, Proposal B is not a functional zoning ordinance. As such, I reserve further comment on it. Beyond these comments. I concur with the substantive comments made by Mike Cassell, Assistant Prosecuting Attorney.

FULL COMMENTS BY MR. CASSELL ON PROPOSAL A

1. Amendment of §5.7(b): this amendment pertains to "buildings" with a maximum limitation of 3,000 sq. ft. per 5 acres. This would include garages, sheds, barns, etc. This appears to be a rather imaginative suggestion. It presents legal problems. Most of the square footage requirements around the country pertain to a minimum square footage requirement for housing. Unless the Commission can directly relate this maximum square footage cap to the fundamental purposes of Zoning, a court will declare this provision invalid. It is difficult to imagine how a cap on square footage for a residence could relate to the public health, safety and welfare. There are other methods available to encourage affordable housing which the Courts have approved. [see page 1]

2. Limitations on density are clearly policy decisions which are within the Commission's discretion to consider.

3. The proposed § 3.2(a)(b) does conform to West Virginia Law. There are many misconceptions regarding the Circuit Court Decisions pertaining to Planning and Zoning. One assumes that this suggestion pertains to the Kletter Decisions. [no, primarily the Jefferson Utilities case] I have attached for your consideration an Order dated August 16, 2004, in the Kletter case. In this Order, the Court clarifies the "precise rulings of this Court". Please read the summary prepared by the Court beginning at the bottom of page 2 of the Order. This summary makes it clear that the Court limited the effect of its Ruling in the Kletter case after the Court had an opportunity to review the decision a second time.

Mr. Burke's understanding of this decision and other Court cases must be taken with a grain of salt. The Commission should recognize that Mr. Burke is not a lawyer. The Commission should avoid reliance upon the legal advice of non-lawyers.

FULL COMMENTS BY MR. CASSELL ON PROPOSAL B

4. Page 2 of the Zoning Proposal contains a section entitled "fact sheet". However, the material in this section of the proposal is entirely Mr. Burke's opinion. This section contains no factual material.

5. Page 3 of the proposal Mr. Burke outlines the general goals set forth in §8A-7-2, WV Code. The remainder of this proposal creates several new Zoning Districts with various requirements as set forth in the proposal. These fall within the policy discretion of the County Commission. The exercise of discretion by the County Commission must be tempered by an awareness that reductions in allowed densities could result in a claim that reduced density constitutes a down zoning of the property. [see page 1]

6. On page 6. Development around existing vegetation: This section needs considerable definition to be enforceable. As an example one must define "natural, undisturbed condition". This is particularly important where the property may be in pasture or harvested woodlands. [Agree. This wording is in current subdivision ordinance, where it is defined as

"Natural, Undisturbed Condition. This exists where the terrain has not been altered in form by human activities such as cutting, filling, blasting or leveling and where natural vegetation exists. Natural Vegetation. This occurs when a property is allowed to revert to a wild condition with native plants. No cutting, trimming or cultivation takes place in areas of natural vegetation." Those definitions can be kept if people find them clear.]

Please be advised that a 1,000 foot setback around the Potomac, Shenandoah and the Opequeon [sic] is questionable. [This wording is in current zoning ordinance, where Mr. Cassell has not requested a change.]

7. On page 6. Elements required by state law -- zoning district maps: the Clerk of the County Commission is not qualified or authorized to determine that Zoning District Maps "conform to the Comprehensive Plan and that the boundaries of the industrial zone match the official copy of his or her records". The Clerk is the custodian of the County Commission's records in addition to the land records and voting records. It is unreasonable to assume that the Clerk has the expertise or the resources to verify the accuracy of maps and render opinions regarding the Comprehensive Plan. [Alternate approach to certification would be welcome 8A-7-2(c)(2) requires ordinance to "Specify certification requirements for zoning district maps that are consistent with the governing body's comprehensive plan". Proposal 1 omits this requirement entirely.]

8. On page 5 -- parent-child transfers: please be advised that a 2,000 square foot maximum limitation on housing is probably invalid. [This is an exceptional privilege, why can it not be limited as desired?]

9. On page 7-- Variance procedures: Please refer to the Order in the Kletter case dated August 16, 2004. The Court clearly states that "under West Virginia Law, the Board of Zoning Appeals and only the Board of Zoning Appeals may adopt Rules and Regulations concerning the filing of Appeals, Applications for Variances and Exceptions, the giving of notice and the conduct of hearings." [ 8A-7-2(c)(4) requires the Ordinance to "Adopt procedures and requirements for variances... conditional use permits"

8A-8-9-6 gives authority to Zoning Board on "process and forms for the appeal... applications... notice... conduct of hearings". Notice should be dropped from all three Ordinance proposals.]

The Court specifically ruled that the County Commission invaded the statutory powers of the Board of Zoning Appeals when the County Commission adopted a Zoning Ordinance which included procedures for the conduct of hearings. The Circuit Court will hold these Variance procedures and this proposal to be invalid upon review.

10. On page 8 at the top of the page there is a reference to "light may go outwards to up to fifty feet to a neighboring site to the same degree that light comes inwards from that particular neighboring site": This type of regulation is problematic in enforcement. One must question the ability of the County to objectively set forth standards and enforce the same. [This special allowance, only in conditional uses, could be dropped.]

The proposal cites Morris v. Priddv, 383 S.E. 2nd 770 for the proposition that the Board of Zoning Appeals may disallow a permit even if it technically meets the conditions above described, based on a reasonable use as the term is defined in this case.

Morris v. Priddy is a case which pertains to surface water rights. The applicability of Morris v. Priddv to Planning and Zoning matters is highly questionable. [Another standard would be welcome on how the Zoning Board should use its discretion on Conditional Uses.] It appears that Mr. Burke performed a computer word search to find a case to support some type of definition of reasonable use. However, the "uses" described in the Morris case pertain to surface water rights. Again, I must question the County Commission's reliance on the legal advice of a person who is not a lawyer on these important public matters.

11. Page 8-- enforcement: This proposal removes all discretion from the Planning Commission and the staff for enforcement of reported or alleged violations. One must recognize that neighborly disputes often are the motivation behind reported violations. It is important to determine whether or not the allegation is accurate. The County Commission and the staff must have discretion to do this. [Probably "They shall take action" should be "They may take action." Putting the authority in the Planning Commission is specifically authorized by state law, and keeps this specialized work from consuming the County Commission's time.]

12. Page 8: The proposal indicates that any person may "refer" any ambiguities to the Board of Zoning Appeals for an interpretation. This process would be contrary to the concept of standing as set forth in the Chapter 8A. Requests for interpretation which are not a part of a pending application or case should not be the subject of a hearing before the Board of Zoning Appeals. All requests for interpretations must be made in the context of a case before the Board pertaining to an application or other matter pending. [Alternate suggestions would be welcome. Proposal B does not require Board to hold hearing; it can decide what if anything to do when it sees an ambiguity. Jefferson Utilities case says Zoning Administrator may not provide interpretations. Standing in 8A only limits appeals to Circuit Court.]

13. Page 8-- definitions: There are several problems with the definitions proposed. How does one measure the manure per day produced by an average dairy cow? [Perhaps a standard reference should be mentioned.] Who will monitor the number of days an animal or plant has be onsite to determine that is it's "half raised on site". [Gross violations would be clear. Same problem with current ordinance and Raco Proposal Z]

Comments:

The County Commission must rely upon legal counsel for advice in matters which pertain to legal affairs. The reliance upon the advice of non-lawyers in these matters has led to serious problems in our Planning and Zoning Regulation System. One must only review the chronology which led to the Corliss Decision by the West Virginia Supreme Court to see how badly things may go under these circumstances. Please remember that the principals and theories argued before the Supreme Court in the Harvest Hills- Corliss Decisions remain with us today.

The Planning Commission and the Board of Zoning Appeals followed the Circuit Court's Decision in the Harvest Hills case until the Supreme Court reversed the Decision and ordered a contrary result in the case. This caused considerable confusion in the regulatory process. It required the Board and the Planning Commission to rework several important cases to conform to the Supreme Court's Decision.

This same eventuality is now before us.

The landowners in two of the Kletter cases have filed a Petition for Appeal with the Supreme Court in addition to the Petition filed by the Board of Zoning Appeals. One must recognize that the Circuit Court's initial Decision in the Kletter cases came one month before the Corliss case was decided by the Supreme Court. Thereafter, the Circuit Court reconsidered its position and rendered a second Decision in July, 2004.

In the second Kletter Decision, the Circuit Court failed to change any legal holding contained in the first Kletter Decision in light of the Supreme Court's Decision in the Corliss case. The second Kletter Decision contains an in depth discussion of the Circuit Court's understanding of the Corliss case but the Circuit Court failed to change its initial decision in Kletter in any substantial way. One can only imagine what the reaction of the Supreme Court will be on appeal. The contrast between the Decision in the Kletter case and the Decisions made in the MacElwee case are a stark contrast. In the MacElwee case, the Circuit Court vacated its initial Decision which followed the Harvest Hills Decision. The Circuit Court followed the Supreme Court's Decision in Corliss to the letter. No party in the MacElwee case filed an Appeal of that Decision.

Therefore, we have a split in the circuit between the Judges who have heard cases which are very similar to the Corliss case.

The Land Use Regulatory System in Jefferson County is one of the most important functions performed by county government. It touches upon the fundamental rights of the citizens, property owners and residents of the County. The stakes in these cases are very high and they will only continue to accelerate in the future. Your responsibility is clear. The discharge of your public responsibilities must include capable, qualified, professional advice regarding legal matters which directly bear upon the Land Use Regulatory System..