Zon amend

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

Click for Pre-existing ordinance

Click for alternate proposals A & B

Click for Comments by Asst. County Prosecutor Cassell

DRAFT

JANUARY 6, 2005

AMENDMENTS TO THE JEFFERSON COUNTY ZONING AND DEVELOPMENT REVIEW ORDINANCE.

The format for these amendments is as follows:

1. Deletions are shown in [brackets].

2. Additions are underlined.

3. Explanations are provided as needed.

All references to the Planning and Zoning Commission changed to Planning Commission.

All references to Board of Appeals or Zoning Board of Appeals or Board changed to Board of Zoning Appeals.

Article 1, Section 1.3 Application and Interpretation

(d) If a proposed use is not one in the list of those permitted in each zoning district, it shall be prohibited as though it was included in the list of prohibitions. However, the use may be approved if the Development Review System demonstrates that the use is compatible and appropriate with the neighborhood and the use can be approved by the [Planning and Zoning Commission] Board of Zoning Appeals.

Add new or rewrite existing definitions Article 2, Section 2.2 Terms Defined:

Abandonment or Abandoned: The relinquishment of property or cessation of the use of the property by the owner or lessee without any intention of transferring rights to the property to another owner or resuming the nonconforming use of the property for a period of one year.

Aggrieved or Aggrieved Person A person who is denied by the planning commission or the board of zoning appeals, in whole or in part, the relief sought in any application or appeals, or has demonstrated that he or she will suffer a peculiar injury, prejudice or inconvenience beyond that which other residents of the county or municipality may suffer.

Rewrite Agricultural Use to read

The exclusive use of land for a bona-fide fanning operation. This includes: Commercial Agriculture Enterprise; Ranching; Aquaculture; Apiculture; Horticulture; Viticulture; fish, meat and poultry processing, provided that seventy-five percent (75%) of the meat that is processed must be raised on the site of the processing facility for minimum periods of three (3) months for beef and pork and two (2) for lamb and poultry; Animal Husbandry; including, but not limited to, the care and raising of livestock, equine, and fur-bearing animals; poultry husbandry and the production of poultry and poultry products; dairy production; the production of field crops, tobacco, fruits, vegetables, nursery stock, ornamental shrubs, ornamental trees, flowers, sod or mushrooms; timber; pasturage; Christmas trees; maple sap; woody bio-mass; farm market; agriculture tourism; farm vacation; farm brewery; pick your own operation; community supported agriculture; any combination of the foregoing; and the housing; processing, value adding, drying, storage, distributing and marketing of agricultural products when those activities are conducted in conjunction with, but are secondary to, such husbandry or production. Agricultural Use shall not include slaughtering of livestock or poultry unless for the owners personal use.

Add Commercial Agricultural Enterprise Definition: Farm operations which will: (A) contribute in a substantial way to the area’s existing agricultural economy; and (B) help maintain agricultural processors and established farm markets. When determining whether a farm is part of a commercial agricultural enterprise, not only what is produced, but how much and how it is marketed shall be considered.

DRAFT AMENDMENTS Z (PZE staff compilation) 1/6/04 PAGE TWO

Affordable Housing Housing units where the occupant is paying no more than 30 percent of Jefferson County median gross income for housing costs, including taxes and utilities.

Conditional Use [A use of land or activity permitted only after fulfillment of all local regulations.] A use which because of special requirements or characteristics may be permitted in a particular zoning district only after review by the board of zoning appeals and upon issuance of a conditional use permit, and subject to the limitations and conditions specified in the zoning ordinance.

Contiguous Lots, parcels, municipal boundaries or county boundaries that are next to, abutting and having a boundary, or portion thereof, that is coterminous. Streets, highways, roads or other traffic or utility easements, streams, rivers, and other natural topography are not to be used to determine lots, parcels, municipal boundaries or county boundaries as contiguous.

Rewrite Essential Utility Equipment as follows:

Essential Utilities or Equipment Underground or overhead electrical, gas, communications not regulated by the federal communications commission, water and sewage systems, including pole structures, police call boxes, traffic signals, hydrants, regulating and measuring devices and the structures in which they are housed, and other similar equipment accessories in connection therewith. Essential utility equipment is recognized in three categories:

(1) Local serving;

(2) Nonlocal or transmission through county or municipality; and

(3) Water and sewer systems, the activities of which are regulated, in whole or in part, by one or more of the following state agencies:

(A) Public service commission

(B) Department of environmental protection; or

DRAFT AMENDMENTS Z (PZE staff compilation) 1/6/04 PAGE THREE

Institutional Use A non profit, not for profit, public or quasi-public use, such as a religious facility, library, public or private school, hospital, or government owned, operated or supported facility or land use for public purpose.

Motor Vehicle Any self-propelled vehicle designed primarily for transportation of persons or goods along public streets or other public ways.

Neighborhood An area generally confined to a one-mile radius of a proposed development.

Non-residential A commercial, industrial or institutional use.

Rewrite Staff as follows: Personnel employed in the Department of Planning, Zoning and Engineering.

Rewrite Variance as follows:

Variance 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 classification of a parcel of land.

Vehicle A means of carrying or transporting something.

Vehicular Miles Distance by motor vehicle between two points utilizing public highways.

Article 3, Section 3.1 Administration and Enforcement

(a) The provisions of this Ordinance will be [administered] governed by the [Jefferson County Planning and Zoning Commission], the County Commission or the Zoning Administrator and Staff in accordance with '8A-1-1 et seq of the West Virginia State Code, as amended. With enactment of the Ordinance, the County Commission shall designate a Zoning Administrator [be under the direct supervision of the Planning and Zoning Commission] for the day to day administration of the ordinance.

DRAFT AMENDMENTS Z (PZE staff compilation) 1/6/04 PAGE FOUR

(b) An appeal to this Ordinance, however, may be made to the Jefferson County Zoning Board of Appeals subject to the provisions of [Article 8, Chapter 24, Subsection 59] '8A-1-1 et seq of the West Virginia State Code, as amended.

(c) The Jefferson County [Planning and Zoning Commission] Board of Zoning Appeals shall evaluate all Development Review applications and approve, approve with conditions, or deny issuance of a conditional use permit.

Article 3, Section 3.2 Zoning Administrator

(a) The Zoning Administrator shall administer and enforce the Zoning Ordinance. This includes but is not limited to the following:

(1) Make determinations that all applications required by the Ordinance are complete and that all fees are paid.

(2) Interpret the provisions of the Ordinance as required by law.

(3) Issue Zoning Certificates as permitted by the Ordinance.

(4) Calculate the LESA point scores and determine the adequacy of the Support Data for all applications for a Conditional Use Permit.

(5) Issue all Permits and Certificates as permitted by the Ordinance.

(6) Prepare and submit reports as required by the Ordinance or the Board of Zoning Appeals or Planning Commission.

(7) Conduct meetings and conferences pursuant to the Zoning Ordinance.

(b) Any decision or action by the Zoning Administrator based on Section 3.2(a) above are subject to appeal to the Board of Zoning Appeals.

Re-letter original a, b, c, d, e and f

[(a)](c)It shall be unlawful to develop, construct, alter, or reconstruct any structure or to

change the use of any structure or property without first obtaining a zoning certificate from the Zoning Administrator. This provision shall apply to general maintenance or repair or any addition deemed not a major addition as defined in Section 2.2 of this ordinance.

[(b)](d) Each application for a zoning certificate shall be accompanied by a copy of an approved

site plan, if applicable, or by a legible drawing either drawn to scale or accurately indicating dimensions which show property boundaries and existing and proposed structures and other proposed changes or land development. The plans shall be retained in the office of the [Planning and Zoning Commission] Department of Planning, Zoning and Engineering.

DRAFT AMENDMENTS Z (PZE staff compilation) 1/6/04 PAGE FIVE

[(c)](e) Use of any property, development arrangement, or construction on any property other

than that authorized in the zoning certificate is a violation of this Ordinance. All provisions of this Ordinance and amendments shall be maintained perpetually.

[(d)](f) The [Commission] Zoning Administrator shall approve or disapprove issuance of a

zoning certificate within sixty (60) days of the initial filing date providing the application is complete and fees are paid when filed and the request is in compliance with the provisions of this Ordinance.

[(e)](g) A zoning certificate shall become void eighteen (18) months after the date of issuance if

the construction or use for which the permit was issued has not commenced. A one-time extension of this time frame may be granted by the [Planning and Zoning Commission] Board of Zoning Appeals after evaluation of the hardship involved with noncompliance of this regulation. The length of time extended shall be at the discretion of the [Planning and Zoning Commission] Board of Zoning Appeals and shall not exceed eighteen (18) months.

[(f)](h) A filing fee, in accordance with the County fee structure, shall be charged for all zoning

certificates.

Article 3, Section 3.3 Enforcement

(a) The Zoning Administrator or Staff shall promptly investigate any written complaint alleging a violation has occurred.

(b) As provided in [Article 8, Chapter 24, Subsection 68] '8A-1-1 et seq of the West Virginia State Code, as amended, any person who violates any provision of this Ordinance shall be guilty of a misdemeanor, and upon conviction, shall be fined not less than [one hundred ($100.00)] fifty ($50.00) or more than $500.00 per day.

(c) When it appears to the [Planning and Zoning Commission] Board of Zoning Appeals or the Zoning Administrator or Staff that a violation of this Ordinance has occurred, the [Commission] County shall notify the responsible person by means of a written Violation Notice. The Violation Notice shall specify the nature of the violation and shall request that the violation be terminated within 15 days from the date appearing on the Notice. Failure to terminate the violation within the requested time shall be cause for the [Planing and Zoning Commission] Board of Zoning Appeals or the Zoning Administrator or Staff pursuant to '8A-10-1, 2 and 3.

DRAFT AMENDMENTS Z (PZE staff compilation) 1/6/04 PAGE SIX

Article 4, Section 4.3 Nonconforming Uses

(b) Whenever a nonconforming use has been abandoned for a period of [eighteen (18) months] twelve (12) months, such use shall not be reestablished and any future use shall be in conformance with the provisions of this Ordinance. [However, a one time extension of up to eighteen (18) months may be granted by the Board of Appeals].

(f) Section 4.3 is subject to [Article 8, Chapter 24, Subsection 50] '8A-1-1 et seq of the West Virginia State Code, as amended.

4.3(h) remains as originally adopted

Nonconforming commercial wireless telecommunications antenna, commercial wireless telecommunication equipment shelter(s), commercial wireless telecommunications facility(s) and commercial wireless telecommunications tower(s) cannot expand under this provision while Article 1, Section 1.6 is in effect.

4.3[(h)](I) A nonconforming use destroyed by a natural or unnatural calamity cannot be rebuilt without approval of the Zoning Board of Appeals upon application by the owner and pursuant to the variance and appeal procedures outlined in Article 8.

4.3[(h)](j) The nonconforming use automobile racing facility located on property specifically described as Tax Map 17, Parcels 2, 2.1 and 5 in the Kabletown District is permitted to expand as herein described:

1. The commercial/competitive racing circuit as measured on January 10, 2002, particularly 25,344 linear feet may add an additional 8,870 feet of commercial/competitive raceway surface, in accordance with (and not in addition to) the provisions of Section 4.3 of this Ordinance. The surface shall conform to a required 200 foot setback from all property lines.

2. May add dormitory lodging with food service facilities that do not contain internally lit signs.

3. May add automobile related research and development facilities.

4. May add other automobile related facilities only for vehicles that are used on-site, including, but not limited to warehousing, parts, supplies and service.

DRAFT AMENDMENTS Z (PZE staff compilation) 1/6/04 PAGE SEVEN

Article 4, Section 4.4 Prohibited Uses

4.4(j) remains as originally adopted

Commercial wireless telecommunications antenna, commercial wireless telecommunications equipment shelter, commercial wireless telecommunications facility and commercial wireless telecommunications towers while Article 1, Section 1.6 is in effect.

4.4[(j)](k) Vehicle signs left parked or standing on a public right-of-way, public property or private property.

Article 4, Section 4.10 Site Plan Requirements

(c) In those cases where a Site Plan is required and the developer has received a conditional use permit, a minimum of six (6) copies of the Site Plan shall be submitted to the Jefferson County [Planning Office] Department of Planning, Zoning and Engineering.

(g) The Planning [and Zoning] Commission shall review and approve or disapprove a completed application within sixty (60) days of the acceptance of the Site Plan in the [Planning Office] Department of Planning, Zoning and Engineering.

Article 4, Section 4.11 Landscaping, Screening and Buffer Yard Requirements

4.11(h) Remains as originally adopted

All required landscape plans shall contain the following elements:

4.11[(h)]I. Remains as originally adopted

All wireless telecommunications antennas, towers, and facilities shall have a buffer yard pursuant to Article 4, Section 4.11(d)1-4

Article 4, Section 4.A.4 Private Covenants Running with the Land

Although not regulated by the [Planning Commission] County, it is recommended that prior to the operation of a Home Occupation and/or Cottage Industry, applicants research restrictive covenants for their land or seek the advice of a surveyor, engineer or attorney.

DRAFT AMENDMENTS Z (PZE staff compilation) 1/6/04 PAGE EIGHT

Article 5, Section 5.7a Principal Permitted Uses

5.7a (20) Wireless telecommunication facilities pursuant to Article 4B.

[(20)](21) Horse breeding and/or boarding

[(21)](22) Equestrian riding/training facility

[(22)](23) Model homes/sales office (pursuant to 4.18)

5.7(d)2c. Procedures

1. Concept Plan. For the subdivision of tracts eligible for cluster lots, a concept plan shall be submitted to the [Planning Commission] Department of Planning, Zoning and Engineering showing all standard and potential cluster rights to determine the feasibility of subdivision rights for the original tract(s) of land. The plan shall be prepared in accordance with a Asample@ cluster plan and show the following:

5.7(d)2d The [Planning] Department of Planning, Zoning and Engineering Staff will review the cluster plan, prepare a report and submit it to the Planning Commission within thirty (30) days of original submittal.

5.7(d)2e The [Planning Commission] Staff will have final approval over the location layout of the proposed clustering of lots. The [Planning Commission] Staff shall consider the following when reviewing concept plans:

Article 6, Section 6.2 Issuance of a Conditional Use Permit

... A score of [55] 60 points or less advances the application to the Compatibility Assessment as provided in Section 7.6. [A score of more than [55] 60 points may be evaluated by the board of Appeals before it can be advanced to the Compatibility Assessment Meeting Stage].

Article 6, Section 6.3 Soils Assessment

The soil groups and their corresponding values will be incorporated into a work sheet to be used to evaluate the potential agricultural value of each site.

If 50% to 65% of the total soils are rated severe for home construction or street construction, by the Jefferson County Soil Survey, add 5 points to the Land Evaluation value of the work sheet.

If Over 65 %, add 10 points to the Land Evaluation value of the work sheet.

The soils assessment shall not exceed 25 points.

DRAFT AMENDMENTS Z (PZE staff compilation) 1/6/04 PAGE NINE

Repeal Article 6, Section 6.4 Amenities Assessment, et seq., and replace with new Section 6.4:

The amenities assessment of the Development Review System provide indicators of a site=s agricultural viability or its development potential. The following criterion are weighted with a high numerical value assigned if the site is more agriculturally viable and a low numerical value assigned if development would be more appropriate for the parcel. The procedure for the compatibility assessment is contained in Article 7.

(a) Size of site:

This criterion reflects the importance of preserving large blocks of land as a primary goal of agriculture preservation, therefore, acreage shall be contiguous. For nonresidential projects, the points on the right will be applied.

Residential Projects Nonresidential Projects

0 to 40 acres ---------- 0 points 0 points

40 to 80 acres ---------3 points 5 points

over 80 acres --------- 6 points 10 points

(b) Adjacent Development:

This criterion assesses percentage of adjacent land that which is developed or under development. Development and development pressure includes: a subdivision of more than 5 lots, lots of less than 5 acres and all commercial or industrial uses. This measurement shall be by a computation of linear feet around the boundary of the property in question. Agricultural related industry or uses shall be considered Ano development pressure.@ Adjacent property includes land separated by roads, rights-of-way, railroads and other easements. After the percentage of land under development pressure is calculated the remaining percentage of adjacent property may be considered as property where there is no development pressure. The points shall be assessed as follows:

For the property not under development pressure or not developed:

0 to 40 percent ------- 0 points

40 to 65 percent ----- 5 points

65 to 100 percent ---- 10 points

DRAFT AMENDMENTS Z (PZE staff compilation) 1/6/04 PAGE TEN

The distance to the growth corridor relates to the distance of the subject parcel to the boundaries of the Residential-Growth District or the Residential-Light Industrial-Commercial District adopted within this ordinance. Measuring shall be by the closest linear distance from the property to the closest point of either of the aforementioned growth districts.

Less than .25 mile -------- 0 points

.25 mile to .75 mile ------ 6 points

Over .75 mile ------------- 12 points

(d) Comprehensive Plan Compatibility

This criterion shall determine whether site development is supportive or has a negative impact on the following elements of the Comprehensive Plan: Highway Problems Areas, Compatibility of site development with designated or proposed parks and recreational areas and compatibility of site development with sinkhole protection.

Highway Problem Areas

Residential Project Nonresidential Project

0 problem areas ----------- 0 points 0

1 problem area ------------ 3 points 6

2 problem areas ----------- 6 points 12

Highway Problem Area Points will be assessed as follows:

If one could get to the closest >in county= incorporated area (using the most direct vehicular route) and to the closest >out of county= market area (Frederick, MD; Winchester, VA; Inwood, WV; Martinsburg, WV) without traveling through a Highway Problem Area as shown on the Comprehensive Plan Highway Problem Area Map the project would score a 0.

If one could get to one or the other without traveling through a Highway Problem

Area the project would score a 3.

If one would travel through a Highway Problem Area to the closest in county incorporated area and to the closest out of county market area, the project would score a 6.

DRAFT AMENDMENTS Z (PZE staff compilation) 1/6/04 PAGE ELEVEN

Affordable Housing

25% affordable housing is proposed 0

10% affordable housing is proposed 3

No affordable housing is proposed 6

Park/Recreational

Proposing a 5 acre park or 10% of gross acreage (whichever is greater) with amenities and land

dedicated to and accepted by Jefferson County Parks and Recreation Commission --- 0 points

Located within 2 miles from an area marked on the Comprehensive Plan Parks and

Recreation map ------------------------------------------------------------------------- 3 points

Located farther than 2 miles from an area marked on the Comprehensive Plan Parks

and Recreation map -------------------------------------------------------------------- 6 points

Distances for Parks and Recreation will be measured by vehicular miles from a subdivision entrance by the most direct route to the closest park or recreation area as shown on the Comprehensive Plan map of Parks and Recreation Areas.

For nonresidential projects, parks and recreation points will be reassigned to Highway Problem Areas: 0, 6 and 12.

(e) Proximity to Schools

Less than 2 miles ------------------- 0 points Nonresidential N/A

2 to 4 miles -------------------------- 4 points

over 4 miles ------------------------- 8 points

The purpose of assessing the proximity of schools to new development is to avoid excessive busing of students. Distances for schools will be measured by vehicular miles from a subdivision entrance by the most direct route to the entrance of the appropriate school.

For nonresidential projects the proximity to schools points will be reassigned to roadway adequacy: 0, 10 and 16 and size of site: 0, 5 and 10.

DRAFT AMENDMENTS Z (PZE staff compilation) 1/6/04 PAGE TWELVE

(f) Roadway Adequacy Nonresidential Projects

Primary ------------------- 0 points 0 points

Secondary ---------------- 6 points 10 points

Local Service ------------ 12 points 16 points

Point values for this criterion are assigned based on the designation of the Comprehensive Plan Highway Classification map. Section 6.5(d) evaluates the operational proximity of the site to designated highway problem areas.

(g) Emergency Service Availability

The purpose of this criterion is to assess the distance of potential site development to emergency services: fire department (4.5 points) and ambulance service (4.5 points).

Distance to Emergency Services

Fire Ambulance

Less than 2 miles ------------ 0 points Less than 2 miles -------------0 points

2 to 5 miles ------------------- 2.5 points 2 to 5 miles ------------------- 2.5 points

Over 5 miles ------------------ 4.5 points Over 5 miles ------------------ 4.5 points

Distances for Fire and Ambulance will be measured by vehicular miles from a subdivision entrance by the most direct route to the closest entrance of the appropriate fire or ambulance station.

Article 6, Section 6.5 Computation of Soils/Amenities Assessment

(c) The combined maximum total for both Assessments is 100 points. The most agriculturally significant parcel would rate 100; the most developable parcel would rate 0. A total of [55] 60 points or less advances the application to the Compatibility Assessment Meeting.

Add Article 6, Section 6.5(e)

Any land in the Rural District that is located on a primary or secondary road, as defined in the Comprehensive Plan, shall not have to process through the LESA points process for a commercial or industrial project and shall be advanced directly to the Neighborhood Compatibility Meeting.

DRAFT AMENDMENTS Z (PZE staff compilation) 1/6/04 PAGE THIRTEEN

Article 7, Section 7.4 Filing the Application

The owner or the owner=s agent proposing to develop land that is not a principal permitted use in the district where it is located shall consult with the [Jefferson County Planning Staff] Department of Planning, Zoning and Engineering. Fifteen 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, at least ten (10) days prior to the scheduling of a Compatibility Assessment Meeting.

Section 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 developer=s 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. If the majority of those in attendance are in agreement that the staff record is accurate, the meeting will end and the staff will prepare a report for the next [Planning Commission] Board of Zoning Appeals meeting. If there is need for clarification of a particular issue or issues, the staff will allow additional time for clarification before ending the meeting.

(b) During the Compatibility Assessment Meeting, those who participate should address, but are not limited to, the following criteria to determine compatibility of the proposed project:

(1) Adopted Federal, State and Local regulations;

(2) Similarity of proposed development type (residential, commercial, industrial, agricultural, etc.) to existing development types;

(3) In a residential project, similarity of the density of the proposed development to existing density in the neighborhood;

[(3)](4)Adequacy of roads and highways to accommodate traffic to be generated by the

development, with particular attention to dangerous intersections designated by the West Virginia Department of Transportation or State Police;

[(4)](5)Present and future transportation patterns in the area;

[(5)](6) Consistency with land use plans and regulations of incorporated municipalities

immediately adjacent to the proposed development;

[(6)](7)Any variance which is known to be required at the time of submittal;

[(7)](8)The relationship of the proposed change to the adopted Comprehensive Plan; and

[(8)](9)All items submitted with the application

DRAFT AMENDMENTS Z (PZE staff compilation) 1/6/04 PAGE FOURTEEN

(c) The [Planning and Zoning] Department of Planning, Zoning and Engineering Staff shall monitor and record the meeting. A time limit, as referred in Section 7.7c may be imposed if there are a large number of persons to speak at a particular meeting. The Staff may comment on the proposed development=s conformance to applicable State, Federal and Local codes but shall primarily monitor and record pertinent issues and concerns.

(d) The Staff shall prepare it=s report of the developer=s proposal, the agreed upon conditions, and any other pertinent data and will advertise for a public hearing of the [Planning and Zoning Commission] Board of Zoning Appeals. [The Board of Appeals or its representatives may attend this hearing.] A public hearing in conformance with Section 7.7 will be conducted on the application no less than [15]30 days but no more than [45]60 days from the date of the Compatibility Assessment Meeting. The Staff report to be presented at the Public Hearing will be available to the general public [seven (7)] fourteen (14) days prior to the advertised hearing.

(e) The public hearing will be conducted by the [Planning and Zoning Commission] Board of Zoning Appeals. [The Board of Appeals, or its representative may be present.] The purpose of the meeting is to hear the staff report of the issues and concerns raised at the Compatibility Meeting. Any comments relative to the validity of the staff report should be presented at this meeting. Concerns that have been addressed and agreed upon as accurate by the majority of those present at the Compatibility Assessment Meeting should not be addressed at this hearing. The hearing will be subject to Section 7.7c; however, speakers shall be limited to resolution of issues which could not be resolved at the Compatibility Assessment Meeting and the compatibility of the project within the neighborhood.

(f) If all issues raised at the Compatibility Assessment Meeting with the staff were resolved at that meeting, there will be no public hearing required. At the next [Planning and Zoning Commission] Board of Zoning Appeals meeting, the [Planning and Zoning Commission] Board of Zoning Appeals shall issue, issue with conditions, or deny the conditional use permit. The standards governing the issuance of Conditional Use Permits shall be: successful LESA Point application; Board of Zoning Appeal=s resolution of unresolved issues; and, evidence offered by testimony and findings by the Board of Zoning Appeals that the proposed development is compatible with the neighborhood where it is proposed.

DRAFT AMENDMENTS Z (PZE staff compilation) 1/6/04 PAGE FIFTEEN

(g) The [Planning and Zoning Commission] Board of Zoning Appeals shall issue, issue with conditions, or deny the conditional use permit. The [Planning and Zoning Commission] Board of Zoning Appeals shall have the authority over the issuance or denial of all development review applications. The standards governing the issuance of Conditional Use Permits shall be: successful LESA Point application; Board of Zoning Appeal=s resolution of unresolved issues; and, evidence offered by testimony and findings by the Board of Zoning Appeals that the proposed development is compatible with the neighborhood where it is proposed.

(h) Any persons may appeal any final decision of the [Planning and Zoning Commission] Board of Zoning Appeals to the Circuit Court of Jefferson County subject to [Article 8, Chapter 24, Subsection 59] '8A-1-1 et seq., of the West Virginia State Code, as amended.

Section 7.7 Public hearings for Development Review System (Unless Otherwise Superceded by the Board of Zoning Appeal=s Rules of Procedure)

(a) The [Planning and Zoning Commission] Board of Zoning Appeals Chairman or his appointed designee will preside over [any Planning and Zoning Commission Development Review System Public Hearing] the Public Hearing.

(b) [In the event the Board of Appeals are required to hold a Public Hearing, the Board of Appeals Chairman or his appointed designee will preside over the hearing.] All public hearings shall have time limits allotted to those who speak, as follows: the developer or his agent, or applicant shall have 30 minutes for his preservation, each group who speaks may have 15 minutes, each individual who speaks is allotted 5 minutes, the developer or his agent, or applicant are allowed 15 minutes for rebuttal. The time limit provision within this section may be modified by the Planning and Zoning Commission or Board of Appeals= Chairman in the event that there are a large number of persons to speak at a particular hearing. The Commission or Board shall announce any change to this section at the beginning of the hearing.

[(c)] [All public hearings shall have time limits allotted to those who speak, as follows: the developer or his agent, or applicant shall have 30 minutes for his preservation, each group who speaks may have 15 minutes, each individual who speaks is allotted 5 minutes, the developer or his agent, or applicant are allowed 15 minutes for rebuttal. The time limit provision within this section may be modified by the Planning and Zoning Commission or Board of Appeals= Chairman in the event that there are a large number of persons to speak at a particular hearing. The Commission or Board shall announce any change to this section at the beginning of the hearing.]

DRAFT AMENDMENTS Z (PZE staff compilation) 1/6/04 PAGE SIXTEEN

(d) All public hearings shall be advertised in a newspaper having general circulation in the County at least 15 days prior to such hearing. (Conditional use permits are subject to Section 7.5b and Section 7.6d.)

(d) [All public hearings shall be advertised in a newspaper having general circulation in the County at least 15 days prior to such hearing.] The property subject to the hearing shall be posted at least 15 days before the date of the hearing. (Conditional use permits are subject to Section 7.5b [and Section 7.6d].)

(e) [The property subject to the hearing shall be posted at least 15 days before the date of the hearing. Conditional use permits are subject to Section 7.5b)]. The Board of Zoning Appeals shall make a decision no more than 60 days after the public hearing.

[(f)] [The Board of Appeals shall make a decision no more than 30 days after the public hearing, or after the Planning Commissions recommendations on conditional use permits.]

Article 7, Section 7.8 Board of Zoning Appeals Approval of Conditional Use Permit

7.8(b)(3) Authorize [upon appeal in specific cases] such variances from the terms of the Ordinance [as will not be contrary to the public interest, where owing to special conditions, the enforcement of the provisions of this Ordinance will result in unwarranted hardship and injustice and which will most nearly accomplish the purpose and intent of the regulations of the Zoning Ordinance] if the Board 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.

DRAFT AMENDMENTS Z (PZE staff compilation) 1/6/04 PAGE SEVENTEEN

Article 8. APPEAL PROCESS UNLESS SUPERCEDED BY THE BOARD OF ZONING APPEALS RULES OF PROCEDURE

Article 8, Section 8.2 Processing Procedures

(b) The Board shall hold a hearing within [seventy-five (75)] forty-five (45) days from the date the appeal is received in the Department of Planning, Zoning and Engineering Office.

(c) Notice of the hearing shall be advertised in two issues of a newspaper having general circulation in the County at least [30] 15 days before the hearing.

Delete/Repeal Article 8, Section 8.4 Postponement of the Hearing (a) (b) (c) (d).

Article 8, Section [8.5] 8.4 Continuance of Hearing

Article 9, Section 9.8 Exceptions, as follows

Seasonal uses must by approved by the Board of Zoning Appeals pursuant to a public hearing. However, such public hearing need only be advertised for 15 days. Seasonal Uses and Bed and Breakfast establishments (in the Rural Zone) must be approved by the [Zoning Board of Appeals] Board of Zoning Appeals pursuant to a public hearing. However, such public hearing need only be advertised for fifteen (15) days. Requests for these exceptions must include all items in Section 12.2(d)[1-6]. Seasonal uses cannot be approved for longer than one year at a time.

Article 10, Section 10.5 Special Exception Uses (Requiring [Appeals Board] Board of Zoning

Appeals Authorization After Public Hearing

Outdoor advertising signs including billboards may be approved by the Board of Zoning Appeals if it conforms to existing State law and does not have a negative affect on the neighborhood or intent of this Ordinance.

Article 10, Section 10.6 Zoning Certificate

All Zoning Certificate applications for signs may be approved by the Department of Planning, Zoning and Engineering Staff if in conformance with the regulations.

Article 11, Section 11.1 Non Residential Parking Standards

(b) Parking requirements for uses not listed in 11.1(a) may be either approved or established by the Department of Planning, Zoning and Engineering Staff on a case-by-case basis. Justification for said requirements must be documented.

DRAFT AMENDMENTS Z (PZE staff compilation) 1/6/04 PAGE EIGHTEEN

Repeal Article 12, Section 12.2 and replace with:

Procedure for Amendment by the Governing Body

(a) After the enactment of the zoning ordinance, the governing body of the County may amend the zoning ordinance without holding an election.

(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.

Add new Article 12, Section 12.3 Procedure for Amendment by Petition

(a) The procedure for amendment shall be as dictated in '8A-1-1 et seq of the West Virginia State Code, as amended.

(b) Petitions to the County Commission or Planning Commission for an amendment must contain the following information:

1. Substantiation for the request

2. Tax District, Map and Parcel Number

3. Deed Book reference

4. Plat or sketch pursuant to Section 7.4(b)

5. Tract size

6. Discussion on:

a. Comprehensive Plan compatibility of the proposed change.

b. Any change of transportation characteristics and neighborhood from when the original ordinance was adopted.

Article 10, Section 10.5 Special Exception Uses (Requiring [Appeals Board] Board of Zoning

Appeals Authorization After Public Hearing

DRAFT AMENDMENTS Z (PZE staff compilation) 1/6/04 PAGE NINETEEN

Article 10, Section 10.6 Zoning Certificate

All Zoning Certificate applications for signs may be approved by the Department of Planning, Zoning and Engineering Staff if in conformance with the regulations.

Article 11, Section 11.1 Non Residential Parking Standards

____________________________________________________________

Comments by Assistant County Prosecutor Cassell, 1/10/05, on Raco Proposal Z

You may wish to refer to my prior comments. I have reviewed these amendments on several occasions. It appears that Paul Raco addressed most, if not all of my concerns in this draft.

The first concern that I perceive is the conflict between the draft amendments and the Rules adopted by the Board of Zoning Appeals on January 4, 2005. On page 14 of the draft the Staff Report from the Compatibility Assessment Meeting is filed 14 days before the advertised Board of Zoning Appeals meeting. The Board of Zoning Appeals requires the Appellant to file all documents not less than 18 days prior to the hearing. The other parties in an Appeal may file their documents 8 days before the advertised hearing. To be consistent, we should require the Staff Report to be filed 18 days prior to the advertised hearing.

On page 15, there are specific procedural Rules set forth in § 7.7(b). It is confusing to have separate sets of Rules in the Zoning Ordinance and in the Board of Zoning Appeals Rules of Procedure. The order of priority in statutory construction is as follows: The constitution controls State Statutes; State Statutes control local County Ordinances; County Ordinances control Rules of Procedure adopted by county agencies.

On page 16, § 7.7(e), I recommend that 60 days be changed to two months.

On page 17, Article 9, § 9.8, Seasonal Uses: I would replace the final sentence of that paragraph with a sentence that states a follows: “Seasonal Uses must be approved each calendar year.”