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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
Eugene Capriotti,
Intervenor
PETITIONERS' BRIEF IN CIVIL ACTION 02-C-40
Page Contents
1 I Introduction
3 II Standard of Review
4 III General Comments on Support Data
10 IV Inadequate Support Data on Traffic
15 V Inadequate Support Data on Topography
17 VI Inadequate Support Data on Soils and Drainage
25 VII Inadequate Support Data on Conversion of Farmland
28 VIII Inadequate Support Data on Wildlife
32 IX Inadequate Support Data on Ground Water, Surface Water, and Sewers
40 X Inadequate Support Data on Plan Compatibility
44 XI Remedy
Abbreviations: BZA or Board - Jefferson County Board of Zoning Appeals
DRS - Development Review System (land scoring plus hearing process)
LESA - Land Evaluation and Site Assessment (land scoring formula)
Ordinance - Jefferson County Zoning and Development Review Ordinance
Plan - Jefferson County Comprehensive Plan, 1994
PZC or Planning Commission - Jefferson County
Planning and Zoning Commission
I. INTRODUCTION
We the undersigned appeal the action of the Jefferson County Board of Zoning Appeals (BZA) confirming support data that would allow Eugene Capriotti to construct a subdivision known as Thorn Hill in a location zoned "Rural Agricultural." We charge that by so doing the BZA violated, and condoned violations of guidelines and regulations established by the 1994 Jefferson County Comprehensive Plan (Plan) and the Jefferson County Zoning and Development Review Ordinance (Ordinance).
Our appeal is based on the following premises:
1) That laws are enacted to establish equal justice for all members of society;
2) That laws are to be obeyed and enforced;
3) That the Plan and the Ordinance are legal regulations governing land use in Jefferson County, West Virginia;
4) That in the case in question, these regulations have been persistently violated;
5) That as patriotic law-abiding, tax-paying, public citizens we are entitled to a voice and/or representation in matters affecting the public interest;
6) That these rights have been infringed by the withholding of information and the persistent refusal of publicly elected and/or appointed officials to represent the public interest.
We bring this case under sections 8-24-59 through 8-24-64 of the West
Virginia Code. Most of the petitioners were appellants on the appeal at the
BZA, number AP-01-05. It was heard and decided January 17, 2002.
II. STANDARD OF REVIEW
The standard of review in zoning cases is that, "a reviewing court should reverse the administrative decision where the board has applied an erroneous principle of law, was plainly wrong in its factual findings, or has acted beyond its jurisdiction." Harding et al v. Board of Zoning Appeals of the City of Morgantown, et al. 219 S.E.2d 324 (1975). Syllabus point 3, quoting syllabus point 5 of Wolfe v. Forbes, W.Va., 217 S.E.2d 899 (1975).
The BZA issued Conclusion of Law 7, "The Board further concludes that the determination made by the Zoning Administrator regarding the adequacy of the support data should not be disturbed, The Board finds that the Zoning Administrator did not abuse his discretion by his approval of the support data." We hold this conclusion to be in error, not supported by findings of fact, nor by the evidence.
III. GENERAL COMMENTS ON SUPPORT DATA
A. THE FRAMEWORK IS:
The Comprehensive Plan cites the importance of giving "...citizens a chance to affect the course of planning activities, land development, and public investment in Jefferson County" (page I-5).
The purpose of appealing the inadequacy of "Support Data," is to improve public review of subdivisions like this one. The Ordinance lays out a citizen review process, with a list of information to be provided by the Developer (7.4(d)), a formal discussion between citizens and the Developer (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 the Developer.
B. THE ORDINANCE REQUIRES:
Section 7.4 Filing the Application
(a) ... time for the adjacent and confronting property owners to review the application and receive any technical advice they would like to secure before the meeting ... data shall be available for public review...
(d) Support Data
(1) Name and address of owner/developer.
(2) Name and address of contact person.
(3) Type of development proposed.
(4) Acreage of original tract and property to be developed.
(5) General description of surface conditions (topography).
(6) Soil and drainage characteristics.
(7) General location and description of existing structure.
(8) General location and description of existing easements or rights-of-way.
(9) Existing covenants and restrictions on the land.
(10) Intended improvements and proposed building locations including locations of signs.
(11) Intended land uses.
(12) Earth work that would alter topography.
(13) Tentative development schedule.
(14) Extent of the conversion of farm land to urban uses.
(15) Effected wildlife populations.
(16) Ground water and surface water and sewer lines within 1320 feet.
(17) Distance to fire and emergency services that would serve the site.
(18) Distance to the appropriate elementary, middle, and high school.
(19) Traffic characteristics - type and frequency of traffic; adequacy of existing transportation routes.
(20) Demand for school services created by this development.
(21) Proximity and relationship to historic structure or properties within two hundred (200) feet.
(22) Proximity to recreational facilities.
(23) Relationship of the project to the Comprehensive Plan.
Section 7.6 Compatibility Assessment Meeting
(a) ... adjacent and confronting property owners and all other interested parties ... Any discussion shall be limited to the proposal's compatibility as presented rather than whether the site should be developed by any other use ...
(d) The Staff shall prepare it's report of ... the agreed upon conditions, and any other pertinent data and will advertise for a public hearing of the Planning and Zoning Commission...
(e) The public hearing ... speakers shall be limited to resolution of issues which could not be resolved at the Compatibility Assessment Meeting...
(g) The Planning and Zoning Commission shall issue, issue with
conditions, or deny the conditional use permit...
C. THE ERRORS ARE:
The various points of the Brief below show examples of areas where this Developer did not give the information required by the Ordinance, and needed by the public for intelligent participation.
D. COURT PRECEDENT
Another developer recently submitted a similar response to the same ordinance requirements, and the Jefferson County Circuit Court said the response was inadequate (Corliss et al. v. Jefferson County Board of Zoning Appeals, Jefferson County Circuit Court Case 01-C-139, final order dated 2/14/02). The Court ruled,
¶ 62. The Court is compelled to a different conclusion from the BZA on several aspects of the support data appeal. The BZA's conclusions on this point rely too heavily upon the Zoning Administrator's determination of adequacy. Since that was itself what was being challenged, it begs the question to state, as the BZA did, that "Appellants fail to demonstrate that the Zoning Administrator abused his discretion" or that the BZA "rejects the Appellants' contention that the support data and sketch plan are wholly inadequate for an informed public discussion regarding this project." The Ordinance, assuredly, gives the initial determination of "adequacy" to the Zoning Administrator. But the standard for the BZA's determination of this issue on appeal is, alter all, adequacy, not to affirm the Zoning Administrator's determination unless an appellant could prove that the support data was "wholly inadequate for an informed public discussion."
¶ 63. The support data packet submitted by the Developers failed to address the following specific items required by the Ordinance: type and frequency of traffic; adequacy of existing transportation routes; locations of signs; and did not contain a discussion of ground water or of the project's effect upon wildlife populations. These omissions, and the abbreviated nature of the support data narrative in general, are inconsistent with the purposes for the requirement of providing support data set forth in the Ordinance, i.e., "public review" in preparation for a dialogue as to "compatibility" and as material upon which the Commission will base, in part, its decision whether to issue the conditional use permit.
¶ 64. The record contains the suggestion that Petitioners cannot prove the inadequacy of support data when they in fact appeared at the Compatibility Assessment Meeting armed with their own arguments and data, but the Court does not agree.
¶ 65. The responsibility for determining the "adequacy" of the support data submitted rests with the Zoning Administrator in the first instance, but his determination of adequacy is reviewable by the BZA, in this Court, and in the Supreme Court of Appeals. The Court recognizes that it is sometimes difficult to assess the sufficiency of data. The Court suggests that for the future, in implementing the support data sections of the Ordinance, the Commission, in concert with the Zoning Administrator, might consider developing forms containing a number of questions keyed from the 23 points in the Ordinance that will prompt thorough responses, with supporting data, on the required data points.(1)
¶ 66. The record suggests that despite an appeal taken on this very issue, no serious review of the adequacy of the support data was made. The Court has noted the failure of the support data to address certain specific items that are already contained within the Ordinance's 23 data points. (Just to take one example, the category "Effected [sic] wildlife populations" is not limited in scope to an inquiry as to rare, threatened or endangered species, but would appear intended to require a discussion of the effect upon wildlife that is actually to be found on the site. The conversion of a few hundred acres from farming and/or open ground to residences would tend to displace wildlife.) Pointing out these insufficiencies, however, is not meant to suggest that the remainder of the support data was adequate. The support data is required prior to the holding of the Compatibility Assessment Meeting. It is easy to see that the purpose of the requirement of support data is to reveal issues relating to compatibility and to provoke discussion among the developer/landowner, the interested public and the county's land use officials as to matters that would be relevant to compatibility.(2) If the support data is attenuated, as it was in this case, it could stifle discussion of important issues and/or unfairly shift the burden of gathering data required for an informed discussion away from the developers and onto other parties. It would also deprive the Commission and its Staff of necessary background information.
¶ 67. The Court has determined that the support data submitted for the Harvest Hills subdivision was inadequate, at least as to type and frequency of traffic, adequacy of existing transportation routes, locations of signs, ground water, discussion of the effect of the project upon wildlife populations, and relationship of the project to the Comprehensive Plan; and that the determination of adequacy made by the Commission and the BZA was error. The Court further finds that the support data should have addressed the means by which the Developers planned to deal with the areas of the property having "severe" limitations with respect to the location of building sites. Based upon the record and the issues raised, the Court is unable to rule upon any other specific ways in which the support data was inadequate, although the Court's opinion is that for a project of this size, the intent of the Ordinance's support data provisions is not served by the submission of four pages of narrative containing a mere 103 lines of responsive material (aside from the soils data) in addressing the 23 data points as to which information is sought.
...
¶ 119. Based upon the errors that the Court has found in the determination of the adequacy of the support data ... the Court must remand this matter to the Commission for further proceedings. Because the Commission's subsequent decision might have been affected by these errors, the Court must also vacate the May 22,2001 Order of the Commission granting the Conditional Use Permit for Harvest Hills.
E. CITIZENS' CONCERNS
The BZA refused to hear the citizens' criticisms of support data. When we filed the appeal form, we included on it the general statement, "The support data provided by the developer are inadequate and inaccurate." We also provided several examples of topics with inadequate support data. However whenever appellants tried to bring up evidence to show the inadequacies of the support data, usually starting with traffic, the BZA ordered us and others to stop speaking. The following are examples that we have taken from the tapes of the BZA hearing. These tapes are part of the record.
Appellant Debbie Ahrens: ...Also the roads --I don't know if you guys have seen Kabletown Road. You have a right turn --
Zoning Administrator Raco: Objection -- not part of the appeal.
Ahrens: -- Upon emergency --
Zoning Administrator Raco: Not part of the appeal, objection.
Ahrens: OK.
...
Appellant and Petitioner Mary MacElwee: I'm Mary MacElwee. I'm an adjacent property owner. I live on Fairview Place. My objection to the Thorn Hill subdivision is number 7, 8 and 9, the water and sewer availability. If water and sewer does become available I cannot afford to hook up to sewer. When I bought my property I was told I would never have to do that -- and I was told that nothing would ever be built across the street from me. That was my first question when I bought my lot and my deciding factor of buying my property. Roadway adequacy has already been mentioned before. Going out in the morning on Kabletown Road we don't have access. This is inadequacy of the roadway.
Zoning Administrator Raco: Objection
BZA Chairman Meyers: Excuse me - you're to speak to the board.
What is your objection?
Please stick to the items on the appeal!
...
Appellant and Petitioner Chauncey Craig: My name is Chauncey Craig. I'm not here to protest the road, but I am here to question the study that may or may not have been made regarding traffic. There wasn't enough about that in the appeal to give me any satisfaction as to how much study was done regarding 180 homes approximately -- you must be talking with regards to homes, 360 cars additional in the morning right now, I think as I recall the worst thing on Kabletown Road --
Zoning Administrator Raco: Objection
Craig: -- especially about nine.
BZA Chairman Meyers: Yes sir, Mr. Craig you're going to have to stick to what was appealed if you would.
Craig: Well I think traffic was one of the appeals was it not, or am I mistaken? -- A list of the appeals.
BZA Chairman Meyers: Are you a part of the appellate? Don't you have a copy of the appeal?
Craig: I don't have it with me, no.
...
Petitioner Rick Fritts: I'm Rick Fritts of 6 Fairview Drive. I've got a question on the appeal here on the traffic --
(Background mutterings)
BZA staff secretary Rebecca Burns: What they're saying, Mr. Fritts, is that in the appeal that was filed, each item is levied a point value. For traffic, they're not disagreeing with the traffic -- 6 and 6 -- This was the maximum they could actually get.
Fritts: OK
BZA attorney J. Michael Cassell: That's probably why it wasn't appealed.
Fritts: OK
However Mr. Cassell, Ms. Burns and the BZA were in error. Mr. Craig was correct that support data, of which traffic is one component, had been appealed. It was appealed on the last page of text of the appeal form, before the required map.
The BZA and staff united in instructing citizens that they were only allowed to speak about the "point values" on the first page of the appeal.
IV. INADEQUATE SUPPORT DATA ON TRAFFIC
A. THE COMPREHENSIVE PLAN STATES:
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-5 "Advocate the maintenance and improvement of the transportation system so that people and goods can move safely and efficiently throughout 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 "Of all the problems to be addressed in a Comprehensive Plan, transportation is one of the most urgent."
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 "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 [attached map shows that Route 9 has a "High Accident Rate" (black line), and near Kabletown Road has a "poor sight distance" (key #2).]
Page III-9 "Route 9 ... At Route 9/3 [Cattail Road, 1,000 feet from Kabletown Road]: inadequate sight distance"
Page III-9 "Route 25 [Kabletown Road] One-lane traffic at Kabletown
bridge with sharp curve at S. end"
B. THE ORDINANCE REQUIRES DATA ON:
7.4(d)(19) Traffic characteristics - type and frequency of traffic; adequacy of existing transportation routes.
C. THE DEVELOPER STATES:
"Based on the traffic generation figures in the Development Review Ordinance, this project at buildout will generate 1448 trips per day, and will have a peak hour of 144.8 trips. The adjacent roads are adequate to serve this additional traffic."
D. CRITICISMS OF THE DEVELOPER'S STATEMENT:
The purpose of the Ordinance requirement is to inform the public. Contrary to the Ordinance, the developer gave no usable information on these three aspects: type of traffic, frequency of traffic and adequacy of existing traffic routes.
1. TYPE. The developer did not say what type of traffic. How many trips will be cars? Commercial trucks? Emergency services vehicles? Bicycles? Or other vehicles that may have impact on the roads or neighborhood?
2. FREQUENCY. In addressing frequency, the developer claims to follow an ordinance. However, he does not cite a section number in this "Development Review Ordinance." In fact, there is no "Development Review Ordinance." Additionally, there are no "traffic generation figures" in the "Jefferson County Zoning and Development Review Ordinance." As an attempt at informing the public, this statement is insulting and evasive.
Aside from the impenetrable source of the numbers, the numbers are meaningless, since the developer did not say whether these are one way trips or round trips.
Finally, the developer gave no information on frequency of traffic on existing transportation routes. That kind of content is clearly intended by the Ordinance.
3. ADEQUACY. The developer does not address entire transportation routes. A route, by definition, means the round trip between departure and destination. The developer needs to address entire routes to typical work, shopping and recreation destinations. The developer's statement that adjacent roads are adequate to support traffic is baseless and unsupported and leads the reader to a misguided conclusion. It is also false, since a map in the Comprehensive Plan shows that Route 9 has a high accident rate and near Kabletown Road has a poor sight distance. The map and text also show a problem with a one lane bridge and a sharp curve in the other direction on Kabletown Road.
E. COURT PRECEDENT
Another developer recently submitted a similar response to the same Ordinance requirements, and the Jefferson County Circuit Court said the response was inadequate (Corliss, supra).
1. THE HARVEST HILLS DEVELOPERS SAID:
"This site will generate the usual residential traffic. It is anticipated that many of the home buyers, at least the ones who are commuters, may take advantage of the proximity to the rail stop and commute to their jobs by train. The Developer has been talking to the West Virginia State Highway Department for several months about removal of the curves to the south of the property. The Developer expects to share in the cost of this work."
2. THE JEFFERSON COUNTY CIRCUIT COURT SAID:
¶ 58. Under the category "Traffic characteristics-type and frequency of traffic; adequacy of existing transportation routes" [Item 19] the support data contains a one-paragraph narrative referencing the site's proximity to the commuter rail stop at Duffields, and the Developers' plan to share in the cost of removal of curves on Flowing Springs Road to the south of the property. The narrative does not address the "type and frequency of traffic" or the "adequacy of existing transportation routes."
¶ 63. "The support data packet submitted by the Developers failed to address the following specific items required by the Ordinance: type and frequency of traffic; adequacy of existing transportation routes…
¶ 67. "The Court has determined that the support data submitted for the Harvest Hills subdivision was inadequate, at least as to type and frequency of traffic, adequacy of existing transportation routes, … and that the determination of the adequacy made by the Commission and the BZA was error…"
F. CITIZENS' CONCERNS:
Many Petitioners' concerns are not in the Record of this case, since the BZA refused to let the Petitioners testify about support data during the hearing.
Petitioners already have concerns, problems and trouble with the quantity and high speed of existing traffic on Kabletown Road in front of the proposed Thorn Hill subdivision.
Concerning the adequacy of existing roads, Route 9 is the only artery between Charles Town and most of the Blue Ridge and Loudoun County. The Comprehensive Plan says it has a high accident rate, and a major accident anywhere backs up traffic in both directions so that people cannot come out of Kabletown Road onto Route 9.
When Petitioners and other people who live on Kabletown Road go to work and shopping, they have to turn right or left on Route 9. There is a wait of sometimes five (5) or more minutes to turn either way. There is no turn lane so whichever way we are turning, we have to wait for the cars ahead of us to go. Since many people have to turn left, there are long waits as each one tries to find a break in traffic on both lanes of Route 9 at once. People don't always wait for a safe time to enter the flow of traffic. They get impatient after a five (5) minute wait with a string of cars behind them, so they pull out in sometimes dangerous situations.
Kabletown Road goes up and down hills and around corners which reduce visibility of vehicles. Cave Road at Kabletown Road has poor sight distance as does nearly every road and driveway intersection with Kabletown Road. Existing roadways are nearly overburdened by the existing traffic. Residential developments already approved, but not yet constructed, will push roads even farther beyond their capacity. Freedom of movement, traffic flow and ease of living will be severely restricted for all residents and visitors.
Added density = added traffic = added risk.
V. INADEQUATE SUPPORT DATA ON TOPOGRAPHY
A. THE COMPREHENSIVE PLAN STATES:
Page III-82 --Advocate the most effective means of preservation for sensitive natural areas such as waterways, wetlands, floodplains and forested areas....
Page III-84 -- Jefferson County has geologic and topographic variety from which springs one of the most biologically diverse regions in the state. Through careful land-use planning and control, a balance between preservation and utilization of natural resources needs to be sought.
Page III-84 -- During the 20th Century....as the public had developed more of a conscience for natural resource concerns, the pendulum has been moving in the direction of preservation. The County has responded with amendments to its ordinances to protect floodplains, wetlands, streams, hillsides and other natural areas.
B. THE ORDINANCE REQUIRES:
7.4(d)(5) General description of surface conditions (topography).
C. THE DEVELOPER STATES:
"The general topography of the site is rolling meadow with areas of scrub trees, surrounded by wooded fence rows. Evitts Run bounds the property on the south."
D. CRITICISMS OF THE DEVELOPER'S STATEMENT:
Webster's II New Riverside Dictionary defines "topography" as -- "Detailed or precise description of a place or region." By that definition, and considering the complexity of the Thorn Hill site, the Developer's description of same seems grossly inadequate. Furthermore as a response to the "General description" requirement, the developer's response seems excessively truncated. Finally, "rolling meadow" is inaccurate.
Important features of the landscape that are not mentioned by the Developer include:
1) Much of the terrain within the site undulates relatively sharply with slopes of 6 to 25%.
2) All slopes within the site trend downward toward Evitts Run.
3) Evitts Run is bordered by a relatively broad -- generally ca. 100-300-ft, well-vegetated floodplain.
4) Under current conditions, said floodplain apparently prevents most surface and suspended sediments runoff from discharging directly into Evitts Run.
VI. INADEQUATE SUPPORT DATA ON SOILS AND DRAINAGE
A. THE COMPREHENSIVE PLAN STATES:
Page III-82 "Advocate the most effective means of preservation for sensitive natural environment areas, such as waterways, wetlands, floodplains, and forested areas, through the coordinated efforts of appropriate County, State, and Federal agencies."
Page III-82 "Develop an inventory/identification system for land in Jefferson County with high recreational potential. Give these areas a realistic score or value for the purposes of future development decision making and zoning restriction allowances or waivers."
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 "Wetlands provide habitat for a wide range of flora and fauna species, help maintain water quality, reduce flood damage and generally are aesthetic."
Page III-106 "To encourage conservation and to avoid pollution of our County's natural resources..."
Page III-110 "if developments are crowded onto poorly drained land, groundwater may become polluted."
Page I-5 General Goals:
"Promote the conservation of the natural, cultural and historical resources and preserve the County's scenic beauty."
"Insure that growth and development are both economically and environmentally sound."
B. THE ORDINANCE REQUIRES DATA ON:
7.4(d)(6) Soil and drainage characteristics.
C. THE DEVELOPER STATES:
"See SCS Soil Map and Soils Descriptions (Exhibit 3)."
In other words, the Developer does not provide any narrative or summary of these topics directly at all. He merely provides a copied reference with the tacit implication that if people want information on these topics they can extract it for themselves.
D. CRITICISMS OF THE DEVELOPER'S STATEMENT:
This may be the most seriously deficient section of a seriously flawed application. The Developer evades his obligation to provide support data by submitting pages copied from the a book, Soil Survey of Jefferson County, West Virginia, issued in February 1973 by the US Department of Agriculture, Soil Conservation Service in cooperation with the West Virginia Agricultural Experiment Station. Said application fails to provide any information whatsoever as to how the soils' limitations for various types of construction will be solved. Neither is there any information as to drainage characteristics from the proposed site nor the effect that 182 houses plus associated pavements (impervious surfaces) would have on post-construction drainage rates and patterns from the site.
The reason for these omissions becomes evident when the relevant data
are extracted from the Developer's data source, Soil Survey of Jefferson
County, West Virginia. These data are summarized in Table 1. They show
clearly that the proposed site for Thorn Hill is inappropriate for a
residential subdivision.
|
TABLE 1. SOIL TYPES OF THE THORN HILL TRACT RELATION TO TOPOGRAPHY AND LIMITATIONS FOR CONSTRUCTION |
||||
|
Soil Type |
Percent of Site |
Slope Percent |
Limitations for Construction |
|
|
|
|
|||
|
Degree |
Type |
|
|
|
|
DgB |
31 |
2-6 |
Moderate |
Streets |
|
FbB |
5 |
2-6 |
Moderate |
Streets |
|
Ho |
not on form |
0-2 |
Moderate |
Buildings, Homesites, Streets |
|
FbC |
19 |
6-12 |
Severe |
Streets |
|
HgD |
13 |
12-25 |
Severe |
Buildings, Homesites, Streets, Roads |
|
DgC3 |
8 |
6-12 |
Severe |
Streets |
|
FbD3 |
7 |
12-25 |
Severe |
Buildings, Homesites, Streets, Roads |
|
FcD |
6 |
12-25 |
Severe |
Buildings, Homesites, Streets, Roads |
|
FbC3 |
5 |
6-12 |
Severe |
Streets |
|
HeC3 |
4 |
6-12 |
Severe |
Streets |
|
BeC |
2 |
6-12 |
Severe |
Buildings, Homesites, Streets, Roads |
|
Am |
not on form |
0-2 |
Severe |
Buildings, Homesites, Streets, Roads |
|
Source: |
LESA form |
Pages in support data, from Soil Survey of Jefferson County |
Soil Survey of Jefferson County, Table 9 |
|
Note: In the soil types, the first two letters show the family of soils,
such as Duffield or Frankstown. The third letter, if any, shows the slope: B is
2-6%; C is 6-12%; D is 12-25%. A 3 at the end means "severely
eroded."
The developer has not said how he will address the severe limitations of
these soils for construction. All of the soils in the Thorn Hill site have
moderate (36%) to severe (64%) limitations for construction.
Superimposition of the subdivision plan upon the topographic/soils map
of the site provides further evidence of the inappropriateness of this tract
for residential subdivision. From these spatial comparisons it appears that:
1. The internal service road, extending north-south and roughly parallel
to Rt 25 along the western portion of Thorn Hill, is primarily on DgB soils
(moderate limitations for streets).
(a) The southern end of this north-south road, and the southern
cul-de-sac appear to be on HeC3 soils (severe limitations for streets).
(b) The other cul-de-sacs off this road are all on DgB soils (moderate
limitations for streets).
2. The loop road proposed to serve the central and eastern sections of
Thorn Hill subdivision would apparently be situated mainly on FbC and FbC3
soils! (both have severe limitations for streets).
(a) Cul-de-sacs on the western side of the western arm of said loop road
would be situated on FbC soils (severe limitations for streets) or FbB soils (moderate
limitations for streets).
(b) All of four southern cul-de-sacs of this same loop road would be
situated on FbC soils (severe limitations for streets).
(c) All building lots along the northeastern section of this loop road
are apparently located on FbD3 or FcD soils (severe limitations for buildings,
homesites, streets, roads).
3. Both of the two most heavily used intersections, where the loop road
joins the north-south road, would appear to be on DgC3 soils (severe
limitations for streets).
The developer did not mention that most of the roads would be on
problematic soils and did not say how these problems would be addressed.
Turning from soils to drainage, the developer is silent about where and
at what rates water drains now, as well as where and at what rate water will
drain after construction. Given the sharp undulations of terrain on the
proposed site of Thorn Hill subdivision, plus the fact that all slopes within
the site trend directly or indirectly toward Evitts Run, the Developer's omission
of any consideration of pre- and post-construction drainage seems particularly
egregious.
Currently the carpet of vegetation and the moderately permeable soils of
the site may absorb most incident precipitation. Consequently surface runoff
should be sufficiently retarded to promote infiltration and to prevent soil
erosion within the tract. These factors promote recharge of groundwater and, in
combination with the relatively broad floodplain, prevent siltation of Evitts
Run. What must be realized, is that if and when a major fraction of the site
has been covered with impervious surfaces -- 182 houses and roofs, paved
streets and driveways, patterns of drainage will remain the same but the rate
and amount of surface runoff (stormwater) will have been increased enormously.
The Developer tacitly concedes that this will be a problem by submitting that
stormwater control devices will be constructed (see Items 10 and 12 of support
data). However, he reveals nothing at all regarding the number, type (active or
passive) or location of said devices all of which becomes of critical
consideration re recharge of groundwater, protection of groundwater quality and
protection of Evitts Run.
These drawbacks to locating a residential subdivision on the proposed
site of Thorn Hill should have been acknowledged by the Developer. This was not
done. The Developer's plat of the proposed subdivision indicates that he
considered topography, and possibly, soil types, in locating streets and green
space within his proposed subdivision. However, he presented his support data
re Soils and Drainage for the site in a manner calculated to evade public
scrutiny. Clearly he did not want Soils and Drainage to become public issues
that could have jeopardized acquisition of a conditional use permit. Presumably
the requirement for support data re Soils and Drainage was meant to be taken
seriously. Submission of non-supporting data disguised as support data would
seem to constitute non-compliance with the Ordinance.
Further, given the limitations on construction imposed by the soils and
drainage pattern of the proposed site for Thorn Hill subdivision, the Developer
should have felt compelled, and been required -- in his application for a
conditional use permit -- to acknowledge the need for and specify the nature
of, remedial measures for dealing with the "severe" limitations to
construction that exist on the site. This was not done.
The Zoning Administrator should have been aware of the problematical
nature of soils at the Thorn Hill site. He had previously used that same poor
quality of soils to adjust the LESA score and thereby circumvent the normal
zoning density under which the Thorn Hill site had been classified "rural
agricultural." Soils poorly suited to certain types of agriculture may be
even more ill-suited to housing construction -- as the Thorn Hill case
suggests. The Zoning Administrator, with all the records and equipment
available to him, could have made the relevant determinations more easily and
accurately than have we with the meager records available to us. Apparently
this was not done. Thorn Hill subdivision was recommended for approval by the
Zoning Administrator and approved by the Jefferson County Planning and Zoning
Commission (Planning Commission) without the required support data re Soils and
Drainage.
E. COURT PRECEDENT
Another developer recently submitted a slightly fuller response to the
same Ordinance requirements, and the Jefferson County Circuit Court said the
response was inadequate (Corliss, supra).
1. THE HARVEST HILLS DEVELOPERS SAID:
"The soils on the site consist of Frankstown (FbC3, FcC and FbD3)
that are deep and well drained. The slopes of these soils range from 6 to 25
percent, and range from moderate to severe with regard to installation of
septic systems and location of building sites."
"The Duffield series (DgB, DgC3, DgC), which are deep and well
drained, have slopes that range from 2 to 12 percent, and slight to moderate
limitations with regard to installation of septic systems and location of
building sites. The Hagerstown and Frederick series (HgC, HbB, HIC3, HID 3),
which are deep and well drained, have slopes that range from 6 to 25 percent,
and severe limitations with regard to installation of septic systems and
location of building sites. The Huntington Series (Ho) and Melvin Series (Me)
is a deep, nearly level, well-drained soil on flood plains of streams and along
intermittent drainage ways and has severe limitations with regard to
installation of septic systems and location of building sites due to flooding
and seasonal high water table. (See Exhibit 3)"
Exhibit 3 contained the same pages from the Soil Survey that were
provided for Thorn Hill.
2. THE JEFFERSON COUNTY CIRCUIT COURT SAID:
¶ 54. Under Soil and Drainage characteristics [Item 6] the support data
narrative divides the soils on the site into four different groupings and
identifies both the slope associated with that soil type and the degree of
limitation with regard to the installation of septic systems and the location
of buildings sites. For one series the limitations are 'slight to moderate';
for another 'moderate to severe'; and for the third and fourth soil series
identified the limitations are 'severe.' According to the Court's analysis,...
the soil series having only slight to moderate limitations....occupies 59.6% of
the site's land area; 'moderate to severe' occupies 15.8% and 'severe' occupies
24.5%.
footnote 12 Matters that are within the Commission's expertise and that
were of intense interest to the persons appearing at the Compatibility
Assessment Meeting -- an example would be drainage -- would be best left to the
Commission in the first instance to determine the appropriate data to seek from
the developer in the support data submission. But the Court does not find
Petitioners' position, that a developer should be required not just to label
the drainage capacity of the various soil types found on the proposed site, but
also to discuss existing drainage of the property and how the developer intends
to handle drainage as he builds on the site, to be unreasonable.
¶ 66 ...If the support data is attenuated, as it was in this case, it
could stifle discussion of important issues and/or unfairly shift the burden of
gathering data required for an informed discussion away from the developers and
onto other parties...
¶ 67 ...The Court further finds that the support data should have
addressed the means by which the Developers planned to deal with the areas of
the property having "severe" limitations with respect to the location
of building sites....
F. CITIZENS' CONCERNS:
The Thorn Hill case sustains Judge Steptoe's opinion that "if the
support data is attenuated,.....it could stifle discussion of important issues
or unfairly shift the burden of gathering data required for an informed
discussion away from the developers and onto other parties." This is
precisely what happened in the present instance.
As noted, when subjected to proper scrutiny the soils data from the
proposed site of Thorn Hill provide little, if any, support for construction of
a large subdivision on these premises. Had these data been summarized and made
available for contemplation and discussion in an appropriate and timely manner,
the approval process for Thorn Hill subdivision might have been qualitatively
different -- with the possibility of a more rational outcome. Instead, the
Developer was allowed to submit an excessively abbreviated application
containing little or no support data re soils and several other items required
by the Ordinance. Those commissioned to review said application in the public
interest either declined to do so or ignored any inconvenient information for
the project. When challenged, their actions were upheld by the BZA, whose
members also failed to adequately review the inadequate support data concerning
soils. Deprived of proper access to support data on soils and other relevant
topics, the public was effectively excluded from the review process. Here is
clear evidence of nonfeasance by those responsible for enforcing relevant
Ordinances as well as informing and maintaining a dialogue with the community.
A particularly egregious consequence of nonfeasance on the part of those
commissioned to serve the public interest is that the Developer has thereby
been exempted from any responsibility for explaining how he intends to deal
with that 64% of the site comprising soils with severe limitations for
construction. The Developer is clearly aware of the problem and has partially
dealt with same by adopting the no-build alternative and appropriately
designating those areas that combine greatest slope with some of the least
favorable soils for construction as "SWM Green Space." However, in
areas where soils with "severe limitations" have been designated for
streets or building lots, the Developer should have been required to: (1)
acknowledge and describe in appropriate detail the problems associated with
soils having "severe limitations" for construction; and to (2)
identify and describe in appropriate detail the special engineering procedures
necessary to counteract or at least mitigate said problems. This requirement
should have been imposed before the Conditional Use Permit was approved. It was
not.
VII.
INADEQUATE SUPPORT DATA ON CONVERSION OF FARMLAND
A. THE COMPREHENSIVE PLAN STATES:
Page I-5 Promote the conservation of the natural, cultural, and
historical resources, and preserve the county's scenic beauty.
Page I-5 Promote the maintenance of an agricultural base in the County
at a level sufficient to insure the continued viability of farming.
Page III-89 Agricultural land has been recognized as the primary natural
resource of the County by the original Comprehensive Plan and by the Land
Evaluation and Site Assessment (LESA) system.
Page III-89 Agricultural land has been recognized as the primary natural
resource in the County... Twenty-five percent of the LESA points are allocated
to the Soils Assessment. This is more than twice as much as the most heavily
weighted amenities criteria...
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-106 To encourage conservation and to avoid pollution of our
County's natural resources in cooperation with existing agencies and
organizations.
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-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.
B. THE ORDINANCE REQUIRES DATA ON:
7.4(d)(14) Extent of the conversion of farm land to urban uses.
C. THE DEVELOPER STATES:
"This tract because of its size, shape, topography and soils type
is an agricultural parcel in recent history it has been used as pasture land.
This development does represent a conversion of farmland to residential
use."
D. CRITICISMS OF THE DEVELOPER'S STATEMENT:
The Developer's response to the requirement for data on this subject
stops with a mere affirmation of the obvious. The proposed Thorn Hill
subdivision would be situated in an area zoned "Rural Agricultural,"
and is consequently incompatible with the Comprehensive Plan for Development.
Said response ignores the most fundamental questions: (1) to what point, and
(2) with what consequences, is the proposed conditional use to be permitted?
The disturbing fact is that a major fraction of Jefferson County's best
farmlands have already been converted or committed to urban uses, i.e.,
residential housing subdivisions. Whether and to what extent this practice,
which is diametrically opposed to the public interest, should be allowed to
continue is one of the most pressing questions confronting the County,
according to the Comprehensive Plan . What should be required as a minimum from
aspiring developers -- particularly those who seek to circumvent the normal
zoning density via the Development Review System (DRS) -- is an honest
accounting of potential impacts on the land resource base.
1. What proportion of Jefferson County farmlands have already been
converted to urban uses?
2. What proportion of remaining productive lands does this proposed
subdivision represent?
3. What benefits will accrue to the community if a conditional use
permit is granted?
What the County Commission has adopted in the Plan and Ordinance, and
what the planning and zoning bodies refuse to acknowledge and consider is that
conversion of farmlands, and/or natural areas, to urban uses represents a
one-time, irreversible consumption of Jefferson County's vital resources. What
the process of subdivision accomplishes most fundamentally is the conversion of
productive land supporting a biotic community into an expanse of artifacts with
an extremely limited capability for support of any form of life. As with
subdivisions in general, the negative environmental and socioeconomic impacts
of Thorn Hill will spread far beyond its legal boundaries. All residents of
Jefferson County will be affected to some degree in that their quality of life
will be incrementally reduced.
Productive lands, abundant freshwater and historic sites supporting
agriculture and tourism, are the key to Jefferson County's future. These are
our capital assets from which to fashion a vibrant economy and sustain a high
quality of life. Toward that end these assets must be conserved and protected.
Conversion of farmland to urban uses begs the questions:
How long can any corporation that sells its capital assets remain in
business?
How long before any society or jurisdiction that persistently degrades
its capital assets -- will become completely dysfunctional?
VIII.
INADEQUATE SUPPORT DATA ON WILDLIFE
A. THE COMPREHENSIVE PLAN STATES:
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-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.
B. THE ORDINANCE REQUIRES DATA ON:
7.4(d)(15) Effected wildlife populations.
C. THE DEVELOPER STATES:
"There are no known rare or endangered species of wildlife
indigenous to this site. Application to the DNR for a formal evaluation of this
site has been made. Wildlife populations will not be affected; although, some
nests or dens of individual animals may be displaced."
D. CRITICISMS OF THE DEVELOPER'S STATEMENT:
This section is incredibly weak and downright misleading. It consists of
an admission of ignorance -- "There are no known rare or endangered
species indigenous to this site" -- and concludes with the unsupported
assertion that -- "Wildlife populations will not be affected." Nobody
who ever witnessed the devastation of a construction site -- especially one
like the proposed Thorn Hill -- which plans extensive excavation and grading
(See 7.4 (d) 12 of support data) could possibly accept that statement. Nor
would any reputable biologist find such an assertion an acceptable substitute
for the data required by the Ordinance.
It seems inconceivable that those who included that condition in the
Ordinance intended anything less than a complete accounting of the impacts of
proposed construction on local wildlife populations. The Comprehensive Plan
says that the preliminary step for such evaluations is an inventory. This
systematic survey would determine the number and kinds of species populations
comprising the biotic community within the proposed Thorn Hill tract and would
define their respective roles within the local food web. Only thus can the
impacts of the proposed construction on components of the local life support system
be adequately assessed.
Populations of prey species, such as ground-nesting birds and small
burrowing mammals -- which are vital to the continuity of local food chains --
will be devastated. Not only will their nests and dens be "displaced"
during the construction phase as the Developer concedes. Those species will be
permanently excluded from most of the site as their habitats are obliterated by
the proliferation of barren, non-life supporting impervious artifacts,
specifically houses and associated pavements.
Further, it is necessary to recognize that negative impacts on wildlife
populations may extend beyond the boundaries of the construction site. For
example, predacious species characteristically exhibit some degree of
territoriality re their dens, nesting sites, or hunting areas. Different
species of predators can coexist in a given site to the extent that their
ecological niches are discrete (non-overlapping). However, predators driven
from their established territories by trauma, e.g., bulldozing and
construction, are inevitably forced onto territories occupied by other members
of their own species, with resulting conflicts and competitive exclusions.
In sum, massive housing construction inevitably causes massive habitat
destruction that will impact all wildlife populations resident on or near the
site. For persons who have never examined, let alone studied, the area to
assert that "wildlife populations will not be affected" (on the
proposed site of Thorn Hill subdivision) betrays either massive ignorance or
massive indifference. In fact, if Thorn Hill is constructed the most probable
scenario is that the habitat for resident wildlife will be so disrupted and the
carrying capacity for many indigenous species so drastically reduced, that the
local food web will disintegrate and the biotic community will cease to exist.
E. COURT PRECEDENT
Another developer recently submitted a slightly fuller response to the
same Ordinance requirements, and the Jefferson County Circuit Court said the
response was inadequate (Corliss, supra).
1. THE HARVEST HILLS DEVELOPERS SAID:
"There are no known rare or endangered species of wildlife
indigenous to this site. Two letters have been received from the DNR that are attached
as exhibits. Wildlife populations will not be affected although some nests or
dens of individual animals may be displaced."
2. THE JEFFERSON COUNTY CIRCUIT COURT SAID:
¶ 63 "The support data packet submitted by the Developers....did
not contain a discussion of ...the project's effect upon wildlife
populations."
¶ 66 "...the category 'Effected (sic) wildlife populations' is not
limited in scope to an inquiry as to rare, threatened or endangered species,
but would appear intended to require a discussion of the effect upon wildlife
that is actually to be found on the site. The conversion of a few hundred acres
from farming and/or open ground to residences would tend to displace
wildlife."
¶ 67 "The Court has determined that the support data for Harvest
Hills subdivision was inadequate at least as to...discussion of the effect of
the project upon wildlife populations..."
F. CITIZENS' CONCERNS:
A particularly disturbing feature concerns the fact that the
Capriotti/Shepp statement re affected wildlife populations is closely similar
to that submitted by a developer in his application to construct a subdivision
called "Harvest Hills" in Jefferson County near the community of
Duffields. As noted in the latter case, Judge Steptoe of the Circuit Court
ruled that the issue had been addressed inadequately according to requirements
of the Ordinance. The fact that closely similar statements, both of which
disregarded priorities of the Comprehensive Plan (See Section A above), were
accepted and approved by the Zoning Administrator, the Planning Commission and
the BZA in both cases testifies to the perfunctory nature of the subdivision
approval process.
IX.
INADEQUATE SUPPORT DATA ON GROUND WATER, SURFACE WATER, AND SEWERS
A. THE COMPREHENSIVE PLAN STATES:
Page III-17 The greatest usage at present is surface water, and the
greatest potential for future use is groundwater. The U.S. Geological Survey
study of Jefferson County's groundwater (Kozar and others, 1991) emphasized
answering questions about quantity and quality of groundwater, particularly in
the limestone (carbonate) areas of the County.
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 Groundwater has the greatest potential to be the primary
water resource for the County's residents and businesses. Policies adopted by
the County and other agencies should provide for the optimum management and
protection of groundwater. In addition, County and state agencies must
recognize that presently, the majority of residents rely on surface water and
must be aggressive in protecting these water resources.
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-82 Advocate the most effective means of preservation for
sensitive natural environment areas, such as waterways, wetlands, floodplains
and forested areas,....
Page III-85 Floodplains serve....in maintaining the quality of habitats
along stream and river edges. Floodplains 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 [floodplains, limestone
cliffs, limestone forests, greenstone forests, riverside rock outcrops,
wetlands]. They need to be protected from (1) sediments, (2) excessive
nutrients, (3) harmful substances, (4) bank erosion, and (5) removal of
riparian strips.
B. THE ORDINANCE REQUIRES DATA ON:
7.4(d)(16) Ground water and surface water and sewer lines within 1320
feet.
C. THE DEVELOPER STATES:
"There are no water and sewer lines within 1320 feet. Evitts Run
borders the property. The Developer will construct a waterline and sewer lines
from the Charles Town system. This project will use public water provided by
the City of Charles Town and will not 'draw down' on the groundwater supply of
Jefferson County. According to the most recent study of the groundwater of
Jefferson County there is an abundant supply, which is generally very
potable."
D. CRITICISMS OF THE DEVELOPER'S STATEMENT:
The statement is silent on surface water in the property, such as the
three springs. It is silent on groundwater in the property, giving only
generalities about the whole of Jefferson County. It is silent about the new
sewer lines to be built. Petitioners testified at the BZA hearing that the City
Manager of Charles Town had told them that if a sewer line was built within a
few hundred feet of their house, such as the lines going from this development,
they would have to hook up, pay for monthly sewer service, and pay to close
their septic systems, even if these were functioning perfectly and
inexpensively. Therefore the location of new sewer lines going from the new
subdivision was of intense interest, and no information was provided.
Furthermore the utility would have the authority to take neighbors' property by
eminent domain for easements for these sewers, which is another reason they
needed information on the location of sewer lines. A full response to the
Ordinance requirement would have to include the sewer lines planned.
The Developer mentions a "recent study of the groundwater of
Jefferson County ... which is generally very potable." No citation is
given, and we are unable to identify such a study. The only study with which we
are familiar, cited in the Comprehensive Plan, is Geohydrology, Water
Availability, and Water Quality of Jefferson County, West Virginia, with
Emphasis on the Carbonate Area, by M. D. Kozar, W. A. Hobba, Jr., and J. A.
Macy, Water Resources Investigations Report 90-4118, published in Morgantown in
1991 by the US Geological Survey in cooperation with the Jefferson County
Commission and the West Virginia Department of Natural Resources. This is
scarcely a "recent study," and it did not say the water was potable.
Among other pollutants, it reports nitrates "as a contaminant found in
many of the wells surveyed" (Plan, page III-21).
The potential effect of the proposed Thorn Hill subdivision on water
resources and aquatic functions is dismissed rather than discussed -- let alone
elucidated. The Developer concedes that no water, nor sewer, lines exist within
1320 feet of the site. Nevertheless said Developer implies, since the proposed
subdivision will be served by public water -- from the Shenandoah River via the
Charles Town water treatment plant -- that groundwater will be unaffected by
his project. Effects on surface water are evaded by noting that "Evitts
Run borders the property" -- a non sequitur. The fact is that Thorn Hill,
like any large subdivision, would have major negative impacts on both ground-
and surface waters within, beside, beneath and beyond its legal boundaries. It
would be quite remarkable, and virtually unprecedented, if the quality and
quantity of local water resources were not profoundly affected.
The Developer, and those commissioned in behalf of the resident public
to review, and approve or reject their proposals should understand, and advise
the public of aquatic functions and conditions affecting same in the vicinity
of Thorn Hill.
Under present conditions infiltration of precipitation is promoted, and
surface runoff is retarded by soils and their blanket of vegetation.
Precipitate is purified as it infiltrates soil and percolates downward to
become groundwater and recharge the aquifer. Purification preceding recharge is
an imperfect process, particularly in Karst terrain like that comprising 86% of
the carbonate rock area of Jefferson County, WV, where the limestone bedrock
has been fractured and vertically oriented. The concept of "recharge area"
has no precise meaning within Jefferson County in that under pristine
conditions the entire carbonate rock area was a continuous recharge area.
Like all streams that drain the carbonate rock region of Jefferson
County, Evitts Run is sourced and fed mainly by springs (groundwater). Rarely
is the discharge from these streams appreciably affected by surface runoff. The
three springs in the floodplain of Evitts Run are undoubtedly fed wholly or
partially by groundwater from the recharge area affected by infiltration from
Thorn Hill.
Construction of Thorn Hill subdivision will inevitably trigger a series
of changes in water relations within and beyond the 160-acre site. Replacement
of soil(s) and vegetation with impervious surfaces comprising the 182 houses
and associated pavements would activate a progressive downward spiral.
--The recharge area within which infiltration could occur would be
markedly reduced;
--Rate and amount of recharge of the aquifer would be diminished;
--A proportional increase in the amount and rate of movement of surface
runoff would occur;
--As in all large subdivisions, surface runoff (stormwater) from Thorn
Hill would become increasingly contaminated with engine oils and antifreeze,
fertilizer, pesticides and herbicides from lawns, and pet excrement.
--Percolation of contaminated stormwater, abetted by the thin and eroded
character of some Thorn Hill soils and the vertical rock fissures typical of
Jefferson County karst, would progressively pollute groundwater beneath, and be
transported by subterranean solution channels beyond the site; and --
considering the undulating topography of the Thorn Hill site within which all
slopes drain toward Evitts Run,
--Contaminated stormwater, if allowed to flow unmitigated from a
built-out Thorn Hill subdivision, could and would periodically flush and
persistently pollute Evitts Run. The severely polluted Shenandoah River, into
which Evitts Run discharges would also suffer further degradation.
The Developer does tacitly acknowledge problems created by excess stormwater
via his declared intention to designate and "grade" areas (support
data points 10 and 12) for management of stormwater. However, the Developer's
application for a Conditional Use Permit fails to describe stormwater problems
or management devices (item 16) nor does his subdivision plat show these
systems. The technology for managing stormwater and protecting groundwater and
surface water has become increasingly sophisticated, but remains problematical
-- potentially expensive and far less than fail safe. Even if managed
effectively during the construction phase of the project, polluted stormwater
could still pose a threat to ground- and surface waters post-construction if
mitigation devices were improperly designed and/or located. For example, passive
retention basins which collect and store runoff until it infiltrates the
substratum might be effective short term. However, over time if they preclude
runoff from the site they would become the principal points of groundwater
recharge within the site, thereby transferring higher concentrations of
contaminants more directly to groundwater.
Polluted groundwater from Thorn Hill subdivision could and would
contaminate Evitts Run via discharge from the three springs that emerge in the
floodplain. Clearly effective management of stormwater is critical to
protecting and maintaining water quality within, beneath, adjacent to and
downstream from the proposed Thorn Hill subdivision. Responsible planning
requires that systems of stormwater management be understood, so the public can
comment on them. Unfortunately the Developer provided no input and those
commissioned to represent the public interest showed no interest in these
important considerations.
The Developer does mention that Evitts Run borders his property, but
contributes nothing re the potential impacts of his subdivision on the stream.
His site plat reveals that building lots along the southern margin of Thorn
Hill extend into the floodplain of Evitts Run. This is not illegal, providing
no structures are erected within the floodplain, but is probably unwise. Evitts
Run -- a West Virginia-designated trout stream -- is already heavily used,
burdened with treated sewage effluent from Charles Town, and abused (severe
over-nutrification ca. 1 1/2 miles upstream), a waterway in obvious need of
protection and remediation. Evitts Run, its floodplain and springs are all
quality habitats recommended for preservation and protection by the
Comprehensive Plan. Toward that end a 100-ft. buffer zone of unmowed vegetation
between the southern limit of the subdivision and the northern margin of the
floodplain seems an appropriate minimum.
The bottom line is that impairment of water quality and functions of
aquatic ecosystems consequent on massive construction projects is highly
probable, possibly inevitable, in Karst country. Consequently it is
disingenuous and misleading for the aspiring Developer of Thorn Hill
subdivision to imply that his project will not adversely impact water resources
in Jefferson County. The availability of public water would shield residents of
Thorn Hill from contact with polluted water, but the hazard persists for
neighbors dependent upon wells and for downstream reaches of the Evitts Run
ecosystem.
E. COURT PRECEDENT
Another developer recently submitted a similar response to the same
Ordinance requirements, and the Jefferson County Circuit Court said the
response was inadequate (Corliss, supra).
1. THE HARVEST HILLS DEVELOPERS SAID:
"Elk Branch (Run) borders the northern property boundary. The stream
is well-defined with stable, vegetated banks. There are no sewer lines within
1320 feet."
2. THE JEFFERSON COUNTY CIRCUIT COURT SAID:
¶ 57 -- Under "Ground water and surface water and sewer lines
within 1320 feet, the support data (Item 16) does not touch upon
groundwater."
¶ 63 -- "The support data submitted by the Developers ... did not
contain a discussion of groundwater...."
¶ 67 -- "The Court has determined that the support data submitted
for Harvest Hills subdivision was inadequate, at least as to..... ground
water.... and that the determination of adequacy made by the Commission and the
BZA was error."
F. CITIZENS' CONCERNS:
Evidence adduced herein regarding certain negative features of the Thorn
Hill tract, i.e., unfavorable topography and drainage; sacrifice of productive
land; impacts on water resources and wildlife habitats; "severe"
limitations for construction consequent on fragile soils; and considering the
relative remoteness from existing public services -- all indicate that Thorn
Hill is far less than a prime site for construction of a large residential
subdivision.
Conversely, the many positive features of the site and the adjacent area
include: An outstanding viewscape to the east; ambient productive rural lands;
topographic variety; the diversity of natural resources and sensitive natural
areas -- trout stream, floodplain, springs, wildlife habitats -- all of which
are recommended for preservation by the Comprehensive Plan, suggest that Thorn
Hill should be a prime area for preservation. The first question asked by those
charged with reviewing the Developer's application should have been: "What
is the great urgency that attaches to the development of this site given the
fact that it is zoned 'Rural Agricultural' -- plus the added costs consequent
on its remoteness from public services and the special engineering required to
deal with the 'severe' limitations for construction?" Knowing where not to
develop, i.e., in remote, sensitive natural areas, is as much a part of
"smart growth" as knowing where best to develop; i.e., in proximity
to established towns and the public services they can provide. Whereas the
financial benefits of Thorn Hill to the Developer are obvious, the benefits to
the County and its citizens are virtually nil. Residents of the County will be
heavily assessed now and on into the future for the infrastructure necessary to
support this subdivision. There is no local housing shortage, and in fact so
many subdivisions have already been approved and platted that growth will
continue unabated on into the forseeable future. One general goal of the
Comprehensive Plan is to "Insure that growth and development are both
economically and environmentally sound." The Thorn Hill subdivision would
seem to be neither.
X.
INADEQUATE SUPPORT DATA ON PLAN COMPATIBILITY
A. THE COMPREHENSIVE PLAN STATES:
Page I-3 Why Should We Plan?…Community planning gives elected and
appointed officials a rational basis for making their decisions based on what
results are desired, what future conditions are likely to occur, and how
various independent actions can relate to each other and be mutually
beneficial.
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. Such an effort can
prevent the cluttering of the countryside with improperly located automobile
junkyards and other property-devaluating developments.
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 I-5 Encourage growth and development in areas where ... water ...
facilities are available or can be provided without excessive cost to the
community.
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 [attached map shows that Route 9 has a "High Accident
Rate" and near Kabletown Road has a "poor sight distance"
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-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-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-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 "Residential land use policies should build on the
Zoning Ordinance and continue to create orderly development patterns and discourage
scattered development."
B. THE ORDINANCE REQUIRES DATA ON:
7.4(d)(23) Relationship of the project to the Comprehensive Plan.
C. THE DEVELOPER STATES:
Although this project is not in a designated growth area, it is in an area
which is compatible with the comprehensive plan for development. The proposed
residential development is in an area which is zoned RURAL. The Comprehensive
Plan, under GENERAL LAND USE calls for "Allowing (sic.) more lots in
the Rural Zone…"Under AGRICULTURAL LAND USE the Comprehensive Plan
cites in its Recommendations: "…New development should be encouraged to
locate near existing or planned public services…" Under RESIDENTIAL LAND
USE the COMPREHENSIVE PLAN recommends "…encouraging a variety of
housing types throughout the county…To provide a choice of suburban,
semi-rural, and rural living environments. Residential land use policies should
build on the Zoning Ordinance and continue to create orderly developmental
patterns and discourage scattered development…To continue encouraging new
residential developments to be location (sic.) so as to maximize the use of
existing public facilities and service investments such as schools, parks,
sewer and water…"
D. CRITICISMS OF THE DEVELOPER'S STATEMENT:
The Court will notice that most of the developer's response is simply a
selection of quotations from the Plan.
On the other hand the Ordinance requires his analysis of the
"Relationship." He leaves that relationship to the reader to
discover.
Only the first two sentences contain analysis from the Developer. Both
sentences acknowledge the inappropriateness of dense housing, "not a
designated growth area" "zoned RURAL." There is only a baseless
and unsupported statement that the area "is compatible." In fact the
Plan has an overall approach of encouraging growth where facilities exist, and
not elsewhere. Numerous quotations to this effect are given, and the Plan has
many more.
The developer acknowledges there are no water or sewer lines within
1,320 feet, the standard given in the Ordinance. Schools and other public
facilities are not available. There is no information to show economic and
environmental soundness. The development is acknowledged to undermine the
agricultural base in the county. It does not conserve natural, cultural, or
historical resources nor scenic beauty. It worsens rather than improves the
transportation system.
Full support data would have made it much clearer that the severe
limitations of the soils show this is not the right place to put a subdivision,
and the traffic problems on route 9 also show this is not the right place to
put a subdivision.
E. COURT PRECEDENT
Another developer recently submitted a slightly fuller response to the
same Ordinance requirements, and the Jefferson County Circuit Court said the
response was inadequate (Corliss, supra).
1. THE HARVEST HILLS DEVELOPERS SAID:
We believe that this is the kind of location the Comprehensive Plan
anticipated would be developed. It is near to water and sewer services. It is
relatively close to existing schools. It is near a major transportation
facility. It is near an existing community of Shenandoah Junction.
2: THE JEFFERSON COUNTY CIRCUIT COURT SAID:
¶ 59. Under the category "Relationship of the project to the
Comprehensive Plan" [Item 23] the support data contains a one-paragraph
narrative referencing the proximity of the site to: water, sewer, schools,
transportation [railroad] and existing community of Shenandoah Junction and
states "We believe that this is the kind of location the Comprehensive
Plan anticipated would be developed."
¶ 67. "The Court has determined that the support data submitted for
the Harvest Hills subdivision was inadequate, at least as to …relationship of
the project to the Comprehensive Plan; and that the determination of adequacy
made by the Commission and the BZA was error…
XI.
REMEDY
The Petitioners ask that the Court:
A. Reverse the decision of the BZA.
B. Order the Zoning Administrator to require full support data in compliance
with the Ordinance and Court Precedent.
C. Order the BZA to listen to citizens' concerns about support data,
when support data have been appealed.
D. Order the BZA to support its reasoning in its Conclusions of Law.
IN THE
CIRCUIT COURT OF JEFFERSON COUNTY, WEST VIRGINIA
[NOT SIGNED -THE JUDGE ORDERED
EACH SIDE TO DRAFT AN ORDER FOR HIM TO CONSIDER. THIS IS THE PETITIONERS'
DRAFT, THE JUDGE HAS NOT YET MADE A DECISION]
Mary L. MacElwee et al.,
Petitioners
vs. Civil Action No.02-C-40
Jefferson County Board of Zoning Appeals,
Respondent
Eugene Capriotti,
Intervenor
ORDER
THIS MATTER came on for Court's consideration this ______ day of
_______________, upon the papers and proceedings formerly read and had herein;
upon the Court's Order entered March 26, 2002, after a show cause hearing held
March 15, 2002, at which the Court granted certiorari herein and granted a
motion to intervene by Eugene Capriotti; and set a briefing schedule in this
matter.
In reaching its decision, the Court has carefully considered the
arguments and memoranda of the parties, the certified record of the proceedings
had below, and pertinent legal authorities. In support of its decision, the
Court makes the following findings of fact and conclusions of law:
1. This case arises on petition for a writ of certiorari to have the
Court review, pursuant to W. Va. Code Section 8-24-59 et seq., a decision of
the Jefferson County Board of Zoning Appeals ("BZA"). The decisions
were made at an appeal hearing held before that body on January 17, 2002, and
were supported by written findings of fact and conclusions of law issued by the
BZA and dated February 21, 2002.
2. Petitioners challenge the BZA's denial of their appeal of the Zoning
Administrator's actions, under Jefferson County's Zoning & Development
Review Ordinance ("Ordinance"), with respect to a proposed
subdivision to be known as Thorn Hill.
3. Upon appeal of a decision of the BZA, this Court must apply the
following standard of review:
While on appeal there is a presumption that a board of zoning appeals
acted correctly, a reviewing court should reverse the administrative decision
where the board has applied an erroneous principle of law, was plainly wrong in
its factual findings, or has acted beyond its jurisdiction. Syl. Pt. 2, Harding
v. Board of Zoning Appeals of City of Morgantown, 159 W. Va. 73, 219 S.E.2d
324 (1975) (quoting Syl. Pt. 5 of Wolfe v. Forbes, 159W. Va. 34, 217
S.E,2d:899 (1975)).
4. As proposed, Thorn Hill would consist of approximately 182
single-family houses and would be developed from property owned by the
Intervenor. Thorn Hill is located in an unincorporated area of the Kabletown
District of Jefferson County, in the zoning district "Rural/Agricultural."
Thorn Hill is located along West Virginia Route 25, known as Kabletown Road.
5. Access to the proposed Thorn Hill subdivision is only available via
Kabletown Road. Kabletown Road is classified as a "local service"
route within the Highway Classification System (see Comprehensive Plan at
III-3). Near the northern boundary of the proposed subdivision. Kabletown Road
ends at, and feeds into Route 9, a heavily traveled commuter artery between
Jefferson County and the Washington metropolitan area.
6. The Intervenor's property consists of one parcel of land containing
approximately 160 acres. The record shows that the property is farmed, but not
by whom.
7. The Intervenor decided to seek approval to subdivide the farm. With
the proposal's size and density, location in the Rural/Agricultural Zoning
District, the Ordinance would require a special procedure to be undertaken so
that the Zoning Administrator and the Jefferson County Planning and Zoning
Commission (PZC) could evaluate whether to allow the development to proceed in
that location. This process is known as the conditional use permit process.
8. In the terms of zoning law, a "conditional use" is a
"use authorized by ordinance but requiring specific approval by a body of
the local government. The use is permitted by ordinance when conditions are
met." Yokley, Zoning Law and Practice, Vol. 1, Section 2-6, text at
notes 55-59 (Lexis, 4th ed., 2000 Revision); see generally Anderson, American
Law of Zoning Section 14.03. A "conditional use" stands in
contrast to a "variance" because it does not involve a departure from
the terms of an Ordinance, but rather, compliance with it, under conditions
stated in the ordinance. Harding v. Board of Zoning Appeals of City of
Morgantown, 159 W. Va. 73, 219 S.E.2d 324 (1975) (identifying W. Va. Code
Section 8-24-55 as source of authority for consideration and issuance of
conditional use permits)
9. The Developers made application, in September 2001 (specific date is
illegible in the record), for a conditional use permit with respect to their
proposal to develop the property, consisting of 160 acres, more or less, into a
subdivision of approximately 182 single-family houses.
10. As part of its application for the Permit, the Developers submitted
a package of support data, required by the Ordinance at Section 7.4(d), which
the Court has reviewed as part of the record.
11. The Ordinance provides a detailed procedure to be undertaken by the
Zoning Administrator and PZC in order to evaluate whether a particular property
should receive the conditional use permit.
12. The Ordinance at section 7.4(g) provides that the Zoning
Administrator shall determine if the support data are adequate, and allows
appeal to the BZA.
13. The Ordinance at section 7.5 prescribes three types of notice to be
given of the pendency of a conditional use permit application: notice by
registered mail to adjacent and confronting property owners; and public notice
through newspaper advertisement and the posting of a sign on the property for
which the change is sought.
14. The Ordinance in article 6 describes, as part of the process
generally entitled "Development Review System," how the staff will
evaluate the subject property using a complex numeric rating system (the
"Land Evaluation and Site Assessment," or "LESA,"). Under
the numeric rating system, a score of sixty (60) or less qualifies the property
to proceed to the next stage in the Development Review System: the
Compatibility Assessment Meeting.
15. Petitioners MacElwee, Latterell, T. Fritts, R. Fritts, and S. Craig,
along with others, filed an appeal (AP-01-05) with the BZA, alleging errors in
the LESA calculation and in the support data.
16. The BZA held a public hearing on the appeal on January 17, 2002. At
the hearing, Petitioners and others presented their arguments on the alleged
errors in the LESA score. They presented some arguments on the allegedly
inadequate support data. However there were repeated objections and the BZA,
through its Chairman, Michael Meyers, its staff, Rebecca Burns, and its
counsel. J. Michael Cassell, instructed appellants to testify only on the LESA
issues listed on the first page of the appeal. The Intervenor moved to
intervene and submitted argument; and the Zoning Administrator, Paul Raco,
appeared and presented his position. The BZA then voted, 5 to 0 to deny the
appeal on all issues.
17. On February 21, 2002, the BZA issued Findings of Fact and
Conclusions of Law in support of its decision to deny the appeal. The instant
case does not allege error in the LESA rulings, so that part of the case will
not be considered further. The BZA's findings and conclusions on support data
have been given careful consideration by the Court, and are repeated here, for
the sake of completeness.
18. Regarding the appeal of the adequacy of the support data, the BZA
concluded:
Finding of Fact 12. The Appellant also contends that the support data
submitted by the Subdivider was inadequate.
Finding of Fact 13. The Zoning Administrator found that the support data
was adequate.
Conclusion of Law 7. The Board further concludes that the determination
made by the Zoning Administrator regarding the adequacy of the support data
should not be disturbed, The Board finds that the Zoning Administrator did not
abuse his discretion by his approval of the support data.
19. Their appeal before the BZA having been denied, Petitioners
commenced this action in circuit court on May 18, 2001 under W. Va. Code
Section 8-24-59 which provides for review by certiorari procedure of any
decision of the BZA. No stay of the underlying proceeding regarding Thorn Hill
was applied for, and the Intervenor proceeded with subsequent procedures of the
PZC, at his own risk.
DISCUSSION: ALLEGEDLY INADEQUATE SUPPORT DATA PROVIDED BY DEVELOPERS
20. This case repeats several issues that have been settled in Corliss
et al. v. Jefferson County Board of Zoning Appeals, Jefferson County
Circuit Court Case 01-C-139, final order dated 2/14/02.
21. In that case, the Court ruled, concerning a development called
"Harvest Hills," that
63. The support data packet submitted by the Developers failed to
address the following specific items required by the Ordinance: type and
frequency of traffic; adequacy of existing transportation routes; locations of
signs; and did not contain a discussion of ground water or of the project's
effect upon wildlife populations. These omissions, and the abbreviated nature
of the support data narrative in general, are inconsistent with the purposes
for the requirement of providing support data set forth in the Ordinance, i.e.,
"public review" in preparation for a dialogue as to
"compatibility" and as material upon which the Commission will base,
in part, its decision whether to issue the conditional use permit.
66. The record suggests that despite an appeal taken on this very issue,
no serious review of the adequacy of the support data was made. The Court has
noted the failure of the support data to address certain specific items that
are already contained within the Ordinance's 23 data points. (Just to take one
example, the category "Effected [sic] wildlife populations" is not
limited in scope to an inquiry as to rare, threatened or endangered species,
but would appear intended to require a discussion of the effect upon wildlife
that is actually to be found on the site. The conversion of a few hundred acres
from farming and/or open ground to residences would tend to displace wildlife.)
Pointing out these insufficiencies, however, is not meant to suggest that the
remainder of the support data was adequate. The support data is required prior
to the holding of the Compatibility Assessment Meeting. It is easy to see that
the purpose of the requirement of support data is to reveal issues relating to
compatibility and to provoke discussion among the developer/landowner, the interested
public and the county's land use officials as to matters that would be relevant
to compatibility. If the support data is attenuated, as it was in this case, it
could stifle discussion of important issues and/or unfairly shift the burden of
gathering data required for an informed discussion away from the developers and
onto other parties. It would also deprive the Commission and its Staff of
necessary background information. [footnote omitted]
22. The Court recognizes that the Thorn Hill application was written by
the Developer and reviewed by the BZA before this Court ruled on Corliss.
Neither the Developer nor the BZA intentionally acted counter to the Court's
ruling. However now that the Court has ruled, the Court will treat all
developments equally, and has reviewed this case in conformity with Corliss.
23. The Court notes there are slight differences in wording between this
Developer's support data ant the data that were ruled inadequate in Corliss.
The Respondent and Intervenor have not convinced the Court that these slight
differences in wording now fully meet the requirements of the Ordinance.
24. The Thorn Hill Developer's statement on selected items is:
6. Soil and Drainage Characteristics
See SCS Soil Map and Soils Descriptions (Exhibit 3).(3)
15. Affected Wildlife Populations
There are no known rare or endangered species of wildlife indigenous to
this site. Application to the DNR for a formal evaluation of this site has been
made. Wildlife populations will not be affected; although, some nests or dens
of individual animals may be displaced.
16. Groundwater and Surface Water and Sewer Lines within 1320 feet.
There are no water and sewer lines within 1320 feet. Evitts Run borders the
property. The Developer will construct a waterline and sewer lines from the
Charles Town system. This project will use public water provided by the City of
Charles Town and will not "draw down" on the groundwater supply of
Jefferson County. According to the most recent study of the groundwater of
Jefferson County there is an abundant supply, which is generally very potable.
19. Traffic
Based on the traffic generation figures in the Development Review
Ordinance, this project at buildout will generate 1448 trips per day, and will
have a peak hour of 144.8 trips. The adjacent roads are adequate to serve this
additional traffic.
23. Relationship of Project to Comprehensive Plan
Although this project is not in a designated growth area, it is in an area
which is compatible with the comprehensive plan for development. The proposed
residential development is in an area which is zoned RURAL. The Comprehensive
Plan, under GENERAL LAND USE calls for "Allowing (sic.) more lots in
the Rural Zone…"Under AGRICULTURAL LAND USE the Comprehensive Plan
cites in its Recommendations: "…New development should be encouraged to
locate near existing or planned public services…" Under RESIDENTIAL LAND
USE the Comprehensive Plan recommends "…encouraging a variety of
housing types throughout the county…To provide a choice of suburban,
semi-rural, and rural living environments. Residential land use policies should
build on the Zoning Ordinance and continue to create orderly developmental
patterns and discourage scattered development…To continue encouraging new
residential developments to be location (sic.) so as to maximize the use of
existing public facilities and service investments such as schools, parks,
sewer and water…" [emphases in original]
25. The Ordinance requirements on these items are:
(6) Soil and drainage characteristics.
(15) Effected [sic] wildlife populations.
(16) Ground water and surface water and sewer lines with 1320 feet.
(19) Traffic characteristics -- type and frequency of traffic; adequacy
of existing transportation routes.
(23) Relationship of the project to the Comprehensive Plan.
26. The Court has compared the Ordinance and the support data for Thorn
Hill and Harvest Hills, and makes the following findings:
27. The Thorn Hill Developer's statement on soils and drainage is even
less complete than the Harvest Hills Developers' statement, which was ruled
inadequate in Corliss. There is now no summary text and merely a
reference to soils descriptions from the US Department of Agriculture.
28. The Thorn Hill Developer's statement on wildlife is also less
complete than the Harvest Hills Developers' statement, which was ruled
inadequate in Corliss. The difference is that now not even the letters
on rare and endangered species, from the appropriate state agency, have been
received.
29. The Thorn Hill Developer's statement on groundwater, surface water,
and sewer lines is just as incomplete as the Harvest Hills Developers'
statement, which was ruled inadequate in Corliss. While groundwater of
Jefferson County is now mentioned, and previously was not, there is still no
information about ground water at and around Thorn Hill. Furthermore surface
water is only mentioned in terms of the neighboring stream, Evitts Run. The
Developer notes the current lack of sewer lines, but since he plans to use
sewers, the Ordinance would seem to require some description of those proposed
lines. Neighbors will be affected at least by the location of sewer easements
and by the possibility of connecting to the new lines. Therefore locations and
issues about connections need to be addressed at a minimum.
30. The Thorn Hill Developer's statement on traffic is slightly more
complete than the Harvest Hills Developers' statement, which was ruled
inadequate in Corliss. However there is still no description of type of
traffic, as required in the Ordinance.
31. The Developer's statement that adjacent roads are adequate conflicts
with the County Commission's finding in the 1994 Comprehensive Plan that, even
eight years ago, Route 9 had a high accident rate and near Kabletown Road had a
poor sight distance (page III-7). The Developer's statement needs to discuss
fully the "adequacy of existing transportation routes" as required by
the Ordinance. When he has good reason to differ with the Comprehensive Plan,
he needs to explain why.
32. The Petitioners point out that the Developer's sentence on frequency
of traffic, another topic required by the Ordinance, is ambiguous. First there
are no traffic figures in the Jefferson County Zoning and Development Review
Ordinance. In the absence of a usable citation, a non-specialist, such as most
of the neighbors, would be unable to find and review the source of the
information. Second the sentence may mean 1448 round trips per day (1448
departures + 1448 arrivals = 2896 vehicle movements) or 724 round trips per day
(724 departures + 724 arrivals = 1448 vehicle movements). The difference would
be substantial. Since the information given is clearly inadequate, the Court
will not rule on what other information might be needed to address
"frequency of traffic."
33. The Thorn Hill Developer's statement on compatibility with the
Comprehensive Plan is even less complete than the Harvest Hills Developers'
statement, which was ruled inadequate in Corliss. Most of the Thorn Hill
response simply consists of quotations from the Plan without elaboration. As
just one example, it refers to the Plan's suggestion on page III-98,
"Some solutions to these problems [a preceding list of nine issues]
may be the following:
"Allow more lots in the Rural Zone provided they are less
dense..."
34. Presumably the Developer believes his proposal advances this
strategy chosen by the County Commission. If so, he needs to show that his
proposal is "less dense" compared to the practice in the Rural Zone
when the Plan was written in 1994. He also needs to say how his proposal is a
solution to some or all of the nine issues which the Plan says are to be
addressed.
35. It would also seem necessary to recognize and address statements in
the Comprehensive Plan that might conflict with his proposal, not just the ones
that support it.
36. The first two sentences in the Developer's statement on item 23 are
not just quotations. However these two sentences simply state that this area is
compatible with the plan and he gives no explanation of how or why. Even the
Harvest Hills Developers indicated their rationale, based on proximity, though
it was ruled inadequate.
37. Pointing out these insufficiencies, however, is not meant to suggest
that the remainder of the support data were adequate.
38. The BZA prevented some of the petitioners at the hearing, among
others, from speaking on support data issues, even though support data had been
appealed. This was an error.
39. The BZA has not supported its conclusion on the adequacy of support
data with meaningful findings or conclusions. It is required to do so.
40. Based upon the errors that the Court has found in the determination
of the adequacy of the support data, the Court must remand this matter to the
BZA for further proceedings. Because any subsequent decisions might have been
affected by these errors, the Court must also vacate any additional actions by
the PZC and staff regarding Thorn Hill.
It is therefore ADJUDGED and ORDERED that the decision of the Jefferson
County Board of Zoning Appeals in Appeals AP-01-05 be, and hereby is, VACATED.
It is further ADJUDGED and ORDERED that other decisions of the Jefferson County
Planning and Zoning Commission and staff concerning Thorn Hill be, and hereby
are, VACATED. It is further ADJUDGED and ORDERED that this matter be REMANDED
to the Jefferson County Board of Zoning Appeals for further proceedings not
inconsistent with this opinion, including the re-submission, at the option of
the property owner, of a new and more complete application to the Department of
Planning, Zoning and Engineering.
This is a final Order, from which any party may seek an appeal to the
West Virginia Supreme Court of Appeals under applicable rules. The Clerk is
directed to close this case, retire it from the active docket of this Court,
and place it among causes ended.
The Court notes the timely exception of all parties to any and all
adverse rulings herein contained.
The Clerk shall enter this order as and for the day and date first above
written and shall transmit attested copies thereof to the following pro se
party and counsel of record:
Mary L. MacElwee
2 Fairview Drive
Charles Town, WV 25414
J. Michael Cassell, Esq.
P.O.Box 782
Charles Town, WV 25414
Peter L. Chakmakian, Esq
P.O. Box 547
Charles Town, WV 25414
[NOT SIGNED -THE JUDGE ORDERED EACH SIDE TO DRAFT AN ORDER FOR HIM TO
CONSIDER. THIS IS THE PETITIONERS' DRAFT, THE JUDGE HAS NOT YET MADE A
DECISION]
__________________________________________
THE HONORABLE GRAY SILVER, III
JUDGE, TWENTY-THIRD JUDICIAL CIRCUIT
1. Matters that are within the Commission's
expertise and that were of intense interest to the persons appearing at the
Compatibility Assessment Meeting -- an example would be drainage -- would be
best left to the Commission in the first instance to determine the appropriate
data to seek from the developer in the support data submission. But the Court
does not find Petitioners' position, that a developer should be required not
just to label the drainage capacity of the various soil types found on the
proposed site, but also to discuss existing drainage of the property and how
the developer intends to handle drainage as he builds on the site, to be
unreasonable.
2. This is why the Court is not persuaded by
the suggestion that since this is only the first stage of a multi-step process,
and since the Developers will have to abide by the Subdivision Ordinance,
including submission of a Community Impact Statement, which in some respects
overlaps with the information sought in the Zoning and Development Review
Ordinance as support data, that it is unnecessary to engage in a comprehensive
discussion of all aspects of the proposal subdivision at this early stage in
the progress of a proposed subdivision. Issuance of a conditional use permit in
a case like this prompts a change in the use made of property that will be
permanent in nature. A broad range of factors bear upon compatibility, and that
is the reason for the Ordinance's requirements that the developer address the
23 points.
3. The Court notes that exhibit 3 consists
of photocopies of pages 8-30 of a book, Soil Survey of Jefferson County,
West Virginia, issued in February 1973 by the US Department of Agriculture,
Soil Conservation Service in cooperation with the West Virginia Agricultural
Experiment Station.