Thorn brief

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IN THE CIRCUIT COURT OF JEFFERSON COUNTY, WEST VIRGINIA
Mary L. MacElwee et al.,
Petitioners
vs. Civil Action No. 02-C-40
Jefferson County Board of Zoning Appeals,
Respondent
Thorn Hill, LLC (Eugene Capriotti and Herbert Jonkers)
Intervenor

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

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

1. Petitioners assert that "good cause" in this case is that the underlying case at the Jefferson County Board of Zoning Appeals holds numerous issues, and Petitioners require development of more extensive arguments in order to cover the issues.
2. Further, the land proposed for development is complex and the issues cannot fairly be described in a cursory manner.
3. Wherefore Petitioners respectfully request that this Court allow Petitioners to file one supporting memorandum of law in support of the Writ of Certiorari, consisting of forty-five pages.
Respectfully submitted,
__________________________
Richard L. Latterell

IN THE CIRCUIT COURT OF JEFFERSON COUNTY, WEST VIRGINIA

THORN HILL LLC,
Intervenor,

v. Former Supreme Court Docket No. 031896
CIVIL ACTION NO. 02-C-40 ON REMAND

MARY L. MacELWEE,
TINA FRITTS, R. L. LATTERELL
CHAUNCEY CRAIG AND SHERRY CRAIG,
Petitioners,

and
JEFFERSON COUNTY BOARD OF ZONING APPEALS,
Respondent.

Thorn Hill LLC
Intervenor

PETITIONERS' MEMORANDUM ON REMAND OF CIVIL ACTION No. 02-C-40
Abbreviations: BZA -- Jefferson County Board of Zoning Appeals
CUP -- Conditional Use Permit
DRS -- Development Review System (land scoring plus hearing process
PZC -- Planning Commission (or Planning & Zoning Commission
ZA -- Zoning Administrator, Paul Raco, Executive Director, Dept. of Planning,
Land Evaluation & Engineering
WV Code or Code -- West Virginia Law on Planning & Zoning
Ordinance -- Jefferson County Zoning and Development Review Ordinance
Plan -- Jefferson County Comprehensive Plan, 1994
High Court -- The West Virginia Supreme Court of Appeals
The Court -- The Circuit Court of Jefferson County

I. Introduction

Throughout the odyssey of Thorn Hill from Circuit Court to Supreme Court of Appeals and back again, the Petitioners have consistently emphasized substance over form, having based their case alleging inadequate support data (Intervenor/developer) and misadministration of the DRS process (BZA), on evidence, scientific knowledge and reasoned arguments. By contrast, the Intervenor via Counsel has emphasized form over substance by basing their defense entirely on dubious and marginally relevant legal precedents, ip'se dixit law (unsupported assertions), dubious and marginally relevant legal precedents, and a continuously shifting legal strategy. Their initial strategy of claiming that both the ZA and BZA were infallible, and therefore immune from accountability; and attacking the legal standing of their critics, failed before the Circuit Court which ruled for the Petitioners. During that proceeding Counsel for the Intervenor declined to comment on the evidence presented as to the inadequacy of the support data at issue, thereby validating the Petitioners' charges. An opprobrious attack on the Circuit Court and persistent challenge to the standing of the Petitioners did not serve the Intervenor much better in an appeal to the WV Supreme Court of Appeals. The High Court refused their petition but remanded Thorn Hill to the Circuit Court under Rule 60(b). In that venue the Intervenor has now elected to concentrate their attack on the Circuit Court, bolstered by a ruling of the WV Supreme Court in a partially analogous case, Corliss v. Jefferson County Board of Zoning Appeals No. 3119 (October 2003). The version of the Intervenor's brief now before the Circuit Court has undergone extensive modification some of which is of dubious legality. We refer specifically to the protracted rationalization of the Intervenors' support data re which they had previously declined comment.

At no time during this series of proceedings has the Intervenor via Counsel acknowledged or confronted the evidence adduced by the Petitioners. Consequently the Petitioners are neither persuaded nor intimidated by the Corliss decision and its precedents. The Petitioners remain steadfast in their conviction, which available evidence supports, that: (1) the Intervenor/Developers' support data were and are inadequate to their purposes; (2) the Ordinance has been violated and the Developmental Review System has been corrupted; and (3) the public interest and trust have been betrayed by the Zoning Administrator (ZA) and the Board of Zoning Appeals (BZA).

II. Standard of Review under Rule 60(b). (Intervenors' Memorandum)

Although Rule 60(b) does not explicitly allow a party to file a motion for clarification and reconsideration, it is well established that a proper Rule 60(b) motion may urge a court to reconsider or vacate a prior judgment. Syl. pt. 3, Lieving v. Hadley, 188 W. Va. 197, 423 S.E.2d 600 (1992); Bego v. Bego, 177 W.Va. 74, 78, 350 S.E.2d 701, 705 (1986); CNF Constructors, Inc. v. Donohoe Construction Co., 57 F.3d 395, 400-401 (4th Cir. 1995) (per curiam); 11 Charles A.Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedure - 2857 at 254-64 (2nd ed. 1995).

Powderidge Unit Owners Ass'n. v. Highland Properties, Ltd., 196 W.Va. 692,704-705,474 S.E.2d 872,884-885 (W.Va.1996).

Rule 60 states:

RULE 60 RELIEF FROM JUDGMENT OR ORDER

.*.*.*.

(b) Mistakes; Inadvertence; Excusable Neglect; Unavoidable Cause; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons:....(4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.

W.Va. R. Civ. P. Rule 60 (b)

III. Argument

A. "This Court's Thorn Hill decision was so similar to Judge Steptoe's decision in Harvest Hills that the Corliss decision reversing Harvest Hills effectively mandates reversal of the Thorn Hill decision." (Intervenor Memorandum in Support of Reversal, p.3)

Petitioners' Criticism:

This assertion finds no support in the record. It is clearly no more than wishful thinking on the part of the Intervenors' legal counsel. Language included in the counsel's citations in the preceding Section II, Standard of Review, of the Memorandum, under Rule 60(b) is tentative.... may urge a Court to reconsider....and conditional....upon such terms as are just, the Court may relieve a party.... In no sense does it rise to level of imperativeness that the term "mandate" connotes. The West Virginia Supreme Court's Order to remand under Rule 60 (b) is a recommendation for reconsideration, which is the basis for the Intervenor's request that the Circuit Court alter or amend its Order to Vacate the issuance of a CUP to Thorn Hill. The Circuit Court is under no obligation beyond that to reconsider and alter or amend. It is as free now as it was formerly to employ the discretion accorded it by the West Virginia Law on Planning and Zoning (WV Code) Section 8-24-59, and as in any civil action to solicit testimony, conduct its own impartial (objective) analysis, reach a decision and render a verdict based on the evidence presented. The Petitioners are confident that the Silver Court will do just that.
B. "The Court should vacate the Thorn Hill decision because the West Virginia Supreme Court of Appeals held in Corliss that the Circuit Court could not substitute its judgment for the judgment of the BZA and ZA with regard to the support data issue." (Intervenor's Memorandum in Support of Reversal)

Petitioners' Criticism:

The Intervenors' repeated assertion that the Court concluded that the ZA and BZA were incorrect, substituting its own judgment for that of the ZA and the BZA is as incredible as it is insulting. It implies some mystical ability to access the mind and deliberations of the Court. The Petitioners respectfully doubt that either the Intervenors or their legal counsel are endowed with that species of clairvoyance.
What the Court did, in fact, was to execute, in exemplary fashion, the mandates of its commission as specified in 8-24-59, 8-24-61 and 8-24-62 of the West Virginia Code. The Court took testimony and evidence from the opposing interests, reviewed, analyzed and evaluated same, made a determination and rendered a judgment based on the evidence presented. The Petitioners presented copious evidence based on scientific knowledge, which demonstrated that at least some of the Intervenors' purported support data were in fact incomplete, evasive, or downright misleading. In any case, said support data provided no rationale to the issuance of a Conditional Use Permit and were therefore judged inadequate. By contrast, legal counsel for the Intervenor/developers adduced no contradictory evidence nor offered any arguments to the contrary. Their comment of record was, "The Intervenor will offer no response to the inadequate ŒŒsupport data' arguments offered by the Petitioners." ( Intervenor's Brief, Civil Action No. 02-C-40, 2003). Ipso facto, they had no case. Accordingly, the Court ruled that the decision of the BZA and the issuance of a Conditional Use Permit for Thorn Hill be Vacated.
In Corliss, the Supreme Court defined the purpose of support data as: "....the Ordinance's unmistakable purpose of requiring this data [is] to facilitate an informed public discussion." The local Circuit Court came much closer to the truth, showing a better understanding of the Ordinance in its Civil Action finding (Order Civil Action No. 02-C-40) that "...the purpose....is to reveal issues relating to compatibility and to provoke discussion....as to....matters....relevant to compatibility."
The Supreme Court's finding is particularly egregious in that the obvious and inevitable corollary is that by that criterion any statement submitted, however irrelevant, immaterial, fraudulent or absurd qualifies as adequate support data, even if it does not qualify as data, if the public responds in any way, -- or if some discussion, however unrelated, follows at some later time. Clarification of the meaning, significance and purpose of the support data requirement and its role in the DRS is in order.
The purpose of support data is set forth, albeit not altogether concisely, in Articles 6 and 7 of the Ordinance. Article 7.4 specifically requires that each application for Development Review leading to issuance of a CUP include a sketch plan, a soils report and map and the 23 necessary items of support data. If any of these requirements were omitted or incomplete, the process should not proceed further. Hence, the primary purpose of complete and adequate support data is to allow the DRS process to proceed to evaluation by the Planning and Zoning staff and to a Compatibility Assessment Meeting with the interested public by revealing issues relevant to compatibility (Ordinance Section 7.4a).
Definition of support data is an essential preliminary to defining their adequacy:
Data: Facts; independently verifiable information upon which an inference or argument can be based.
Support = To uphold, to take the side of -- as in an argument.
Placed in context, support data are facts about the proposed site for a subdivision that argue in favor of the proposed project. The fact that the proposed site for a high density residential subdivision is in the rural district -- requires that a decision must be made as to whether "[the] site is more suitable for agriculture [or whether] development is more appropriate for the site." (Ordinance Section 6.2) The soils and amenities analyses address, but may only partially fulfill this requirement. As part of the Developmental Review data, adequate support data can be the defining factor in evaluating that aspect of project compatibility with conditions of the site.
The Ordinance is not standardless re support data, nor does it lack specificity. The 23 topics (items) for which data are requested are all specific. The responses required can vary from brief and obvious to those requiring greater amplification depending on the breadth of the topic. At this stage of the DR process the applicant for a CUP is petitioning public employees in the Department of Planning, Zoning and Engineering to approve his proposed project. Soils and amenities assessments may have supported a conversion of Agricultural lands to urban uses, but as with the Thorn Hill project, the support data properly presented and appropriately analyzed may tell a different story. The appropriate standard of adequacy of support data is a universal one: the complete and objective honesty that genuine adult responsibility demands.
Statements like:

"The Ordinance simply lists things to address. It doesn't explain what is acceptable." (P. Raco quoted in Corliss).

"....the developer addressed them (support data topics) to the best of his ability." (P. Raco quoted in Corliss).

"Developers are left with no ability to meet the standard, since there is none." (Gay/Chakmakian, in Thorn Hill Appeal to WV Supreme Court, p. 22).
These are the equivalent of arguments heard from indolent school children, e.g., "I can't understand the assignment: Therefore I have no obligation to attempt it." One of our operating principles has been that Laws are products of rational adult minds intended to be understood and obeyed by responsible, mentally competent adults. By the universal standard of Adult Responsibility the support data items are adequately instructive, and the statements of the ZA and Counsel to the Intervenor above are rather less than adult. These statements are in fact tantamount to pleas of ignorance of the law, which should be rejected by any court.
In our original Brief on Thorn Hill the Petitioners presented an in-depth critique that exposed and elucidated the deficiencies of the Intervenors'"support data." Legal Counsel to the Intervenors declined to respond at that time, thereby tacitly conceding the bankruptcy of his case. In their appeal of Thorn Hill to the WV Supreme Court of Appeals and again in the Circuit Court of Jefferson County, legal Counselors to Thorn Hill LLC are attempting to proclaim the adequacy of the alleged support data that they had earlier declined to discuss. The Petitioners are reluctant to object, considering that the alleged support data can only lose credibility on further exposure. Indeed the inconclusive and expurgated nature of the "data" and the pathetic weakness of the arguments to justify said data's manifest inferiority does more to strengthen the Petitioners' case
than they do for that of the Intervenor. Regardless, the Petitioners do hereby question the legality of the Counsel's actions on the grounds that he/they ought not be allowed to do what they falsely accused the petitioners of doing; that is, introducing new arguments and evidence after the case was under review. (Intervenor's Brief in Civil Action No. 02-C-40)
Considered from either the point of view of Intervenor/developer or the ZA, what support do the data submitted provide for building a subdivision on the Thorn Hill site?
The Intervenor's response to item 14, the "Conversion of Farmland" provision is key to the whole argument. The Intervenor's response was a brief two-sentence affirmative sans any
meaningful qualification. The legal counsel declares that -- "The response ....does accurately and completely inform any interested party." The Petitioners disagree: The objective honesty
implicit in adult responsibility does not consider this item or the question it so obviously poses as to -- What are the consequences to the community of this conversion? -- to be intended to be answered yes or no unconditionally. If there were an intrinsic demand for Thorn Hill-type housing in the County, a simple affirmation of the obvious might be accepted as a minimally adequate response. However, the fact is that no discernible demand exists among residents of Jefferson County and that the successful marketing of the 182 houses proposed will require importation of some 455 people and ca. 360 automobiles and the incremental indenturement of all current residents. Further, the County has already overcommitted its lands to residential development. Consequently a simple affirmative response fails the test of providing support for the proposed subdivision. It becomes a negative response in that the proposed conversion represents a significant liability sans any equivalent benefits to the community.
The other contested categories of purported support data listed in the legal counsel's memorandum: Traffic, Topography, Soils and Drainage, Wildlife, Water Resources and Sewerage, Compatibility with the Comprehensive Plan -- are susceptible to the same criticism. The inevitable impacts of a residential subdivision like Thorn Hill on the community would be predominantly negative. However the Intervenor's expurgated responses might try to obscure that fact. (See pp. 10-43 in Petitioners' Brief in Civil Action No. 02-C-40). The Counselors' concluding statement to their panegyric on the Intervenor's alleged support data, "Under any measure, the support data in Thorn Hill Meets the requirements set forth in Corliss." (p.13 of 20) is pure ip'se dix'it. It has been confirmed by a decision of Judge Steptoe that the Developer must demonstrate that his development is compatible with the surrounding area (Henry vs. J. C. Planning Commission, Civil Action No. 98-P-35, 8/30/99). This is stated in the J.C. Zoning Ordinance Article 4, section 4.1, to wit: "All uses except prohibited uses will be permitted after demonstrating that such use is compatible with surrounding parcels...."(italics ours). This certainly means that the burden of proving compatibility with the interests and concerns of the community is on the Developer.
Another allegation to be disposed of is that neither the Circuit Court nor the Petitioners used any quantitative criteria for assessing the adequacy of support data, the West Virginia Supreme Court and the Intervenor to the contrary. A few offhand comments as to the paucity of narrative have been used to try to create that impression. But it fact, the criteria of evaluation and rejection were basically and consistently qualitative. The Intervenor's responses did not convey enough relevant information to meet objective standards of adequacy.
In rendering its Corliss decision affecting the Harvest Hills subdivision, the West Virginia Supreme Court of Appeals ruled that, "The Ordinance's unmistakable purpose in requiring this [support] data is to facilitate an informed public discussion." It appears from the record (an account presented as evidence in the Intervenors' Memorandum on Thorn Hill (pp. 11-12) that the High Court simply accepted the Counselor's assurances that the prescribed public discussion had occurred. The High Court does not seem to have made any attempt to seek independent verification1 before reaching its decision that the DRS process had worked as intended (Corliss).
Whatever happened or did not happen in connection with Harvest Hills, the record on Thorn Hill yields no evidence that any informed public discussion ever took place during the entire DRS
process. Pooled personal recollections, review of the record plus audiotapes suggest that the DRS process was calculated to exclude rather than to engage the public.
At the Compatibility Assessment Meeting, concerned members of the public were confronted by an imposing array of what turned out to be antagonists: Public officials, the developer and his legal counsel, and representatives of a consulting engineering firm. The public soon learned that restrictions imposed by the DRS (Ordinance Section 7.6) precluded any
meaningful discussion or debate. The developer was only required to address the compatibility of his project to the existing areas adjacent to the site (Id). Questions from the public tended to be obvious, e.g., concerning conformity with the Ordinance, or trivial, e.g., concerned with superficial details of the completed project. Public concerns were routinely deflected by the Developers and their allies. The limited scope of public concerns was/is in fact assured by the Ordinance
(Section 7.6), which states that "Any discussion shall be limited to the proposal's compatibility as presented, rather than whether the site should be developed by any other use [Id]." In other
words, the Compatibility Assessment meeting was largely controlled by the Developer and his allies
in County Government. The public was largely excluded by prohibitions against raising or
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1Audiotapes were made of all meetings and hearings comprising the DRS review of the proposed Thorn Hill project. These would contain proposed hard evidence as to what actually took place. There was no indication that the High Court consulted these or any other source of independent verificatiion before reaching a decision.

discussing any more substantive issues re compatibility such as might have been revealed by adequately prepared and administered support data.
Approval of the Conditional Use Permit (CUP) was even more perfunctory. At the public hearing before the Planning and Zoning Commission, questions or comments from the public were limited by the Ordinance (Section 7.6c) to (a)"the validity of the staff report of the issues and concerns raised at the Compatibility Meeting," and (b)" resolution of issues that could not be resolved at the Compatibility Assessment Meeting."
Two weeks later at the next meeting of the Planning and Zoning Commission (PZC), the ZA intoned reflexively to the effect that the developers' application was in order and that the staff recommended approval. Following some strictly time-limited comments from members of the public, the developer-dominated PZC approved the issuance of a Conditional Use Permit for Thorn Hill. Again there had been no semblance of informed debate.
Indifference to the public interest gave way to hostility during appeal to the BZA. Board Chairman Meyers presided and the five-member BZA acted as jury. However, the hearing was effectively controlled by the ZA, placed in the position of defendant but operating as attorney for the defense and Judge simultaneously. Appellants who tried to express concerns or ask questions were browbeaten, intimidated and were refused the opportunity to discuss many items of support data that were subsequently appealed. One of the appellants (Latterell) was denied the right to speak as a citizen unless he agreed to relinquish his appellant status. The original lead appellants of Thorn Hill, Bill Jones and his wife Lee Elliott remained silent throughout the hearing, embarrassed and humiliated by the contempt accorded citizens by magistrates sworn to represent the public interest. Shortly thereafter they decided West Virginia was not where they wanted to live. They withdrew from the Appeal, sold their magnificent 390-acre estate /farm to Messrs Capriotti and Jonkers (their opponents re Thorn Hill) and left the state. Is this how the DRS process is supposed to operate?
Not until Thorn Hill reached the Circuit Court did anything remotely reminiscent of an informed dialogue take place. Only there in that last haven of County government were the Petitioners granted an impartial hearing, and allowed to present their case in sufficient depth and detail to expose the glaring deficiencies of the Intervenor's "support data." The Appellants' challenges, data and counter-arguments revealed that Thorn Hill was an inferior site for a high-density residential subdivision, particularly when the limitations imposed by local soils on construction of roads, buildings, or both -- which had not been included in the Intervenors' support
data -- were discovered and exposed.
Clearly, even by the WV Supreme Court's limited, incomplete -- and superficial standard of "facilitating an informed public discussion," the Intervenors' "support data" fail the test of adequacy. As the record shows, no substantive debate occurred until Thorn Hill was brought to the Circuit Court.
C. The Court should vacate the Thorn Hill Decision because Corliss held that the Circuit Court placed undue emphasis on the role of the Comprehensive Plan and, as a result, overly emphasized Agricultural Preservation. (Intervenor's Memorandum).

Petitioners' Criticism:

The Jefferson County Comprehensive Plan is the bete noir of the developers and their allies, whether within or outside of County Government. They never miss an opportunity to denigrate, disparage or try to discredit the Plan, even when it is used as they insist that it must be -- as a reference -- and as the Court has used it in these proceedings.
The Plan and the Ordinance are congruent and mutually supportive documents. The goals of the Plan are closely similar to the purposes of the Ordinance, slightly modified in form, but analogous in substance. Both Plan and Ordinance are integral components of the DRS process. The Ordinance specifically requires consideration of the Plan at several steps in that process, i.e.:
(1) Discussion of the "relationship (compatibility) of the project to the Comprehensive Plan" as

one of twenty-three items of support data;
2) Compatibility with the Comprehensive Plan as a requirement of the Amenities Assessment:
(3) Discussion of "the relationship (compatibility) of the proposed change (in land use) to the
adopted Comprehensive Plan at the Compatibility Assessment Meeting.

The Circuit Court has presented an excellent analysis of the statutory role of the Plan in regulation of land use (Order pp. 3-4). Said role is aptly described as (1) "..an integral part of land use policy and regulation;" and (2) "....part of a regulatory scheme that includes the land use ordinances. (Interpretation based on WV Code Section 8-24-16 et seq.) Paragraph six of said Order provides a statutory definition of a (any) Comprehensive Plan according to WV Code Section 8-24-3(b).
The Intervenors and the High Court have castigated the Circuit Court for "undue emphasis" and excessive "reliance" on the Plan in reaching its decision re Thorn Hill. The evidence adduced in support of that contention (para. 5-10 and 52 of the Order) -- is not compelling. As noted previously, paragraphs 5, 6, and 7 clarify the very significant and legally supported role of the Plan in regulation of land use. The Circuit Court's citation of certain goals of the Plan as rationale for farmland (resource) preservation could have been accomplished without referrence to the Plan by citing correlative statements of purpose from the Ordinance. Paragraph 52 states the obvious that the Intervenors' response to item 23 of the support data did not adequately elucidate the relationship of the project to the Plan.
The quote in paragraph 7 (Id) cited as evidence of misapplication, to the effect that the Court interprets the Plan and its derivative/supporting Ordinances "in pari materia" are without substance absent examples or arguments that evaluations of support data were somehow affected by this purported but unsubstantiated bias. Further, since no evidence has been adduced that the Court used the Plan "as a zoning ordinance" that charge finds no support in Singer v. Davenport 164 W.Va. 665, 668, 264 S.E. 2D 637,640 (1980).
Whereas this section of the Intervenor's Memorandum provides no credible evidence that the Court erred by "excessive reliance upon" or misapplication of the Plan in reaching its decision on Thorn Hill, it does provide solid evidence of diligence on the part of the Court and its dedication to protection of and service to the public interest. The Court should not vacate its Thorn Hill Decision.
Conversely, the Intervenor's argument that the Court should vacate the Thorn Hill decision (because of the High Court's ruling in Corliss) is without substance. The Counselors' resentment of, and desperate reaction to the mention of Comprehensive Plan is most probably a reflection of the Developers' antipathy toward zoning. They don't want the consequences of conversion of agricultural lands to urban uses to the community to become the frame of reference for permitting proposed residential subdivisions.
D. The Court should vacate the Thorn Hill Decision Because the Court correctly stated the Standard of Review but failed to properly apply the Standard. (Intervenor's Memorandum)

Petitioners' Criticism:
This is undoubtedly the weakest albeit the most importunate section of the Intervenors' Memorandum. Yet again the arguments rest on the implied claim that counsel for the Intervenor have some means of remote-sensing that enables them to access the Court's innermost and private thoughts, and to thus divine its intent. The burden of proof is squarely on them. The Petitioners feel compelled to repeat their disbelief that these persons possess any such capability.
1. The Court disregarded the Legal Presumption that the BZA was correct in its Decision (Intervenor's Memorandum)

Petitioners' Criticism:
Presumably no one would argue the fact that the Judge charged with the adjudication of the Thorn Hill case is a well-educated man who, on the basis of his training and experience as a member of the legal profession, has been elected by his fellow citizens to the highly responsible position of Judge of the Circuit Court of Jefferson County, West Virginia. He is entitled to the presumption, and no evidence to the contrary has been adduced, that he did initially entertain the presumption that the BZA had acted correctly. What he could not, and to his credit as a jurist, did not do, was to sustain that presumption when confronted with appositive evidence; Specifically some purported support data which by its nature, would have been no credit to some dull high school student. Consequently, after due deliberation plus a thorough and a complete review and analysis of the evidence presented, the Court made the only decision that probity and fealty to public trust permitted. That the support data were inadequate to their purpose.
The Court should by no means vacate its decision.
2. The Court did not apply the Wolfe Test that it cites as the Operative Standard in this Case.

The duties and responsibilities of the ZA and BZA re the DRS process are set forth clearly in the Ordinance and in Section 8-24-55 of the West Virginia Law on Planning and Zoning, respectively.
"The ZA shall determine if the sketch plan and support data are adequate" [Ordinance 7.4(g)]. "The BZA (1) [shall] Hear and determine appeals from and review any order, requirement, decision or determination made by an official or board charged with enforcement of any ordinance...".(Code, Section 8-24-55a).
By approving Thorn Hill's support data, both the ZA and BZA defaulted on their obligations to the public. If either ZA or BZA possess any fraction of the expertise claimed for them by the Intervenors' legal counsel, neither the ZA nor BZA could possibly have overlooked the glaring deficiencies of said "support data." From even a casual perusal of that submission it is obvious to competent and responsible adults that the Intervenors' items of "support data" that have been challenged by the Petitioners are nothing more than elucidations of the obvious at best, outright deceptions at worst, which barely qualify as data and provide no support to the developers' application or the issuance of a Conditional Use Permit. Public trust was twice betrayed by their approval. Accordingly, the Petitioners charge nonfeasance (or misfeasance as the Court may decide) by the ZA and BZA, and recommend that appropriate measures be taken to prevent the recurrence of such abuses.
The Court neither (1) disregarded its duty to presume that the BZA acted correctly; nor (2) failed to analyze the BZA's decision based on the three Wolfe factors, as charged by legal counsel to the Intervenors. Rather, the Court committed a tactical error by remonstrating too gently with the miscreants and thereby allowing this accusation to be raised. What the Court could have and should have said was:
1) The BZA applied an erroneous principle of law by refusing to hold the ZA accountable for approving obviously deficient and inadequate support data. That is dereliction of duty as prescribed in West Virginia Code Section 8-24-55(1).
Corruption of the DRS process via approval of inadequate support data which if approved allows the DRS process to proceed in cases where it should not -- is in violation of Section 8-24-39 of the Code, which mandates representation of the public interest; that is, " that the public health, safety, comfort, morals, convenience and general public welfare may be promoted;...."
2) The BZA was plainly wrong in its factual findings: The putative support data submitted by the Intervenor and approved by the ZA and BZA are wholly inadequate to their purpose. Said data provide no support to the application for a Conditional Use Permit, but in fact strongly detract from same.
3) The BZA acted beyond its jurisdiction by refusing to allow the Appellants, herein Petitioners, to testify or ask questions at the Appeals Hearing (see pp. 8-9 of Petitioners' Brief) concerning most items of "support" data, which were eventually appealed. The rights of the Petitioners, then Appellants, guaranteed under Article III, Section 2 of the West Virginia Constitution also appear to have been violated on that occasion.
On the basis of this evidence let the Court now rule that the BZA was guilty of dereliction of duty described in WV Law on Planning and Zoning 8-24-55(1).

IV. Conclusions

1. Data submitted in support of the application for a Conditional Use Permit for Thorn Hill have been shown to be wholly inadequate to that purpose by any standard.
2. The West Virginia Supreme Court's decision in Corliss would seem to be largely immaterial re the Circuit Court's decision in Thorn Hill. Similarities between these cases derives from the fact that adequacy of support data was a major issue in both. However, the Corliss decision addressed and affected quantitative criteria of adequacy, whereas in Thorn Hill the Petitioners argued and the Circuit Court ruled that the submissions were qualititatively inadequate to their intended role on behalf of the community.
3. Evidence presented supports the decision of the Circuit Court in the Thorn Hill case currently under Remand. Therefore, the Court should affirm its earlier decision and decline to vacate same.
4. The Intervenor's charges that the Court was guilty of ineptitude, error, and dereliction of duty are without substance. These are unsupported assertions that should be disregarded.
5. The Circuit Court is under no mandate to vacate its decision in Thorn Hill. The request for reconsideration has been honored and faithfully discharged. The Corliss decision contributes nothing that should motivate or compel the Court to alter, amend or modify in any way its decision in Thorn Hill. The principals and evidence are unchanged. Therefore, we encourage the Court to adhere steadfastly to its earlier decision.

V. Background

Productive land and abundant freshwater are the major elements of the resource base of Jefferson County, WV. Currently the land resource is being consumed rapidly and irreversibly through commodification, and the replacement of productive lands with impervious surfaces, mainly residential subdivisions and associated pavements. The land is becoming a casualty to a destructive process euphemistically referred to as "residential development," which proceeds as follows: Land speculators ("developers") borrow money: use same to buy productive rural lands; cover the land with housing subdivisions; attract (import!) people from cities and inner subdivisions to purchase and occupy same;2 the land speculator/"developers" realize obscene profits.
In jurisdictions where "forced growth" is rampant, the citizens can do nothing directly to counteract community cancer (overdevelopment) and their progressive indenturement via mounting public debt. Outside the municipalities in predominantly rural counties like Jefferson, policies and statutes are enacted and administered by County government. Any democratic government committed to serving and protecting the public interest can be an effective counterforce to destructive "forced growth" sans sustainable development. The government of Jefferson County, West Virginia seems to have failed in that regard.
A publicly-elected five-member County Commission is the combined legislative and executive component of Jefferson County government. This is the body primarily charged with enacting county laws including the Zoning and Developmental Review Ordinance, and the Subdivision
Ordinance. The County Commission is required to appoint: (1) What was, at the time the Appeal
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2This step is essential to the economic success of these projects in that few local residents can afford the cost ($224,000) of the average tract houses.
of Thorn Hill (Civil Action No. 02-C-40) was initiated, an 11-member Planning and Zoning Commission plus a paid staff including an Executive Director, planners, engineers, building inspectors and clerical staff; a five-member Board of Zoning Appeals (BZA); and a three-member Public Service District (PSD).
These are the bodies charged with the regulation of growth and development in Jefferson County. Individuals comprising these bodies have sworn to uphold the Constitution of West Virginia as a condition of their appointment. Only the five County Commissioners, the Planning Commission staff, and members of the PSD Board are compensated by public funds. Service on all other Boards and Commissions is purely voluntary. Regardless, all of these members of Jefferson County government have sworn to uphold the Constitution of the State of West Virginia, thereby incurring the obligation to serve and protect the public interest.
At any given time during the processing and appeal of the BZA's decision via the DRS, the Jefferson County Planning and Zoning Commission (JCPZC) was overloaded with developers and/or their allies. One reason was that the selection process seemed entirely negative. Expertise of any kind seemed to be an insurmountable handicap to the applicants. Consequently, farmer/developers and major landowners -- with at least the appearance of conflict of interest -- were overrepresented, whereas two professional planners who were willing to moonlight as volunteers were flatly rejected -- twice each. Not infrequently appointees to boards or commissions had greater longevity than did the elected members of the County Commission who had appointed them initially.
Whatever the reason, the public interest was so persistently under-represented that it was seldom ever served. Conversely, proposals for new subdivisions were approved perfunctorally despite the absence of any existing local demand for housing in the price-range being built.
Whereas speculator/developers profit handsomely from "forced growth," the public, both long-time residents and those recently imported, are coerced into paying heavy subsidies with no prospect of benefit or relief. The public debts incurred are both direct: costs of providing schools, services and infrastructure that vastly exceed increments to the local tax base; and less obviously
indirect: (1) losses of productivity, both actual and potential, due to depletion and degradation of the resource base; (2) higher costs of living consequent on increasing dependence on importing of basic needs and exporting of wastes; and (3) decreased quality of life and foreclosure of the future due to the sale, depletion and degradation of the capital assets on which a sustainable future depends.
The citizen/victims of the developers and their allies in County government comprise two major groups that can be further segregated into several minor ones. The largest group includes the
"willing victims," all those citizens who are either oblivious, indifferent or too distracted to notice and understand events that do not obviously impinge directly upon them. Another sub-group includes all those who are too cynical or resigned to injustice to fight back because of past observations of, or experience with County government. These latter are mainly natives or long-term residents whose typical response to impending chicanery is "Forget it! By the time we citizens hear anything about it it's already a done deal."
A much smaller group of ordinary citizens, which includes the Thorn Hill Petitioners, qualify as "unwilling victims," with the fortitude and determination to oppose injustice. These are ordinary citizens who resent and resist their own coercive indenturement as well as that of others, and are united by a shared committment to sustainable development as an alternative to capital asset-squandering "forced growth." We have only our own personal time and energy to invest in working toward fair, open, honest government committed to representing the public interest.
Some recent developments have revealed that Thorn Hill is part of a more grandiose scheme wherein predatory developers would profit at the expense of the public. The principals of Thorn Hill LLC (Messrs E. Capriotti and H. Jonkers) are proposing four massive, high density subdivisions mainly in the rural zone of Jefferson County, WV. The status of these projects in the DRS ranges from applications not yet submitted, to nearing final plat approval. Collectively, these proposals will result in removal of 1385 acres from the farmland resource pool, construction of 1779 new houses plus associated pavements, and the addition via importation of ca. 4450 people with a combined ecological footprint of 106,800 acres to the already overpopulated county. Developers' perks would include rezoning of 1206 acres from rural to residential and/or commercial growth, "treatment of these properties as special tax districts," i.e., tax breaks, and exemption from impact fees for schools, parks and emergency services. In return for these massive public subsidies the developers would build and lease two schools, one office building (mainly in the rural district), and one maintenance building on small acreages to be leased back to the school district, plus a few (7) acres of athletic fields. Thorn Hill has been incorporated in yet another scheme to guarantee profits and remove risk from real estate speculation, while guaranteeing the further indenturement of Jefferson residents.
This independently verifiable account of conditions that exist in Jefferson County provides background to the evaluation of how and to what ends land use statutes have been interpreted and applied in Jefferson County. It is also intended to emphasize that while the immediate issue concerns the adequacy of support data, the underlying much larger issue is that of rights of citizens and safeguarding of the public interest. Let it be understood that the Petitioners' basic contention on which our arguments are based is: That the public interest can only be served by an honest and appropriate interpretation, administration, and application of local laws affecting land use.

Respectfully submitted, Civil Action No. 02-C40
Thorn Hill Petitioners, Pro Se

Petitioners' Memorandum Signatures Civil Action No. 02-C40

______________________________ _________________________________
Mary L. MacElwee Richard L. Latterell

______________________________ ___________________________________
Tina Fritts Chauncey Craig

_______________________________
Sherry Craig

IN THE CIRCUIT COURT OF JEFFERSON COUNTY, WEST VIRGINIA
Mary L. MacElwee et al.,
Petitioners
vs. Civil Action No. 02-C-40
Jefferson County Board of Zoning Appeals,
Respondent
Thorn Hill, LLC (Eugene Capriotti and Herbert Jonkers)
Intervenor
PETITIONERS' MOTION TO EXCEED PAGE LIMIT IN CIVIL ACTION 02-C-40
Come now Mary MacElwee et al., Petitioners, and move this Court to allow the PETITIONERS' BRIEF IN CIVIL ACTION 02-C-40 to exceed the twenty-page limit set forth in Trial Court Rules 22.01. This section states that, "The Court, for good cause shown, may allow a supporting memorandum to exceed twenty pages."
1. Petitioners assert that "good cause" in this case is that the underlying case at the Jefferson County Board of Zoning Appeals holds numerous issues, and Petitioners require development of more extensive arguments in order to cover the issues.
2. Further, the land proposed for development is complex and the issues cannot fairly be described in a cursory manner.
3. Wherefore Petitioners respectfully request that this Court allow Petitioners to file one supporting memorandum of law in support of the Writ of Certiorari, consisting of forty-five pages.
Respectfully submitted,

__________________________

Richard L. Latterell

IN THE CIRCUIT COURT OF JEFFERSON COUNTY, WEST VIRGINIA
THORN HILL LLC,
Intervenor,
v. Former Supreme Court Docket No. 031896
CIVIL ACTION NO. 02-C-40 ON REMAND

MARY L. MacELWEE,
TINA FRITTS, R. L. LATTERELL
CHAUNCEY CRAIG AND SHERRY CRAIG,

Petitioners,

and

JEFFERSON COUNTY BOARD
OF ZONING APPEALS,

Respondent.

Thorn Hill LLC

Intervenor

PETITIONERS' MEMORANDUM ON REMAND OF CIVIL ACTION No. 02-C-40
Abbreviations: BZA -- Jefferson County Board of Zoning Appeals
CUP -- Conditional Use Permit
DRS -- Development Review System (land scoring plus hearing process
PZC -- Planning Commission (or Planning & Zoning Commission
ZA -- Zoning Administrator, Paul Raco, Executive Director, Dept. of Planning,
Land Evaluation & Engineering
WV Code or Code -- West Virginia Law on Planning & Zoning
Ordinance -- Jefferson County Zoning and Development Review Ordinance
Plan -- Jefferson County Comprehensive Plan, 1994
High Court -- The West Virginia Supreme Court of Appeals
The Court -- The Circuit Court of Jefferson County

I. Introduction

II. Standard of Review under Rule 60(b). (Intervenors' Memorandum)

III. Argument

IV. Conclusions

V. Background

Productive land and abundant freshwater are the major elements of the resource base of Jefferson County, WV. Currently the land resource is being consumed rapidly and irreversibly through commodification, and the replacement of productive lands with impervious surfaces, mainly residential subdivisions and associated pavements. The land is becoming a casualty to a destructive process euphemistically referred to as "residential development," which proceeds as follows: Land speculators ("developers") borrow money: use same to buy productive rural lands; cover the land with housing subdivisions; attract (import!) people from cities and inner subdivisions to purchase and occupy same;2 the land speculator/"developers" realize obscene profits.
In jurisdictions where "forced growth" is rampant, the citizens can do nothing directly to counteract community cancer (overdevelopment) and their progressive indenturement via mounting public debt. Outside the municipalities in predominantly rural counties like Jefferson, policies and statutes are enacted and administered by County government. Any democratic government committed to serving and protecting the public interest can be an effective counterforce to destructive "forced growth" sans sustainable development. The government of Jefferson County, West Virginia seems to have failed in that regard.
A publicly-elected five-member County Commission is the combined legislative and executive component of Jefferson County government. This is the body primarily charged with enacting county laws including the Zoning and Developmental Review Ordinance, and the Subdivision
Ordinance. The County Commission is required to appoint: (1) What was, at the time the Appeal
___________________________________
2This step is essential to the economic success of these projects in that few local residents can afford the cost ($224,000) of the average tract houses.
of Thorn Hill (Civil Action No. 02-C-40) was initiated, an 11-member Planning and Zoning Commission plus a paid staff including an Executive Director, planners, engineers, building inspectors and clerical staff; a five-member Board of Zoning Appeals (BZA); and a three-member Public Service District (PSD).
These are the bodies charged with the regulation of growth and development in Jefferson County. Individuals comprising these bodies have sworn to uphold the Constitution of West Virginia as a condition of their appointment. Only the five County Commissioners, the Planning Commission staff, and members of the PSD Board are compensated by public funds. Service on all other Boards and Commissions is purely voluntary. Regardless, all of these members of Jefferson County government have sworn to uphold the Constitution of the State of West Virginia, thereby incurring the obligation to serve and protect the public interest.
At any given time during the processing and appeal of the BZA's decision via the DRS, the Jefferson County Planning and Zoning Commission (JCPZC) was overloaded with developers and/or their allies. One reason was that the selection process seemed entirely negative. Expertise of any kind seemed to be an insurmountable handicap to the applicants. Consequently, farmer/developers and major landowners -- with at least the appearance of conflict of interest -- were overrepresented, whereas two professional planners who were willing to moonlight as volunteers were flatly rejected -- twice each. Not infrequently appointees to boards or commissions had greater longevity than did the elected members of the County Commission who had appointed them initially.
Whatever the reason, the public interest was so persistently under-represented that it was seldom ever served. Conversely, proposals for new subdivisions were approved perfunctorally despite the absence of any existing local demand for housing in the price-range being built.
Whereas speculator/developers profit handsomely from "forced growth," the public, both long-time residents and those recently imported, are coerced into paying heavy subsidies with no prospect of benefit or relief. The public debts incurred are both direct: costs of providing schools, services and infrastructure that vastly exceed increments to the local tax base; and less obviously indirect: (1) losses of productivity, both actual and potential, due to depletion and degradation of the resource base; (2) higher costs of living consequent on increasing dependence on importing of basic needs and exporting of wastes; and (3) decreased quality of life and foreclosure of the future due to the sale, depletion and degradation of the capital assets on which a sustainable future depends.
The citizen/victims of the developers and their allies in County government comprise two major groups that can be further segregated into several minor ones. The largest group includes the "willing victims," all those citizens who are either oblivious, indifferent or too distracted to notice and understand events that do not obviously impinge directly upon them. Another sub-group includes all those who are too cynical or resigned to injustice to fight back because of past observations of, or experience with County government. These latter are mainly natives or long-term residents whose typical response to impending chicanery is "Forget it! By the time we citizens hear anything about it it's already a done deal."
A much smaller group of ordinary citizens, which includes the Thorn Hill Petitioners, qualify as "unwilling victims," with the fortitude and determination to oppose injustice. These are ordinary citizens who resent and resist their own coercive indenturement as well as that of others, and are united by a shared committment to sustainable development as an alternative to capital asset-squandering "forced growth." We have only our own personal time and energy to invest in working toward fair, open, honest government committed to representing the public interest.
Some recent developments have revealed that Thorn Hill is part of a more grandiose scheme wherein predatory developers would profit at the expense of the public. The principals of Thorn Hill LLC (Messrs E. Capriotti and H. Jonkers) are proposing four massive, high density subdivisions mainly in the rural zone of Jefferson County, WV. The status of these projects in the DRS ranges from applications not yet submitted, to nearing final plat approval. Collectively, these proposals will result in removal of 1385 acres from the farmland resource pool, construction of 1779 new houses plus associated pavements, and the addition via importation of ca. 4450 people with a combined ecological footprint of 106,800 acres to the already overpopulated county. Developers' perks would include rezoning of 1206 acres from rural to residential and/or commercial growth, "treatment of these properties as special tax districts," i.e., tax breaks, and exemption from impact fees for schools, parks and emergency services. In return for these massive public subsidies the developers would build and lease two schools, one office building (mainly in the rural district), and one maintenance building on small acreages to be leased back to the school district, plus a few (7) acres of athletic fields. Thorn Hill has been incorporated in yet another scheme to guarantee profits and remove risk from real estate speculation, while guaranteeing the further indenturement of Jefferson residents.
This independently verifiable account of conditions that exist in Jefferson County provides background to the evaluation of how and to what ends land use statutes have been interpreted and applied in Jefferson County. It is also intended to emphasize that while the immediate issue concerns the adequacy of support data, the underlying much larger issue is that of rights of citizens and safeguarding of the public interest. Let it be understood that the Petitioners' basic contention on which our arguments are based is: That the public interest can only be served by an honest and appropriate interpretation, administration, and application of local laws affecting land use.

Respectfully submitted, Civil Action No. 02-C40
Thorn Hill Petitioners, Pro Se

Petitioners' Memorandum Signatures Civil Action No. 02-C40

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