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IN THE CIRCUIT COURT OF JEFFERSON COUNTY
JAMES T. SURKAMP,
Petitioner,
vs. Case No. 01-P-70
JEFFERSON COUNTY PLANNING COMMISSION, a public body; et a!.,
Respondents,
and
F&M BANK-WINCHESTER and GREENVEST, L.L.C.,
Intervenors.
PETITIONER'S BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
Now comes the Petitioner, James T. Surkamp, by his counsel, Thomas R. Michael, and submits the following Brief in Support of Petitioners Motion for Summary Judgment.
Standard of Review. A planning commission decision is reviewed to determine whether the commission has applied an erroneous principle of law, was plainly wrong in its factual findings, or acted beyond its jurisdiction. Kaufman v. Planning & Zoning Com'n of City of Fairmont, 171 W.Va. 174, 298 S.E.2d 148, 157 (1982), citing Wolfe v. Forbes, 159 W.Va. 34, 217 S.E.2d 899, 906 (1975).
Statement of Facts. After the remand order from this Court entered January 2, 2001, three community meetings were held, on March 13, 2001, April 4, 2001, and April 26, 2001.(1)
The developer submitted a new Community Impact Statement dated April 19, 2001. (Item 23).(2)
A Community Impact Statement public hearing was held before the Jefferson County Planning Commission on May 8, 2001. Twenty-eight members of the public spoke at the hearing.(3) All members of the public were limited by the Commission to two minutes each. (Hearing transcript, 2-4).(4) Chairman Coyle stated that written statements could be submitted and made part of the record. (Hearing transcript, 3-4).
Thirty-one documents were filed during the public hearing. (Items 42-72). These included:
1. Letter dated May 8, 2001, from George R. Frame, Director of Support Services, Jefferson County Schools, stating that Hunt Field will require the school system to absorb approximately 1,600 new students. Mr. Frame states, "The current schools do not have the capacity for an increased enrollment of 1,600 students". (Item 52).
2. Letter dated May 7, 2001, from J. Randolph Hilton, Mayor of Charles Town. Mayor Hilton notes concern with possible negative impacts on the daily traffic volume on local roads, on the downtown retail and commercial establishments, on the southern and western entries to Charles Town, and on historic properties and homes. The Mayor states that without a western bypass to Charles Town, "the additional traffic impact from the Huntfield development would be unacceptable. Our streets could not handle such a large increase in vehicle traffic". The Mayor states that the developer should be responsible for road improvements. (Item 63).
3. Statement dated May 8, 2001, from Richard Latterell, documenting that the Hunt Field site has significant contamination of the soils with arsenic and lead. (Item 58).
4. Statement dated May 8, 2001, from Frances M. Latteral commenting that the West Virginia Department of Environmental Protection has not approved any plans for remediation of the contaminated soil. Greenvest has not yet applied to the DEP for a voluntary remediation plan. (Item 58).
5. Statement of Marian Buckner, dated May 8, 2001, describing the negative impacts on agriculture. (Item 49).
6. Statement of Dr. Linda Shields, dated May 8, 2001, that more information is needed on the health risks of residential development at Hunt Field, given the known presence of lead and arsenic in the soils. (Item 65).
7. Statement of Camra Mills, Piedmont Environmental Council, dated May 8, 2001. Ms. Mills notes that the Market Feasibility Study does not support a need for housing as proposed by Greenvest. She also notes that there is currently no available sewer capacity for Hunt Field. (Item 67).
8. Statement of Laurie Volk, Mosby Heritage Area, date May 7, 2001, that the
archaeological report commissioned by Greenvest grossly understates the historical significance of the Hunt Field area. (Item 53).
9. Statement of Paul Burke that the number of houses already proposed in subdivisions approved by the Planning Commission exceeds the current sewage treatment capacity. The Statement also points out that there has not been any final approval of the proposed water and sewer projects by the Public Service Commission. (Item ).
10. Statement of Joe D. Coakley that Greenvest has not submitted any new information which would change the prior findings of the Planning Commission rejecting the first CIS. (Item ).
11. Letter dated May 7, 2001, from Susan Pierce, Deputy State Historic Preservation Officer, West Virginia Division of Culture and History, stating that Greenvest has applied for a water pollution control permit and therefore the Hunt Field project must be reviewed by the State Historic Preservation Office, and requesting consultation with the Planning Commission. (Item 74).
12. Letter dated May 8, 2001, from Richard Moe, President of the National Trust for Historic Preservation stating that adverse impacts to the historical resources have not been adequately evaluated and urging the Planning Commission to postpone a decision until the State Historic Preservation Office review is complete. (Item 45)
13. Statement of Jim Surkamp, dated May 8, 2001, commenting on the arsenic and lead contamination, the presence of sink holes on the property, and the historical significance of the property. Included with this statement is a 69-page history of Prospect Hill written by Mr. Surkarnp. (Item 47).
Jim Duszynski, Senior Vice President of Greenvest L.C., testified that many impacts had not yet been evaluated. He promised that Greenvest would work to complete the evaluation of these impacts:
1. "we will do nothing to draw away from the center of Charles Town. We will not put retail that would compete with this. The idea is that there is some kind of a work with scenario that we will try to develop here, in this particular area, that will complement and not deter. So we will be doing studies and understanding what that is to make sure that that does not happen, competition." (Hearing transcript, 25-26).
2. "Our current discussions with the Board of Education surround the calculation of the cumulative impacts of students generated by Hunt Field. The table that we provided showed annual student impacts. But, we haven't quite been able to get to the exact cumulative impact because of conflicting information and incomplete information related to attrition, drop out, graduation, the sort of rolling enrollment that you see through the school system." (Hearing transcript, 43).
3. "We are committed to continuing our discussions with the school board so that we can ascertain the cumulative impacts and understand at what years in the project the greatest impacts occur and how best to address them." (Hearing transcript, 44).
4. "We still have work to do with the school board, and because of the difficulty that we have had together determining what those cumulative impacts are, we have hired a consultant to help us to ascertain the economic impact of the project as well as the student enrollment numbers and the cumulative impacts of students services." (Hearing transcript, 46).
5. "We have undertaken extensive samples, over 550 soil tests have been performed at the Hunt Field property, and have met with the West Virginia Department of Environmental Protection and will submit an application to the Voluntary Remediation Program in order to ensure safe development." (Hearing transcript, 48).
6. "As stated in our CIS, Hunt Field will provide a report to the Planning Commission verifying the presence or confirming the absence of historic or archaeological resources prior to each phase of the project being submitted for approval of a final plat." (Hearing transcript, 50-51).
7. "we will be working with the state historic preservation officer through Section106 of the wetland permit process, and any other processes which the state requires, to look at not only the specific impacts on our site, but the broader impacts including adverse impacts to the adjacent properties, which again; you have heard a lot about tonight." (Hearing transcript, 113).
8. "And again, the problem that we have to date, and we have got a lot of work to do still, and we are committed to doing that before the first final plat comes to this body, is getting the data to tell us what is the cost of services versus the revenue generated by each residential unit and working that out." (Hearing transcript, 151).
9. "I frankly, after a year of talking with the Board of Education and not a lot of conversation or dialog with other bodies. I don't think anybody has a real handle on this today. What is the real cost? What are the costs for services? What are the impacts from single family homes, from town houses, from multi-family homes? So we bring in, you know, a known leading expert economist in the field, and get his take on it, and you know..." (Hearing transcript, 165).
County Planner Paul Raco advised the Commission that everything that was submitted during consideration of the first CIS was part of the record to be considered. (Hearing transcript, 213).
At the conclusion of the hearing Commissioner Hanna [Hammer] moved to postpone a decision until the new evidence presented at the public hearing could be reviewed. He stated "I think we are making a very unfair result here, which is to leap to a decision before we have given consideration to everything that has been presented. We have had citizens show up who presented materials as they were permitted to. We have had materials presented to us this evening by our own staff, which I have not read yet. And for us to make a decision before we have considered everything in fairness is a mistake. So I do not think it is a good idea to go forward at this point in time." (Hearing transcript, 214, 219). The motion failed by a seven to three vote. (Hearing transcript, 216).
The Commission then considered the CIS. Dr. Tim [Jim] Gibson urged postponement of a decision until Greenvest tied up all the "loose ends". (Hearing transcript, 22 1). However, the Community Impact Statement was approved by a seven to three vote. (Hearing transcript, 227-228).
The record certified to this Court does not include any of the written public comments or letters from State and local agencies which were submitted during consideration of the first CIS.(5) Written Findings of Fact and Conclusions of Law were signed by Chairman Coyle on August 29, 2001.
Points and Authorities.
1. "It is rudimentary administrative law that discretion as to the substance of the ultimate decision does not confer discretion to ignore the required procedures of decisionmaking." Bennet v. Spear, 117 S. Ct. 1154, 1166 (1997), citing SEC v. Chenery Cog., 318 U.S. 80, 94-95, 63 S.Ct. 454, 462-463, 87 L.Ed. 626 (1943).
2. "However, in every contested case, W.Va.Code, 29A-5-3 (1964) contemplates a decision in which the agency sets forth the underlying evidentiary facts which lead the agency to its conclusion, along with an explanation of the methodology by which any complex scientific statistical, or economic evidence was evaluated." Citizens Bank of Weirton v. West Virginia Bd. of Banking and Financial Institutions, 160 W.Va. 220, 233 S.E.2d 719, 727 (W.Va. 1977).
3. The Administrative Procedures Act also requires a concise and explicit explanation of the facts underlying an agencys findings that the substantive statute has or has not been complied with. A simple recitation of findings of fact in bare statutory language will not suffice. Citizens Bank of Weirton v. West Virginia Bd. of Banking and Financial Institutions, 160 W.Va. 220, 233 S.E.2d 719, 727 (W.Va. 1977).
4. "If the Board's findings of fact and conclusions of law had been drafted in proper form, then we could have applied the appropriate standard of review, namely, did the evidence in any reasonable way support the findings of fact, and further did the findings of fact support the Board's conclusions of law. This is why the Board must discuss what random facts presented in evidence are probative, what testimony is methodologically sound, or to the contrary, unsound, and why, and the logical thought processes which connected facts which a lay court might not find relevant, to a particular expert conclusion reached by the Board. Accordingly we decline to review the evidence in this case until such time as the appellee Board has sifted, organized, and evaluated the evidence in light of its own substantial expertise in these matters and presented a proper explanation of its action to the trial court." Citizens Bank of Weirton v. West Virginia Bd. of Banking and Financial Institutions, 160 W.Va. 220, 233 S.E.2d 719, 728 (W.Va. 1977).
5. Although Citizens Bank dealt with a decision under the Administrative Procedure Act, the principles of Citizens Bank are clearly applicable to any administrative review Harrison v. Ginsberg, 169 W.Va. 162, 286 S.E.2d 276, 281 (1982).
6. "A final agency decision which affects the substantial rights of an individual must contain findings of fact on all the pertinent issues and a reasoned explanation of the ultimate conclusion reached." Harrison v. Ginsberg, 169 W.Va. 162, 286 S.E.2d 276 (1982) Syllabus point 2.
7. "The record must demonstrate that the Commission considered all the evidence, but a Commission is not required to discuss every piece of evidence. Rather, in addition to discussing the evidence supporting its decision, the Commission, as the factfinder, also must discuss the uncontroverted evidence it chooses not to rely upon, as well as significantly probative evidence it rejects. Thus, a minimal level of arriculation of the Commission's assessment of the evidence is required in cases in which considerable evidence is presented to counter the Commissions position." Queen. In re, 196 W.Va. 442, 473 S.E.2d 483, 490 (1996).
8. "An administrative body must abide by the remedies and procedures it properly establishes to conduct its affairs." Black v. State Consol. Public Retirement Bd., 202 W.Va. 511, 505 S.E.2d 430(1998) Syllabus point 4; citing Powell v. Brown, 160 W.Va. 723, 238 S.E.2d 220 (1977).
9. "(C)oniment from any individual" upon a subdivision proposal "shall become a part of the official record for the subdivision under consideration". Jefferson County Subdivision Ordinance, Section 4.6.
10. "The Community Impact Statement (CIS) is a complete report about a subdivision proposal which: (1) discloses all basic information about the subdivision; and (2) explains the physical, social and economic impacts the subdivision is expected to have on the community when the subdivision is fully developed." Jefferson County Subdivision Ordinance, Section 7.1.
11. "The content of a CIS shall be sufficiently detailed to permit an examination of the scope of a subdivision proposal and to permit an evaluation of the proposal according to the impact it may be expected to have on the local community." Jefferson County Subdivision Ordinance, Section 7.1.
12. "Particularly under the category of Social Impacts, the Community Impact Statement should evaluate the adequacy of available public and private services to meet the demands expected from the subdivision proposal as fully developed. Statements of adequacy from appropriate service agencies may be submitted in this regard." Jefferson County Subdivision Ordinance, Section 7.1(b)
Discussion.
The Findings of Fact are legally insufficient. The record does not demonstrate that the Commission considered all the evidence, including evidence presented at the hearing on May 8, 2001. The Findings do not contain any articulate assessment of this evidence. The Findings do not state any reasons why the Commission rejected the evidence presented at the hearing on May 8, 2001. Indeed the Commission did not set forth any factual basis of its determination to reject this evidence. The Commission did not even certify all public comments to this Court by failing to include any of the comments made when the first CIS was under consideration.
The only Findings which mention this evidence are Number 16 and Number 30. Finding Number 30 merely states "various persons raised issues pertaining to historic preservation, archeological sites, environmental impacts, growth management, education, traffic and other concerns." There is no Finding which explains how the Commission viewed this evidence or how it resolved the conflicts between this evidence and the claims of Greenvest.
For example, the Commission failed to clearly explain whether it was considering the proposal as fully developed, as required by the Subdivision Ordinance, or whether it was assuming that the development would be phased in over 20 years; the Commission failed to evaluate the evidence provided by the Jefferson County School Board that there is no capacity to absorb an additional 1600 students; the Commission failed to evaluate the evidence provided by West Virginia Division of Culture and History; the Commission failed to discuss the fact that there has been no final decision from the West Virginia Public Service Commission regarding the provision of water and sewer services to the development; the Commission failed to discuss that evidence that the existing wastewater treatment system cannot serve the proposed new town at Hunt Field; and, the Commission failed to discuss the evidence concerning toxic substances in the soil and groundwater at the Hunt Field site.
On many of the particular topics which are required to be considered by the Commission, the Findings of Fact merely state that "The Community Impact Statement contains detailed information on said topic", and the Conclusions of Law merely state that "The Commission finds that the Community Impact Statement adequately addresses said topic". (Traffic is a specific example. Finding of fact No. 19 states that the Community Impact Statement contains a detailed analysis of demands for traffic. Finding of Fact No. 30 states that various persons raised issues pertaining to traffic. Then Conclusion of Law No. 7 states that the Community Impact Statement adequately addresses all issues pertaining to traffic.) Such indefinite generalizations do not provide any rationale or explanation which can be meaningfully reviewed by this Court. The Commission has utterly failed in its duty to explain the basis of its decision.
The Findings of Fact and Conclusions of Law contain numerous findings and conclusions which are vague, nonspecific, arbitrary and capricious, and which fail to explain the basis for said findings and conclusions; including, without limitation, Findings of Fact 16, 17, 18, 19, 20, 29, and 30; and Conclusions of Law 3,4, 5, 6, 7, 8, 10, and 11.
As an additional example, Findings Number 18 and 19, and Conclusion of Law 6 refer to the demand for school services. However, the Planning Commission never makes a finding regarding what the demand for school service actually will be. That is, there is no finding stating what the impact on the school system will be if Hunt Field is fully constructed. This was an issue that was contested in the proceedings before the Commission. A letter from the School Board stated that the school system could not absorb 1600 additional students. There is no finding of fact on this question.
It is clear that these Findings do not pass the legal test for sufficiency. The Findings do not set forth "the underlying evidentiary facts which lead the agency to its conclusion". Citizens Bank of Weirton v. West Virginia Bd. of Banking and Financial Institutions, 160 W.Va. 220, 233 S.E.2d 719, 727 (W.Va. 1977). The Findings do not contain an "explicit explanation of the facts underlying" the approval of the CIS. ~ The Commission has not "sifted, organized, and evaluated the evidence", Id. There is no "reasoned explanation of the ultimate conclusion reached." Harrison v. Ginsberg, 169 W.Va. 162, 286 S.E.2d 276 (1982) Syllabus point 2.
The Planning Commission did not assess the evidence it did rely on (the information in the CIS), and it certainly did not assess the evidence it rejected. A "minimal level of articulation of the Commission's assessment of the evidence is required in cases in which considerable evidence is presented to counter the Commissions position." Queen. In re, 196 W.Va. 442, 473 S.E.2d 483, 490 (1996). The Planning Commission failed in its duty in this case.
The procedures utilized by the Commission in limiting testimony from citizens and in deciding this matter without even bothering to consider al the evidence, including evidence presented at the hearing on May 8, 2001, violated their own rules and principles of fundamental fairness. At the hearing on May 8, 2001, speakers were limited to two minutes. The Commission received a large volume of written comments and other documentary evidence at the hearing. The Commission made a quick decision during the hearing without taking the time to review any of said documentary evidence.
"(C)omment from any individual" upon a subdivision proposal "shall become a part of the official record for the subdivision under consideration". Jefferson County Subdivision Ordinance, Section 4.6. Thus, the comments of the public at the May 8, 2001, hearing are part of the record to be considered by the Commission. Also, Finding Number 16 states that the written documents submitted at the hearing are part of the record.
These documents, once they are in the record, must be considered by the Planning Commission. "The record must demonstrate that the Commission considered all the evidence". Queen. In re, 196 W.Va. 442, 473 S.E.2d 483, 490 (1996).
The Planning Commission violated its own rule that required it to consider public comments. "An administrative body must abide by the remedies and procedures it properly establishes to conduct its affairs." Black v. State Consol. Public Retirement Bd., 202 W.Va. 511, 505 S.E.2d 430 (1998) Syllabus point 4. This Court should not defer to the Planning Commission when it violates its own procedures. Bennet v. Spear, 117 S. Ct. 1154, 1166 (1997).
The Community Impact Statement did not evaluate the impacts of the proposed development. The essential purpose of a Community Impact Statement is to present an actual evaluation of the impacts of a proposed development.
"The Community Impact Statement (CIS) is a complete report about a subdivision proposal which: (1) discloses all basic information about the subdivision; and (2) explains the physical, social and economic impacts the subdivision is expected to have on the community when the subdivision is fully developed." Jefferson County Subdivision Ordinance, Section 7.1. "The content of a CIS shall be sufficiently detailed to permit an examination of the scope of a subdivision proposal and to permit an evaluation of the proposal according to the impact it may be expected to have on the local community." Jefferson County Subdivision Ordinance, Section 7.1. "Particularly under the category of Social Impacts, the Community Impact Statement should evaluate the adequacy of available public and private services to meet the demands expected from the subdivision proposal as fully developed. Statements of adequacy from appropriate service agencies may be submitted in this regard." Jefferson County Subdivision Ordinance. Section 7.1(b).
The Commission failed to discuss the fact that the developer itself has stated that many significant impacts are unknown and will require further study. Mr. Duszynski testified that more study was required to determine the impact on retail businesses in Charles Town, on schools, on public health and soil contamination, and on historical resources. More study was promised to determine the cost of the infrastructure and services that would be required by Hunt Field. He testified "I dont think anybody has a real handle on this today. "What is the real cost? What are the costs for services? What are the impacts from single family homes, from town houses, from multi-family homes?" The decision to accept the Community Impact Statement before these additional studies are complete was clearly arbitrary and capricious and not supported by substantial evidence.
Nothing could be more irrational than accepting a Community Impact Statement which does not state the impacts on the community.
Conclusion. The Findings of Fact are legally insufficient. The procedures utilized by the Commission in limiting testimony from citizens and in deciding this matter without even bothering to consider al [all] the evidence, including evidence presented at the hearing on May 8, 2001, violated their own rules and principles of fundamental fairness. The Community Impact Statement did not evaluate the impacts of the proposed development.
For these reasons the Petitioner prays that this Court remand this case to the Planning Commission with directions to require a statement of all impacts from the Developer, to consider all public comment, and to issue new Findings of Fact and Conclusions of Law.
JAMES T. SURKAMP, Petitioner, By counsel.
Thomas R. Michael
WV Bar No. 2546
Michael & Kupec
228 Court Street
Clarksburg, WV 26301
304-623-6678
1. For some reason, the certified record contains tapes of the first two meetings, but not the third meeting.
2. References are to the item number on the Itemized List of Documents for Hunt Filed Record filed by the Respondent.
3. Those speaking at the public hearing were: Daniel Lutz, Johanna Grodzizky, Dr. Richard Latterell, Dr. Frances Latterell, Bruce Dallen [Dahlin], Janet Stone, Marion [Marian] Buckner, Randy Creller, Tom Trumbull, Gerald Ward, Kevin [Keven] Walker, Patty Mulqueen [Milkeen] Corley, James Surkamp (Certan), John Augustine Washington, Dr. Linda Shields, Paul Burke, Howard Adams, Jan Stemblick [Steenblik], Debbie Ralty, Jackie McDonald, Delores Milstead, Karen Stein [Stine], Tyler Mayhew, Lori Vulk [Volk], Camera [Camra] Mills, Melanie Nagie, Joe Coakley (Copley), and Nance Briscoe (Bristow).
4. Reference is to the transcript of the hearing which was filed by counsel for the Intervenors. Page 4 was omitted from the filed transcript. Attached to this brief is a copy of page 4 that was obtained from the Court Reporter.
5. In addition to many public comments, the prior comments include a letter from Mike Warwick, West Virginia Department of Environmental Protection, dated April 17, 2000, that states "The proposed development at Hunt Field could ultimately generate more wastewater than can be treated at the 1.2 million-gallons-per-day plant that currently serves Charles Town, Ranson, and Jefferson County PSD."