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APPEAL

to the

JEFFERSON COUNTY ZONING BOARD OF APPEALS

of

LESA POINT ASSESSMENT/SUPPORT DATA/ADMINISTRATIVE DECISION

for

THORN HILL SUBDIVISION

PROJECT FILE NUMBER: Z03-05

APPEAL NUMBER AP04-02

APPELLANTS:

PATRICIA F. RISSLER, ET AL.

SUBMITTED MAY 6, 2004

TABLE OF CONTENTS

Page

OVERVIEW OF APPEAL 4

APPEALS OF ADMINISTRATIVE ISSUES 5

1. Failure to pay prescribed fee 5

2. Overlapping applications 5

APPEALS OF LESA CALCULATIONS 7

3. Adjacent development 7

4. Sewers 11

5. Comprehensive plan compatibility—historical and recreational 14

6. Comprehensive plan compatibility—land use compatibility 19

APPEALS OF SUPPORT DATA 23

7. Support data: Discrepancies in land covered by the application 23

8. Support data: Discrepancies between parcel numbers and acreages 23

9. Support data: Maps do not match parcels 24

10. Support data: Offsite claims 24

11. Support data: Mt. Hammond Lane right of way 24

12. Support data: Geology 24

13. Support data: Sinkhole insurance 25

14. Support data: Drainage 26

15. Support data: Traffic 27

16. Support data: Schools 27

17. Support data: Billboard showing builder 28

18. Support data: Wildlife, wetlands, woods 28

19. Support data: Comprehensive plan 30

20. Support data: Incomplete list of neighbors 32

21.Support data: Remand to applicants 32

EXTENDED COMMENTS ON GEOLOGY 34

STANDING OF APPELLANTS 48

ATTACHMENTS

A Zoning fee schedule for conditional use permits

B Completed cover sheets applying for zoning CUP for Thorn Hill

C Appellant letter requesting explanation of zoning fee and Freedom of Information Act request for fee receipts

D Zoning Administrator’s March 1, 2004, site assessment form

E November 6, 2003, letter from Jefferson County Public Service District concerning public sewer availability; March 4, 2004, letter from Jefferson County Public Service District withdrawing application for Thorn Hill

F West Virginia Public Service Commission document, March 24, 2004, Case No. 03-1543-PSD-PC

G State limit on additional connections to Charles Town Waste Water Treatment Plant; Article from Martinsburg Journal, April 8, 2004; Excerpts from Minutes of Public Service District meeting April 19, 2004

H Letter on reserve capacity from Amy Swann, director of Water and Wastewater Division of Public Service Commission, January 13, 2004

I National Park Service Preservation Brief, “Protecting Cultural Landscapes” ` September 1994

J Affidavits on eagle sightings

K Affidavit from Gene Pearson concerning proposed Thorn Hill pump station on his property

L Photograph of NV Homes Thorn Hill advertisement on Rt. 9 billboard

M Affidavits on lack of notification for neighbor

N Affidavits of standing of appellants

O Identification of court cases on related issues

P Aerial photograph of Thorn Hill site and surroundings (in notebook pocket)

Q Circuit Court discussion of standard of proof required from developers and citizens, pages 73-77 of September 9, 2003 Opinion Order in Kletter et al. v. Zoning Board, 02-C-217

R Attempted interference of appellants’ right to appeal

ATTACHMENTS: MAPS

Map 1: Tax map of Thorn Hill and surrounding area, with boundary segments numbered

Map 2: Developers’ proposed layout of subdivision

Map 3: Developers’ contour map showing sinkholes

ATTACHMENTS: VIDEOS

Video A: Jefferson County Public Service meeting, April 19, 2004

Video B: Compatibility Meeting on another subdivision, Blackford, April 21, 2004

OVERVIEW OF APPEAL

The citizens’ arguments in this appeal stand squarely within the rules laid out by the WV Supreme Court. Procedures laid out in zoning ordinances and instructions must be followed. Information provided by the developer must be sufficient to support informed public debate. In this case, the Zoning Board will review the decisions of the Zoning Administrator. While the courts give deference to the Zoning Board’s decisions, the Board need not give deference to the Zoning Administrator. The Board’s responsibilities are to decide what is correct according to the county’s zoning ordinances and to implement the instructions and intent of those ordinances.

The fees and basic processing of the Thorn Hill Conditional Use Permit application were erroneous. Four aspects of LESA calculations were erroneous. The support data have such a mixture of inaccuracies and omissions that they serve to both stifle and undermine informed public debate.

In the recent Supreme Court decision on the Thorn Hill Subdivision, the Court did not make its own decision that the support data were adequate. Rather, the Court said the Zoning Board must make that decision, and courts should not overturn it without strong reason.

The WV Supreme Court has not addressed sewer calculations in LESA.

APPEALS OF ADMINISTRATIVE ISSUES

Our appeal 3/30/04 stated, “The file shows the applicant did not pay the prescribed fee. It was given a credit for fees paid with two previous applications, while the fee schedule shows no credit applicable. Furthermore one of those two applications is still being strenuously advanced by the applicant, so it is improper to accept another application for a different project on the same land.”

1. FAILURE TO PAY PRESCRIBED FEE

Zoning Ordinance 7.4(f) says, "Within one week of the submittal of a Development Review System application, all zoning fees must be paid."

According to the zoning fee schedule for conditional use permits (Attachment A), the fee for the Thorn Hill development should have been $27,300 ($250 + 540.41 acres X $50/acre = $27,300). The fee schedule allows refunds only in the case of a project failing LESA.

One page of the developers' completed form applying for a zoning Conditional Use Permit (CUP) for Thorn Hill (Attachment B) shows a notation signed by "Becky" of the Zoning Office staff to "Paul", the Zoning Administrator. It shows the calculation of the $27,300 fee.

The same page shows other payments in the past:

• $3,300 paid for a 61-acre Thorn Hill proposal, Z00-02, which was part of Map 19, parcel 14 (failed LESA)
• $8,250 charged for a 160-acre Thorn Hill proposal, Z01-04, all of Map 19, parcel 14

Since the 61-acre Thorn Hill proposal failed LESA, it was entitled to a $1,650 credit, so the incremental amount collected for 160-acre Thorn Hill was $6,600. The160-acre Thorn Hill proposal did not fail LESA, so it is not entitled to any refund, and the entire $27,300 is due for the current 540-acre Thorn Hill proposal. The same page (attachment B) includes the question “why only $4775.00 was charged in fees. Please explain so I can note in log.”

Because of the lack of documentation and the apparent underpayment of the zoning fee, an appellant submitted a request to the Zoning Administrator on April 23, 2004, for an explanation of the fees paid and a Freedom of Information Act request on April 26 for fee receipts (Attachment C).

2. OVERLAPPING APPLICATIONS

Two pending applications from the same developer for the same property should not be allowed. As noted above, this invites an abuse or confusion of the fee system. It also causes duplication of effort and waste of resources by the zoning authorities and citizens.

Ordinance 6.2 allows the developer to file "Application for a conditional use permit..." There is no authority to apply for two conditional use permits at the same time on the same land.

Parallel processing of two simultaneous applications on the same land has the serious potential to confuse the public. The normal single process is confusing enough, with a 4-part sequence of signs on the property announcing the Compatibility Meeting, Compatibility Hearing, Community Impact Hearing, and Final Plat Hearing. Totally different kinds of testimony are accepted from the public at each hearing. It is impossible to expect the public to track two overlapping sequences, and make the allowed types of comments on each proposal at each hearing, without confusing everyone in the room.

Where does this approach end? Would the developer defend his right to pursue three overlapping applications? Two overlapping subdivision proposals? Three storm water designs or building permits on the same footprint? Even if the developer pays fees, which he did not, our staff time and public review are limited resources and not to be dissipated at will by one developer.

If the developer does not withdraw the pending 161-acre application, this 540-acre application should be dismissed.

APPEALS OF LESA CALCULATIONS

The Land Evaluation and Site Assessment (LESA) score is the sum of a set of calculations in the Zoning Ordinance, Article 6. It rates each piece of land on a scale from 0 to 100, where 100 is ideal for farming: good soils, large areas, surrounded by other farms, far from towns and other services, etc. Scores of 55 or less can proceed to the next step in judging whether the project is compatible with its surroundings (discussed below under "Support Data"). Thorn Hill currently has a score of 45.72, and the appellants' calculations show that it deserves 64.72. Any score over 55 would stop the current application.

3. LESA ITEM, ADJACENT DEVELOPMENT

Ten appears to be correct for this part of the LESA score, but the file should be remanded to the Zoning Administrator to document his calculations, with a new period allowed for the public to study his calculations and appeal them if needed.

Four was the score assigned by the Zoning Administrator for this part of the LESA score.

The Ordinance says (emphasis added):

2.1 ...The word "land" shall include water surface and land under water.

2.2 ...Adjacent/Confronting Affected Property Owner:

The owner of property adjacent to or confronting a proposed development (including the properties across any road, right of way or easement) which will be impacted either positively or negatively by that proposed development. Names and addresses of affected property owners will be taken from current tax records in the Jefferson County Court House.

6.4 (b) ADJACENT DEVELOPMENT (10 POINTS)

This criterion assesses a combination of the percentage of land in actual agricultural use (including timber or pasture land) and percentage of adjacent land that does not indicate that there is development pressure. Intense development pressure includes more than a 5 lot subdivision and commercial or industrial uses. An average of the two will yield a percentage of land adjacent to the property that is either farmed or not intensely developed.

Percent of land	Points
86-100	10
76-85	8
61-75	6
51-60	4
41-50	2
26-40	1
0--25	0

Unreviewable because Undocumented

The Z03-05 file contains no documentation of the calculations for adjacent development, other than a notation of 55% next to the Adjacent Development item on the Zoning Administrator’s March 1, 2004, site assessment for the Thorn Hill CUP (Attachment D), That 55% apparently represents the Administrator’s finding that 55% of the adjacent land is undeveloped. That percentage means a LESA score of 4.

A government decision without a documented basis is arbitrary and capricious. The Zoning Board should remand this item for documented calculations, followed by a new score and period of appeal if the original had been incorrectly determined.

As explained below, in contrast to the Zoning Administrator, the appellants calculated adjacent undeveloped land to be 99%. This percentage is assigned a LESA score of 10.

Boundary Method

The appellants note that the Zoning Board used boundaries rather than surface of adjacent land in the Blackford proposal in January 2004. Therefore appellants are using boundaries.

Short-Cut Method

In the Harvest Hills development (Corliss et al. v. Zoning Board) the WV Supreme Court reinstated the method of land calculation used by the Zoning Administrator and approved by the Zoning Board. This was described in paragraph 96 of the Circuit Court's order,

the Zoning Administrator followed a short‑cut or a somewhat more streamlined procedure than that required by the Ordinance's precise terms. He appears to have calculated the percentage of adjacent land indicating intense development pressure, which he determined (measuring by boundary lengths) to be 27.6%, and then subtracting that from 100, reached a percentage of other land (in actual agricultural use or not indicating intense development pressure) of 72.4%. (footnote omitted)

Since the courts gave no objection to the short-cut method, the appellants have adopted it.

Table of Boundaries

The table below shows boundary lengths measured on a tax map at a scale of 1" = 400' (Attached Map 1). The measurements start at the southeast corner of Fairview Place and go counter-clockwise around Thorn Hill. The boundary is subdivided into 19 segments, as noted on the map. Each map segment corresponds with a segment in the table below. That table includes the length of each segment in inches as measured on the map, in feet converted from the scale of 1" = 400', a narrative of relevant information on that segment, and the status, developed (Dev) or undeveloped (Un Dev), of the land adjacent to that segment.

The Ordinance specifically says to include land under water. It also says to go across roads, but does not say to go across streams, so we tried to follow this rule in Segment 1 and identified the bottom of the stream as the adjacent "land." In fact, the land on the other bank of Evitts Run is still in large lots, so it would not represent intense development pressure anyway.

The Ordinance category, "more than a 5 lot subdivision" we took in a common sense meaning. The term subdivision is not defined in the Zoning Ordinance. The definition in the subdivision ordinance is not useful, because such a definition would cover all land in the county. Every lot in the county was ultimately subdivided from the original grant to Lord Fairfax.

Fairview Place is clearly a subdivision, with small lots, covenants, a name at the entrance, and a roads fee, though no homeowners' association. Mechanicstown is a community that is nearly 150 years old, and has no legal identity. The mix of mobile homes and a couple of houses near the Bloomery bridge also has no legal identity. Otherwise there are simply scattered houses and empty lots around Thorn Hill.

Attachment P has an aerial photograph of the surroundings, showing the low density woods and pasture land around most of the property.

Our analysis of the boundary lengths of the Thorn Hill subdivision shows 300 feet of a total of 27,500 feet, or 1%, of adjacent land to be developed. Therefore, the percentage of undeveloped land is 99%.

Table: Analysis of Boundary Lengths of Land Adjacent to Thorn Hill Subdivision

Seg-ment #	Inches in decimals	1 inch = 400 feet	Total segment in feet	Description of segment	Dev/ Un Dev status	Boundary feet of Dev adj land
1	2.88	1150		Starting with the edge of Fairview measures 11,000 feet.
	0.88	350		This includes Evitts Run, where we just count the land
	0.88	350		under water, not looking at the other bank.
	1.63	650		This also includes farmland along Shannon Hill Lane,
	0.5	200		Mt Hammond Road, to our neighbors Dave Zimmerman,
	3	1200		Barbara Fry and Jack and Darrow Weaver. Weavers
	1.75	700		have a horse farm and Fry and Zimmerman are farms.
	3.5	1400		During the hurricane and winter storms, I drove
	3.5	1400		Mt. Hammond Road and observed that there are large
	2.63	1050		fields of pasture as 30-40 acres. There appeared to
	4.13	1650		be no development. Some of the acreage appear to
	2.13	850	10950	have been old farms.	Un Dev
2	3.13	1250	1250	The second area is called Tulip Hill.	Un Dev
				Adjacent to the woodlands section of
				lot 33 are 4 lots (A, B, C, D). These include
				Pearson, Freeman, Freeman and Smith.
				There appears to be a pump drawn in
				Mr. Pearson's front yard.
3	4.5	1800	1800	This is the area along John Rissler Road	Un Dev
				that borders the Shenandoah River, again not looking
				at the other bank. This is the area where
				we have sighted the Bald Eagle.
4	2	800		This is an ad hoc situation I am not sure what
	0.75	300		to call. It has a couple of single family dwellings
	3.5	1400		with a number of trailers interspersed between.
	0.75	300		A couple of the trailers have been dismantled.
	0.5	200	3000	There is no sign indicating a trailer park.	Un Dev
5	0.13	50		Grassland along side John Rissler Road	Un Dev
	0.5	200	250
6	0.63	250	250	This borders Route 9 across from an old	Un Dev
				house that has been abandoned.
7	2.25	900		This area continues down Route 9 across
	2.25	900		from farmland. I have seen signs for
	0.38	150		horses in this area. On around a undeveloped
	2	800	2750	lot that is not included in Thorn Hill.	Un Dev
8	0.63	250		This is Mary Evans residence. She sells
	0.5	200	450	flowers in her front yard.	Un Dev
9	0.75	300	300	This stretch of land borders Route 9 and
				is across from farmland.	Un Dev
10	1.25	500		This stretch borders Route 9 and is
	3	1200	1700	across from farmland.	Un Dev
11	1	400	400	There are two single family residences
				here aside Cattail Road. The Armstrongs
				live on one side.	Un Dev
12	1.38	550		This area runs around Mechanicstown.
	1.25	500	1050	This area borders a number of houses
				some of which are very old and not
				part of a development.	Un Dev
13	0.25	100	100	This area is across from a field that
				I believe grew corn last year.	Un Dev
14	0.88	350		I called this Mechanicstown II
	2.38	950	1300	It appears to be a part of the same
				old area.	Un Dev
15	2.13	850	850	This is the corn field again.	Un Dev
16	0.5	200	200	This is a single family residence of a
				different style with a very large lot
				that is not a part of Fairview Place	Un Dev
17	0.63	250	250	This borders Fairview Place	Dev	250
18	1.5	600	600	This borders a single family lot	Un Dev
19	0.13	50	50	This borders Fairview Place	Dev	50
TOTAL BOUNDARY FEET = 27500 TOTAL BOUNDARY FEET DEVELOPED ADJACENT LAND = 300 300 ÷ 27500 = 0.0109 = 1% ADJACENT LAND DEVELOPED THEREFORE, 99% ADJACENT LAND UNDEVELOPED

4. LESA ITEM, SEWERS

Eleven is the correct score for sewers, since this project does not have access to public sewer treatment, or to private central sewer treatment. The Ordinance says that projects which do not qualify for either of these categories deserve a score of eleven.

The Zoning Administrator assigned zero for this part of the LESA score.

Ordinance 6.4 (g) PUBLIC SEWER AVAILABILITY (11 POINTS)

This criterion assesses the availability of existing public sewer service with available capacity that is approved by the County Health Department and/or Public Service District to the site at the time of the development proposal application. If there is no public sewer service available, a central sewer system or private sewer disposal system can be used. The value for a proposed central sewer system is assigned to a development application recognizing that the system with adequate capacity to serve the development will be approved by the Public Service District, County Health Department and the Department of Natural Resources before preliminary plat or site plan approval occurs.

If neither a public or central sewer system can be utilized, assign the point value for a private sewer disposal system.

Availability	Points
Existing Public Sewer Service is available or public sewer will be built to the site	0
Central Sewer Service is Proposed	3
Private Sewer Disposal System must be Utilized	11

Why Thorn Hill Does Not Deserve Zero Points for Public Sewer

The Zoning Ordinance says at 6.4(g), “This criterion assesses the availability of existing public sewer service with available capacity that is approved by the County Health Department and/or Public Service District to the site at the time of the development proposal application.” (emphasis added)

A November 6, 2003, letter from the Jefferson County Public Service District (JCPSD) (Attachment E) states:

“JCPSD will provide service to the proposed Thorn Hill development.”

“The first, and preferred alternative, is a small plant sized to serve Thorn Hill, which will be constructed at the site. … This alternative, called a Cooperative Venture Agreement, is currently being considered at the West Virginia Public Service Commission (PSC).”

“Should this agreement not be accepted by the PSC, flows from Thorn Hill will be directed to the Charles Town Waste Water Treatment Plant.”

The first sentence of the JCPSD letter is a notice of intent, which is constrained by the next two paragraphs, showing how an approval might actually come to pass. In fact the Ordinance does not just say “approval letter from the PSD.” The Ordinance requires three elements: existing service, available capacity, and Health Department or PSD approval.

The Ordinance is entirely reasonable in asking for existing service and available capacity, since this is a Conditional Use Permit in a rural zone, and adjusting the points based on existence of service and available capacity tends to encourage Conditional Use Permits (CUPs) only where they can use spare capacity.

Giving priority to projects which use spare capacity is a zoning issue, beyond the PSD’s area of authority, so the zoning ordinance is entitled to require these additional elements beyond the PSD’s approval: existing service and available capacity.

On March 24, 2004, the Public Service Commission dismissed the first alternative proposed by the PSD, a Cooperative Venture Agreement between the PSD and Thorn Hill, and removed the case (No. 03-1543-PSD-PC) from the Commission's docket of open cases (Attachment F). The PSD actually withdrew its application for the Thorn Hill package plant March 4, 2004, based on Commission staff opposition (Attachment E). The PSD decided "to decline to enter into a letter of intent with Thornhill" April 19, 2004 (Attachment G).

The developer's application on pages 7 and19, says this "The proposal is to construct a small sewage treatment plant” and this “sewage treatment plant built by the developer and provided to the JCPSD" is the only method of sewage treatment they plan to use. They do not include the PSD's second alternative in their proposal. Now that their proposed method is off the table, the development needs to be ruled out of order, and the developers can reapply if they have an alternative approach.

The second alternative proposed by the PSD was to send Thorn Hill sewage to the Charles Town Waste Water Treatment Plant. However the PSD currently has no authority to direct additional sewage to Charles Town. PSD General Manager Lawton reported to the PSD April 19, 2004, (Video A) that the PSD has already allocated more capacity than is available, without including 595 homes for Thorn Hill (excerpts from PSD minutes in attachment G). Capacity is counted in Equivalent Dwelling Units (edu's), which is the flow expected from an average dwelling. A business may use several edu's, depending on its sewage flows.

The General Manager stated that at the March 24^th Joint Utility Board Meeting the Public Service District was told that there was a total of 833 edu's of capacity available. These were divided by the three entities (Charles Town, Ranson, and the PSD). That gave each entity a total of 277. She stated that the PSD had already made previous commitments for 352 edu's without giving out any new letters from the time the 277 were allocated. No letters of availability have been issued by the PSD since the March 24^th meeting.

The reason for the strict limit on edu's was that the state set a limit of 150,000 gallons per day of additional sewage at the Charles Town Waste Water Treatment Plant on February 10, 2004 (attachment G). This translated into 833 dwelling units or equivalent.

Relevant Court Cases

In the Harvest Hills case, Corliss et al. v. Zoning Board, 01-C-139, the facts were very different. At that time the Charles Town Sewer Plant did have capacity to handle 2,000 more EDUs. At that time there were also 3,400 houses planning to use the capacity. This was indeed a mismatch, but it was hard to prove whether Harvest Hills’ 392 homes would or would not be built within the first 2,000, and therefore would have available sewer service. Furthermore the PSD letter July 12, 2000, in the record of that case said, “the District cannot reserve capacity to serve customers.”

Faced with those facts, Judge Steptoe said,

“The record suggests that a firm commitment as to public sewer service and/or ‘reserve capacity’ is unrealistic at this early stage in a proposed development…” (01-C-139 order, 2/14/02, paragraph 70)

The current situation is much more clear-cut. In Harvest Hills it may have been unrealistic to estimate when the PSD's access to the sewage plant would be used up, since the sewage plant still had capacity for 2,000 more homes, though there were 3,400 homes coming. In Thorn Hill, no estimate is needed. The PSD's access is already used up, and even businesses are prevented from opening, because too many houses have used up the spare capacity. There is no package plant, no capacity, and no expansion of capacity even applied for, let alone approved.

Furthermore, the record now shows that the PSD can reserve capacity, so it is not “unrealistic.” The director of the Water and Wastewater Division at the Public Service Commission, Amy Swann, wrote 1/13/04 that developers can reserve capacity if they pay for improving the treatment plant (attachment H).

Furthermore, Judge Steptoe acknowledged in Kletter et al. v. Zoning Board, 02-C-217, pages 52-53 and note 68, that the Ordinance cannot be overturned in this kind of a zoning appeal. The Zoning Board and courts have to enforce the language requiring existing service and available capacity, even if it were “unrealistic.” The absolute language in the Ordinance can be overturned by the Circuit Court after a motion for Declaratory Judgment, but until such a case is decided, the Ordinance is to be applied as written. The developers asked for parts of LESA to be overturned in case 03-C-134. They withdrew that case April 21, 2004.

The Ordinance elements of existing service and available capacity must be applied as written until and unless overturned. There is no existing or available capacity for Thorn Hill, so it is not entitled to zero points.

Potential Future Availability of Public Sewer

The Charles Town sewer plant may expand some time in the future. There is no application pending in front of the state, and there are no guarantees of what might be approved, or who would have reserved the capacity that might be built. The state will allow expansion only if it meets the public convenience and necessity, in particular if it is financially and environmentally sound. When these decisions are made the project can reapply.

Why Thorn Hill Does Not Deserve Three Points for Central Sewer

The Zoning Ordinance says at 6.4(g), “If there is no public sewer service available, a central sewer system or private sewer disposal system can be used.”

The developer has not proposed a private central system. As noted above, the Public Service Commission has dismissed the application for a package plant for this project. There is no basis for predicting what they might ever approve, and if they do approve something, Thorn Hill can apply for a Conditional Use Permit then.

What Are the LESA Points When the Criteria for Public and Central Sewer Are Not Met?

The Ordinance says at 6.4(g), “If neither a public or central sewer system can be utilized, assign the point value for a private sewer disposal system." This is eleven points.

5. LESA ITEM, IMPACT ON ACHIEVING HISTORICAL AND RECREATIONAL GOALS IN THE COMPREHENSIVE PLAN

The LESA score for comprehensive plan compatibility—historical and recreational—should be 2 rather than 1 as assigned by the Zoning Administrator, because site development has a negative impact on parks, historical and recreational areas, not a neutral impact..

Ordinance 6.4 (d) This criterion shall determine whether site development is supportive or has a negative impact on the following elements of the Comprehensive Plan: ... Compatibility of site development with designated parks, historical and recreational areas (2 points)...

	Points
Site development has a negative impact on element	2+
Site development is not supported or against element of the Plan	1+
Site development has a supportive effect on element	0+
+ Points value awarded should be doubled for the Highway Problem Area Element.

Jefferson County Comprehensive Plan, 1994

The Zoning Board's appeal form specifically says to refer to the 1994 Comprehensive Plan. Furthermore the 2004 Plan only became available in the past week, so it has not been practical to use it even if the instructions had said to do so. At the time when the Zoning Administrator scored the project, the 1994 Plan was in effect. Guidance from the Zoning Board would be welcome on which Plan is relevant.

Page II-41 WHITE WATER RAFTING ‑ White water rafting trips on the Shenandoah and Potomac Rivers are provided by several West Virginia licensed white water river outfitters.

Page III-75 Moulton Park (River Way) Situated on the picturesque Shenandoah River, this half-mile of river frontage can be found just north of the Bloomery Bridge on Route 27 (Bloomery Road).

Page III-94 Jefferson County … was settled by Europeans before 1720 and was probably inhabited by Indians for at least 10,000 years.

Page III-94 Jefferson County played an important part in the development of early transportation.

Page III-94 historic … buildings and landmarks enhance our quality of life. They are part of what draws people to our county and makes them want to stay.

Page III-96 many of the less obvious sites worthy of preservation or exploration can be identified and the significance of other, more visible, sites can be better appreciated.

Page III-97 When reviewing the LESA Point System study the feasibility of increasing the weight of historical significance.

Page III-96 Promote the establishment of Architectural and Historic Site Review Committees in subdivisions to help ensure that all parts of our cultural heritage are preserved.

Page III-97 Alert residents and developers to the incentives and resources available to preserve historic sites and structures.

Page III-96 Encourage discussions of historical and archaeological significance at the compatibility stage of a project.

The proposed development would dramatically change one of the most important historical and cultural landscapes in Jefferson County, significantly altering the context of historic sites in the area. It would make a major gash in the treed shoreline of the Shenandoah River, one of the most beautiful and famous rivers in the country, and would reduce important recreational activities associated with the river. The aerial photograph in attachment P shows the large stand of trees currently along the Shenandoah, which would be cleared for playing fields.

In return the development offers a few acres of playing fields with no parking, on the Shenandoah flood plain. It offers restoration of an historic school, which the owners have used for storage. They will also retain an historic cemetery and farm house, but mere retention is neutral, not positive or negative, so it does not counterbalance the harm being done.

Restoration of the school does not deserve much positive credit, without a discussion of how badly the school is deteriorated, how it got that way, and what will be done. If the current owners have let it deteriorate, they scarcely deserve much credit for repairing this damage. The developers say it is in danger of disintegrating (p.18). Without details this has no meaning. Every building is in danger of disintegrating without regular maintenance. Furthermore the proposal concerning the school does not include parking, buffers, security, signage (parking and signage must be included in this application package), and shows the school to be only a few feet from the back yards of some homes. The development appears unlikely to preserve this building in a way that is meaningful for the public.

The absence of parking for the school and playing fields on the plan submitted (Map B) means none will be provided, since Ordinance 7.4(b) requires parking areas to be shown at this time, not added later.

The proposed development will have a strongly negative impact on both historical and recreational areas so the project qualifies for 2 points, since “Site development has a negative impact on element” of the Comprehensive Plan (Zoning ordinance 6.4d).

Negative Impact on Historical Features

The developers’ offer to retain an historic cemetery and farm house and restore an historic schoolhouse (pages 16, 17) is minuscule compared to the history and heritage they would destroy with a dense development.

Historical preservation is not limited to buildings. Historians and preservation experts, including the National Park Service, recognize that “like historic buildings and districts, [cultural landscapes] reveal aspects of our country’s origins and development through their form and features and the ways they were used. …” (National Park Service, “Protecting Cultural Landscapes,” Attachment I).

The Thorn Hill application focuses solely on historic buildings and structures on and near Thorn Hill in pages 16-17 and Exhibit 6, “Historical Research and Historic Structures Survey Report: Thorn Hill Property,” May 2003 by David Berg. Historic buildings are, of course, extremely important and the developers are to be commended for commissioning the Berg study. However, as noted above, knowledge and preservation of buildings and structures alone are insufficient to preserve our cultural and historic heritage. The application completely ignores the importance of landscape and context in the area’s historical heritage.

The Thorn Hill tract has witnessed sweeping historical and cultural changes across many centuries. As it exists now, it holds cultural and historical significance for the county and its heritage and gives context to historic sites in the area. That extraordinary value would be lost forever if it were to be densely developed.

Beginning thousands of years ago, Native Americans hunted and fished along the Shenandoah River. Before the arrival of Europeans from about 1000 to 1600 A.D., the Woodland People lived in villages on the floodplains where streams, such as Evitts Run, flowed into the Shenandoah (A Bicentennial History Jefferson County, W.Va. 1801-2001, 2001, Quebecor Printing). Some of their artifacts, donated by a former landowner on John Rissler Road, can be seen in the Jefferson County Museum.

In the 1700’s and early 1800’s, Europeans settled the area, clearing forests, farming the cleared land, building water-powered mills. Evidence of that period remains on Thorn Hill as the Craighill homestead (house, spring house, remains of a barn) and the Beeler-Isler cemetery (Berg report).

In addition, what may have been the first iron furnace west of the Blue Ridge was established along the Shenandoah in the 1740’s. This “Bloomery for making Barr Iron” is thought to be the source of the name of the area (A Bicentennial History Jefferson County), which encompasses part of the Thorn Hill tract. During the 18^th century, William Brady, a resident of the Bloomery, raised a company of a rifle regiment in 1776 to fight in Revolutionary War (M. Bushong, 1941, A History of Jefferson County West Virginia, Jefferson Publ. Co.).

Close to Thorn Hill is an important residence representing the early colonial period—Mt. Hammond, built in the 1780’s. Without explanation, and we believe inaccurately, the Thorn Hill application lists the structure as only “of moderate importance to the neighborhood” (p. 17). Also nearby, at Clipp’s Mill (also known as Beeler’s Mill) on Evitts Run, is the sole remaining mill water wheel on any of the streams in the vicinity. In the 1800’s, Evitts Run, the Bullskin Run, and Long Marsh Run, all streams crossing Kabletown Road and flowing into the Shenandoah, had numerous water-powered grist, saw, and woolen mills. All signs of those important structures are gone save the water wheel at Clipp’s Mill. The application describes Clipp’s Mill as a residence dating from before 1835, failing to mention the existence and importance of the water wheel. The application notes, without explanation and contrary to our view, that Clipp’s Mill is only “of moderate importance to the neighborhood” (p. 16).

The ante-bellum and Civil War periods are represented in the Thorn Hill area by the Hermitage, built in the 1840’s and listed on the National Register; records of Civil War skirmishes and troop movements; the village of Mechanicstown, settled by Daniel and Mary Moore Smith in the 1860’s. Smith was a wheelwright and cabinetmaker in the little community that remains today at the intersection of Kabletown Road and Route 9 (Historical Hand-Atlas, 1883, H.H. Hardesty publishers). By 1875, the village had grown to six houses, with blacksmith, wagon maker, and cabinetmaker shops (A Bicentennial History Jefferson County).

The Hermitage, owned by the Chew family for several decades beginning in the 1840’s, once included land encompassed by part of the Thorn Hill tract (S. Howell Brown maps of Jefferson County, 1852, 1883; Bushong, 1941). Roger Preston Chew achieved important commands in the Confederate Army, having organized Chew’s Battery, a mounted artillery battery, and serving as commander of horse artillery for the Army of Northern Virginia (T.K. Cartmell, 1908, Shenandoah Valley Pioneers and Their Descendants). After the war, Chew returned to the Hermitage and represented Jefferson County in the West Virginia legislature for several years (Bushong, 1941).

The Thorn Hill area also was the scene of frequent troop movements and skirmishes during the Civil War, as Union and Confederate forces frequented the county as part of campaigns in the Shenandoah Valley and across the mountains into Northern Virginia. Colonel John Mosby and his guerilla fighters were particularly active in the area. For example, in 1864, Mosby’s Rangers attacked Union pickets at Mechanicstown and were chased towards Kabletown by Union cavalry (Bushong, 1941) Later that same year, Mosby’s Rangers battled Blazer’s Union Scouts in the battle of Kabletown, described in detail in Headquarters in the Brush by D.L. Stephenson (2001, Ohio Un. Press).

After the Civil War, the area slowly returned to prosperity. A notable achievement fostering improved commerce in the Thorn Hill area was the construction of the Kabletown to Bloomery and Bloomery to Charles Town Turnpikes (A Bicentennial History Jefferson County). Mechanicstown was at the crossroads of the two toll roads.

This overview gives a sense of the rich heritage of the Thorn Hill area. If this land were to be densely developed, the capacity to understand its historical and cultural significance, to help younger generations understand and appreciate our rural and agricultural heritage will be gone forever.

Negative Impact on Recreation

In return for playing fields on the flood plain, which may be of limited usefulness, the development destroys significant existing recreational opportunities along the river. Currently, the swath of the Thorn Hill tract along the John Rissler Road on the Shenandoah River, including the flood plain, is wooded. Now the Thorn Hill developers promise to slash through that lovely shoreline and surrounding vista, replacing woodlands with houses and playing fields, creating a conduit for the whole population of perhaps 1000 to 2500 or more people to the river’s shoreline.

A locale for recreational pursuits based on the natural resources of the river and woodlands and on the low human population of the area will be utterly transformed by destruction of the woods and addition of high human population density. The developers intend to cut down that woodland and replace the portion in the floodplain with playing fields.

That woodland, and the surrounding area of the current Thorn Hill tract, provides important habitat for birds and other wildlife. The low human population along the river has provided refuge for birds and other animals that favor river habitats. It is not uncommon, for example, to see eagles in this area (Attachment J). The application comments on the presence of blue heron and eagles along the river (page 11). Wildlife diversity has been an important recreational asset. For example, the diversity of birds has made the site an important destination for members of the Potomac Valley Audubon Society, who have long used and valued this area for bird-watching trips.

The Thorn Hill development, through its destruction of habitat and addition of hundreds and hundreds of human beings to the area, will render the area unsuitable for recreation pursuits based on that diversity.

Canoers, white water rafters, and anglers come to the Shenandoah River in Jefferson County repeatedly for recreational purpose. Many put their boats in the water in this vicinity. The Shenandoah shoreline, which lures boaters and anglers to the area, has been remarkable for its wooded areas, pastoral farmland, and peaceful vistas. The Thorn Hill development, by converting the shoreline to development-related activities and by providing an outlet to the river for its potential population of 1000 to 2500 or more people, would dramatically alter the boating and angling experience in this area.

In addition, one could reasonably predict that the Moulton Park (River Way) located just north of the Bloomery Bridge on Route 27 (Bloomery Road) would be substantially and negatively affected by the increased human population emerging from a densely developed Thorn Hill and seeking the kind of river access offered by Moulton Park.

For both the existing population of the area and visitors to the area, the Thorn Hill development would be a significant negative impact for current recreational pursuits.

Though the developers offer to build playing facilities in the flood plain of the Shenandoah, these playing fields do not outweigh the negative recreational impacts of the dense development, altered landscape, and increased human population. Placing playing fields in the flood plain quite likely means the fields will be limited in availability for recreational use. The area along John Rissler Road is already prone to flooding and will even be more so once the trees are cut down and natural vegetation is replaced by impervious structures like houses, driveways, and roads. The aerial photograph in attachment P shows the large stand of trees currently along the Shenandoah, which would be cleared for playing fields. Not only will the area flood because of water rising from the Shenandoah after rains and snow melt but also because of increased runoff from the development due to replacement of water-absorbing grass with impervious structures and destruction of the water-absorbing woodland.

Even without the extra runoff from the development, the wet nature of the area where the playing fields are to be constructed would limit the usefulness of the fields. For considerable periods during the year, the fields would likely be too wet to play on. Moreover, the frequency of flooding and standing water will likely make the fields and facilities more difficult to maintain. One can easily predict such problems as bleachers, fences, scoreboards sinking into the wet ground and rotting from frequent exposure to flooded soils, playing surfaces more frequently damaged because turf on wet soils is easily ripped from the soil, inability to gain access to wet fields with equipment to repair damage, increased costs of repair and maintenance due to the wet location.

All of this is likely to add up to substantially less availability of the fields for recreational use even without the added runoff from the development. When one considers the very real possibility of increased runoff for the reasons noted above and elsewhere, the recreational usefulness of these fields is reduced even further.

In addition, any restroom facilities in the flood plain associated with the playing fields will be subject to periodic flooding and may pollute the playing fields and surrounding area with raw sewage.

To summarize, the wildlife diversity at this site and the attractiveness of this site for recreational pursuits based on natural resources and rural features will be destroyed. This substantial negative effect is counterbalanced in only a miniscule way by the developers’ offer of a few playing fields whose usefulness is limited by the developers’ own decisions to locate them in a flood plain and to increase water runoff to the playing field area by cutting down trees and replacing natural vegetation with acres of impervious surfaces.

In conclusion, the proposed Thorn Hill development would have substantial negative impact on recreation.

6. LESA ITEM, IMPACT ON ACHIEVING LAND USE GOALS IN THE COMPREHENSIVE PLAN

The LESA score for comprehensive plan compatibility—land use compatibility—should be 2 rather than 1 as assigned by the Zoning Administrator, because site development has a negative impact on land use policies and recommendations in the Plan, not a neutral impact.

Ordinance 6.4 (d)This criterion shall determine whether site development is supportive or has a negative impact on the following elements of the Comprehensive Plan: ... land use policies and recommendations (2 points).

	Points
Site development has a negative impact on element	2+
Site development is not supported or against element of the Plan	1+
Site development has a supportive effect on element	0+
+ Points value awarded should be doubled for the Highway Problem Area Element.

Jefferson County Comprehensive Plan, 1994

Page I-3 Farsighted and innovative planning will preserve natural amenities and enhance property values. Good planning, coupled with equitable enforcement of control measures, will provide a property location for all required uses of land in the county. It will also prevent undesirable intermingling of conflicting uses of land.

Page I-3 A sound plan that recognizes current land use and anticipated needs is essential to a smooth-flowing transportation system of roads and highways. Transportation may be considered the link to overall development of the county. Industry, education, health, recreation, and housing depend on an efficient transportation system for development and survival.

Page I-4 Planning affords much-needed protection of unincorporated portions of the county surrounding existing communities. Much of the new residential growth in the county is taking place outside the municipal boundaries. An all-embracing plan can prevent undesirable and costly scattered development that becomes a heavy burden to the taxpayers

Page I-5 STATEMENT OF GOALS…

o Encourage growth and development in areas where sewer, water, schools, and other public facilities are available or can be provided without excessive cost to the community.

o Insure that growth and development are both economically and environmentally sound.

o Promote the maintenance of an agricultural base in the County at a level sufficient to insure the continued viability of farming.

o Encourage and support commercial, industrial, and agricultural activities to provide a healthy, diversified, and sound local economy.

o Promote the conservation of the natural, cultural, and historical resources and preserve the County's scenic beauty.

o Advocate the maintenance and improvement of the transportation system so that people and goods can move safely and efficiently throughout the County.

o Provide safe, sound, decent housing for all residents of the County…

Page II-45 "The business climate is determined by many factors: transportation, access to markets, labor force (education, wage rate and productivity), quality of life (crime rate, school quality and cultural amenities), planned environment, taxes, infrastructure, etc. Improvements are required in the areas that are lacking to make Jefferson County more competitive."

Page III-1 "With the increase in population in the last three decades Jefferson County's roads have had to bear the combined burden or increased traffic volume and heavier commercial vehicles. As a result, the deficiencies of the highway and road systems have become more critical. Inadequate funding and further increase in transportation demand are conditions which probably will be facing the people of Jefferson County for some time."

Page III-1 "Of all the problems to be addressed in a Comprehensive Plan, transportation is one of the most urgent."

Page III-1 "To reduce the occurrences of traffic accidents."

Page III-1 "To reduce the severity of traffic accidents."

Page III-1 "To eliminate conditions which either cause accidents or contribute to their severity."

Page III-1 "To achieve and maintain efficient traffic flow throughout the county."

Page III-7 map shows that Route 9 has a "High Accident Rate" and near Kabletown Road has a "poor sight distance"

Page III-21 ...water contamination from pollutants such as fertilizer and pesticides. This not only applies to wells located on farms, but also to the average home owner who uses these same products to achieve a well maintained lawn and garden.

Page III-21 Although the County possesses substantial groundwater resources, they are easily accessible and susceptible to damage. The geological formations of the County that provide abundant water fail to provide adequate groundwater protection. Sinkholes, rock outcroppings and fissures provide open channels for animal and human wastes, petroleum products, and stormwater runoff to directly enter and contaminate groundwater resources.

Page III-22 Policies adopted by the County and other agencies should provide for the optimum management and protection of groundwater.

Page III-26 The County should adopt a policy of encouraging the construction and use of central water systems only in areas that are appropriate and designated for more intensive development by the land use plan.

Page III-82 --Advocate the most effective means of preservation for sensitive natural areas such as waterways, wetlands, floodplains and forested areas....

Page III-85 Floodplains serve as routes for dispersing certain species and in maintaining the quality of habitats along stream and river edges. Floodplain forests are very productive and contain a wide range of tree species. Large floodplains also may support wetlands. Flood plains need to be protected from (1) development, (2) deforestation, (3) siltation from adjoining uses and (4) draining or filling of wetland areas.

Page III-87 Streams and rivers are the ultimate recipients of any solids or liquids which runoff from the above-cited habitats. They need to be protected from (1) sediments, (2) excessive nutrients, (3) harmful substances, (4) bank erosion and (5) removal of riparian strips.

Page III-88 The key to species protection, regardless of status, is habitat preservation and extension. Inventories would be helpful in this effort.

Page III-88 An inventory should also include animals and plants that are not necessarily rare or endangered, but which are uncommon enough in the area to be of interest to amateur and professional nature lovers.

Page III-88 The key to species protection … is habitat preservation and extension

Page III-89 pastoral scenery … should be recognized and preserved wherever possible for their inherent value to the quality of life in this area.

Page III-89 Identification of unusual habitats and locations of such flora and fauna as those mentioned could provide the basis for nature trails in the County and outdoor classrooms.

Page III-89 Agricultural land has been recognized as the primary natural resource in the County...

Page III-91 The abundant groundwater supply results in numerous quality springs.... The feeder areas of such springs should be identified and protected from contamination.

Page III-91 The natural pharmacology of local plants … is another reason to protect biological diversity.

Page III-93 Develop policies and procedures for mitigation of habitat damage.

Page III-98 "Allow more lots in the Rural Zone provided they are less dense. This would include clustering development based on a required minimum lot size and the size of original parcel."

Page III-101 Most citizens recognize that if farms in Jefferson County are forced to liquidate and urbanization happens too quickly, we will permanently lose our 'rural way of life.' Most County residents, even those who are not farmers, want to preserve the farming tradition for aesthetic and environmental reasons. Therefore, we need to recognize that the issues related to agriculture land use are not only economic but also cultural.

Page III-103 ...provisions of the Zoning Ordinance, specifically, the LESA system, should slow down the conversion of farmland to residential use.

Page III-105 To preserve the farm industry and tradition to ensure that Jefferson County has enough agricultural land and services to maintain economically viable farm units.

Page III-105 To encourage a balance between residential growth and the rural economy.

Page III-105 To encourage conservation and to avoid pollution of our County’s natural resources…

Page III-106 "New development should be encouraged to locate near existing or planned public services and should be designed for higher density to preserve open land."

Page III-106 The LESA development system should be revised to encourage the development of less dense lots in the rural zone as opposed to all high density development.

Page III-109 ...sprawl is to be avoided due to the cost of providing local government services and increased pressure on farms to convert to residential uses. The Zoning and Development Review Ordinance.... has proved to be a significant deterrent to sprawl. However, the avoidance of sprawl continues to be a concern of this updated plan.

Page III-109 "To attract new residents of all economic levels by encouraging a variety of housing types throughout the county at a wide range of costs."

Page III-109 "To provide a choice of suburban, semi-rural, and rural living environments."

Page III-109 "To continue encouraging new residential developments to be location so as to maximize the use of existing public facilities and service investments such as schools, parks, sewer, and water."

Page III-110 Since the rural character and scenic beauty of the county are features that have attracted many new residents and retained many of the older ones, Jefferson County must make a commitment to preserve agricultural land if it is to maintain its quality of life.

Page III-110 "Residential land use policies should build on the Zoning Ordinance and continue to create orderly development patterns and discourage scattered development."

Page III-110 if developments are crowded onto poorly drained land, groundwater may become polluted.

Just reading this list of goals and recommendations in the Plan shows the range of harmful effects of the proposed development.

The proposed development endangers groundwater, deforests the Shenandoah floodplain (attachment P), destroys habitat, puts massive traffic loads on roads unable to handle them, spreads standardized high cost, high density development into a beautiful, historic, scenic, rural area.

The "Extended Comments on Geology" near the end of this package show how the proposal has negative impacts on water quality, geological, and pollution issues raised in the Plan.

The positive impacts suggested on pages 17-19 in the developers' application do not hold up to scrutiny. Their first two items are economic, but the developers do not provide an economic analysis to show the net costs to the county and state of providing and operating utilities and schools, or other costs. Replacing a dense forest on the Shenandoah with wet playing fields does not create a buffer, is not environmentally sound and does not comply with the Plan.

Therefore the project qualifies for 2 points, since “Site development has a negative impact on" "land use policies and recommendations of the Comprehensive Plan” (Zoning ordinance 6.4d).

APPEALS OF SUPPORT DATA

Our appeal 3/30/04 stated, “Many aspects of support data are inaccurate and/or inadequate, by the standard of the ordinance. There are woeful inadequacies for example in the discussion, investigation, and support documentation on: land use, karst, sinkholes, caverns, traffic, roads, wildlife, groundwater, sewage treatment, work to alter topography, and schools."

The purpose of appealing the support data is to improve public review of subdivisions like this one. The Zoning Ordinance lays out a citizen review process, with a list of the categories of support data to be provided by the Developer (7.4(d)), a formal meeting with discussion between citizens and developers, where citizens ask developers to change their plans in ways that might make the project more compatible with the community (7.6(a) through (c)), and then a formal hearing before the Planning and Zoning Commission to decide any unresolved issues (7.6(d) through (g), and 7.7). These meetings have been ineffective, in part because of incomplete information from developers. Attached Video A shows an example of a formal meeting between citizens and developers. It necessarily covers another project, since that stage has not yet been reached on this Thorn Hill application.

The support data are inaccurate, inadequate, and confusing. They cause the public to be confused and unable to engage constructively in a discussion about the makeup of the proposed development. Members of the public would have to ask the developer for clarification and then go back and study the plans before they could begin to request changes in the proposal, which is the main purpose of the compatibility meeting and hearing. Unfortunately there is no provision to require the developer to answer questions in advance, or even at the compatibility meeting (attached video B), so the support data must be clear and informative in the first place.

7. SUPPORT DATA: DISCREPANCIES IN LAND COVERED BY THE APPLICATION

Attachment B indicates that the entire parcels 39 and 41 on CTD tax map 19, along with seven other parcels are part of the application and make up the 377.64 acres of Lee Flagg Elliott’s property in the Thorn Hill tract. However, pages 4 and 5 of the developers' application indicate that only “a portion of parcel 39 (10.7 acres) and 41 (209.25 acres)” is included in the application.

This discrepancy about what portions of parcels or full parcels are to be part of the development causes the public to be confused and unable to engage constructively in a discussion about the makeup of the proposed development.

8. SUPPORT DATA: DISCREPANCIES BETWEEN PARCEL NUMBERS AND ACREAGES

Pages 4 and 5 of the application indicate that a 10.7-acre portion of parcel 39 will be part of the development. However, the 2003 Charles Town District tax map 19 indicates that parcel 39 contains only 5.69 acres. How can a portion of a parcel contain more acres than the full parcel? Do the applicants actually mean this parcel or some other?

Page 4 of the application lists parcel 15.2 as having 19.75 acres while Charles Town District tax map 19 shows 45.89 acres. Do the applicants mean parcel 15.2 or some other parcel that has 19.75 acres?

Page 4 of the application lists parcel 15 as having 30.25 acres while Charles Town District tax map 19 shows 4.5 acres. Do the applicants mean parcel 15 or some other parcel that has 30.25 acres?

These parcel and acreage data discrepancies call into question the accuracy of all parcel acreages and cause the public to be confused and unable to engage constructively in a discussion about just what land is contained in the Thorn Hill tract.

9. SUPPORT DATA: MAPS DO NOT MATCH PARCELS

The Thorn Hill house map (Map 2) does not follow parcel boundaries along Route 9 (Map 1).

The CUP support data on boundaries is inaccurate, inadequate, and confusing. As a result, the purpose of support data to reveal issues relating to compatibility and provoke discussion of compatibility-related matters among the developer/owner, interested public, and the county’s land use officials are not achieved.

10. SUPPORT DATA: OFFSITE CLAIMS

The Thorn Hill house map (Map 2) shows a pump station near the Shenandoah River, on property that Gene Pearson owns, map 22 parcel 18. Mr. Pearson has not given permission (Attachment K). We are aware that Thorn Hill is in a boundary dispute with a neighbor in Mechanicstown. Are they also disputing Gene Pearson's boundary?

11. SUPPORT DATA: MT HAMMOND LANE RIGHT OF WAY

The text of item 8 ignores Mt. Hammond Lane, which runs along the southern border, uphill from the Shenandoah. We believe half its width is on the Thorn Hill property. The developers' map (Map 2) shows it entirely outside their land, which is not correct. Neighbors need to know what the developers intend for this road, which neighbors need and use for crucial access to high ground during times of high water, so they can ask for appropriate measures at the compatibility meeting, instead of going into the meeting with no knowledge.

12. SUPPORT DATA: GEOLOGY: SOILS, GROUNDWATER, SUBSURFACE DRAINAGE

The developer provides a geological report by GeoTrans, Inc., (cited as Addendum 2 on the page 3 of the CUP application and Addendum 1 on page 5) to help address items 6 and 16, soils, drainage, and groundwater. However it leaves out the most crucial information. It notes the area is pocked with sinkholes, caverns, and solution channels. Where do these approach the surface, thus endangering neighbors' property? How close are they? Which areas will dissolve faster when groundwater and surface water flows are rearranged by excavation and construction?

The Zoning Administrator and these same developers refused to have any substantive discussion of sinkhole dangers on another of their projects, Blackford, at the compatibility meeting for that development on 4/21/04. Their reasoning was that the public at that meeting did not say where there were particular risks of sinkholes to address at that property (Video B). The public could give details on sinkhole dangers, because the developers had not provided the basic information.

Only the developers can do electro-resistivity testing which would map the sub-surface openings and show where there are risks of sinkholes. The WV Supreme Court has held that the test of adequate support data is whether it supports informed public debate. Lack of information on locations of underground risks did stifle public debate on the Blackford project (Video B). The same lack of support data applies to Thorn Hill, but fortunately we have filed an appeal, so the Zoning Board can order the developers to provide support data which will be adequate to support informed debate.

The GeoTrans report says erroneously that groundwater infiltration will be reduced by the increased impermeable surface of roads and roofs. Quite the opposite is true. Most homeowners will water their lawns, while the existing pasture just receives rainfall. Watering to establish and nurture grass, plantings, and flower gardens will add enormous flows into the limestone fissures, tending to rapidly dissolve them. Dissolution will be even faster when homeowners use acid mulch or soil amendments for acid-loving plants. What is the current rate of dissolution? How and where will the increased flows travel underground? How much will the rate of limestone dissolution increase?

Thorn Hill developers propose to put a storm water pond on top of a known sinkhole. How much will that add to dissolution? Will it require a variance, which is a topic that the public is instructed to discuss in the compatibility meeting (7.6(b)(6))?

The GeoTrans report also left out basic facts. The basic geological reference for the county, published in 1916, and still readily available from the WV Geological Survey, said this area has the thickest layer of limestone they had ever encountered. That thickness yields much more complex and developed groundwater flow, solution channels, caverns and sinkhole dangers than most limestone areas. An ordinary citizen would not be expected to know this. It is exactly what support data should be providing.

The "Extended Comments on Geology" near the end of this package explain much more fully the gaps in the developers' support data, and the inability of even a trained geologist, let alone ordinary citizens, to have an informed discussion of the project without more basic information.

13. SUPPORT DATA: SINKHOLE INSURANCE

The Thorn Hill application contains incorrect, unsubstantiated information on sinkhole insurance.

The developers' addenda 2, “Hydrogeologic and Environmental Study of the Proposed Thorn Hill Subdivision Site” by GeoTrans Inc., page 9, indicates that “coverage for property damage caused by sinkhole collapse can be added to a homeowner’s insurance policy. Sinkhole damage coverage was quoted by a local firm to cost $0.35 per $1000 of coverage. Thus, $100,000 worth of sinkhole collapse insurance would cost $35 per year.”

This claim by the applicants is unsubstantiated in the support data. A survey of insurance agents suggests that sinkhole insurance has not been available in this county for years and then at a premium ten times the figures quoted by GeoTrans.

The applicants’ failure to provide supporting data for this claim is creating an illusion of security that may not exist.

14. SUPPORT DATA: SURFACE WATER AND SURFACE DRAINAGE

The lack of support data on altered drainage rates, amounts, and patterns during and after construction makes it impossible for the public to assess the impact of runoff on adjacent landowners, Evitts Run, the Shenandoah River floodplain, the river itself.

The development will drastically alter the ground cover on the site. Presently, grass and trees absorb rainfall and snow melt and reduce runoff. In a 550-acre development where impervious surfaces—nearly 600 homes plus driveways, roads, recreational buildings, and parking lots—will replace a major portion of the current ground cover, the percentage reduction in the natural water-absorbing vegetation will be huge. As a result, the increase in the rate and amount of surface runoff will be huge.

Moreover, because of the destruction of cover vegetation during construction, acres and acres of bare soil will be exposed for long periods to rainfall, some of which may be in the form of torrential downpours that are rapidly and highly eroding.

Yet the application barely mentions impacts of the development on runoff or how the developers propose to deal with the drainage problem. Page 7 notes that “It is anticipated that a number of storm water management systems will be constructed in the north, south, and central areas (emphasis added).” Page 9 notes “Grading for drainage swales and excavation for storm water retention ponds will be performed.” This is not enough information for the public to judge how the developers intend to manage increased storm water runoff.

With the lack of detail on either the impacts of the development on water runoff or the efforts to deal with the runoff, adjacent landowners cannot assess potential effects on their property and well being, people who care about the quality of natural waterways cannot evaluate the potential impacts of runoff on Evitts Run and the Shenandoah, and they and other interested members of the public cannot participate meaningfully in a compatibility assessment meeting on the development.

The "Extended Comments on Geology" near the end of this package explain much more fully the gaps in the developers' support data on drainage and water flows, and the inability of even a trained geologist, let alone ordinary citizens, to have an informed discussion of the project without more basic information.

15. SUPPORT DATA: TRAFFIC

The application (page 13) misleads the public by claiming that traffic problems will be solved by the new Route 9, stating on pages 2 and 13 that it is under construction, while ignoring the fact that construction on the new Route 9 is stopped. Page 13 admits that Thorn Hill’s “increased vehicular load will increase congestion on WV Route [9]” and notes “a high incidence of accidents on WV Route 9 from Charles Town and across the Shenandoah River.” Yet, the application offers no alternative analysis of how serious traffic problems will be solved absent the new Route 9 or pending a long delay in completion of that road. The public cannot meaningfully discuss traffic issues at compatibility assessment meetings if developers do not offer realistic support data.

Developers propose a traffic signal at the intersection of Route 9 and John Rissler Rd, at the west end of the Shenandoah River Bridge. However they do not address whether the bridge is designed to hold a string of heavy vehicles stopped at the light. Heavy trucks, such as gravel deliveries, concrete trucks, and ordinary eighteen-wheel trailers are much closer and have a more concentrated load when they stop at a light than when they are moving at normal speeds. Is the bridge designed to hold a string of trucks stopped? Will the developers refuse to enter into discussion with the public and therefore stifle public debate, as they did at the Blackford compatibility meeting referenced above, unless the public obtains an engineering analysis of the bridge? To the contrary, it is the developers’ responsibility to provide data, including a credible engineering analysis of the bridge, that allow informed public debate on such an important issue as the capability of the Shenandoah River bridge to hold backed-up, heavy truck traffic.

The developers also propose a traffic signal at Cattail Road, which would become a major four-way intersection, and flattening a curve, without any design proposal or line-of-sight analysis. The public is unable to respond to such a vague proposal. Again, in light of the developers’ comments at the Blackford compatibility meeting referenced above, if the public asks for changes in the design, will the developers refuse discussion until the public provides sight distances and other analyses of the current design? Again, we would argue that the responsibility for providing sufficient data for informed public discussion lies with the developers.

If the public is to have the safe projects it deserves, the developers must make all relevant facts, favorable and unfavorable, known to the public. Failure to do so perverts the informed public debate at the heart of the Conditional Use Permit process.

16. SUPPORT DATA: SCHOOLS

The public is unable to engage in meaningful discussions of school capacity at compatibility assessment meetings when the applicants’ simplistic analysis of current capacity of local schools fails to take into account the projected increased growth in the school-age population from Thorn Hill and other developments over the period of construction of Thorn Hill.

The applicants claim that adjacent schools will be available for new families moving into the development even though its own information reveals that facilities for ages 12 to 14 and 14 are already over capacity or very nearly so. Even before Thorn Hill is built, the information on page 15 of the CUP application indicates that the number of children ages 12 to 14 already exceeds capacity at the Charles Town Middle School. With just three more age-14 students, ninth grade capacity will be exceeded (page 15).

The application is misleading and confusing in the area of school capacity as it discusses growth of school age population as though only Thorn Hill and no other developments were simultaneously adding students.

Moreover, the developers’ lack of concern for the importance of providing adequate schools for the increased population generated by their development is further noted by the fact that they have not set aside a school site within the community. Neither have they agreed to prepare such a site for the building of a school, such as an elementary school. Page 15 indicates that the development will generate 209 students 5-to-11 years old—enough for an on-site elementary school.

17. SUPPORT DATA: BILLBOARD SHOWING BUILDER

The appellants learned, not from the CUP application, but from a billboard advertisement on Route 9 that Thorn Hill developers have contracted with NV Homes to build houses on the development (Attachment N). While not required to show the builder in the support data, in a spirit of openness and to inform discussion at the compatibility meeting, the applicants should have disclosed the name of the builder. Had the compatibility meeting been held on March 31 as originally planned the public would have been unable to raise any questions about the builder.

Attendees’ interest in the builder has to do with concerns about a number of issues, including reputation of the builder for building good quality homes and using environmentally sensitive construction practices and whether local labor and materials would be used in construction or whether out-of-county labor and materials would be employed. Observation of existing construction sites in the county shows a large majority of workers and subcontractors come from out of state, with little or no benefit to the local economy.

18. SUPPORT DATA: WILDLIFE

The information provided on wildlife affected by the Thorn Hill development (pages 10-11, Exhibits 7 and 7a) is misleading, confusing, and inadequate. This section fails to achieve the purpose of support data to allow public discussion of the issue at a compatibility assessment meeting.

The applicants mislead and confuse the public by concluding that “no known rare or endangered species of wildlife [are] indigenous to this site.” However, the two letters cited in support of that statement reveal that the authors know of “no surveys that have been conducted in the area for rare species or rare species habitat.” How could the applicants know about rare or endangered species on Thorn Hill if no studies had ever been done?

The application further misleads the public with a conclusion attributed to a DNR specialist in Elkins “that no further studies have been done on these parcels (emphasis added). How could further studies be done if no studies had been done in the first place? To discuss the potential impact of the development on rare and endangered species, the public needs the results of a credible survey commissioned by the applicants of the Thorn Hill tract itself.

The applicants fail to comment on two cave species specifically listed in the comprehensive plan: Stygobromus gracilipes, Shenandoah Valley Cave Amphipod, and Caecidotea pricei, Shenandoah Valley Cave isopod.

The applicants mislead the public and divert its attention by focusing on an environmental assessment (CUP Exhibit 7a) of Spring Hills Subdivision, a site located well away from Thorn Hill on the other side of Charles Town. This decade-old assessment of another piece of land elsewhere in the county cannot satisfy the public’s need for credible information on wildlife of Thorn Hill itself.

An alternative source of wildlife information offered by the developers is also misleading, confusing, and inadequate to inform the public of the wildlife status on Thorn Hill. The applicants offer the results of several conversations with neighbors and hunters as to the wildlife they had seen on Thorn Hill. This is an unscientific, undocumented pseudo-survey by untrained observers who only identify a few species of well-known animals. This information is inadequate to inform the public on the diversity of wildlife important to the soil, stream, river, woods, and grassy areas of Thorn Hill.

The third paragraph under the wildlife section is devoted to excerpts from the “Use of Soils for Wildlife” in a 1973 Jefferson County soil survey. However, this information is not useful to the public on Thorn Hill wildlife issues unless the public is informed whether Thorn Hill is the subject of the section. But there is no indication just what part of Jefferson County is being described in the section. The county has a number of diverse habitats. Is this paragraph describing Thorn Hill? the Shannondale Springs area east of the river? the Millville area along the Shenandoah? Harper’s Ferry? The public does not know.

Rather than try to convince the public that data taken elsewhere will adequately support a public discussion of wildlife impacts on Thorn Hill, the applicants should commission a comprehensive, credible base-line survey by competent biologists of the wildlife on the Thorn Hill tract. To properly inform the public, that survey should identify species and relative abundance of species of animals and plants.

In a September 9, 2003 order in Kletter et al. v. Zoning Board, note 90, the Circuit Court criticized a developer's conclusions about wildlife, where no survey of populations or habitats had been done, "Unless the developer possesses an undisclosed expertise in wildlife management, this is a wholly unsupported conjecture" (attachment Q).

The final paragraphs of the wildlife section (page 11) contain misleading conclusions about the impact of the development on wildlife. The applicants have identified very few wildlife species on the site—primarily deer, raccoon, opossums, and groundhogs known to most people. They have not told the public whether there are other types of wildlife on Thorn Hill. These few identified animal species may be but a fraction of the many kinds of animals that reside on Thorn Hill. Perhaps butterflies, honeybees, owls, bats, and many other kinds of wildlife live there—and may be affected by the development. The public does not know.

The applicants offer comforting but misleading and unsupported assertions that “these species have proved adapt (sic) at living alongside new development” and “the Evitts Run area … will allow wildlife to continue cohabiting with the residents of the development.”

What the applicants do not tell the public is whether other wildlife living on Thorn Hill, other than the few species mentioned, will also be able to live alongside people. Or are some, many, most species of the current Thorn Hill wildlife population unable to survive construction and close proximity to dense human populations. The public cannot tell from the application.

The statements on the impacts on birds are misleading, confusing, and unsupported by reputable sources. The applicants write that “bird populations will not be seriously affected as green areas and trees will be maintained in the open areas and along Evitts Run” (page 11). It is difficult for the appellants to comprehend how the birds now living on hundred of acres of trees and grassy pastures will take up residence, once the trees are cut and the pastures are paved, in the dramatically reduced acreage of a few open spaces and narrow strips of vegetation along Evitts Run. There is no credible support data to substantiate the claim that “bird populations will not be seriously affected” by the dense development of the Thorn Hill tract. (See attachment J)

The applicants further mislead the public by offering the assurance, without substantiation, that “Bird populations often increase in residential areas as residents set up birdfeeders to attract the local avian population.” What the public should know is whether this increased population means increased numbers of diverse kinds of birds or of just a few kinds of birds. Since preserving many different kinds of birds would generally be more important to a healthy biological community than preserving high numbers of just a few species (E.O. Wilson, Diversity of Life, W.W. Norton and Co., 1993), the public needs more information than the applicants provide on the diversity of species expected to feed at Thorn Hill birdfeeders compared with the diversity before development. (See attachment J)

In conclusion, it appears to the appellants that the developers may be converting land that presumably supports substantial wildlife biodiversity to a use in which wildlife diversity is severely reduced and one species, humans, dominates. Public debate on this critical issue is stifled because the developers fail to meet their responsibility adequate, accurate data to support meaningful public discussion.

19. SUPPORT DATA: COMPREHENSIVE PLAN

In the portion of the application explaining the relationship of the project to the Comprehensive Plan (Item 25, pp. 17-19), the applicants mislead the public with statements not supported by the reality of the plans for the development. Moreover, the applicants fail to fully address the economic costs of their development to the taxpayers of West Virginia and to the tourism industry in Jefferson County.

Unrealistic and misleading elements

The elements that are contrary to the reality of the Thorn Hill development and misleading to the public include the following:

The applicants note that elementary schools exist near the development but do not explain that by the time Thorn Hill students would attend those schools they would very likely have exceeded capacity because of the increased enrollment of children from other development.

The applicants claim that the development will protect the environment by offering open space without mentioning that that small benefit will be enormously outweighed by the degradation of woods, wetlands, grass land, by the overwhelming replacement of natural resources with artificial structures like houses, roads, playing fields, recreation buildings.

The applicants note that the “project respects the natural topography of the area.” This statement falsely informs the public. It appears impossible to the appellants that developers could prepare 550 flat house sites on land varied in topography, construct all the roads, put in recreational facilities and still claim that they respect the natural topography.

Similarly, the statements, “The development is designed to preserve the natural beauty of the area …. ” and the development will be “a community that respects nature” falsely inform the public. Preserving a narrow stream valley and putting in “buffers” and “playing fields,” at the same time that natural resources are destroyed on three fourths of 540 acres, neither preserves natural beauty nor respects nature.

Economic costs of the development

A major omission in this section is a discussion of the economic costs of the Thorn Hill development: first, the hundreds of millions of dollars of economic cost the development will impose on the state of West Virginia and, second, the economic cost to the tourism industry in Jefferson County.

Cost to state taxpayers. Members of the public cannot engage meaningfully with developers or county officials at compatibility assessment meetings if they lack information on the increased costs to West Virginia taxpayers for the Thorn Hill development, including the construction costs for schools, roads and other facilities, and the vast annual operating expenses paid by taxpayers to educate Thorn Hill children, repair roads and provide other services. On the other side, the public would need information on the projected income for the state in terms of increases in tax revenue.

We have pulled together the following partial list of state expenses to serve the growing population. Most would not be needed except for growth.

	State Cost (millions)
Harpers Ferry Bridge*	16
Rt 9 - Charles Town to Martinsburg	110
Rt 9 - Charles Town to Virginia line	100
School Construction	35
* Construction only, not land acquisition or design

Cost to Jefferson County tourism industry. The public cannot meaningfully participate in compatibility assessment meetings if it lacks important information on the economic impact of the development on the tourism industry in Jefferson County. At the same time, the public is aware that the county profits considerably from tourists coming to the area and that tourists come to the county because of its natural beauty, historical significance, and recreational pursuits based on its natural resources.

The appellants commented in our appeal of LESA item 5 on the significant negative impact of the Thorn Hill development on historical and recreational compatibility with the comprehensive plan.

What the public needs next in order to engage in discussions about the development, and what is missing from the application, is a credible economic analysis of the impact of the Thorn Hill development on the tourism industry in Jefferson County.

Economic cost is a central issue in the comprehensive plan and should have been addressed by the developers to promote rather than stifle public discussion on that issue. The very first two goals in the Comprehensive Plan call for avoiding "excessive cost to the community" and insuring that growth and development are "economically... sound" (p. I-5).

At the least a developer's analysis of compatibility with the comprehensive plan should address each of the ten goals in the plan.

20. SUPPORT DATA: INCOMPLETE LIST OF NEIGHBORS

An adjacent landowner, Eugene Pearson, was not listed by the developers as required in Ordinance 7.4(e), and therefore was not notified of the March 31, 2004 Compatibility Assessment Meeting as required by Zoning Ordinance 7.5(b) (see attachment M).

21. SUPPORT DATA: REMAND TO APPLICANTS

As our appeal demonstrates repeatedly, the CUP application contains many errors and inadequacies in support data. They are so pervasive that they prevent finding other errors that undoubtedly exist. When a document is so flawed, the Zoning Board should not assume that items left uncritized by the appellants are correct or sufficient for informed public discussion. Rather, the Board should assume that errors and omissions pervade the document.

Moreover, in the short time for appellant review of the application before the deadline for written documents, two weeks in advance of the hearing, we are certain that we have been unable to detect all errors and inadequacies in support data. These errors and inadequacies have a significant deleterious impact on the public’s ability to engage meaningfully in discussions with the developers and county officials at the compatibility assessment meeting.

It is not the job of the public or the Zoning Board to proofread the support data and catch all mistakes. Nor is it our job to marshal overwhelming evidence on every flaw, when the developers' application includes almost nothing that is firm evidence. The main text and the specialized exhibits on geology, history, traffic, the environment, etc. totally lack evidence on the expertise of the authors. The developers would like the information to be treated as expert studies, but they are simply anonymous texts of no proven value. The Circuit Court drew attention to this gap in developers' submissions in the September 9, 2003 order in Kletter et al. v. Zoning Board, 02-C-217 (see attachment Q). The developers have all the time they need to prepare their application, while citizens critiquing it have tight deadlines.

Therefore, we ask the Board to remand to the applicants to correct all errors and inadequacies, not just the ones we detected.

EXTENDED COMMENTS ON GEOLOGY

Wm. Kelly Baty

4704 Kabletown Road

Charles Town, WV 25414

May 6, 2004

Jefferson County

Zoning Board of Appeals

P.O. Box 338

Charles Town, WV 25414

Dear Zoning Board of Appeals:

Thank you for the time to explain my concerns regarding the proposed Thorn Hill development at the intersection of Kabletown Road and U.S. Route 9 in Jefferson County, WV. In order to qualify myself, please find enclosed a copy of my resume for your edification. This transmittal letter serves to introduce a brief explanation of my concerns.

Sincerely,

/s/

Wm. Kelly Baty, C.P.G.

Hydrogeologist

William Kelly Baty

Hydrogeologist

4704 Kabletown Road, Charles Town, WV 25414

Qualifications

Mr. Baty is a licensed professional geologist in Virginia, Tennessee, and Georgia. He received his Bachelor of Science degree from the University of Tennessee and his Master of Science degree from the University of Memphis, TN. He has more than 15 years experience in the environment and government consulting industry. Mr. Baty has been involved in extensive federal government environmental investigations at Superfund (CERCLA), RCRA, and hazardous waste sites across the country. His experience includes managing a regional multi-state office for an international consulting company. He is currently a hydrogeologist for the Loudoun County, Virginia Department of Building and Development. His duties include technical review and guidance concerning county mandated hydrogeologic studies for the Department, technical expert for intradepartmental studies, and government affairs liaison for federal government programs. He has written and revised technical standards for the consulting industry and Loudoun County. Through his efforts, a complete rewrite of standards and procedures have brought the level of technical review for hydrogeologic studies required by Loudoun County, VA up to professional court defensible standards. Through his initiative and the efforts of Representative Frank Wolf (VA-R-10) and his excellent Staff, in conjunction with the extraordinary staff of the U.S. EPA, environmental initiatives like the Department’s Wetlands Inventory and Mapping Project (WIMP), the Water Resources Monitoring / Management Program (WRMP), and the Comprehensive Watershed Management Plan (CWMP) have benefited the Department immeasurably. Mr. Baty is the author, co-author, and author-initiator of the aforementioned project/program/plan, respectively. He is also responsible for the management and implementation of various aspects of the aforementioned project/ program / plan. He is a skilled coalition and alliance builder, creating and facilitating work teams of county government departments, federal government agencies, local and state government agencies, and public interest groups. His interests lie in developing effective government policies from sound science.

Employment History

Ø Loudoun County, Virginia, Department of Building and Development; Hydrogeologist

2000 to Present. Provide scientific and professional expertise in forming effective government policy.

Ø Contract Consultant-Senior Hydrogeologist; 1996 to 2000

Provided environmental and hydrogeologic consulting to industry and government.

Ø IT Corporation; Project and Office Manager/ Senior Scientist; 1994 to 1996

Managed regional office of international environmental consulting company.

Ø IT Corporation; Project Geologist; 1990 to 1994

Conducted environmental assessments/remedial action plans for industry and government.

Education

MS, Geology; the University of Memphis; Memphis, Tennessee; 1992

BS, Geology; the University of Tennessee at Chattanooga, Tennessee; 1987 (Graduated cum laude / merit scholar)

Continuing Education

Politics and Public Policy, 2003

Innovative Responses for Sustainable Water Infrastructure Forum, 2003

National Water Resources Policy Dialogue, 2002

Washington Briefing and Government Affairs Committee Strategy

Session, 2002

Virginia Water Research Symposium, 2001

Watershed and Safe Drinking Water Management, 2000

Statistical Methods in Business and Economics, 1999

Financial Accounting, 1999

Organic Chemistry and Laboratory, 1998

Japanese Language, 1997-1999

Microbiology and Laboratory, 1997

Groundwater Pollution and Hydrology, The Princeton Course, 1994

License/Registration

Registered Professional Geologist; Tennessee and Georgia

Certified Professional Geologist; Commonwealth of Virginia

Thorn Hill Development

The proposed development is underlain by an area of extreme intrinsic susceptibility to the fate and transport of surface contaminants emanating from a host of land use activities, and to hazardous health and safety issues associated with land subsidence and sinkhole formation. The hydrogeological study performed by GeoTrans, Inc. of Virginia for the developer confirms the presence of sinkholes, and caves but does not detail the extent of the karstic terrain underlying the potential development. The aforementioned report recommends performing detailed analyses of the site at a minimum.

According to the U.S. Geological Survey (USGS) (Focazio, et. al., 2002) examining extremely susceptible aquifers for point and non point source contamination is the first step in source (drinking) water protection, as required by the 1996 amended Safe Drinking Water Act, prescribed by the U. S. Environmental Protection Agency (EPA). Karstic aquifers are some of the most intrinsically susceptible and environmentally sensitive landforms due to the extreme channel flow nature of the groundwater regime. Hobba (1981) and Kozar ( 1991) have described the hydrogeology in the area and give evidence of the susceptibility of the karst groundwater aquifer to contamination from agricultural land use activities. These activities demonstrate very broad trends in point and non point source contamination of the groundwater and the Shenandoah River. In a personal communication with Mr. Kozar (March 2004), he conveyed that the USGS is pursuing further studies to study regional linear features (e.g., faults and fractures) and flow regimes to better understand the poorly understood flow relationship between surface and ground water. This improvement in flow relationships will build on the above-referenced work on the fate and transport of contaminants from land use activities.

Extensive detailed analyses are needed before a project is platted (i.e., densities established and lot lines drawn). The detailed analyses would need to include the purity of the limestone underlying the site and the estimated thickness to elucidate the degree of karstification of the limestone rock. In my research of the Eastern Panhandle geology, excellent descriptions exist from the West Virginia Geological Survey for the Great Limestone Valley as an economic deposit. I found the state geologists quite explicit in the characterization of the carbonate belt including economic deposit thickness (10,000 feet), and degree of purity (89-98 percent) of the deposit (Grimsley, 1916). The carbonate belt as shown in the figure (Ator and Ferrari, USGS, 1997) transects the Great Limestone Valley of the Eastern Panhandle of WV. As Selby (1985 ) indicates, the degree of karstification of a carbonate deposit is a function of thickness and purity of limestone and its competence as a rock.

The carbonate deposit is not discussed in detail in the aforementioned hydrogeologic study. Detailed analyses are needed prior to any site design work so that neighboring property owners, and science and engineering professionals can meet and begin an informed dialogue on how they will be affected by the results of the detailed analyses.

Curiously, there are no detailed analyses of the subterranean conditions beneath the proposed site yet there is a plat map drawn with lot locations and storm water management (SWM) drainage detention ponds drawn in areas delineated by the aforementioned consultant as areas underlain by caves and sinkholes. Is there a waiver request to impose SWM over an active sinkhole system? If there is, it is not a part of the public record. If there are plans for a waiver to allow this type of drainage, it is not advisable. Please see the separately attached large maps (Maps 2 & 3) of the sites showing topography, sinkholes and caves, and storm water management areas. Storm water infiltration and drastic changes in surface drainage for the site could drastically increase the rate (unknown at this time) of limestone dissolution and substantially increase land subsidence and sinkhole collapse. Turf grass management chemicals and other non-point and point source contaminants could contaminate drinking water sources for many current homeowners. Not only would this be economically disastrous for the prospective homeowner, it could result in a matter of grave health and safety concern for neighboring homeowners. People could be injured or killed if their houses are swallowed by a sinkhole in this type of hazardous geologic terrain. How can the people adjacent and contiguous to the proposed site have an informed discussion especially about potential health and safety concerns without the facts?

The average person would not know of karstic terrain and would be unaware of the potential disaster that awaits them. Without detailed knowledge of subterranean site conditions, even professionals could not have an informed discussion about site development and possible risks to prospective and peripheral homeowners. For instance, which homeowners would be indemnified from land subsidence and the contamination of their groundwater from on-site irrigation and turf grass management conditions? Detailed research is needed to demonstrate the risks associated with the fate and transport of turf grass management chemicals and fertilizers and the rate of sinkhole and cave formation from turf grass management irrigation. Caves and sinkholes exist at the site as demonstrated by the pictures and maps and text presented by the developer’s consultant. The extent of these caves and sinkholes are unknown at present and the extent and risks to peripheral homeowners are also unknown.

Another disturbing fact about the aforementioned hydrogeologic report by the developer’s consultant is the issue of hazard insurance to protect in the case of sinkhole damage loss. GeoTrans, Inc. mentions in their hydrogeologic study that sinkhole insurance can be obtained for a modest sum of money. As discussed under support data item 13 above, sinkhole insurance may exist, and if it does it is extremely expensive, reflecting a high risk.

How can an informed discussion take place with so many unknowns? The following is a broad explanation as to why more information is needed prior to site design.

Background and Rationale for Detailed Analyses

The proposed development lies in the Great Limestone Valley (the “Great Valley”) of West Virginia and Virginia (Ator, et. al., 1998). The Great Valley of the Potomac River Basin, (containing the Shenandoah River) lies within the greater Valley and Ridge Physiographic Province. The Great Valley is a tremendous reservoir for drinking water for the Mid-Atlantic Region. The current development pressure to build in its confines is far surpassing the knowledge base and protections needed for its capacity to sustain itself both qualitatively and quantitatively. According to recent surveys, Berkeley County and Jefferson Counties in West Virginia are experiencing growth rates of 12 percent and 10 percent, respectively.

The U.S. Geological Survey (USGS) ( Ator, et. al., 1998) and the U.S. EPA (2000) have conducted water quality studies on the health of the streams in the Great Valley in recent years and have discovered that the streams and rivers are alarmingly of poor quality. What are the reasons for this poor quality? What are the hydrologic connections and rates of nutrient and contaminant transport from point and non point source sources of pollution? How will overwhelming rates of development continue to degrade the resource? How will Safe Drinking water Act requirements and Clean Water Act requirements concerning anti-degradation of the water resources be addressed if these systems are not well understood? All very salient questions and critical for the health of the communities in the confines of the region to answer. Please see the attached map depicting the location of the Great Valley (Ator and Ferrari, USGS,1997). The Great Valley has been predominantly agricultural land. But with the changing times, more development pressure is quickly converting this land to residential and industrial use. With some knowledge of why our streams in the Great Valley are of poor quality, we are converting them to other uses with untold and poorly understood consequences. The USGS state that concentrations of nutrients (predominantly phosphorus and nitrogen), nitrates, and pesticides-herbicides are greater in concentration in carbonate rock (karstic terrain) than any other rock type (Ator and Ferrari, 1997). This terrain is characterized by a highly erodible soil overlying a carbonate rock that has been dissolved through time by acidic rain water ( from acidic decaying vegetation, and sulfate and nitrate emissions from industry). It has taken many millennia for this carbonate rock to dissolve into sinkholes and underground caves, and disappearing streams or solution channels, due to limited water entering or leaving the groundwater aquifer system.

To increase water withdrawals or infiltration is to drastically speed up the dissolution of limestone. Dense residential development of one to four houses per acre will cause water infiltration to sky rocket as everyone likes to have a green lawn in a subdivision. The rate of limestone dissolution is poorly understood. In areas zoned agricultural with densities of one lot per ten acres, with most farmers not irrigating, the rate limestone dissolution would be much less than in a residential, more densely zoned scenario. The farm lots receive on average a net 10 inches of rainfall in a wet year, and six inches in a drought one. The average homeowner will irrigate a quarter acre of landscaped lawn with an inch of water in an hour (the landscape industry’s recommended saturation level for new sod or grass seed to take root) in the summer months when peak is highest. Not only irrigation, but also the level of pesticides – herbicides in turf grass management can be many times that of farming practices. No one yet knows how these changes in land use will affect the Great Valley (or anywhere else for that matter). Some results of these practices can be predicted but valid data are needed to help promulgate zoning and other resource protections in the Great Valley. In fact there are neighboring municipalities that have learned from their own disasters or have had the foresight to protect resources before the unthinkable happens (collapse sinkhole consumes a house, a river or aquifer supplying drinking water becomes contaminated beyond use, etc.). These are economic and environmental disasters on unimaginable scale. I have included some pictures at the end of this document of sinkhole formation and land subsidence underneath homes in the area underlain by carbonates less pure, less developed, and less volumetric than in the carbonate belt of the Great Valley of the Eastern Panhandle of WV.

Changing historical surface drainage patterns and greatly enhanced irrigation from turf grass management is suspected to be the cause for some of these developing sinkholes in areas historically devoid of this phenomena. Because of these types of increasing risks, some communities are creating environmental protection overlay districts with strict standards for development.

According to the USGS, the karstic area of the Great Valley in West Virginia is very susceptible to contaminants because of its dynamic conduit flow - ground and integrated surface water system (Ferrari, et al., 1997). Contaminants do not have time to biodegrade because of the swiftness and the oxidative potential of the extremely dynamic system. Some research is being performed from time to time by the U.S. Geological Society (USGS). But with fast paced development comes the pressure to build in areas that have not been assayed as to vulnerability of very mobile and persistent species of contaminants from industry and general human activities, i.e., lawn care products, recreation, golf courses, waste stream septic fields, etc. Ferrari and Ator (1995) depict in the cartoon the flow path of water and its entrained chemical and physical constituents in the model carbonate aquifer system. Detailed analyses are needed at each site prior to site design to delineate specifically where sinkholes, caves, solution channels, and other karstic features exist.

In addition, linear features in the landscape should be matched up with karstic flow channels. A measure of fate and advective transport should be analyzed for aquifer regime flow characteristics. And finally, dye tracer tests should be conducted on a local scale to measure ground-surface water transmissivity and or horizontal conductivity for entrained potential pollutants. After the sub surface is better characterized, a density grid set back from potential trouble locations of interconnectedness between the surface and groundwater could be designed. These are minimum recommendations for detailed analyses.

References

Ator, S.W., Blomquist, J.D., Brakebill, J.W., Denis, J.M., Ferrari, M.J., Miller, C.V., and Zappia, H., 1998, Water Quality in the Potomac River Basin, Maryland, Pennsylvania, Virginia, West Virginia, and the District of Columbia, U.S. Geological Survey Circular 1166, 38p.

Ator, S.W., and Ferrari, M.J., 1997, Nitrate and selected pesticides in ground water of the Mid-Atlantic region: U.S. Geological Survey Water-Resources Investigations Report 97-4139, 8p.

Ferrari, M.J., and Ator, S.W., 1995, Nitrate in ground water in the Great Valley carbonate subunit of the Potomac River Basin: U.S. Geological Survey Water-Resources Investigations Report 95-4099, 8p.

Ferrari, M.J., Ator, S.W., Blomquist, J.D., and Dysart, J.E., 1997, Pesticides in surface water of the Mid-Atlantic Region: U.S. Geological Survey Water-Resources Investigations Reports 97-4280, 16p.

Focazio, M.J., Reilly, T.E., Rupert, M.G., and Helsel, D.R., 2002, Assessing ground-water vulnerability to contamination: Providing scientifically defensible information for decision makers; U.S. Geological Survey Circular 1224, 33p.

Grimsley, G.P., 1916, West Virginia Geological Survey, Detailed County Report on Jefferson, Berkeley, and Morgan Counties. State of West Virginia. 644p.

Hobba,, W.A., Jr. 1981. Ground-Water Hydrology of Jefferson County, WV. Environmental Geology Bulletin EGB-16. 32p.

Kozar, M.D., Hobba, W.A., Jr. and Macy, J.A. 1991. Geohydrology, water availability, and water quality of Jefferson County, WV, with emphasis on the carbonate area. U.S. Geological Survey Water-Resources Investigations Report 90-4118. 93p.

Selby, M.J. 1985. Earth’s Changing Surface. An Introduction to Geomorphology. Oxford: Clarendon Press.

U.S. Environmental Protection Agency. (2000). Mid Atlantic Highlands Streams Assessment. U.S. Environmental Protection Agency, Environmental Monitoring and Assessment Program, Office of Research and Development, Washington, D.C. 20460. EPA/ 903/R-00/015.
STANDING OF APPELLANTS

The appellants are uniquely aggrieved by the March 2004 Zoning Administrator’s LESA points assessment, his acceptance of the adequacy of support data, and his decision to allow the Revised Conditional Use Permit Application for Thorn Hill to advance to the Compatibility Assessment Meeting Stage. Therefore the appellants have standing to seek review of those decisions through this appeal.

The reasons for the aggrieved state of the appellants vary, and some examples are given in notarized affidavits of standing in Attachment N.

Patricia F. Rissler

Susan Rissler Sheely

Jane F. Rissler

Richard Latterell

Mary MacElwee

W. Kelly Baty

Leigh Ann Carpenter

Kevin Carpenter

Sherry Craig