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IN THE CIRCUIT COURT OF JEFFERSON COUNTY, WEST VIRGINIA Civil Action No. 01-C-139
Gregory A. Corliss et al, Petitioners
vs.
Jefferson County Zoning Board of Appeals, Respondent
William Henderson, et al., Intervenors
PETITIONERS' REPLY IN CIVIL ACTION 01-C-139
I. INTRODUCTORY DISCUSSION OF LAW AND FACTS
This reply answers the Briefs of the County and Arcadia. Therefore it covers only the issues that were commented on in those two documents.
Standard of Review
The Petitioners accept the legal propositions in a Writ of Certiorari that public officials are presumed to be correct in their decisions except in case of misapplied principles of law and in those instances of being plainly wrong in factual findings.
Facts
One of the main issues of just being plainly wrong in this case relates to the measurement of farmland and development surrounding the proposed Harvest Hills development. Both State Code and the Comprehensive Plan heavily stress the importance of protecting farmland. The Ordinance says to consider land as "surface." So on all grounds the land use Public Officials in this case were plainly wrong in measuring land as merely a boundary line. They should have complied with the specific wording of the Ordinance requiring a surface, not linear, measurement. As discussed on pp. 12-13 of the Petitioners' Brief, linear measurement favors high density development vice an area measurement for adjacent property which favors farmland preservation. An administrative body should not ignore its own documents.
Another set of decisions that were plainly wrong involve available or appropriate public facilities. The Ordinance says in various ways that this Rural District can have a high density subdivision when public facilities exist for it. That is a major aspect of the Site Assessment part of LESA. The Board was plainly wrong in pretending that capacity was available or did not matter or that overcrowded schools were appropriate.
Principles of Law
The most widespread misapplication of law in this case relates to Public Officials exceeding the discretionary authority and legal policy guidance which are provided by applicable State Code, the Comprehensive Plan, and the Ordinance. In a sense this guidance forms a number of decision windows within which Public Officials are expected to operate. Some windows, depending on the specificity of the guidance, are small and others are quite large. The issues for this writ pertain to whether or not the decisions went outside the legal constraints of State Code, Comprehensive Plan and Ordinance.
The Ordinance, which explicitly states that its purpose is to implement the Comprehensive Plan (1.1(b), 1.3(a)), cannot be applied in isolation. Public Officials applying the Ordinance need to continually refer to the Comprehensive Plan to ensure that their zoning decisions are complementary.
In particular the proposed development is in the Rural District, not the Residential Growth District, so goals for the Rural District and for preserving agriculture are particularly relevant.
Land use considerations are sometimes complex, and consequently Public Officials, in interpreting how the Ordinance might be applied do need to go back and review what the Comprehensive Plan's objectives are with respect to specific land uses. The County sees in the Comprehensive Plan and State Code merely, "general policy statements and legislative purposes" (p. 5). Even so they admit these "may be useful to provide guidance" (p. 6). Yet when they, themselves, think the Ordinance is not specific, such as in the list of required support data, they do not look at the guidance. They just accept anything from the Developer. As the County frames the argument, the Comprehensive Plan appears to have no value in the day to day application of the Ordinance. Therefore, the land use Public Officials are left to apply only their individual discretionary authority vice the discretionary limitations or framework flowing from State Code and Comprehensive Plan. These limitations directly affect the interpretation and implementation of the Ordinance.
Further, when land use Public Officials note tensions or inconsistencies between the Ordinance and State Code or Comprehensive Plan goals, objectives and charges, it is their duty to resolve these problems and initiate changes to either the Comprehensive Plan or Ordinance and/or ask the County Commissioners for assistance. To be aware of major inconsistencies with respect to what is being approved under the Ordinance and what has been stated as a legal or Comprehensive Plan objective is another erroneous principle or wrongful application of law.
Standing
The Intervenors raised the issue of standing in their Brief. The Zoning Administrator and Intervenors earlier raised this argument unsuccessfully to the Board. The Petitioners think standing would have been more properly raised as a separate motion, to which a specific affidavit would have been an appropriate reply. Standing could have been raised and scheduled at the initial writ hearing. However, in the following pages the Petitioners will clearly establish their aggrieved standing, from major effects on agriculture generally and on agricultural operations specifically around the Henderson Farm.
II. PETITIONERS' STANDING AND REAL PARTY IN INTEREST
The Petitioners' aggrievement is an economic and cultural injury far beyond that which will be shared with the general public. Further, it will be established that Petitioners are uniquely affected and fully meet the legal definition of aggrieved parties and also meet the legal tests for standing.
The discussion is divided into five parts. First are citations of the cases suggested by Arcadia. Second is a discussion of evidence on standing that is already in the Record. Third is a discussion of limitations that the Board placed on testimony. Fourth is a discussion of the real party in interest. Last is a discussion with new arguments on standing.
Legal Standards for Standing
In Barker et al. v. City of Charleston et al., 61 S.E.2d 743 (WV 1950), the West Virginia Supreme Court said, "...the Petitioner must allege that his property abuts on that part of the street vacated, or that he will suffer special or peculiar damage or inconvenience not common to all" (Syllabus point 2, emphasis added in all quotations). On page 746 of Barker the Supreme Court quotes from 14 C.J.S., Certiorari, §51, "It is a general rule that the writ is not available to an individual who has no direct or particular interest in the proceeding sought to be revised and who does not show that he will suffer a special injury beyond that which will affect him in common with the public or others similarly situated..." The last paragraph of the opinion (p. 747) phrases the test as "suffered any injury, prejudice or inconvenience not suffered by others in the community..."
In Christopher G. Brouzas et al. v. City of Morgantown et al. 106 S.E.2d 244 (WV 1958), which was a case for declaratory relief, the Supreme Court paraphrased Barker's standard as "peculiar damage or inconvenience beyond that which will affect him in common with the public or other property owners similarly situated" and said this certiorari standard also applied to declaratory relief.
The standard widened greatly in 1981 if, as Arcadia suggests (their footnote 4), another relevant case is Matthew and Francine Snyder et al. v. David C. Callaghan 284 S.E.2d 241 (WV 1981). That case 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 (p. 248) was, as Arcadia indicates, "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." The Court referred to Shobe v. Latimer 253 S.E.2d 54 (1979) which was another river case.(1) The fact that everyone downstream (similarly situated) had standing to sue did not bother the court. In fact they 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," and Arcadia says "Other decisions further define the concept of an 'injury in fact'" (p. 13) without citing such decisions. 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).
In Walnut Grove/Security Hills Citizens Association, Inc. et al. v. Jefferson County Planning and Zoning Commission, Circuit Court of Jefferson County case 90-P-81, this Court quoted and used the C.J.S. test quoted by Barker of "special injury beyond that which will affect him in common with the public or others similarly situated" (Opinion Letter 1/4/93).
The issues are different in the annexation case cited by Arcadia, 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). This case was decided on grounds specific to annexations, quoting general rules about annexations in 13 A.L.R.2d 1279 and 2 Eugene McQuillin, The Law of Municipal Corporations. The issues do not apply to a zoning case.
It appears that Barker was last cited by the WV Supreme Court in 1966 (p. 400 of Richard D. Garrison et al. v. City of Fairmont, et al. 147 S.E.2d 397, which questioned Barker in connection with certiorari of a legislative act, but did not overturn it). On the other hand Snyder's test of standing is cited as recently as 1998 (note 6 of State ex rel. Erie Fire Insurance Company et al. v. Madden 515 S.E.2d 351, a per curiam decision on automobile liability insurers).(2) On the subject of standing, Erie also cites State ex rel. Jack Alsop v. James R. McCartney et al. 228 S.E.2d 278 (WV 1976). Alsop says, "Although the United States Supreme Court ... signals retreat from broad rules of standing and invites our own withdrawal, we decline the invitation. In West Virginia the slippery doctrine of standing is not usually employed to avoid a frontal confrontation with an issue of legitimate public concern" (p. 283).
Evidence on Standing Already in the Record
Barker Tests. The Record shows that Petitioner Myers meets both the test of "abuts" and the test of special damage. She suffers special damage whether it is worded, "inconvenience not common to all," "similarly situated" or "not suffered by others in the community". Petitioner Corliss also meets the test of special damage. The Barker Syllabus wording says that meeting either test is enough for standing.
Myers testified at the Board hearing, and in item 2 of her Motion to Intervene, that she rents land adjoining the Henderson Farm from her father (this is called Clearland Farm and is parcel 22 on Shepherdstown tax map 24). The tax map (and the deed) show that this property abuts the Henderson Farm for 2,693 feet. She is entitled to the same standing as a renter that she would have as an owner.
Snyder involved renters, and the Court said, "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" Snyder v. Callaghan, supra, pp. 248-9. Neither Barker nor Walnut Grove addressed renters, so there is no explicit precedent there.
Arcadia ignores Myers' status as renter of abutting property and reduces this to "claimed ... to have a family member who owns property near the Harvest Hills subdivision" (Brief p. 10).
On the second Barker test, "allege ... inconvenience not common to all," Myers testified that "she is concerned about injury to her horses or personal injury to people who might trespass on her farm and the liability issues associated with the same. Myers stated she is deeply concerned about being put out of business by the development of the property" (p. 3 of Board minutes 4/19/01). She was the only person identified in the Record who raises horses(3) next to the Henderson Farm. Thus she is the only person who will suffer this particular "damage or inconvenience." Arcadia has not identified anyone else "similarly situated" to Myers.
Petitioner Myers meets the test of "inconvenience not common to all" in another way too. She rents Clearland Farm south of the Henderson Farm, and owns another farm on Luther Jones Road, just north of the Henderson Farm. She has to drive farm equipment on Flowing Springs Road between them, facing increased delays and dangers if Harvest Hills is developed. The only other person identified as "similarly situated" is another Petitioner, Corliss, who owns a farm south of Shenandoah Junction and south of the Henderson Farm, and rents a farm north of the Henderson Farm, off Flowing Springs Road. He too must drive farm equipment between his two farms, facing increased delays and dangers if Harvest Hills is developed. Petitioners raised this very issue on p. 45 of the Brief.
Intervenors, despite long experience and wide knowledge of farmers in the area, have not identified anyone else "similarly situated" or who will suffer the same "inconvenience" in the sense of driving equipment between farms on both sides of the Henderson Farm.
Fezzell's testimony on AP-01-02, on the first side of the second tape, shows the scale of the proposed increase in traffic:(4)
H. Fezzell: ...Item number 19 ... represents that the "site will generate the usual residential traffic." Now if you examine the Zoning Ordinance, that's eight trips per day.(5) And we're going to have just shy of 400 units here, so that's about 3200 trips a day. According to the 1999 traffic counts on route 17, just South of Duffields in 1999 there were an average of 3400 trips per day. So it's going to go from 34 to about 6600. It's almost going to double from this one development, and it's going to double on a two-lane road...
There is no way that you can put 392 units on that one spot on 17 with
that 90 degree curve and increase the volume of traffic by almost 100% without
creating some very serious problems. Especially given the fact that you have a
railroad track there where vehicles have to stop when trains come by, and where
there are people coming and going to take the train.
By contrast to the current case, the plaintiffs in Barker did not allege any individual injury they would suffer. The WV Supreme Court noted,
"It may be observed that the petition contained no allegation to
the effect that any of the properties of petitioners fronted or abutted on that
part of the street or alleys vacated and closed, or to the effect that the
vacating and closing of the same would in any way injure, prejudice or
inconvenience petitioners, or any of them, in any manner, except to the extent
that such injury, prejudice or inconvenience would be suffered by all others of
the community wherein the properties of petitioners are situated" (p.
745).
Similarly, by contrast to the current case, the plaintiffs in Walnut Grove claimed no individual injuries from the fact that they lived across the road from the proposed subdivision. The Circuit Court noted,
"Petitioners claim standing because of concerns about police
protection, emergency services and traffic patterns on the state highway. It
appears that Petitioners' concerns are of a nature such as would affect them in
common with the public and/or others similarly situated" (Opinion
Letter 1/4/93, p. 2).
In the current case, Petitioners do claim standing (a) from the fact that Myers abuts the Henderson Farm and (b) from unique effects which qualify Myers and Corliss under the Barker tests, as well as (c) from broader effects which qualify them all under Snyder and Alsop.
Snyder Test. All the Petitioners meet the Snyder test. This test has two parts, "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." The Petitioners have alleged:
injury to farming,
inability to plan their own businesses' futures,
injury from a lowering water table,
injury from additional traffic on Flowing Springs Road,
injury from not having information needed to prepare for the Compatibility Assessment Meeting,
and other injuries (Petitioners' Brief pp. 45-46).
These interests are within the zone protected by the Ordinance (such as section 1.1), the Comprehensive Plan and State Code. All those documents are written to protect agriculture, to protect ground water, to manage traffic, and to foster public participation. The Petitioners' injuries are imminent, not in the distant future. Arcadia expects to start construction in Spring 2002 (support data item 13).
At the Board hearing, the Zoning Administrator argued that nothing had happened yet except the assignment of LESA points. He implied that the Petitioners could only appeal after the subdivision started construction. However the Petitioners faced a 30-day deadline for appeal (Ordinance 8.1(b), State Code 8-24-59). Furthermore it would be unreasonable to leave both Arcadia and its neighbors not knowing whether the subdivision was legal. If it could not be appealed now, it would stay under threat of legal questions about LESA and the maximum number of lots. These would then be resolved only after Arcadia had spent large sums of money on design and was starting construction. In F&M Bank et al. vs. Jefferson County Planning Commission et al., 00-P-53, 1/2/01, this Court ruled "that acceptance or rejection by the Planning Commission of a developer's CIS is a material decision with serious financial implications for a subdivision applicant, and that even though the Ordinance states that CIS acceptance or rejection is an 'informal opinion,' Subdivision Ordinance at Sections 6.l(a).6 - 6.l(a).7, that opinion is reviewable in this Court by certiorari procedure" (paragraph 51, pp 26-27). In the current case, LESA approval is a much more formal stage than CIS acceptance, again "with serious financial implications for a subdivision applicant," so it needs to be considered a reviewable decision.
Alsop Test. The Petitioners also meet the Alsop test, "standing is not usually employed to avoid a frontal confrontation with an issue of legitimate public concern." Street closings (in Barker and Brouzas) and many zoning decisions 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, is an issue of legitimate public concern.
Board Limitations on Testimony
Petitioners Suellen Myers and Janet Stine tried to address their standing in testimony before the Board. The Zoning Administrator objected, and Board Chairman Michael Meyers upheld the objections and told the Petitioners to stick to calculations of LESA.(6) S. Myers' testimony is at the beginning of the tape:
S. Myers: My name is Suellen Myers, and I'm giving sort of opening general comments. I'm a farmer
[interruption while Staff Secretary R. Burns makes sure which appeal is being addressed; it is appeal AP-01-01 titled by Appellants as "Harvest Hills LESA determination"]
S. Myers: I'm a farmer in Shenandoah Junction, the land immediately south of the proposed development. I farm for soybeans, corn, hay, and I have young horses there. I breed warm blood horses.(7) This particular farm is an integral part of that business, and it is where I keep my young horses. A dense subdivision like this one cannot possibly be compatible--
P. Raco: Objection. Relevancy. It's just on the assessment of points.
Chairman M. Meyers: Objection noted.
S. Myers: OK.
Chairman M. Meyers: While we're at this too, just speak about this particular appeal. Your notes on the points of this appeal. You understand what I'm--
S. Myers: I think so. We feel that this should not be approved.
P. Raco: Objection. Objection. Mr. Chairman. Just why. They claim that my score of adjacent development should be 10 as opposed to 6. This is how you prove that, not about the project.
Chairman M. Meyers: Right. You understand, you have to tell us why you disagree with the point evaluation.
Staff Secretary R. Burns: They appealed certain items assessed by Mr. Raco, and that's what this particular appeal is about. This first appeal is about the "LESA point assessment," and particular items of that appeal were stipulated, and that's what's to be discussed.
Staff Attorney M. Cassell: You have a LESA chart filled out by the appellants that describes the appeals Ms. Myers?
P. Raco: Actually she is an appellant. She's on the list.
Staff Attorney M. Cassell: OK
S. Myers: I'm on the list. I'm trying to find it.
Staff Attorney M. Cassell: You have the list that they filled out, so you can look at that and speak to those issues.
S. Myers: I'm trying to find it.
Staff Secretary R. Burns: First one is LESA item 3, which is "adjacent development." Mr. Raco scored a 6, and the appellants claimed that it should have been scored a 10.
S. Myers: Well I will try to speak to that...
Thus Raco, Chairman Meyers, Burns and Cassell directed S. Myers to speak only to the LESA point assessment. Later in the testimony was Petitioner Stine's turn:
J. Stine: I'm Janet Stine. My husband and I operate a 315-acre farm caring for 175 Red Angus cattle. It's located 2 miles north of the proposed Harvest Hills development. I'm also one of two supervisors from Jefferson County to the Eastern Panhandle Soil Conservation Service, and I'm a member of the Jefferson County Farmland Protection Board...
Reduction in water availability to farms following the pressure of development: it's proven to us on our Rattlesnake Run. We have been on our farm for over 51 years, and for 45 years, actually 47, we had the Rattlesnake Run ran all the way from the west end of ours for about a mile to the east end.
But we have seen it in recent years, a certain time of year, where the stream in particular sections goes underground, and there's nothing on top. During the drought of '99 that stream was underground in those sections for 10 months. Now what happens, there are more springs and, but the springs dried up. The water goes down a hole and comes up at the next spring, but that spring also dried up.
With intensive grazing, this took out three different places for watering the cattle, and downstream we also had other farmers who--
Chairman M. Meyers: Kind of just stick to the appeal.
J. Stine: OK, all right, just myself, OK. Five years ago was the first time we saw anything where the stream did not continue above ground all the way.
P. Raco: Excuse me. Objection again. Relevancy.
Chairman M. Meyers: OK. What are you saying? Are you saying there's not enough water? Is that what you're saying?
J. Stine: I'm saying that the water table in this area is changing. What happened is, with, because of the water going underneath, we, with the drought money we had, we drilled a well in order to get water for the cattle. Others, (can't say that?) others did the same.
Real Party in Interest
The cases cited by Arcadia on real party in interest address financial interests that have been assigned to another person. There is no allegation or evidence that any Petitioner has assigned any interests to another person. Arcadia does not say who they think holds the real interest if not the Petitioners. Therefore their concerns cannot be upheld.
New Arguments on Standing
The Petitioners believe it is appropriate to introduce new information in response to the Intervenors' challenge of standing. This information is included in an affidavit attached, along with comments that are general knowledge and/or are in the Record. The Petitioners believe there is enough information presented above to show standing. However in the attached affidavit there is additional information relative to Petitioners' standing.
In summary, the long term future of farmers' businesses and ways of life is at enormous risk from this subdivision proposal (and others). The purpose of the Development Review System (DRS), which includes the LESA scoring system, is to "...determine the agricultural longevity of the parcel in combination with the presence of and compatibility with public services adjacent and in close proximity to the site" (Ordinance Section 6.1). The correct scores for the Henderson Farm show that it does have "agricultural longevity," and it contributes to the agricultural longevity of other farms throughout the county. Allowing the incorrect scores to stand would further harm farms throughout the county.
III. DISCUSSION OF THE DECISIONS BY THE ZONING BOARD OF APPEALS
Authority of Comprehensive Plan & State Code
It is an erroneous principle of law to ignore the instructions of State Code and the Comprehensive Plan. As page 6 of the Petitioners' Brief noted, Ordinance section 1.3(a) says that, "The terms of this Ordinance shall be applied to promote ... the Comprehensive Plan." As page 4 of the Petitioners' Brief noted, State Code 8-24-36 says that, "A structure shall not be located ... unless the structure and its location conform to the county's comprehensive plan..." The whole purpose of the Harvest Hills subdivision application is to "locate" at least 394 structures (houses, church, school). Therefore State Code requires the Comprehensive Plan to be followed. The alternative would be to approve the subdivision without reference to the Comprehensive Plan but then refuse improvement location permits (ILPs) in the subdivision because the locations are inconsistent with the Plan. That alternative would create unbuildable lots scattered over the County, would clog the Court with appeals on each ILP, and cannot be intended by State Code. The wording "structure shall not be located and an improvement location permit shall not be issued" in 8-24-36 shows that the legislature wanted to control more stages in the process than just issuance of ILPs.
This Court's decision in William G. Gavin v Jefferson County Planning Commission and Jefferson County Board of Zoning Appeals, Jefferson Circuit Court Case 98-P-44, highlights the importance and legal applications of State Code 8-24-36 and the Jefferson County Comprehensive Plan as to land use, which in that case had been violated by the Planning Commission in approving the erection of a cell tower.
The Board finds it "unreasonable to assume that new schools will be constructed before new students arrive" (memorandum p. 5). Do they find it reasonable for students to arrive with no schools they can attend? For families to arrive with no treatment for their sewage and no good sources of water? Has the Board forgotten "grow only with adequate highway, utility, health, educational and recreational facilities" (8-24-1)?
The Board seems to accept an old fashioned West Virginia of homes scattered anywhere, with no public services. This view ignores the law and Comprehensive Plan. Ignoring them is an erroneous principle of law.
Adjacent Development
Land. Neither the County nor Arcadia addresses the definition of "land." Ordinance section 2.1 defines "land" in terms of surface. It is an erroneous principle of law to ignore the section 2.1 definition of "land." An administrative body should not ignore its own documents. The County and Arcadia say land area has been ignored in all previous applications (County memorandum p. 7, Arcadia Brief p. 17). It is an erroneous principle of law to perpetuate actions that violate the Ordinance.(8) Using a wrongful method for many years does not make it right. When the method is found to be incorrect, it is time to change.
Inaccurate Boundary. The County says they used "the boundary around the parcel under consideration" (p. 7). This claim is plainly wrong. Two parcels are under consideration (12 and 13)(9), and the County used the boundary around five full parcels (12.1, 12.2, 13, 16, 17) and only part of the sixth parcel (12), as noted on page 13 of the Petitioners' Brief (compare in the Record: Arcadia's large foldout map on which boundary lengths are marked, to large tax map on back of large colored map, kept as part of the Record in the planning office).
The third paragraph of the County's Brief says "the northwest corner of the parcel is located adjacent to the intersection of West Virginia Route 17 (Flowing Springs Road) and the CSX Railroad..." The tax map shows two lots (16 and 17) between the subdivision and that intersection. It is plainly wrong to ignore the boundaries of the Henderson Farm.
The County also says the 45-acre previous subdivision is not adjacent to route 17 (p. 1). Actually that subdivision does have a panhandle of subdivision roads which reach route 17. This panhandle was also ignored in the boundary calculation.
Adjacent Development. Arcadia says "'adjacent development' is not defined in the ordinance" (their Brief p. 17, 4th paragraph and note 8). In fact 6.4(b) explicitly defines "adjacent development" as the average of two percentages, each of which involves "land" not boundary. It is an erroneous principle of law to ignore the 6.4(b) requirement of averaging two percentages. The Record shows that the Zoning Administrator did not average the two percentages.
The County and Arcadia note that the Ordinance has "specific definitions of land area and lot area" (Conclusion 7). It is an erroneous principle of law to fail to note that the Ordinance also defines "frontage, street" and "land," and uses the word "land" by itself consistently to mean area, as indeed it is defined in section 2.1. Page 3 of the Petitioners' handout to the Board (p. 18 of Petition) shows numerous other places in the Ordinance where the single word "land" is used, always in the sense of area, not boundary:
Agricultural Use The exclusive use of land for a bona fide farming operation...
Applicant Any person commencing to develop land under the Development Review System...
Improvements Modifications to land which increase its value or utility...
Nonconforming Use A use of a building or of land lawfully existing at the time this Ordinance becomes effective...
Open Space Land within a proposed development site excluding areas devoted to buildings, structures, roadways and parking.
Plat A scaled, graphic drawing of a land subdivision project...
It is plainly wrong to measure boundaries when the Ordinance says to measure the "percentage of land" (6.4(b)). Will the Board and Zoning Administrator approve Plats that show only the boundaries of a project, not what is inside them? Will they measure Open Space by its perimeter rather than its acreage?
Adequate Infrastructure
There are some areas of agreement. The County's memorandum, on page 5, paragraph 4, says that issues of the adequacy of infrastructure are "covered in the LESA and Site Assessment process."(10) The Petitioners agree that the Ordinance wording, supporting goals in State Code and the Comprehensive Plan, does address adequacy of infrastructure. The Ordinance calls for "available capacity" and "appropriate schools." State Code says, "It is the object of this article ... that new community centers grow only with adequate ... utility, ... educational and recreational facilities" (8-24-1). This wording frames a state requirement for adequate infrastructure and public facilities as a condition of growth.
Therefore the Board is plainly wrong to assign points for public sewer, central water and nearby schools, when there is no evidence of public sewer treatment capacity, nor even any plan to create it; no evidence of central water sources, nor any aquifer or financial studies to comply with the Comprehensive Plan; and a lack of "appropriate schools" as testified by the Vice President of the Board of Education.
Sewers. The Zoning Board has consistently said it is up to the PSC and PSD "to determine the availability of public sewer capacity" (County memorandum page 3, paragraph D). If that is what they believe, it was improper for the Zoning Administrator instead of the PSC and PSD to determine that sewer capacity is available. Since the PSC and PSD have not determined such availability, it is an erroneous principle of law to assign points as if they had. The standard in Ordinance section 6.4(g) is "available capacity that is approved by the ... Public Service District to the site at the time of the development proposal application." A later line in 6.4(g) acknowledges that sewer lines may or may not be built yet ("or public sewer will be built to the site") but there is no exception to the Ordinance requirement that capacity be available and that it be approved at the time of application, in order to earn the points for public sewer.
The PSD's letter to the Planning Commission, dated 7/12/00, is in the Record, as part of Arcadia's application, and as part of the Petitioners' handout to the Board. This letter makes clear that the PSD has not yet given approval for sewer service for Harvest Hills.
The County says it is "unworkable" for the PSD to reserve capacity (p. 5). The Petitioners did not ask for reservations. If the PSD does not have approved, available capacity, the subdivision needs to wait until the capacity becomes available. That is an entirely workable system, envisioned by both the Ordinance and 8-24-1. The landowner does not have a right to subdivide nor to sewage capacity. This is an application for a conditional use in a Rural District, and the conditions set in the Ordinance are not met.
Arcadia says the Petitioners address "other things, not discussed in the ordinance" on sewers (Brief p. 21). Everything discussed in the Petitioners' Brief on sewers addresses "available capacity" which is what the Ordinance requires, and which does not exist. By contrast Arcadia and the County discuss the PSC which is not mentioned in the Ordinance and has given no evidence. They also discuss the PSD whose approval is required by the Ordinance and whose approval has not been given. It is plainly wrong to assign points based on "available capacity," when there is no finding or evidence of available capacity.
Water. The County and Arcadia misstate the Petitioners' concerns. The Petitioners did not try to prove conclusively that the water table was falling or that Jefferson Utilities could not provide water. The Petitioners pointed out merely that these are plausible possibilities, and the Comprehensive Plan requires these issues to be addressed by the Developer and the County. The burden of proof is on the Developer, since (a) the Ordinance says a proposed central system must have "adequate capacity" (section 6.4(f)), and (b) the Comprehensive Plan requires that developers "adequately demonstrate that the additional lots can be served without a significant adverse effect on the quality and quantity of the water system." The Comprehensive Plan is also concerned about "economic viability of small systems," "ground water withdrawal," and "adequate buffer" in each aquifer (these and other citations are in Petitioners' Brief p.20). It is plainly wrong to find that "the written commitment of Jefferson Utilities was persuasive on this issue" as the County asserts (Memorandum p. 3). That written submission is a letter in the Record from Jefferson Utilities to Michael Shepp, dated 11/10/00, date-stamped at the Planning Commission 4/19/01. It does not address the concerns of the Comprehensive Plan, and was received at the Planning Commission two months after LESA points were calculated. The County says "public policy statements may be useful to provide guidance" (County Memorandum pp. 5-6), yet the Comprehensive Plan gives strong guidance on private water systems, and the County did not follow that guidance.
The County says the score of 11, suggested by Petitioners, is only appropriate for wells. The score of 11 points should be assigned until evidence to support lower points is available, or the application could simply be rejected until evidence is provided for some level of points.
Schools. The Zoning Board has consistently ignored the Ordinance requirement to use "appropriate" schools in distance calculations (7.4(d)(18)). It is an erroneous principle of law to ignore the word "appropriate," and it would be plainly wrong to consider overcrowded schools "appropriate" in the face of Board of Education testimony. The essential point, lack of capacity, is in the testimony of the Vice President of the Board of Education on the tape of the Board hearing that is in the Record. Her testimony is very briefly summarized on p. 2 of the minutes of the Board hearing 4/19/01, "Doris Cline, Vice President of the Jefferson County Board of Education stated there is a shortage of seats in the school system now. Mr. Raco objected to the relevancy of the testimony in terms of distances to schools. Mr[s]. Cline stated she did not dispute the distance measurements to the schools." She did dispute the relevance of the schools used in the distance measurements. She said it was necessary to consider schools with space available, which were far away. Her full testimony (which is at the end of side 1 of the first tape, and the beginning of side 2) was,
D. Cline: I'm Doris Cline. I'm Vice President of the Board of Education. What I want to say this afternoon is information that you have had previously concerning our shortage of seats in our schools. Since 1990 there has been a 15% growth in Jefferson County, but we have not had a 15% growth in school buildings. [end of side 1 of tape] We, without any growth at all, are short 371 seats for our students. While we are managing to provide an education for our 6,875 students, we are not satisfied with the facilities, and we're doing all within our power to improve in this area. We have enlarged several of our buildings, but adding classrooms does not add cafeteria, restroom, gymnasium, auditorium, or corridor space.
P. Raco: Excuse me Ms. Cline. Objection. Relevancy. The Ordinance only requires me to look at proximity to schools.
Chairman M. Meyers: Yes.
D. Cline: All right. Well then a point that I would make is that the only high school that we have close enough to serve any more students is James Rumsey High School in Berkeley County. We are already flowing over the seams at Jefferson High School. The only school that is, would be served by this development that has seats is Shepherdstown Elementary, and I believe they have 44 empty seats at this time. T. A. Lowery is well overpopulated, and Jefferson High School is way overpopulated. I ask you to consider these things when you're making your decisions. I know it's not your job to educate the kids. It's ours, but I ask your consideration of these things. Thank you.
Board Member S. Groh: Ma'am, could I ask you one question?
D. Cline: Yes.
Board Member S. Groh: There was a--. Mr. Raco put forward some distances. Do you think those were accurate? Do you dispute that, that it's half a mile, 5.7 miles and 1.7 miles?
D. Cline: Yes I would say they're accurate, but as far as space is concerned, the closest High School is in Berkeley County, in Hedgesville. Thank you
Besides this substantive testimony from Mrs. Cline, detailed school pupil figures are on page 10 of the Petitioners' handout to the Board. Page 10 of the handout was not copied by the County in preparing the Record, but is in the file of originals in the Planning Office, and is on page 25 of the Petition. During rebuttal, on the tape in the Record, the Petitioners specifically referred Board members to page 10 of the handout, and discussed it, and no Board member indicated that page 10 was missing. The number of students estimated to be generated by the subdivision is in item 20 of Arcadia's support data.
Neither Arcadia nor the County contends that the currently over-enrolled schools are "appropriate." They ignore 7.4(d)(18) to avoid the issue. Ignoring a relevant part of the Ordinance is creative, but is an erroneous principle of law. The section 7.4(d)(18) is clearly relevant, because the Ordinance says in 7.4(a) that it is "the support data, that will enable the project to be evaluated by the Development Review System..." Part of the support data is 7.4(d)(18) "Distance to the appropriate ... school". The Ordinance is saying that distances to "appropriate" schools "will enable the project to be evaluated by the Development Review System." The Board has made no finding that overcrowded schools are "appropriate," and would be plainly wrong if they did so, considering the guidance of State Code and the Comprehensive Plan.
Arcadia says the Petitioners would require students to attend high school in Berkeley County. Apparently Arcadia would require students to attend a high school that has no room for them. Actually the Petitioners and Ordinance require that the development not be built, since the Ordinance requirement to measure distance to "appropriate" schools (7.4(d)(18)) raises the LESA score above the cutoff of 60.
The purpose of the LESA calculation is "to evaluate the suitability of a site for a more intense development than may be allowed by the principle permitted uses in the Ordinance" (County memorandum p. 5). Distances to appropriate schools are part of the evaluation, by the terms of the Ordinance, because when these distances are too far the site is not suitable "for a more intense development."
Busing. Arcadia points out that the Ordinance says "the purpose of assessing the proximity of schools to new developments is to avoid excessive busing of students." (Ordinance section 6.4(e); Brief p. 19). Exactly. Building a subdivision far from schools with space may well require that the Board of Education bus the students to those distant schools with space, in conflict with the expressed intent of the Ordinance, Comprehensive Plan and State Code.
Support Data
The County says, "The Support Data addresses each of the subjects set forth in § 7.4(d)" (p. 3). Conclusion 5 on appeal AP 01-02 says, "The support data filed for the Harvest Hills project on December 19, 2000 provides adequate information pursuant to Section 7.4(d)." These statements are plainly wrong. It is a plain fact that the support data filed do not address at all "locations of signs" (7.4(d)(10), "ground water" (7.4(d)(16), "type and frequency of traffic; adequacy of existing transportation routes" (7.4(d)(19)). They inadequately address the other topics appealed, as documented in the Record.
The County says the support data provided allowed "substantial information and comment" (p. 6). There was little or no public comment on wetlands, drainage, signage, wildlife, ground water, history, or compatibility with the Comprehensive Plan; areas cited in the appeal. The comments on traffic were broad and could have been much more focused if the Petitioners and the rest of the public knew what kinds of traffic and dangers to expect, as required in the Ordinance 7.4(d)(19).
The County says "there was one page of material attached to the appeal form filed with the Board" (p. 3). This is wrong. The Record includes two pages of text and a map attached to the appeal form.
Comments about Alleged New Evidence in the Brief
The Petitioners had no intent to introduce new evidence in the Brief, do not see the need for new evidence and oppose an evidentiary hearing. There is enough evidence on the Record for the Court to make its decision.
The County calls the raising of some issues "cursory and superficial" (p. 4). They do not say which issues are in this category, so the Petitioners cannot respond in detail. All issues were raised enough for the Board to know what the problems were and to ignore them. The purpose of the Brief is to interpret and comment on the facts that are in the Record, along with common knowledge, laws and the Comprehensive Plan goals (which the Board is assumed to know). The Petitioners think it is appropriate to give a more extensive briefing for the Court, since it is a general Court. The Board is specialized in Zoning, and did not need as long a Brief.
The list of allegedly new matters on p. 4 of the County's Brief can be addressed item by item. It is possible that the County did not review the tapes in preparing their memorandum, since they did not acknowledge the information in the tapes.
1. School Pupil Figures are discussed above.
2. Wildlife population was raised on the first attached page of AP 01-02, and by Burke's testimony on the tape (see comments below)
3. Surface water was covered in photographs of swamps and the spring house, which are part of the Record kept for the Court in the Planning Office. The certification of the Record even identifies these as, "1. Photographs of swamp areas..." Surface water was also covered in oral testimony on these photos by Burke; oral testimony by Myers on USDA-delineated wetlands, natural drainageways and local ponding; and in the intermittent waterways which are shown on the soils map by the paths of soil types Ho and Me.
4. Soil and Drainage is an introductory paragraph on p. 33 in the Petitioners' Brief with no real "matter" to address.
5. Existing Drainage was raised on the first attached page of AP 01-02, and by Myers' testimony on the tape. The conflicts between different pages in Arcadia's original application (page 2, versus the Exhibit 3 in that application) were not raised in the testimony, but are part of the Record, since the whole application is part of the Record. They are pointed out to document the importance of defining "severe limitations with regard to ... location of building sites," (item 6 of Arcadia's application). The issue of severe limitations was raised before the Board on the first attached page of AP 01-02, and in Myers' testimony. The percentages of land in various soil types are from the LESA soils calculation page, in the Record, and merely show the significance of each critique.
6. Drainage Changes were raised on the first attached page of AP 01-02, "how they will work around these limitations," and by Myers' testimony on the tape. The soils map shows that current drainage goes onto neighboring farms, by the paths of the soil types Ho and Me. On the page 34 referenced by the County, the Petitioners are not trying to provide information. Their critique is that Arcadia did not provide information, so the public could not give informed comment at the Compatibility Assessment Meeting under section 7.6(a) of the Ordinance. Arcadia's thin application speaks for itself.
7. Severe Building Limitations were raised on the first attached page of AP 01-02, as mentioned on item 5 just above, and by Myers' and Burke's testimony on the tape.
8. Signage was raised on the first attached page of AP 01-02; by Burke's testimony on the tape, and by the second page of the handout to the Board (in the Record, and also at page 32 of Petition).
9. Traffic was raised on the first attached page of AP 01-02 and by Myers', Burke's and Fezzell's testimony on the tape. The number of other subdivisions developed by this developer is not in the Record, and may be ignored; it remains the case that any developer has access to as much expertise as needed.
10. Maximum number of lots is discussed below.
In the examples the County cites on p. 6, of the effects of cats, silt and habitat change on wildlife, the Petitioners were citing common knowledge.(11) The Court and Board do not need expert testimony to know that 392 homes will have some significant number of cats; that some of these cats will kill songbirds; that other predators such as hawks and owls will lose out in such a competition; that silt and other contaminants will reach the stream; and that grading for roads, stormwater and homes will catastrophically affect whatever lives in the area graded. If the Court doubts any of these ideas, the ideas can be ignored. The point is still that Arcadia's optimistic statement, "wildlife populations will not be affected" is inaccurate and the Board and Zoning Administrator were plainly wrong to say it met the Ordinance requirement of information on "effected wildlife populations" (7.4(d)(15)).
Maximum Lots
The second through fourth paragraphs of the County's Brief wrongly say a 45-acre parcel was subdivided in 1988. It was subdivided in 2000, as shown in the Land Records of Jefferson County, in Plat Book 17, page 45A, slide 1071B, and Plat Book 17, page 45B, slide 1072A, dated 3/22/00. Even Arcadia's application, at item 4, says the 45 acres were developed after section 5.7(d)(2) of the Ordinance was adopted, which was on 5/18/96, as shown by the "$" annotated on 5.7(d) in the Ordinance margin. This date error is significant in view of the concern about the maximum number of lots in pages 43-44 of the Petitioners' Brief.
The maximum number of lots was raised before the Board in Burke's testimony (on the tape in the Record, soon after Myers' testimony above, at the beginning of the first side of the first tape). He points to the large colored map and the list of adjacent parcels and says,
P. Burke: Now one thing that might become an issue is the existing lot
here, which is Tax Map 24B, and has been approved to be developed. It uses all
of the lot rights of this land. It has already gone through the normal zoning,
subdivision process. All the lot rights were taken and put there.
Therefore the Petitioners did raise the issue of having used up the lot rights, though in the context of LESA calculations, which is what the Petitioners focussed on. The appellants gave appeal AP 01-01 a broad title, "Harvest Hills LESA determination." This topic covers not just the calculations, but also the right to apply LESA scores at all. The fact of having used the maximum lot rights does call into question the right to apply LESA at all, under 5.7(d). The Board Chairman and staff tried to re-frame the appeal as "the LESA point assessment" (see testimony of Myers above on p. 12).
The issue on pages 43-44 of the Petitioners' Brief is a legal argument about the literal wording of the Ordinance. The Ordinance is always on the table, and any conflicts with it need to be cured. All the acreage numbers used in the Petitioners' Brief on this subject come from the Record, specifically from the page of acreages on page 2 of the Petitioners' handout to the Board (Petition p. 17), and from item 4 of Arcadia's application. The calculation that the maximum lots have been created follows necessarily, and limits the further subdivision of this land under section 5.7(d)(4).
IV. OTHER CONSIDERATIONS
This case and the requested relief may appear quite complex with respect to impact on land use and growth within Jefferson County. However, the issues in this case primarily surround the application of LESA in areas designated Rural. The intent of LESA is to enlarge growth where the "agricultural longevity" of adjoining farmland is already in jeopardy.
If the Court grants the relief requested, it will only affect this subdivision and future proposals in the Rural District. The relief requested by the Plaintiffs would not affect subdivisions in Jefferson County's Residential Growth District, since those subdivisions do not go through the LESA scoring or support data. The relief requested would preserve the clear intent of the Comprehensive Plan and Ordinance, to allow high density in the Rural District only as appropriate and where infrastructure exists. This approach preserves the Rural District for agriculture and the Residential Growth District for subdivisions, in most cases.
The co-existence of farming operations and development is difficult if not impossible. LESA was written carefully to minimize the conflicts, and therefore needs to be carefully applied as written.
V. CONCLUSIONS
The Petitioners hold that many of the Board's factual findings are plainly wrong, and many conclusions are erroneous. The Petitioners do consider such a situation to be "woefully inadequate," though recognizing the County would naturally disagree (County Memorandum p. 5).
Nothing in the Record shows that the Board "considered the arguments of all parties" (County Memorandum p. 7). The County's findings do not address the evidence and arguments raised.
The Petitioners reiterate that the Jefferson County land use Public Officials in the case of Harvest Hills have misapplied those principles of law dealing with State Code, the Comprehensive Plan, and the Ordinance. The misapplication of law in each instance relates to Public Officials exceeding discretionary authority, going outside of appropriate and legally binding decision windows as provided by applicable State Code, the Comprehensive Plan and the implementing Ordinance.
Further, the Ordinance, which explicitly states that its purpose is to implement the Comprehensive Plan, cannot be applied in isolation. Public Officials applying the Ordinance need to continually refer to the actual wording of the State Code, Comprehensive Plan and Ordinance, to ensure that their decisions are complementary as to point and purpose.
Highlighted instances of being plainly wrong in factual findings include:
Measurement of the adjacent land ("surface") by boundary length, which favors high density development in a rural area, vice an area measurement which favors farmland preservation and agriculture longevity, in keeping with emphasis in the State Code, the Comprehensive Plan, and the Ordinance on the importance of protecting farmland and agriculture.
Acceptance of a subdivision beyond the availability of services for it.
To recapitulate issues as stated in the original Brief:
Adjacent Land. The Ordinance gives points for the "percentage of land in actual agricultural use," and defines land in terms of "surface." May the Zoning Administrator calculate boundary lengths instead of surface? [See footnote (12) below.] May the Zoning Administrator omit "actual agricultural use"?
Sewers. The Ordinance assigns points based on "available capacity" of public sewer service, and the testimony showed that more house lots have been approved than the sewage plant can handle. May the Zoning Administrator ignore the number of approved house lots in determining "available capacity"? May the Zoning Administrator also ignore the feasibility of expanding sewer treatment capacity?
Water. The Ordinance assigns points based on "adequate capacity ... will be approved by" appropriate agencies. The Comprehensive Plan calls for avoiding "excessive cost to the community," avoiding financial risks of small water systems, and protecting ground water. Information before the Board showed inadequate water capacity in the water tank, no financial information, and no information on whether there will be adverse effects on the ground water. May the Zoning Administrator assign points without regard to how adequate capacity can be obtained at reasonable cost and without regard to effects on ground water?
Schools. The State Law and Comprehensive plan call for developments that "grow only with adequate ... educational ... facilities." The Ordinance assigns points for distance to "appropriate" schools. Are schools that are already overcrowded appropriate? May a short distance to an overcrowded school be used to move a development closer to approval?
Support Data. The Ordinance says the public is entitled to information on ground water, surface water, and wildlife. May the Zoning Administrator accept an application with missing or plainly wrong information on these topics?
The Ordinance says the public is entitled to specific information on signs and traffic. May the Zoning Administrator accept an application without this information?
The Ordinance says the public is entitled to information on historic structures and properties. May the Zoning Administrator accept an application with information on only one home out of the entire rich history of Duffields?
The Ordinance says the public is entitled to a discussion of the project's relationship to the Comprehensive Plan. The Comprehensive Plan has substantial comments on many topics. May the Zoning Administrator accept an application with a three line statement that ignores most of the concerns in the Comprehensive Plan?
Maximum Lots. The Ordinance gives Rural District land owners a
choice of ways to subdivide, with a maximum number of lots under each approach,
and a rule that reaching the maximum on one approach precludes use of any other
approach. After a landowner has reached the maximum on one approach, may the
Zoning Administrator permit many more lots under another approach?
AFFIDAVIT ON STANDING OF FARMERS
General. According to the 2000 Census there are 42,190 people in Jefferson County, and according to the 1997 Census of Agriculture, there are 357 farms. Even assuming two active farmers per farm, there are far less than a thousand farmers in the county. Thus issues that affect the Petitioners as farmers do affect other farmers as "similarly situated." However farmers definitely face "inconvenience not common to all" as well as "injury ... within the zone of interests protected by the statute" and "an issue of legitimate public concern."(13)
Petitioners specifically involved in agricultural operations. There are four of the six Petitioners that are directly involved in agriculture operations. These operations, which are subject to negative impact from the Harvest Hills development, are discussed as follows:
Suellen Myers is involved in horse raising, and one of her farms abuts Harvest Hills on the south side with 2,693 feet of common border and on two sides. This farm (Clearland) primarily raises weaned foals and is an integrated operation with a second farm (Willow Spring Farm) nearby raising mares approximately 1/2 mile distant from the northwest corner of Harvest Hills. Suellen Myers is the primary owner of 275-acre Willow Spring Farm, and is the tenant and heir of her father, who is no longer farming, on the 158-acre Clearland Farm adjoining Harvest Hills. Both farms share equipment required for growing hay and other crops such as soybeans and corn. The equipment utilized in farming that must be frequently moved both up, down and across Flowing Springs Road includes:
Tractors (4)
Haybine
Front end loader
Plows
Disks
Cultipacker
Grain drill
Hay rake
Hay balers (for round and square bales)
Hay wagons
Field mower
Farm trucks
Horse trailer
Manure spreader
Janet and Oscar Stine own and operate Elmwood Fields and Forests, which is a purebred Red Angus 315-acre farm. Elmwood is approximately two miles north along Flowing Springs Road, from the northwest corner of Harvest Hills. The entrance to and from Elmwood is on Flowing Springs Road, and is currently difficult because of blind hills and fast traffic, and particularly so with farm equipment. This situation will become even more dangerous and perhaps impossible with increased Harvest Hills traffic. One accident where a car hit their tractor on Flowing Springs Road, caused the farm worker to be out of work for six weeks. Another major problem for the Stines is water. Rattlesnake Run flowed constantly across Elmwood from the time the farm was purchased in 1949, until 1996. In 1996 a section dried up for about 3 weeks. Every year since then this part of Rattlesnake Run has dried up. In 2001, it has been dried up since March, and currently a third of a mile of Rattlesnake Run on the farm is dry, more than ever before. The Stines have had to drill a well at a cost of $10,619.60, including $6,848.65 of water distribution equipment, to provide necessary water for cattle. All of the farms which share the same aquifer with Jefferson Utilities wells at Shenandoah Junction and Bardane are threatened by a lowering water table and the necessity to provide water for animals.
Greg and Carolyn Corliss own a 64-acre farm currently with 22 head of cattle. This farm has access to both Flowing Springs and Daniels Roads and is 11/2 miles south of Harvest Hills between Flowing Springs and Daniels Roads. The Corlisses also lease for hay and pasture about 70 acres of the Hamman Farm five miles north of Harvest Hills and off of Flowing Springs Road. The movement of hay, cattle and equipment on Flowing Springs Road and past Harvest Hills today is considered only marginally safe, if done when school is out or on a Sunday morning. The Fezzell testimony estimates that the Harvest Hills development will double the traffic on Flowing Springs Road and at this point the safe movement of farm equipment on to Flowing Springs Road and past the Harvest Hills entrances will be too dangerous. Additionally, the loss of ground water to Harvest Hills and other new and nearby developments and homes is anticipated to further lower the local area water table. There were drought summers in 1998 and 1999, a number of wells were re-drilled under Federal and State programs to assist farmers. The requirement for summer cattle water at the Corlisses is about 1,000 gallons per day. Consequently, with the demand for more ground water for a development, the capability to draw adequate water for cattle during a drought summer is considered problematic.
The Morgans own and operate Ripon Lodge Farm in Rippon with about 240 acres of hay, pasture and crop land. Today and during a minor drought condition, their well is sucking mud. The Morgan well feeds off the same aquifer that serves most of the farms around Charles Town, Shenandoah Junction and Harvest Hills. The Morgans' requirement for water is approximately 2,000 gallons per day and is a major concern for continued farm operations. A six-foot deep, quarter-acre pond that had been on the farm for generations has dried up. The Morgans are not as directly and negatively affected as three of the other Petitioners, by Harvest Hills traffic in the movement of farm equipment and product. However, there are major family concerns as to the abilities of future Morgan generations continuing to farm as negatively affected by: lack of confidence in long term investments in farm land, equipment and crops, as well as loss of ground water, increasing taxes and loss of farm infrastructure support.
As business people with large investments in land and equipment, these farmers must be able to predict the future with the same degree of certainty as any other enterprise. As a specialized group, farmers are uniquely affected by the proposed loss of farmland in the center of the county known as the Henderson Farm. Each of the issues discussed below measurably affects the four Petitioners who are farmers (as well as affecting most farmers in the County).
Water. It is becoming increasingly difficult for these farmers to provide water to their livestock. During dry periods springs that have been dependable for generations quit flowing. Farm wells have been drilled deeper to find new (but smaller) sources that remained untapped. The rapidly increasing demand for ground water to supply new residential development is a major concern to these farmers. Without a dependable supply of clean water they cannot continue to produce.
Traffic. Increased traffic on county roads is becoming a major problem for these farmers. Farm trucks move massive amounts of products and materials across the county each year. Farm machinery and heavily loaded vehicles often require more than one lane and travel at slow speeds. Activity during planting and harvest time is particularly intense and often necessitates travel at night. The farmers are now forced to consider the risk of moving farm equipment on county roads on a daily basis, and consequently many farming opportunities are missed. When considering whether to rent another farm, when considering whether to cut someone's hay, the farmers have to decide if the risk of an accident to equipment on the road is worth the return.
Liability. Producing food for people to eat is serious business. The forces and energy that are necessary to drive modern agriculture are massive, often dangerous and sometimes unattractive. Most people are not familiar with modern farm activities and seem to view farm fields as safe "open spaces" that present no danger. Unfortunately, dense residential development bordering on any of these active farms creates a very serious liability threat for the farmer. Trespassers and children at play are a major concern. Those farm operations involving chemicals, i.e. insecticides, pesticides and fertilizer, are basically liability risks, and are incompatible business activities next to an adjoining subdivision.
Nuisance Issues. Nuisance complaints are a growing threat. They require time to resolve, often create stressful relationships and usually intensify as the community develops. Producers generally try to accommodate neighbors but can only alter operations when cost is a minor factor. New neighbors with unreasonable expectations should not be able to restrict farmers that have been active for many years. Farmers have a right to farm by State Code 19-19-4, but pointing this out to neighbors, seeing if it applies in each case, and dealing with each problem are enormously time-consuming.
ATVs, dogs and poachers are each a special threat to a farm located close to subdivisions.
Infrastructure. The loss of each farm to new development in Jefferson County has already created a corresponding loss of agricultural infrastructure. The Petitioners who are farmers purchase large quantities of materials and market huge quantities of product each year. The need for services that cater to farming is fundamental to the efficiency of the industry and these farms' survival. As the pool of land in farming becomes smaller the incentive for suppliers to remain in the community is diminished. Increasingly, the farmers are forced to travel greater distances to have machinery repaired and to purchase and market goods. Efficiency is lost and viability eventually becomes impossible. At this point in time, the loss of every farm is a serious issue for those that remain. At some point, not too far off, there will be too few farms left in the county to justify any future investment in agriculture.
Taxes. The greatest fear is that taxes will eventually drive the farmers from the land. Since the local tax system has always been based on property ownership farmers feel particularly vulnerable. The need for new public services in Jefferson County to accommodate the rapid growth of residential development will likely fall, disproportionately, on those who own the most land. Farmers do not generally benefit from new development and expanded public services, but are aware that they will be expected to contribute higher taxes in support of a process that will eventually end their way of life and their livelihood.
FOOTNOTES:
1. Shobe gave standing to downstream river users to obtain declaratory judgment against state government agencies diverting the water upstream. The Court asked, "Must members of the public whose substantial interests are directly and adversely affected by the acts of governmental officers stand idly by when their public servants violate the law? We think not. ...when a person's significant interests are directly injured or adversely affected by governmental action, such person has standing under the Declaratory Judgments Act, W.Va.Code §55-13-1 et seq. [1941]" (p. 61, footnote omitted)
2. While this per curiam decision is not itself a legal precedent, it treats Snyder and Alsop as legal precedent. Two other 1998 cases cite Snyder in deciding not to allow plaintiffs to represent third parties: p. 743 of John Woodruff Kessel et al. v. David Keene Leavitt et al. 511 S.E.2d 720, an adoption case; and p. 515 of Kendra Guido v. John Samuel Guido 503 S.E.2d 511, a per curiam child support case.
3. Tape of Board hearing mentions these are "young horses", so they are particularly tempting to children.
4. Quotations from the tape were transcribed by the Petitioners for convenience, recognizing that the tapes remain the official record.
5. He appears to be referring to Subdivision Ordinance 7.1(b)8.
6. Arcadia's Brief similarly criticizes the Brief of the Petitioners for giving information about the impact of the subdivision on them, "The Petitioners' concerns regarding ... the impact of the proposed subdivision were not raised at the Zoning Board, and the Court should not entertain them now" (p. 22).
7. "Warm blood horses" are an imported German breed.
8. Arcadia on p. 18 addresses the definition of "adjacent," though misquoting the Board's conclusion 6, leaving out a line of 11 words. Page 6 of Arcadia's brief similarly misquotes conclusion 6.
9. These parcel numbers, 12 and 13 only, are the ones listed in the Record on the "Application for a Zoning Conditional Use Permit" signed by William P. Henderson and date-stamped at the Jefferson County Planning and Zoning Commission 12/19/00. They are also listed in the Board's Finding number 1.
10. The County's first paragraph on p. 2 wrongly says "the LESA and Site Assessment were posted and advertised." They were not. The compatibility meeting where citizens were allowed to ask Arcadia for changes under 7.6(a) was posted and advertised, but nothing about the LESA or Site Assessment (which actually permits the subdivision process to start) was posted or required to be posted. The County is claiming the LESA review process is more open than it is. No public information was distributed to show that the LESA process even existed or that appeals were possible. Citizens had to know enough about the Ordinance to go to the office during office hours and ask for the LESA calculations.
11. This concept is eloquently stated on the page of Southeastern Reporter just before Snyder. "[W]e cannot shut our eyes to matters of public notoriety and general cognizance. When we take our seats on the bench we are not struck with blindness, and forbidden to know as judges what we see as men...." (note 3 of E.H. et al. v. Khan Matin et al. 284 S.E.2d 232 (1981), quoting Ho Ah Kow v. Nunan 12 F.Cas.No. 6,546, 252, 255 (C.C.D. Cal. 1879)
12. Another way to phrase this question is, May the Zoning Administrator calculate surfaces by measuring only one side of each parcel?
13. Barker et al. v. City of Charleston et al. 61 S.E.2d 743 (WV 1950), Matthew and Francine Snyder et al. v. David C. Callaghan 284 S.E.2d 241 (WV 1981), State ex rel. Jack Alsop v. James R. McCartney et al. 228 S.E.2d 278 (WV 1976).