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THORN HILL CASE 02-C-40

7/22/02 PETITIONERS' REBUTTAL TO DEVELOPER'S ARGUMENTS

Table of Contents

A Transmittal Letter
B Motion to Defer Ruling
C Motion to Replace Intervenor
Deed from Capriotti to Thornhill LLC
D Motion to Exceed Page Limitation

E Petitioners' Reply Brief
Page Topic
1 Standing
5 Standard of Review
9 Comprehensive Plan
12 Precedent in Corliss
14 "New" Topics
15 Items of Support Data
17 Findings
18 Societal Interests
21 Conclusions

F Sections 5.7 - 5.8(a) of Zoning Ordinance, Amended through 7/2/02
G Affidavit on Standing of Mary L. MacElwee
H Affidavit on Standing of Richard L. Latterell
I Proposed Order
J Certificate of Service

Richard L. Latterell
PO Box 763
Shepherdstown WV 25443
304-876-6072

July 22, 2002

The Honorable Gray Silver, III
Judge, Circuit Court of Jefferson County
PO Box 5129
Martinsburg, WV 25402

Re: MacElwee et al. vs. Jefferson County Board of Zoning Appeals et al.

Civil Action No.02-C-40

Dear Judge Silver:

Enclosed for your consideration in the above styled matter are the following:

Motion to Exceed Page Limitation
Motion to Defer Ruling
Motion to Replace Intervenor (Deed attached)
Petitioners' Reply Brief (Ordinance sections attached)
Affidavit on Standing of Mary L. MacElwee
Affidavit on Standing of Richard L. Latterell
Proposed Order

The originals were filed with the Clerk of the Court.

Sincerely,
Richard L. Latterell, Petitioner

copies:
J. Michael Cassell, Esq.
Peter L. Chakmakian, Esq.
Thornhill LLC

IN THE CIRCUIT COURT OF JEFFERSON COUNTY, WEST VIRGINIA

Mary L. MacElwee et al., Petitioners

vs. Civil Action No.02-C-40

Jefferson County Board of Zoning Appeals, Respondent

Eugene Capriotti, Intervenor

PETITIONERS' MOTION TO EXCEED PAGE LIMIT IN CIVIL ACTION 02-C-40

Come now Mary L. MacElwee et al., Petitioners, and move this Court to allow the PETITIONERS' BRIEF IN CIVIL ACTION 02-C-40 to exceed the ten page limit set forth in Trial Court Rules 22.01. This section states that, "The Court, for good cause shown, may allow a supporting memorandum to exceed twenty pages."

1. Petitioners assert that "good cause" in this case is that the case holds numerous issues, and Petitioners require development of more extensive arguments in order to cover the issues.

2. Further, the Intervenor has raised the issue of standing, which was not raised earlier before this Court, and Petitioners need to address the issue.

3. Wherefore Petitioners respectfully request that this Court allow Petitioners to file one reply memorandum of law in support of the Writ of Certiorari, consisting of twenty-three pages in length.

Respectfully submitted,

_______________________

Richard L. Latterell

IN THE CIRCUIT COURT OF JEFFERSON COUNTY, WEST VIRGINIA

Mary L. MacElwee et al., Petitioners

vs. Civil Action No.02-C-40

Jefferson County Board of Zoning Appeals, Respondent

Eugene Capriotti, Intervenor

MOTION TO DEFER RULING

The Petitioners move that a ruling in the instant case be deferred until a final decision is rendered in Corliss et al. v. Jefferson County Zoning Board of Appeals, Jefferson County Circuit Court Case No. 01-C-139, for the following reasons

1. As Capriotti's Brief states on p. 18, Corliss is being appealed to the Supreme Court of Appeals (filed 7/16/02).

2. Corliss covers most of the issues raised in the instant case, both on standing and on substance. If the Supreme Court of Appeals renders a final decision in Corliss, that probably will ultimately be dispositive of the issues in MacElwee.

3. Deferring a decision is in the interest of economy of potential further effort by all parties.

4. While Corliss is pending, any decision on MacElwee is likely to be appealed by the losing side.

5. If the losing side does not appeal, but Corliss is decided in a way that would have benefitted them, an injustice would be done.

6. While Corliss is not binding, it is persuasive, and the Circuit would not be well served by two conflicting opinions in very similar cases. In fact the appeal to the Supreme Court alleges this very concern in comparing the Circuit Court's decisions on Corliss and Walnut Grove/Security Hills Citizens Association, Inc. et al. v. Jefferson County Planning and Zoning Commission et al., Jefferson County Circuit Court Case No. 90-P-81. The appeal suggests that "divergent decisions" would violate the Equal Protection provisions of the West Virginia Constitution. Conflicting opinions would create unpredictability about the state of the law in Jefferson County, causing harm and costs to developers, property owners, and all residents.

7. The property owner does not lose from a delay, because land tends to increase in value, and either pursuing or defending a Supreme Court appeal would cause just as much delay as, at much greater expense than, deferring a ruling until the Supreme Court decides Corliss. The Supreme Court of Appeals would be very unlikely to decide MacElwee before Corliss.

8. The Board disagrees at least in part with the Circuit Court's ruling in Corliss.

9. Both Capriotti and the Board suggest that Corliss can be distinguished from this case, but do not offer any details.

10. Paragraphs 27 through 36 of the Petitioners' proposed order, show their view of the parallels succinctly.

IN THE CIRCUIT COURT OF JEFFERSON COUNTY, WEST VIRGINIA

Mary L. MacElwee et al., Petitioners

vs. Civil Action No.02-C-40

Jefferson County Board of Zoning Appeals, Respondent

Eugene Capriotti, Intervenor

MOTION TO REPLACE INTERVENOR

The Petitioners move the Court to name Thornhill LLC as the successor Intervenor, in place of Eugene Capriotti, for the following reasons:

1. On 3/26/02 the Court joined Eugene Capriotti as an indispensable party, based on his status as owner of the land at issue.

2. On 4/12/02 Capriotti sold the land at issue to Thornhill LLC (see attached deed).

3. Therefore Capriotti no longer has standing in this case.

4. Thornhill LLC is the successor in interest of Capriotti.

CERTIFICATE OF SERVICE

I, Richard L. Latterell, do hereby certify that I have mailed a true and exact copy of the foregoing Motion to Replace Intervenors, Petitioners' Brief in Civil Action 02-C-40, and proposed Order, by US mail, 1st class postage prepaid, to:

Thornhill LLC, PO Box 169, Harpers Ferry WV 25425

____________________________________________

Richard L. Latterell

IN THE CIRCUIT COURT OF JEFFERSON COUNTY, WEST VIRGINIA

Mary L. MacElwee et al., Petitioners

vs. Civil Action No.02-C-40

Jefferson County Board of Zoning Appeals, Respondent

Eugene Capriotti, Intervenor

PETITIONERS' REPLY BRIEF

The Petitioners have identified specific areas where the Developer did not provide information required by the Zoning Ordinance. The Intervenor and Respondent have ignored this lack of required information, have not shown that the Developer's text meets the standards in the Ordinance, have presented no evidence, and have failed to make their case.

The topics in this Brief include:

Page Topic

1 Standing
5 Standard of Review
9 Comprehensive Plan
12 Precedent in Corliss
14 "New" Topics
15 Items of Support Data
17 Findings
18 Societal Interests
21 Conclusions

STANDING

The Intervenor's Brief questions the Respondents' standing. This is the first time he has raised the issue of standing, and his raising of this issue now should be rejected for lateness. He did not raise the issue of standing at the Zoning Hearing, nor by any motion at an earlier stage in these proceedings. If it is not rejected for lateness, it should be rejected on substance, for the following reasons:

The Intervenor argues that the Petitioners are not an aggrieved party within the meaning of West Virginia Code, Section 8-24-59. Intervenor concedes that the term "aggrieved" is not specifically defined in the Code and relies heavily upon the West Virginia Supreme Court of Appeals case, Barker v. City of Charleston(1), 61 S.E.2d 743 (W. Va. 1950) in which the Petitioners were denied standing to contest the closing of a street and two alleys. The court stated 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." Id. at 746. The Intervenor cites another Supreme Court of Appeals case, Brouzas v. City of Morgantown, 106 S.E.2d 244 (W.Va. 1958) which also denied standing to petitioners objecting to the closure and abandonment of a public street and which relied on the same test for standing as in Barker.

As detailed in their initial Brief, Petitioners here are facing injury far more significant than the mere closing and abandonment of a public alley and/or street. But the type and degree of injury notwithstanding, Petitioners submit that the 1950s cases of Barker and Brouzas no longer totally reflect the current state of the law in West Virginia. Indeed, it appears that Barker was last cited by the West Virginia Supreme Court in 1966 which questioned Barker in connection with certiorari of a legislative act but did not overturn it. (Garrison v. City of Fairmont., 147 S.E.2d 397, 400).

Petitioners point to the 1981 Supreme Court of Appeals case, Snyder v. Callaghan, 284 S.E.2d 241, 248 (W. Va. 1981), a riparian rights case brought by trout stream users, stating

"In order to have standing ... 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 Petitioners note that the Intervenor also quotes Snyder without further specific comment at p.10 of Intervenor's Brief.) Regarding Snyder, the Petitioners first point out that the injury in fact may be either "economic or otherwise." Petitioners' initial Brief discusses at length the injury which they would incur as the result of the Thorn Hill subdivision with respect to schools, road traffic, the change in topography, the change in soils and drainage, the irreversible loss of farmland, the loss of wildlife, the change in ground and surface water, and the relationship of all of the above to the lack of compatibility with the Jefferson County Comprehensive Plan. And, as required by Snyder, the interests which the Petitioners seek to protect by way of this legal proceeding are clearly (not just "arguably") within the zone of interests protected by the Jefferson County Ordinance (Section 7.4(d)) and the Comprehensive Plan.

In a case more recent than Snyder.. the West Virginia Supreme Court of Appeals in, State ex rel. Erie Fire Ins. Co. v. Madden, 515 S.E.2d 351, 364 n.6 (1998) (per curiam), quoting State ex rel. Alsop v. McCartney, 228 S.E.2d 278,283 (1976), set forth the proper approach to determining eligibility for standing when It stated, "In West Virginia the slippery doctrine of standing is not usually employed to avoid a frontal confrontation with an issue of legitimate public concern." Petitioners submit that any proposed residential development of Jefferson County land which is zoned rural and is subject to the Zoning and Development Review Ordinance of Jefferson County must, by definition, be an issue of legitimate public concern and the issue of standing should not be employed to avoid a confrontation over the efforts of Petitioners to insist that Jefferson County zoning officials meet the full administrative requirements of the Ordinance by creating a "whole record."

The Petitioners also have standing based on having testified at the hearing, Myers v. Circuit Court, 64 W. Va. 444, 63 S.E. 201 (1908) (dicta) (reversing circuit court's decision to permit protestant before county court to proceed in certiorari to obtain review of county court's grant of liquor license; decision unreviewable for other reasons) ("And if the matter were of such nature as to be the subject of litigation beyond the county court, such protestant would be such a party to the proceeding and have such interest as would enable him to prosecute a certiorari.") Petitioners MacElwee, R. Fritts, and C. Craig spoke at the hearing.

Finally, the Intervenor also relies heavily on a 1993 Opinion Letter of the Jefferson County Court, Walnut Grove/Security Hills Citizens Assoc. v. Jefferson County Planning and Zoning Commission, Case No. 90-P-81. In Walnut Grove, the Court denied standing to the Petitioners who claimed standing "because of concerns about police protection, emergency services and traffic patterns on the state highway." The Court cited the 1950 Barker case, supra, stating that it could not "distinguish the facts of this case relating to standing from those in Barker (indeed, the Barker petitioners would appear to have a more particularized, and thus stronger, claim to legal standing than do Petitioners herein)." The Intervenor asserts that the Petitioners in this case "have far less of an interest than the petitioners in Walnut Grove." (P.13, Intervenor's Brief)

Petitioners submit that they have shown much more particular injuries than the petitioners showed in Walnut Grove, since that record showed no particularized claim at all. The Petitioners in this case allege injury in many respects, and in specific detail. Page 8 of their initial Brief shows allegations of injuries from traffic delays, expense of connections to sewer service, and decrease in property value from a change in the view.

Since Capriotti did not raise the issue of standing at the Zoning Hearing, nor by any motion at an earlier stage in these proceedings, the Petitioners have not previously had the opportunity to file affidavits on their standing. However, in response to the assertion of Intervenor, unsupported by evidence, that Petitioners have "no "direct or particular interest", Petitioners Latterell and MacElwee, who, but for Kabletown Road, would abut the Thorn Hill subdivision, have prepared Affidavits attached to this Brief.

Walnut Grove, Barker, Snyder, and Erie are all discussed in Corliss et al. v. Jefferson County Board of Zoning Appeals Civil Action No. 01-C-139. As to Erie, Corliss, at para. 46, states, "The Court is also mindful of our Supreme Court of Appeal's statement that: 'In West Virginia the slippery doctrine of standing is not usually employed to avoid a frontal confrontation with an issue of legitimate public concern.'" At para. 48, the Court distinguishes the facts therein from both Walnut Grove and Barker with respect to standing because "the Court simply finds that the Petitioners have made the requisite factual showing of alleged 'distinct' or 'peculiar' harm" (citing Barker's wording regarding a "distinct and peculiar injury"). The Court goes on to say that Barker should not be "read in isolation", citing the Supreme Court of Appeals ruling in Snyder. At para. 50, the Court rules that three petitioners are aggrieved by the Board decision and thus have standing.

The Petitioners believe the facts of this case are easily distinguished from those of Walnut Grove and that not only do the cases of Snyder, Erie and Myers support their claim for standing, but Barker, the precedent for Walnut Grove, also supports Petitioners' claim, because they have shown in this proceeding distinct and peculiar injuries.

STANDARD OF REVIEW

The Reply Brief of the Intervenor is focused upon the legal presumption accorded the determination of local zoning officials once their administrative processing is complete. The Petitioners focus on the need for a detailed and complete administrative process.

Initially, the Petitioners urge upon the Court that law and regulation require that local zoning officials follow the letter of the law. The Petitioners contend that the "support data" submitted for the Thorn Hill subdivision meet neither the letter nor the spirit of the law, and that, notwithstanding Intervenor's argument to the contrary, close judicial scrutiny here will confirm that the quantity and quality of the data submitted do not meet legal requirements. The data submitted are cursory and, as found in parallel circumstances by the Circuit Court of Jefferson County, "attenuated." (Corliss, at para. 66.) Local zoning officials of Jefferson County must be required to make every effort to first hear, and then carefully consider, the views of the interested public. It is not sufficient, even though one might argue technically legal, to minimize the process for whatever reason.

Petitioners raise only one question regarding the section of Intervenor's Brief on "Standard for Review." Intervenor invents five standards as the Court's task in reviewing the denial of an appeal before the Board which includes at number (4) "insuring that the decision of the BZA board is supported by competent material and substantial evidence in the whole record." (P.8, Intervenor's Brief) Although Intervenor does not cite the provenance of these standards, Petitioner agrees generally that at least these five standards are applicable and points specifically to standard number (4), quoted above, which requires that the Board decision be supported by competent material and substantial evidence in the whole record. The Findings of the Board show no competent material and no evidence to support their acceptance of the Zoning Administrator's decision. In a larger sense, Petitioners most vigorously assert that the record is not whole when both competent material and substantial evidence consisting of the required "support data" are not submitted by the Intervenor to the Zoning Administrator or to the Zoning Board of Appeals and where the Intervenor is not required by either to do so.

Page 7 of the Intervenor's Brief also suggests two other standards: "fairly debatable" and "differing conclusions from opposite points of view." The "fairly debatable" standard was considered in Kaufman v. Planning & Zoning Commission, 298 S.E.2d 148 (1982). The Supreme Court rejected "fairly debatable" and used the "plainly wrong" standard in that case. The Petitioners do not find the "differing conclusions" standard in the case law. The Intervenor is heaping alternate wordings onto what the Supreme Court has actually said.

Cassell's defense of the Board of Zoning Appeals rests on the assertion of Presumption of Correctness. This argument is valid but only to a point. Repetition of the Board of Zoning Appeals' right of Presumption of Correctness is a feeble defense in that it attempts to establish by implication that challenges to the actions (or inaction) of the Board of Zoning Appeals begin and end with that Presumption. That is not the case. Presumption of Correctness does not as implied confer something akin to executive privilege nor does it give The Board of Zoning Appeals any immunity from accountability. The Board of Zoning Appeals is an instrument of County government. The statutes that mandate its existence and describe its function also mandate the opportunity for challenges to its actions and judgments by citizens. The Board of Zoning Appeals is therefore accountable to the public whose interests it was created to serve.

The Intervenor concludes this section of its Brief by alleging that "... Petitioners urge the Court, to substitute its discretion for that of the Zoning Administrator ...." (P.8, Intervenor's Brief) The Petitioners question why it is alleged that they urge the Court to substitute its discretion for that of the Zoning Administrator. Not at all! What the Petitioners are urging the Court to do is require the Zoning Administrator to compile a "whole record", complete with clearly adequate "support data", before exercising discretion in this and other zoning cases important as the one presented by the facts here.

The Petitioners believe legal process requires a thorough review of such an important zoning matter as the change of rural/agricultural land to use for residential development.(2) Petitioners here challenge the completeness of that process with respect to the adequacy of "support data" required by law and regulation. The Intervenor states categorically that he "will offer no response to the inadequate 'support data' arguments offered by the Petitioners." (P.17, Intervenor's Brief) What the Intervenor does offer is a string of tautological arguments reiterating the aforementioned legal presumption given to the local administrative process once those zoning officials have completed their work. Additionally, the Intervenor's Brief is largely devoted to the issue of the Petitioners' standing before this Court.

The Board and Capriotti veer back and forth between saying that the Ordinance must provide clear standards for developers to follow, and saying that section 7.4 of the Ordinance provides wide discretion to the Zoning Administrator. If it provided such wide discretion it would be challengeable as being unfair to developers. In fact 7.4(d) lists 23 items that developers must provide. This developer did not provide what was needed, so he did not comply with the Ordinance. The Zoning Administrator and Board were plainly wrong in saying he did.

The essence of the arguments advanced by Cassell can be summarized as follows:

(1) Section 7.4(g) of the Ordinance confers discretion on the Zoning Administrator who is therefore infallible and immune from accountability;

(2) The Board of Zoning Appeals acknowledges the infallibility of the Zoning Administrator and must therefore support his judgment uncritically: (thereby acquiring immunity from accountability);

(3) Proof of these postulates consists in the Board of Zoning Appeals' confirmation of the Zoning Administrator's approval of the Intervenor's Support Data at the Appeals Hearing. This is circular reasoning!

With respect to the Kaufman case, the Intervenor assumes that its subdivision application "meets all requirements of the local ordinance" and therefore, "approval is purely a ministerial act." The Petitioners contend that all requirements have not been met and this is Intervenor's attempt at 'bootstrapping' its argument to conclude that the local zoning officials must be affirmed, which is not so.

"The determination made by the Zoning Administrator regarding the adequacy of the Support Data is a decision within his sound discretion." (Mr. Cassell neither argues that the decision was correct nor provides any supporting evidence to suggest that the data were adequate.)

COMPREHENSIVE PLAN

The Comprehensive Plan provides more clarification, if a developer has any questions in reading 7.4(d). Ordinance section 1.1 says, "The purpose of this Ordinance is to ... (b) Help guide the future growth and development of Jefferson County in accordance with the adopted Comprehensive Plan. Section 1.3(a) says the Ordinance "shall be applied to promote the intent in ... the Comprehensive Plan." Even 7.4(d)(23) calls for "relationship of the project to the Comprehensive Plan"

The Petitioners' quotations from the Plan do not change or replace the specific standards in 7.4(d). They simply provide more evidence of what the Ordinance requires. These relevant quotations also show that the 23 Ordinance standards are part of a well thought through system of requirements. The 23 requirements are not an arbitrary list. They grow out of the "groundwork" laid in the Plan. This relationship was endorsed by Singer v. Davenport, 264 S.E.2d 637 (1980). Singer concerned the Jefferson County Subdivision Ordinance, before we had a Zoning Ordinance. The Court in Singer predicted (and required) that when a Zoning Ordinance was adopted, it would grow out of the "groundwork" of the Plan. This has now happened; the instant case does concern a Zoning Ordinance; and this Ordinance is intimately based on the Plan, as Singer said it would be. The Zoning Ordinance provides 23 standards for support data in 7.4(d), these standards are based on the Plan, the Ordinance says that applications must promote the Plan, and one of the 23 standards even draws the Developer's attention to this relationship with the Plan.

The zoning appeal form, printed by the County, on which the Petitioners filed their original appeal is in the record. It instructed the Petitioners to "provide the justification for each difference by citing the Comprehensive Plan of Jefferson County as adopted in 1994.

The Board argues that the Petitioners should address the 1986 Plan. However both the Plan and Ordinance are living documents, periodically changed by the County Commission. As in any regulation that refers to another document, without referring to a specific edition, the most recent version is to be used. It would be puzzling for the County Commission to put in all the work of revising and adopting a new Plan, but allege that "the terms of this Ordinance shall be applied to promote the intent in ... the [1986] Comprehensive Plan." Nor is it plausible for developers to show the relationship of their projects to an obsolete plan. In fact the Developer's support data contain quotations from the 1994 plan. If the Board or Court were persuaded that the 1986 Plan is meant by the Ordinance, they should reject the support data for non-compliance with 7.4(d)(23).

The Board keeps referring to the "1988" Ordinance, though it has been amended as recently as 2002. Does the Board think this Ordinance, no matter how drastically amended, will always be based on the 1986 Plan? In order to refer to the newest Plan, does the Board think the Ordinance must be repealed, and then re-adopted? This is unreal, and yet this is the Board that reviews Zoning appeals.

The Petitioners agree with the broad general principles set out in the two cases cited by the Intervenor, Singer and Kaufman. In addition to the general principles expounded, Intervenor also cites Singer for the proposition that a comprehensive plan may not be used for purposes other than those for which it is intended. In Singer the Court stated that "a comprehensive plan is to be used by the planning commission to aid them in drawing up their subdivision ordinances" and was "never intended to replace definite, specific guidelines; instead, it was to lay the groundwork for the future enactment of zoning laws." Nothing quoted here from Singer precludes the recognition of the Jefferson County Comprehensive Plan (Plan) as part of the law to be considered by this Circuit Court. Petitioners agree the Plan should be used to aid the Jefferson County Planning Commission in drawing up needed amendments to the ordinance and Petitioners are not suggesting that the existing Plan should replace any definite, specific guidelines. Petitioners argue the Plan was, and still is, to be used to lay the groundwork for future zoning laws. The existential fact is that the Plan represents a valid consensus for the development of Jefferson County.

The Plan has been cited in at least two Jefferson County Circuit Court cases, Corliss, supra at para. 67, and Gavin v. Jefferson County Planning Commission, Action No. 98--P-44, (Order Reversing and Setting Aside the Decision of the Jefferson County Planning Commission, at p.3 of that Order). The Petitioner submits that the Plan should be considered by this Court as part of the applicable law to be applied in reaching its decision.

Counselor Cassell asserts that the petitioners are using the 1994 (current) version of the Comprehensive Plan to modify the Zoning and Development Review Ordinance adopted six years earlier in 1988. Though this assertion is repeated, in variously modified forms, some eleven times in fourteen pages of text, the Counselor never explains this accusation nor does he provide a single specific example of the alleged abuse. Cassell seems to imply that these statutes are somehow incongruent. In fact they are highly congruent -- and mutually supportive. They have a common purpose, that of guiding growth and development of Jefferson County. They share common objectives; e.g., Conservation of natural resources; Insuring that growth and development are economically and environmentally sound. Both are part of the Development Review Process. Counselor Cassell seems to imply that the Comprehensive Plan of 1994 is somehow illegitimate, that the Plan adopted in 1986 should take permanent precedence. These are living documents not Dead Sea Scrolls! The Zoning and Development Review Ordinance has been amended many times since its adoption in 1988. the Comprehensive Plan has been reviewed and revised periodically since its initial adoption. One stated purpose of the Ordinance is to "...help guide future growth and development of Jefferson County in accordance with the adopted Comprehensive Plan," which in the years of 2001 (Corliss) and 2002 (MacElwee) would be the Comprehensive Plan adopted in 1994. If Mr. Cassell had any valid legal point it remains obscure and marginally relevant at best, badly flawed or pointless at worst.

PRECEDENT IN CORLISS

In the case of Corliss, et al. vs. Jefferson County Board of Zoning Appeals the Court ruled that several items of support data for the proposed Harvest Hills subdivision were inadequate. Mr. Cassell asserts that Circuit Court protocol requires that the judicial ruling in the Corliss case must be seen as limited to the facts and circumstances in that particular case and further that the 23rd Circuit Court is not bound by said ruling because Corliss and the case at bar (MacElwee) are so very different. Cassell argues that the legal issues in the two cases are different. In fact the principal legal issue under appeal -- adequacy of support data -- is identical! Cassell argues that the facts in the two cases are clearly distinguishable. In fact, the cases are qualitatively analogous -- same jurisdiction, same laws, same issues. Even Cassell's assertion that the parties in the two cases are different fails scrutiny. Granted that Landowners, Developers, and Petitioners are different but -- what is of major significance is that the Zoning Administrator and Board of Zoning Appeals are involved as are some of the same legal counsels -- Chakmakian for the developer, Cassell for the Board of Zoning Appeals. These latter even present the same flawed arguments:

(1) Petitioners have no standing;

(2) The Zoning Administrator is accorded complete discretion under the Zoning and Development Review Ordinance as to how or whether he does his job and is therefore infallible and immune from accountability;

(3) The Board of Zoning Appeals enjoys presumption of correctness regardless of existing evidence to the contrary, and therefore enjoys privileged status akin to "divine right."

The Corliss ruling is currently under appeal in the Supreme Court of West Virginia. Said ruling is rational, cogent, fundamentally fair and if supported by the Supreme Court, would become the law of West Virginia. Pending that outcome the Corliss ruling should have some precedential value in analogous cases before the 23rd Circuit Court.

What Judge Steptoe did in Corliss was to interpret the law -- which every jurist does and what every educated American has been told is the role of the Judiciary -- by explaining and thereby clarifying the purpose of the requirement for Support Data.

"The support data is required prior to the holding of the Compatibility Assessment Meeting. It is easy to see that the purpose of the requirement of support data is to reveal issues relating to compatibility and to provoke discussion among the developer/landowner, the interested public and the county's land use officials as to matters that would be relevant to compatibility. If the support data is attenuated, as it was in this case, it could stifle discussion of important issues and/or unfairly shift the burden of gathering data required for an informed discussion away from the developers and onto other parties. It would also deprive the Commission and its staff of necessary background information." (para. 66)

Judge Steptoe's opinion cited above was truly prescient. The last two sentences of the above quote predict and accurately describe what happened in the case of MacElwee, et al. currently before the Court.

Finally, the Intervenor argues that the decision in Corliss, supra., is limited to the facts and the issues raised therein having "no precedential value to the matter at hand." (P.18, Intervenor's Brief) If that is so, the Petitioners would make the same argument with respect to the Walnut Grove case, upon which the Intervenor so heavily relies.

"NEW" TOPICS

Counselor Cassell argues to great length but without substance that the Petitioners' Brief attempted to raise new issues not previously set forth in their Appeal Forms. The Petitioners emphatically deny this allegation. The following quote appears in both of the appeal forms for case AP01-05 and in slightly modified form in the petition for Writ of Certiorari.

"Most of the nearby schools are already over capacity. The proposed development will strain even further the existing public facilities of the County. The support data provided by the developer are inadequate and inaccurate. Examples include the data on schools, wildlife, water, and the general compatibility of the proposed development with the Comprehensive Plan."

Petitioners focus particularly on the sentence, "The support data provided by the developer are inadequate and inaccurate." These words mean the support data overall, not just the "examples" cited, which are by definition nothing more than examples of the entire support data. Citing specific examples of inadequate support data items does not mean that any or all data points not specifically cited are therefore adequate. Nor should lack of specific citation preclude discussion of other data points which are clearly inadequate.

It is now also clear that Zoning Administrator Paul Raco's repeated objections at the Board of Zoning Appeals Hearing had no basis in fact. This was a tactic used to intimidate and thereby curtail testimony of appellants MacElwee, Craig and Fritts. The objections were consistently sustained by Board of Zoning Appeals Chairman Meyers on grounds that the issues raised were not part of the appeal. In fact, the issues raised (traffic) were and always had been part of the appeal.

Cassell concluded with a reiteration of the unsupported assertions that comprise his Brief. Most if not all of these are false.

"The Petitioners' Brief contained many issues which are not properly before this court." False! The issues before the court are:

(a) Inadequacy of support data -- which has been part of the Petitioners' appeal from its inception; and

(b) Failure of the Zoning Administrator and Board of Zoning Appeals to responsibly discharge their obligations to the citizens of Jefferson County -- which is the inevitable corollary to failure to enforce the relevant statutes by approving demonstrably inadequate support data.

ITEMS OF SUPPORT DATA

Cassell castigates the Petitioners for suggesting that knowledge, specifically a systematic survey, would be an essential prerequisite to assessing impacts of a massive construction site on local wildlife populations. Cassell claims that Capriotti's categorical denial that any wildlife will be affected by construction (even if he has no way of knowing what species populations are present before and/or after construction) is adequate support data because "Section 7.4(d)(15) of the Ordinance simply states effected (sic) wildlife populations." Cassell's rationale is a non sequitur.

A second attempt to claim that the Petitioners made excessive demands on the Intervenor marks the nadir of Cassell's response. He asserts (p. 12) that the Petitioners demanded some four types of detailed water studies for the Thorn Hill site. This assertion is altogether false and unsupported by evidence. The Petitioners never presumed to make any "demands" of the Intervenor. Page 35 of the Petitioners' Brief lists some of what will happen to the groundwater. The Developer has not described what is or will be happening to water at the site, in accordance with 7.4(d)(16).

In their Brief, the Petitioners described at some length problems affecting surface and groundwater that would inevitably result from construction of a large subdivision at Thorn Hill, as examples of inadequate support data. Theirs was a comprehensive discussion to elucidate issues, i.e., problems of which the developer should be cognizant and with which he would eventually have to cope. Capriotti had sought to cope by merely acknowledging that water did exist under and adjacent to his property, thereby effectively denying that any problems did or could exist with regard to that most vital resource. Incredibly despite the obvious attenuation -- amounting to a virtual absence of data, Cassell declared that "the statement of Capriotti's on this issue provides sufficient information to all parties regarding plans for development on this site" (Respondent's Brief p. 12). Cassell is substituting his discretion that zero information on groundwater at Thorn Hill is sufficient, for the requirement of the Ordinance, that groundwater must be addressed.

The Petitioners' Brief includes seven pages of data which elucidate issues and problems involving water -- based on scientific knowledge and well-documented human experience -- consequent on construction sites generally and by logical extension Thorn Hill specifically. As noted in the Petitioners' Brief, Capriotti barely mentions surface water, does not mention groundwater in relation to the Thorn Hill site and discusses nothing..

The Board's Brief on p. 5 persists in the fallacy that "Capriotti utilized the traffic generation figure from the Zoning Ordinance." As the Petitioners stated clearly in their initial Brief, there are no traffic generation figures in the Zoning Ordinance. Neither the Board nor the Intervenor has offered a citation. Nor would such figures in any case address "adequacy of existing transportation routes" (7.4(d)(19)).

The Board also misquotes the Zoning Ordinance on p. 11 of its Brief, saying "service water" where the Ordinance says "surface water." The Board should know its own Ordinance. The difference is substantial, but the support data cover neither drinking water service nor surface water.

FINDINGS

The Court's scheduling order asked parties to submit proposed orders with their Briefs. The Board did not provide any, and the drafts provided by the Intervenor do not suggest any findings for the Court to consider.

Rule 52(a) states that "In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon. . ." Rule 52(a) is applicable to judicial review of administrative decisions. Golden v. Board of Education, 169 W.Va. 63, 285 S.E.2d 665 (1981). The Petitioners' initial Brief included a proposed order which did suggest findings for the Court to consider, though the Petitioners understand the Court would not simply adopt them, but would revise them as needed.

"Under Rule 52(a) of the West Virginia Rules of Civil Procedure it is the duty of the trial court to make its findings of facts and it should not surrender or delegate that important function by any mechanical adoption of the findings prepared by counsel; but the trial court, to accomplish the results intended by the rule, should, at or prior to the entry of judgment, carefully prepare its own findings of facts." South Side Lumber Co. v. Stone Const. Co., 151 W.Va. 439, 152 S.E.2d 721 (1967), Syllabus pt. 1.

Attached to this Brief is a revised proposed order. Paragraphs 40-50 have been added to address the issue of standing, which had not been raised before.

SOCIETAL INTERESTS

The Petitioners have presented ample factual and verifiable data backed by reasoned objective analysis as evidence in support of their contention that:

(1) The Intervenors' Support Data for the proposed Thorn Hill subdivision were and are inadequate; and that

(2) The statutes and guidelines governing land use and development in Jefferson County, WV were not adequately enforced by the Zoning Administrator and the Board of Zoning Appeals.

Counsels for the Intervenor and the Board of Zoning Appeals have failed to produce any contradictory evidence. They have instead posited dubious legal arguments that are contrived, unsupported and insufficient. Clearly they have no case.

The Petitioners contend that the proper role of the Board of Zoning Appeals is to serve the public interest by the upholding and impartial enforcement of the relevant land-use laws, the Zoning and Development Review Ordinance and the Comprehensive Plan of 1994. In the case before the Court, as in Corliss, this was not done and in their Brief the Petitioners have adduced copious factual evidence based on knowledge and experience in support of that allegation. Neither Counselor responded directly to the allegations of nonfeasance (possibly more appropriately misfeasance as the Court may decide), an issue raised by the Petitioners. Charges of nonfeasance were met obliquely by denials that this was possible given the privileged status of the Zoning Administrator and the Board of Zoning Appeals. We may reflect that the best of American traditions reject claims to privilege. In any case, mere denials are not evidence of anything but intellectual bias.

Counselor Chakmakian's defense of the Zoning Administrator also relies heavily on interpretation. In this case, the Counselor claims that Section 7.4(g) of the Zoning and Development Review Ordinance ..."accords to the Zoning Administrator latitude and discretion...as to what is and what is not adequate support data." What the Ordinance actually says is, "The Zoning Administrator shall determine if the sketch plan and support data are adequate." This statement, often cited and emphasized by Counsel for the Intervenor, mentions neither latitude nor discretion specifically. This is a convenient interpretation employed by the Counselor to protect the Zoning Administrator and imply that this statement endows the Zoning Administrator with immunity from accountability.

The Petitioners take the position that the statement at issue defines the responsibility of the Zoning Administrator to his fellow citizens who are also his employers. Since the Zoning Administrator is on the public payroll, hence a public servant, Section 7.4(g) connotes the obligation of the Zoning Administrator to represent impartially the public interest of his citizen/employers. The Zoning and Development Review Ordinance does not accord the Zoning Administrator discretion as to whether to choose to meet his obligations to the public in general or to exempt applicants for Conditional Use Permits from responsibility for submitting Support Data adequate to reveal issues and provoke discussion among the concerned public, developer/landowners and County land use officials concerning matters relevant to their common interests (Paraphrase of Judge Steptoe in Corliss, para. 66). What is ultimately at issue are not abstruse points of law, but logical, reasonable, ethical, responsible and if necessary, enforceable standards of human conduct.

What the Intervenor, Zoning Administrator, and Board of Zoning Appeals would like to conceal is that they via counsel are attempting to do what they falsely accuse the Petitioners of doing -- persuading the Court to legislate. If the Court should rule that the Intervenors' Support Data are adequate, the Zoning Administrator and Board of Zoning Appeals would be at liberty to continue to legislate as they have done in the past; i.e., by nullifying -- through non-enforcement -- laws (statutes, rules, guidelines) which are designed to protect the public interest, but are inconvenient to developers.

The Petitioners contend that the Zoning and Development Review Ordinance and the Comprehensive Plan were created by responsible adults and designed to serve the public interest by providing reasonable, enforceable guidelines to promote responsible behavior of citizens toward one another and toward the resource base (life-support system) that they share. Accordingly, the Petitioners ask the Court to uphold these existing laws and thereby protect the public interest.

It is of paramount significance to the Petitioners' case, and reassuring to them, that neither the Counsel for the Board of Zoning Appeals, nor Counsel for the Intervenor has presented any substantive challenge to the evidence that the Petitioners have presented in support of allegations of inadequate support data. These submissions are largely matters of fact, not of opinion. Mr. Cassell did attempt ineffectively to disparage two selected items of the Petitioners' support data by claiming that demands the Petitioners never made would be unfair to the Intervenor. He does not, however, criticize nor attempt to disagree with the Petitioners' exposition, analysis or predictions regarding the environmental impacts of a large subdivision on Thorn Hill. Mr. Chakmakian does accuse the Petitioners of speculation but the charge is wrong. To argue as the Petitioners have that laws of nature and human knowledge apply equally at Thorn Hill as on other lands of Planet Earth hardly qualifies as speculation. Otherwise, Mr. Chakmakian disregards the Petitioners' evidence, which the Petitioners accept as confirmation of its validity.

The Intervenor asks how the Petitioners would have felt if neighbors had litigated to ensure the Ordinances were met before their subdivision was built. The Petitioners would have been ecstatic, because they have struggled for years to overcome deficiencies in the application of the relevant Ordinances when the subdivision was built. Similarly residents of Thorn Hill will benefit from the careful review and planning that Ordinance-compliant support data would foster. It is well to remember that the purpose of support data is not to stop development, but to improve it, by giving neighbors, planning commissioners and others the information they need to propose ways to improve compatibility with the area.

CONCLUSIONS

The Petitioners agree that Chief Justice John Marshall had it right that "(w)e are a nation of laws and not a nation of men." The law in Jefferson County, including both the Jefferson County Zoning and Development Review Ordinance and the Jefferson County Comprehensive Plan (specifically incorporated into the Ordinance) requires that "support data" submitted with a subdivision application must meet the requirements of both. Petitioners submit that they have now shown that the data submitted in this case are not adequate. The Board of Zoning Appeals made a finding (at para. 13) that "The Zoning Administrator found that the support data was adequate." From that sole finding, the Board has leapt to its Conclusion (at para. 7) " ... that the determination made by the Zoning Administrator regarding the adequacy of the support data should not be disturbed. The Board finds that the Zoning Administrator did not abuse his discretion by his approval of the support data." Nowhere in that Board wording is there any explanation of "how" or "why" the Board reached its conclusion other than finding there was no abuse of discretion. The basis for that finding is also not explained. the Petitioners conclude this is not a reasoned opinion. Moreover, the reply Briefs of the Intervenor and the Respondent have not pointed to any evidence contradictory to the Petitioners' contention that the support data are inadequate. Those Briefs make legal, but not substantive, argument concerning the adequacy of the data.

At bottom, their legal argument is that because the Zoning Administrator has found the support data adequate, and the Board of Zoning Appeals declares (without pausing to show reasons) that there was no abuse of discretion, then, ipso facto, the support data are adequate. This can be fairly characterized as the ipse dixit school of legal reasoning: "It is so because I say it is so."

Petitioners submit the support data put forward in this case are insufficient to meet legal standards and respectfully urge this Court to so rule. Further, Petitioners submit that they fairly raised the issues, because their appeal forms clearly state they are appealing "The support data...", all of it, not just the examples there listed.

PETITIONERS' REPLY SIGNATURES Civil Action No. 02-C-40

Mary L. MacElwee Richard L. Latterell Tina Fritts Rick Fritts Sherry Craig Chauncey Craig



SECTIONS 5.7 through 5.8(a) OF THE JEFFERSON COUNTY ZONING AND DEVELOPMENT REVIEW ORDINANCE, INCLUDING AMENDMENTS THROUGH 7/2/02

SYMBOLS show approvals by the County Commission:

+ approved 5/4/89

* approved 8/31/89

@ approved 9/14/89

# approved 10/12/89

% approved 11/30/89

& approved 9/13/90

> approved 10/4/90

^ approved 7/15/93

$ effective 5/18/96

= effective 1/1/97

~ effective 6/12/97

< effective 2/11/98

[ effective 7/1/98

{ effective 8/13/98

x effective 12/10/98

! approved 9/23/99 underlined text.

$ Section 5.7 Rural District

The purpose of this district is to provide a location for low density single family residential development in conjunction with providing continued farming activities. This district is generally not intended to be served with public water or sewer facilities, although in situations where the Development Review System is utilized, it may be. A primary function of the low density residential development permitted within this section is to preserve the rural character of the County and the agricultural community. All lots subdivided in the Rural District are subject to Section 5.7d Maximum Number of Lots Allowed. The Development Review System does allow for higher density a Conditional Use Permit is issued.

5.7 (a) Principal Permitted Uses

^ (1) Agriculture as defined in Article 2; provided any building or feeding pens in which farm animals are kept shall comply with distance requirements specified in Section 4.6. Also, any buildings used to store manure shall comply with distance requirements specified in Section 4.6(a).

! (2) Churches and private or public elementary, middle or secondary schools and educational facilities for adults.

(3) Single family dwelling, including mobile homes provided that they are utilized as single family dwelling units on the minimum lot size specified in Section 5.15

$ (4) Home Businesses as specified in Articles 2 and 4A

(5) Private riding stables

(6) Child or elderly care facilities with [four] six (6) or less individuals

(7) Fire stations, ambulance and rescue squads, publicly supported

(8) Fish, game, or poultry hatchery

(9) Forestry

(10) Library, museum, or similar institution of a noncommercial nature

$ (11) Markets for the sale of farm products, and products incidental to farm products; provided that floor area does not exceed 1,500 square feet, a front yard setback of fifty feet (50) from the street right-of-way be maintained, and off street parking be provided

(12) Horticultural nurseries and commercial greenhouses

(13) Hospital

(14) Public utilities uses, specified in Section 4.7

(15) Accessory buildings and uses customarily incident to any principal permitted uses

(16) Group Residential Facility

^ (17) Bed and Breakfasts (no more than 2 bedrooms) subject to Section 9.8.

$ (18) Publicly owned facilities

$ (19) Two family dwellings provided one unit is owner occupied

[ (20) Wireless telecommunications facilities pursuant to Article 4B.

! (20) Horse breeding and/or boarding [[1999 amendment accidentally specified an additional item (20)]]

! (21) Equestrian riding/training facility

! (22) Model homes/sales office (pursuant to Section 4.18)

5.7 (b) Minimum Lot Area, Lot Width and Yard Requirements

& Minimum lot sizes, lot width, and yard requirements are as follows for principal permitted uses. For any residential use that complies with the Development Review System, the setbacks and lot shall be as outlined in Article 5.4(b).

 

 

Lot

Front Yard

Side Yard

Rear Yard

 

Lot area

Width

Depth

Depth

Depth

Dwellings

40,000 sq. ft.

100

40

15

50

Churches

2 acres

200

50

50

50

Schools, Grades K-4

10 acres +

500

100

100

100

Schools, Grades 5-8

20 acres +

500

100

100

100

Schools, Grades 9-12

30 acres +

500

100

100

100

Hospitals

10 acres

500

100

100

100

Other permitted uses

40,000 sq. ft.

100

40

50

50

+ Plus one (1) additional acre for every 100 pupils. Minimum lot size for Vocational Schools shall be based on State of West Virginia Code. If a sewer treatment plant and retention ponds are required, acreage shall be increased accordingly.

5.7 (c) Height Regulations

No structure shall exceed thirty-five (35) feet in height except as provided in Section 9.2.

$5.7(d) Maximum Number of Lots Allowed

All parcels of land that were on record as of October 5, 1988 are entitled to subdivide for single family detached residences based on Subsections 5.7(d)1, 5.7(d)2 or 5.7(d)3 below. A property owner may use a combination of these subsections, provided that the number of lots are prorated by density.

5.7 (d) 1. A property owner may create one (1) lot for every ten (10) acres with a minimum lot size of three (3) acres.

a. Acreage shall be computed using existing acreage at the time application is submitted. Total acreage does not include acreage which was subdivided off of present parent parcel between October 5, 1988 and time of application.

5.7 (d) 2. Clustering

5.7 (d) 2 a. Purpose and Intent

1. To encourage the conservation of farmland in the Rural Zoning District by planning the residential development allowed in the zone to provide for the best obtainable siting, access and location of lots on a tract.

2. To provide for a well planned development while minimizing the use of prime agricultural land.

5.7 (d) 2 b. Requirements

1. A property owner may subdivide one (1) lot for every fifteen (15) acres he/she owns.

a. Acreage shall be computed using existing acreage at the time application is submitted. Total acreage does not include acreage which was subdivided off of present parent parcel between October 5, 1988 and time of application.

2. Minimum lot size shall be 40,000 square feet.

3. Setbacks shall be 25' front, 12' sides and 20' rear.

4. All clusters of three (3) or more lots shall be served by an internal road pursuant to Article 8 of the Subdivision Ordinance.

5. Clusters of three (3) or more shall not be along an existing public road.

6. A property owner may transfer rights to contiguous parcels which are owned by the same entity.

5.7 (d) 2 c. Procedures

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

a. The lot layout (scale no smaller than one (1) inch equals one hundred (100) feet) including building restriction lines and appropriate dimensions

b. Street layout

c. Vicinity map (scale no smaller than one (1) inch equals two thousand (2000) feet) showing the tract(s) and total acreage included within the plan

d. Topography with minimum ten-foot contours (USGS Topo, interpretation is permitted for concept plan)

e. Development rights table indicating acreages and development rights, both standard and cluster, for each tract and the total

f. Soils data for the cluster area and the remaining farmland

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

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

1. Soils: The cluster plan should minimize the use of the higher quality soils (class I, II and III as designated in the soils classification study) and maximize the use of steeper sloped areas, areas of poorer soils and areas which are otherwise less productive for agricultural uses.

2. Surrounding land use and zoning: The cluster plan shall consider the existing land uses and zoning in the vicinity. Generally, new lots which are adjacent to existing development or residential zoning are preferred to creating an isolated cluster of new houses.

5.7 (d) 2 f. Concept plan approval shall become null and void at the end of one year from the date of approval unless a Community Impact Statement is submitted.

5.7 (d) 2 g. If the concept plan is approved by the Planning Commission, the developer may then proceed with platting of the clustered development in accordance with the subdivision regulations and the approved concept plan. The plat shall bear a statement indicating "The land lies within an approved rural cluster development and no further subdivision of the remaining land is permitted unless the property is placed in another zone or further subdivision is allowed by ordinance or regulation".

5.7 (d) 3. Not in addition to subsections 5.7(d)1 and 5.7(d)2 above, any property that was a lot of record as of October 5, 1988 may create 3 total lots (including the residue) during any five year period. Applications which exceed this number during any five year period shall be processed utilizing the Development Review System. Subdivisions involving transfers of land between parent and child shall not be subject to this section. All lots that qualify under this section must meet subdivision requirements. Only the residue or parent parcel may qualify under this provision once the original subdivision takes place. Parent to child or child to parent lots are not entitled to further subdivide except as another parent to child or child to parent transfer.

5.7 (d) 4. Once the maximum number of lots are created under 5.7(d), the property cannot be further subdivided unless the Ordinance is amended to allow such.

+ Section 5.8 Residential/Light Industrial/Commercial District

The purpose of this district is to guide the high intensity growth into the perceived growth area.

5.8 (a) Principal Permitted Uses

1. Uses of light industrial

2. Commercial uses

3. Single family detached dwelling units

4. Duplexes

5. Townhouses

6. Multi-family dwelling units

7. Mobile home parks

! 8. Private or public elementary, middle or secondary schools, colleges, hospitals and educational facilities for adults.

9. Churches and other places of worship

10. Child care centers

11. Public utility buildings

12. Public buildings and public service buildings

13. Accessory uses

14. Group Residential Facility

15. Nursing or retirement home

! 16. Model home/sales office (pursuant to Section 4.18)

IN THE CIRCUIT COURT OF JEFFERSON COUNTY, WEST VIRGINIA

Mary L. MacElwee et al.,

Petitioners

vs. Civil Action No.02-C-40

Jefferson County Board of Zoning Appeals,

Respondent

Eugene Capriotti,

Intervenor

AFFIDAVIT ON STANDING OF MARY L. MacELWEE

My employer requires me to arrive at work promptly by 8:30 each weekday morning in Leesburg. Additional traffic delays when I try to turn East onto Route 9 from Kabletown Road as a result of the Thorn Hill subdivision will cause me to have to leave earlier in the morning to arrive by 8:30.

My house is located in the front of the Fairview Place subdivision, fronting on Kabletown Road. People come to my house after they have had an accident on Kabletown Road, and they have been in all kinds of conditions, bleeding, etc. They come for help and to use the phone to call 911. They have also come through our fence, which we have had the expense of repairing more than once. More houses on this 2 lane road mean more accidents and more of these emergency knocks on the door at night.

I bought my lot not only because I wanted to live there, but also for the viewshed and the property's re-sale value. My property value will be higher without 182 houses covering this beautiful piece of property.

We specifically planted a hedge along the fence line to hide the road, but not the viewshed.

I have an issue with water and sewer supposedly being provided for Thorn Hill. I have a working septic system, and to have to pay to have my septic system closed, hook up to sewer and have to pay sewer bill charges, is not in my ability to manage.

I'm not saying that I have a right to stop building from taking place, but I do have an interest in the rules being followed.



__________________________________

Mary L. MacElwee

VERIFICATION OF AFFIDAVIT

The facts and allegations contained herein are true, except so far as they are herein stated to be upon information, and so far as they are herein stated to be upon information, I believe them to be true.



__________________________________

Mary L. MacElwee

Taken, sworn to, and subscribed before me this _____ day of July, 2002

My Commission expires:

_____________________________________________________________________Notary Public



IN THE CIRCUIT COURT OF JEFFERSON COUNTY, WEST VIRGINIA

Mary L. MacElwee et al.,

Petitioners

vs. Civil Action No.02-C-40

Jefferson County Board of Zoning Appeals,

Respondent

Eugene Capriotti,

Intervenor

AFFIDAVIT ON STANDING OF MARY L. MacELWEE

I, Richard L. Latterell, do hereby claim legal standing in the case of MacElwee et al. vs. Jefferson County Board of Zoning Appeals in consideration of the following circumstances:

1) I am an elderly, retired West Virginia educator living on a fixed income. During more prosperous times I was able to purchase and obtain clear title to the 120-acre farm on which I reside near Moler's Crossroads, WV. Said farm is my main economic asset.

The proliferation of subdivisions like and including the proposed Thorn Hill occasions the importation/immigration of large numbers of families into Jefferson County. This causes further overcrowding of our already overcrowded schools and perforce, raises property taxes to support and expand the school system.

Since I am a larger landowner than most residents of the County, my property tax payments will be more greatly increased and my economic well-being will be negatively impacted far more than will that of the average Jefferson County resident. To protect myself against this de facto economic loss, I claim standing to litigate against Thorn Hill and, where the Ordinances are not followed, .any and all other subdivisions in the County.

2) I am a leader, and the local point of contact for the West Virginia Volunteer Stream Monitoring program coordinated by the West Virginia Office of Water Resources in Charleston, WV. The health of Evitts Run and its watershed is one of our major concerns. The location, topography and poor soils of the Thorn Hill site make construction of a large subdivision there a major threat to the health of the lower reaches of Evitts Run, which are currently in good condition. Injury to Evitts Run would greatly impede our cooperative program with the State of West Virginia.

__________________________________

Richard L. Latterell

VERIFICATION OF AFFIDAVIT

The facts and allegations contained herein are true, except so far as they are herein stated to be upon information, and so far as they are herein stated to be upon information, I believe them to be true.

__________________________________

Richard L. Latterell

Taken, sworn to, and subscribed before me this _____ day of July, 2002

My Commission expires:

_____________________________________________________________________Notary Public



[Note the following draft order is not the same one signed by the judge. The judge had asked that each side draft a proposed order for him to sign, and submit them, so that is what follows. In fact the judge adapted these ideas & wrote his own order.]

IN THE CIRCUIT COURT OF JEFFERSON COUNTY, WEST VIRGINIA

Mary L. MacElwee et al.,

Petitioners

vs. Civil Action No.02-C-40

Jefferson County Board of Zoning Appeals,

Respondent

Eugene Capriotti,

Intervenor

ORDER

THIS MATTER came on for Court's consideration this ______ day of _______________, upon the papers and proceedings formerly read and had herein; upon the Court's Order entered March 26, 2002, after a show cause hearing held March 15, 2002, at which the Court granted certiorari herein and granted a motion to intervene by Eugene Capriotti; and set a briefing schedule in this matter.

In reaching its decision, the Court has carefully considered the arguments and memoranda of the parties, the certified record of the proceedings had below, and pertinent legal authorities. In support of its decision, the Court makes the following findings of fact and conclusions of law:

1. This case arises on petition for a writ of certiorari to have the Court review, pursuant to W. Va. Code Section 8-24-59 et seq., a decision of the Jefferson County Board of Zoning Appeals ("BZA"). The decisions were made at an appeal hearing held before that body on January 17, 2002, and were supported by written findings of fact and conclusions of law issued by the BZA and dated February 21, 2002.

2. Petitioners challenge the BZA's denial of their appeal of the Zoning Administrator's actions, under Jefferson County's Zoning & Development Review Ordinance ("Ordinance"), with respect to a proposed subdivision to be known as Thorn Hill.

3. Upon appeal of a decision of the BZA, this Court must apply the following standard of review:

While on appeal there is a presumption that a board of zoning appeals acted correctly, a reviewing court should reverse the administrative decision where the board has applied an erroneous principle of law, was plainly wrong in its factual findings, or has acted beyond its jurisdiction. Syl. Pt. 2, Harding v. Board of Zoning Appeals of City of Morgantown, 159 W. Va. 73, 219 S.E.2d 324 (1975) (quoting Syl. Pt. 5 of Wolfe v. Forbes, 159W. Va. 34, 217 S.E,2d:899 (1975)).

4. As proposed, Thorn Hill would consist of approximately 182 single-family houses and would be developed from property owned by the Intervenor. Thorn Hill is located in an unincorporated area of the Kabletown District of Jefferson County, in the zoning district "Rural/Agricultural." Thorn Hill is located along West Virginia Route 25, known as Kabletown Road.

5. Access to the proposed Thorn Hill subdivision is only available via Kabletown Road. Kabletown Road is classified as a "local service" route within the Highway Classification System (see Comprehensive Plan at III-3). Near the northern boundary of the proposed subdivision. Kabletown Road ends at, and feeds into Route 9, a heavily traveled commuter artery between Jefferson County and the Washington metropolitan area.

6. The Intervenor's property consists of one parcel of land containing approximately 160 acres. The record shows that the property is farmed, but not by whom.

7. The Intervenor decided to seek approval to subdivide the farm. With the proposal's size and density, location in the Rural/Agricultural Zoning District, the Ordinance would require a special procedure to be undertaken so that the Zoning Administrator and the Jefferson County Planning and Zoning Commission (PZC) could evaluate whether to allow the development to proceed in that location. This process is known as the conditional use permit process.

8. In the terms of zoning law, a "conditional use" is a "use authorized by ordinance but requiring specific approval by a body of the local government. The use is permitted by ordinance when conditions are met." Yokley, Zoning Law and Practice, Vol. 1, Section 2-6, text at notes 55-59 (Lexis, 4th ed., 2000 Revision); see generally Anderson, American Law of Zoning Section 14.03. A "conditional use" stands in contrast to a "variance" because it does not involve a departure from the terms of an Ordinance, but rather, compliance with it, under conditions stated in the ordinance. Harding v. Board of Zoning Appeals of City of Morgantown, 159 W. Va. 73, 219 S.E.2d 324 (1975) (identifying W. Va. Code Section 8-24-55 as source of authority for consideration and issuance of conditional use permits)

9. The Developers made application, in September 2001 (specific date is illegible in the record), for a conditional use permit with respect to their proposal to develop the property, consisting of 160 acres, more or less, into a subdivision of approximately 182 single-family houses.

10. As part of its application for the Permit, the Developers submitted a package of support data, required by the Ordinance at Section 7.4(d), which the Court has reviewed as part of the record.

11. The Ordinance provides a detailed procedure to be undertaken by the Zoning Administrator and PZC in order to evaluate whether a particular property should receive the conditional use permit.

12. The Ordinance at section 7.4(g) provides that the Zoning Administrator shall determine if the support data are adequate, and allows appeal to the BZA.

13. The Ordinance at section 7.5 prescribes three types of notice to be given of the pendency of a conditional use permit application: notice by registered mail to adjacent and confronting property owners; and public notice through newspaper advertisement and the posting of a sign on the property for which the change is sought.

14. The Ordinance in article 6 describes, as part of the process generally entitled "Development Review System," how the staff will evaluate the subject property using a complex numeric rating system (the "Land Evaluation and Site Assessment," or "LESA,"). Under the numeric rating system, a score of sixty (60) or less qualifies the property to proceed to the next stage in the Development Review System: the Compatibility Assessment Meeting.

15. Petitioners MacElwee, Latterell, T. Fritts, R. Fritts, and S. Craig, along with others, filed an appeal (AP-01-05) with the BZA, alleging errors in the LESA calculation and in the support data.

16. The BZA held a public hearing on the appeal on January 17, 2002. At the hearing, Petitioners and others presented their arguments on the alleged errors in the LESA score. They presented some arguments on the allegedly inadequate support data. However there were repeated objections and the BZA, through its Chairman, Michael Meyers, its staff, Rebecca Burns, and its counsel. J. Michael Cassell, instructed appellants to testify only on the LESA issues listed on the first page of the appeal. The Intervenor moved to intervene and submitted argument; and the Zoning Administrator, Paul Raco, appeared and presented his position. The BZA then voted, 5 to 0 to deny the appeal on all issues.

17. On February 21, 2002, the BZA issued Findings of Fact and Conclusions of Law in support of its decision to deny the appeal. The instant case does not allege error in the LESA rulings, so that part of the case will not be considered further. The BZA's findings and conclusions on support data have been given careful consideration by the Court, and are repeated here, for the sake of completeness.

18. Regarding the appeal of the adequacy of the support data, the BZA concluded:

Finding of Fact 12. The Appellant also contends that the support data submitted by the Subdivider was inadequate.

Finding of Fact 13. The Zoning Administrator found that the support data was adequate.

Conclusion of Law 7. The Board further concludes that the determination made by the Zoning Administrator regarding the adequacy of the support data should not be disturbed, The Board finds that the Zoning Administrator did not abuse his discretion by his approval of the support data.

19. Their appeal before the BZA having been denied, Petitioners commenced this action in circuit court on May 18, 2001 under W. Va. Code Section 8-24-59 which provides for review by certiorari procedure of any decision of the BZA. No stay of the underlying proceeding regarding Thorn Hill was applied for, and the Intervenor proceeded with subsequent procedures of the PZC, at his own risk.

DISCUSSION: ALLEGEDLY INADEQUATE SUPPORT DATA PROVIDED BY DEVELOPERS

20. This case repeats several issues that have been settled in Corliss et al. v. Jefferson County Board of Zoning Appeals, Jefferson County Circuit Court Case 01-C-139, final order dated 2/14/02.

21. In that case, the Court ruled, concerning a development called "Harvest Hills," that

63. The support data packet submitted by the Developers failed to address the following specific items required by the Ordinance: type and frequency of traffic; adequacy of existing transportation routes; locations of signs; and did not contain a discussion of ground water or of the project's effect upon wildlife populations. These omissions, and the abbreviated nature of the support data narrative in general, are inconsistent with the purposes for the requirement of providing support data set forth in the Ordinance, i.e., "public review" in preparation for a dialogue as to "compatibility" and as material upon which the Commission will base, in part, its decision whether to issue the conditional use permit.

66. The record suggests that despite an appeal taken on this very issue, no serious review of the adequacy of the support data was made. The Court has noted the failure of the support data to address certain specific items that are already contained within the Ordinance's 23 data points. (Just to take one example, the category "Effected [sic] wildlife populations" is not limited in scope to an inquiry as to rare, threatened or endangered species, but would appear intended to require a discussion of the effect upon wildlife that is actually to be found on the site. The conversion of a few hundred acres from farming and/or open ground to residences would tend to displace wildlife.) Pointing out these insufficiencies, however, is not meant to suggest that the remainder of the support data was adequate. The support data is required prior to the holding of the Compatibility Assessment Meeting. It is easy to see that the purpose of the requirement of support data is to reveal issues relating to compatibility and to provoke discussion among the developer/landowner, the interested public and the county's land use officials as to matters that would be relevant to compatibility. If the support data is attenuated, as it was in this case, it could stifle discussion of important issues and/or unfairly shift the burden of gathering data required for an informed discussion away from the developers and onto other parties. It would also deprive the Commission and its Staff of necessary background information. [footnote omitted]

22. The Court recognizes that the Thorn Hill application was written by the Developer and reviewed by the BZA before this Court ruled on Corliss. Neither the Developer nor the BZA intentionally acted counter to the Court's ruling. However now that the Court has ruled, the Court will treat all developments equally, and has reviewed this case in conformity with Corliss.

23. The Court notes there are slight differences in wording between this Developer's support data ant the data that were ruled inadequate in Corliss. The Respondent and Intervenor have not convinced the Court that these slight differences in wording now fully meet the requirements of the Ordinance.

24. The Thorn Hill Developer's statement on selected items is:

6. Soil and Drainage Characteristics

See SCS Soil Map and Soils Descriptions (Exhibit 3).(3)

15. Affected Wildlife Populations

There are no known rare or endangered species of wildlife indigenous to this site. Application to the DNR for a formal evaluation of this site has been made. Wildlife populations will not be affected; although, some nests or dens of individual animals may be displaced.

16. Groundwater and Surface Water and Sewer Lines within 1320 feet.

There are no water and sewer lines within 1320 feet. Evitts Run borders the property. The Developer will construct a waterline and sewer lines from the Charles Town system. This project will use public water provided by the City of Charles Town and will not "draw down" on the groundwater supply of Jefferson County. According to the most recent study of the groundwater of Jefferson County there is an abundant supply, which is generally very potable.

19. Traffic

Based on the traffic generation figures in the Development Review Ordinance, this project at buildout will generate 1448 trips per day, and will have a peak hour of 144.8 trips. The adjacent roads are adequate to serve this additional traffic.

23. Relationship of Project to Comprehensive Plan

Although this project is not in a designated growth area, it is in an area which is compatible with the comprehensive plan for development. The proposed residential development is in an area which is zoned RURAL. The Comprehensive Plan, under GENERAL LAND USE calls for "Allowing (sic.) more lots in the Rural Zone…"Under AGRICULTURAL LAND USE the Comprehensive Plan cites in its Recommendations: "…New development should be encouraged to locate near existing or planned public services…" Under RESIDENTIAL LAND USE the Comprehensive Plan recommends "…encouraging a variety of housing types throughout the county…To provide a choice of suburban, semi-rural, and rural living environments. Residential land use policies should build on the Zoning Ordinance and continue to create orderly developmental patterns and discourage scattered development…To continue encouraging new residential developments to be location (sic.) so as to maximize the use of existing public facilities and service investments such as schools, parks, sewer and water…" [emphases in original]

25. The Ordinance requirements on these items are:

(6) Soil and drainage characteristics.

(15) Effected [sic] wildlife populations.

(16) Ground water and surface water and sewer lines with 1320 feet.

(19) Traffic characteristics -- type and frequency of traffic; adequacy of existing transportation routes.

(23) Relationship of the project to the Comprehensive Plan.

26. The Court has compared the Ordinance and the support data for Thorn Hill and Harvest Hills, and makes the following findings:

27. The Thorn Hill Developer's statement on soils and drainage is even less complete than the Harvest Hills Developers' statement, which was ruled inadequate in Corliss. There is now no summary text and merely a reference to soils descriptions from the US Department of Agriculture.

28. The Thorn Hill Developer's statement on wildlife is also less complete than the Harvest Hills Developers' statement, which was ruled inadequate in Corliss. The difference is that now not even the letters on rare and endangered species, from the appropriate state agency, have been received.

29. The Thorn Hill Developer's statement on groundwater, surface water, and sewer lines is just as incomplete as the Harvest Hills Developers' statement, which was ruled inadequate in Corliss. While groundwater of Jefferson County is now mentioned, and previously was not, there is still no information about ground water at and around Thorn Hill. Furthermore surface water is only mentioned in terms of the neighboring stream, Evitts Run. The Developer notes the current lack of sewer lines, but since he plans to use sewers, the Ordinance would seem to require some description of those proposed lines. Neighbors will be affected at least by the location of sewer easements and by the possibility of connecting to the new lines. Therefore locations and issues about connections need to be addressed at a minimum.

30. The Thorn Hill Developer's statement on traffic is slightly more complete than the Harvest Hills Developers' statement, which was ruled inadequate in Corliss. However there is still no description of type of traffic, as required in the Ordinance.

31. The Developer's statement that adjacent roads are adequate conflicts with the County Commission's finding in the 1994 Comprehensive Plan that, even eight years ago, Route 9 had a high accident rate and near Kabletown Road had a poor sight distance (page III-7). The Developer's statement needs to discuss fully the "adequacy of existing transportation routes" as required by the Ordinance. When he has good reason to differ with the Comprehensive Plan, he needs to explain why.

32. The Petitioners point out that the Developer's sentence on frequency of traffic, another topic required by the Ordinance, is ambiguous. First there are no traffic figures in the Jefferson County Zoning and Development Review Ordinance. In the absence of a usable citation, a non-specialist, such as most of the neighbors, would be unable to find and review the source of the information. Second the sentence may mean 1448 round trips per day (1448 departures + 1448 arrivals = 2896 vehicle movements) or 724 round trips per day (724 departures + 724 arrivals = 1448 vehicle movements). The difference would be substantial. Since the information given is clearly inadequate, the Court will not rule on what other information might be needed to address "frequency of traffic."

33. The Thorn Hill Developer's statement on compatibility with the Comprehensive Plan is even less complete than the Harvest Hills Developers' statement, which was ruled inadequate in Corliss. Most of the Thorn Hill response simply consists of quotations from the Plan without elaboration. As just one example, it refers to the Plan's suggestion on page III-98,

"Some solutions to these problems [a preceding list of nine issues] may be the following:

"Allow more lots in the Rural Zone provided they are less dense..."

34. Presumably the Developer believes his proposal advances this strategy chosen by the County Commission. If so, he needs to show that his proposal is "less dense" compared to the practice in the Rural Zone when the Plan was written in 1994. He also needs to say how his proposal is a solution to some or all of the nine issues which the Plan says are to be addressed.

35. It would also seem necessary to recognize and address statements in the Comprehensive Plan that might conflict with his proposal, not just the ones that support it.

36. The first two sentences in the Developer's statement on item 23 are not just quotations. However these two sentences simply state that this area is compatible with the plan and he gives no explanation of how or why. Even the Harvest Hills Developers indicated their rationale, based on proximity, though it was ruled inadequate.

37. Pointing out these insufficiencies, however, is not meant to suggest that the remainder of the support data were adequate.

38. The BZA prevented some of the Petitioners at the hearing, among others, from speaking on support data issues, even though support data had been appealed. This was an error.

39. The BZA has not supported its conclusion on the adequacy of support data with meaningful findings or conclusions. It is required to do so.

DISCUSSION: STANDING

40. It is necessary to resolve a disputed issue regarding the Petitioners' standing to challenge the BZA's decisions. In their Brief, Intervenors raise this claim (it was not raised before the BZA or previously in this case), so the Court will address it. There are six Petitioners in total: Mary L. MacElwee, Richard L. Latterell, Tina Fritts, Rick Fritts, Sherry Craig, and Chauncey Craig. Of the six Petitioners, all but Latterell appear to need use of Kabletown Road when leaving and returning to their homes on Fairview Place.

41. The Intervenors argue that Petitioners' only interest in the Thorn Hill project arises from general interests, that are not particularized and that are undifferentiated from the interests of other Jefferson County residents.

42. The Court notes that at least MacElwee, Chauncey Craig, and Rick Fritts testified at the BZA Hearing. Cf. Myers v. Circuit Court, 64 W. Va. 444,63 S.E. 201 (1908) (dicta) (reversing circuit court's decision to permit protestant before county court to proceed in certiorari to obtain review of county court's grant of liquor license; decision unreviewable for other reasons) ("And if the matter were of such nature as to be the subject of litigation beyond the county court, such protestant would be such a party to the proceeding and have such interest as would enable him to prosecute a certiorari.").

43. The Court is persuaded by MacElwee's testimony at the Hearing, which is simply re-stated with somewhat more detail in her affidavit(4), that she alleges the Thorn Hill subdivision, if built, would harm her distinctly, and to a greater degree than most other Jefferson County residents. She alleges that significant increases in traffic on Kabletown Road will delay her in driving, including commuting, thus reducing her personal time, that intrusions of car accidents on the quiet enjoyment of her home will increase, that her view will change significantly, in such a way as to decrease the value of her house to her (and presumably to at least some future potential buyers), and that she may be forced to pay sewer fees.

44. The Ordinance suggests a rather broad reading of the standing issue. Notice of the pendency of a conditional use permit application is required to be given, not only to adjacent/confronting property owners, but also to the "interested public" by way of a sign posted on the property and an advertisement in the newspaper. With respect to the appeal regarding the alleged inadequacy of the Developer's support data, the Ordinance states:

The Zoning Administrator shall determine if the sketch plan and support data are adequate. Once the Zoning Administrator places the advertisement in the paper, any interested party has thirty days to appeal the inadequacies of the sketch plan and/or support data to the Zoning Board of Appeals.

Ordinance at Section 7.4(g). The Ordinance invites an appeal by any "interested party."

45. The Court is also mindful of our Supreme Court of Appeal's statement that: "In West Virginia the slippery doctrine of standing is not usually employed to avoid a frontal confrontation with an issue of legitimate public concern." State ex rel. Erie Fire Ins. Co. v. Madden, 204 W. Va. 606, 515 S.E.2d 351, 364 n.6 (1998) (per curiam) (quoting State ex rel. Alsop v. McCartney, 159 W. Va. 829, 838, 228 S.E.2d 278, 283 (1976)).

46. Intervenors stress that the statute granting this Court review of the BZA's decisions, W. Va. Code Section 8-24-59, gives standing only to persons "aggrieved" by a decision or order of the BZA, and Intervenors urge the Court to find that under Barker v. City of Charleston, 134 W. Va. 754,61 S.E.2d 743 (1950), the Petitioners have not shown how they are "aggrieved," i.e., how as a result of the challenged actions of the BZA, they stand to suffer any peculiar damage beyond that which other members of the community may suffer.

47. Petitioners also point to this circuit court's prior decision in Walnut Grove/Security Hills Citizens Assoc. v. Jefferson County Planning and Zoning Commission, Case No. 90-P-81 (Order dated January 4, 1993), which dismissed a petition for a writ of certiorari in a land use case on the ground of lack of standing. The Barker and Walnut Grove opinions are distinguishable because here the Court simply finds that the Petitioners have made the requisite factual showing of alleged "distinct" or "peculiar" harm. So long as a credible allegation of a "distinct and peculiar injury" is made, Barker supports a finding of standing. In addition, the Court does not believe that the Barker case should be read in isolation. Snyder v. Callaghan, 168 W. Va. 265, 284 S.E.2d 241, 248 (1981) (riparian rights suit by trout stream users challenging state agency's procedures) ("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.").

48. This Court holds that individuals such as Petitioners who live in close proximity to the project, and who demonstrate that their economic interests and daily lives are at risk of being deleteriously affected by the project, have standing to use the legal process to ensure that such a project follows all procedures required by Ordinance and law.

49. The Court notes Latterell's affidavit that he will suffer particular harm, based on his status as a large taxpayer, and as a leader of a group that surveys Evitts Run, among other streams, in cooperation with a state government agency.

50. The Court rules that Petitioner MacElwee is aggrieved by the decision of the BZA and thus has standing in this matter. Recognizing the doctrine of dependent standing that has been found applicable in other jurisdictions in zoning matters, the Court finds it unnecessary to evaluate the standing of the other Petitioners. See. e.g., Lindsey Creek Area Civic Assoc. v. City of Columbus, 249 Ga. 488, 292 S.E.2d 61, 63 n.4 (citing 3 Rathkopf, The Law of Zoning and Planning at Section 43.05); Cohen v. Zoning Bd. of Appeals of Plymouth, 35 Mass. App. Ct. 619, 624 N.E.2d 119, review denied 417 Mass. 1102, 631 N.E.2d 58(1993).

51. Based upon the errors that the Court has found in the determination of the adequacy of the support data, the Court must remand this matter to the BZA for further proceedings. Because any subsequent decisions might have been affected by these errors, the Court must also vacate any additional actions by the PZC and staff regarding Thorn Hill.

It is therefore ADJUDGED and ORDERED that the decision of the Jefferson County Board of Zoning Appeals in Appeals AP-01-05 be, and hereby is, VACATED. It is further ADJUDGED and ORDERED that other decisions of the Jefferson County Planning and Zoning Commission and staff concerning Thorn Hill be, and hereby are, VACATED. It is further ADJUDGED and ORDERED that this matter be REMANDED to the Jefferson County Board of Zoning Appeals for further proceedings not inconsistent with this opinion, including the re-submission, at the option of the property owner, of a new and more complete application to the Department of Planning, Zoning and Engineering.

This is a final Order, from which any party may seek an appeal to the West Virginia Supreme Court of Appeals under applicable rules. The Clerk is directed to close this case, retire it from the active docket of this Court, and place it among causes ended.

The Court notes the timely exception of all parties to any and all adverse rulings herein contained.

The Clerk shall enter this order as and for the day and date first above written and shall transmit attested copies thereof to the following pro se party and counsel of record:

Mary L. MacElwee, 2 Fairview Drive, Charles Town, WV 25414

J. Michael Cassell, Esq., P.O.Box 782, Charles Town, WV 25414

Peter L. Chakmakian, Esq, P.O. Box 547, Charles Town, WV 25414

__________________________________________

THE HONORABLE GRAY SILVER, III

JUDGE, TWENTY-THIRD JUDICIAL CIRCUIT

CERTIFICATE OF SERVICE

I, Richard L. Latterell, do hereby certify that I have mailed a true and exact copy of the foregoing:

Motion to Exceed Page Limitation

Motion to Defer Ruling

Motion to Replace Intervenor (Deed attached)

Petitioners' Reply Brief (Ordinance sections attached)

Affidavit on Standing of Mary L. MacElwee

Affidavit on Standing of Richard L. Latterell

Proposed Order

by US mail, 1st class postage prepaid, to the attorneys, or hand delivered the copy to them or their receptionists:

J. Michael Cassell, Esq., PO Box 729, Charles Town WV 25414

Peter Chakmakian, PO Box 547, Charles Town WV 25414

Thornhill LLC, PO Box 169, Harpers Ferry WV 25425

____________________________________________

Richard L. Latterell Date

1. 0P. 10 of the Intervenor's Brief cites "Baker," but the pages quoted show they mean "Barker."

2. 0The Intervenor criticizes the Petitioners' reference to the "Rural/Agricultural" zoning district. This is what the district is called in section 5.1 of the Ordinance, which lists all the districts. The Intervenor is welcome to call the district "Rural" as used in Section 5.7 of the Ordinance. The requirements in section 7.4(d) are not affected by the name.

The Intervenor's Exhibit 4 purports to include sections 5.7 and 5.8(a) of the Ordinance. He is giving the Court inaccurate information, since he omits the amendments of 9/23/99 (underlined and marked with ! in attached copy). These amendments concern non-residential permitted uses, and do not affect this case, but the Petitioners do not wish Court records to be inaccurate.

The Intervenor says (p. 3, Intervenor's Brief) that Petitioners incorrectly refer to the subject parcel of land as "RURAL/AGRICULTURAL, as if by calling it that will somehow magically gain added significance." That misses the point. The Jefferson County Comprehensive Plan is very clearly intended to protect some element of agricultural presence in the County (see e.g., pages I-5 and III-89, quoted in Petitioners' initial Brief) and the Petitioners purposely desire to emphasize that important point. Further, Petitioners note that the Jefferson County Circuit Court has itself referred to "Rural/Agricultural" land in Corliss, supra at para. 49.

3. 0The Court notes that exhibit 3 consists of photocopies of pages 8-30 of a book, Soil Survey of Jefferson County, West Virginia, issued in February 1973 by the US Department of Agriculture, Soil Conservation Service in cooperation with the West Virginia Agricultural Experiment Station.

4. 0The affidavits of MacElwee and Latterell were submitted outside the established record, but at the earliest time reasonably possible in the case, since their standing had not been challenged until the Intervenor's Brief was filed. The Court has noted their contents, but bases its ruling on matters already in the record.