David Lutton asked:
I see by the article that the developer is planning an appeal . What
is the local gauge as to its success?
I used to be the chief planner for Jefferson County. From my
understanding of the information surrounding this decision (as I have
followed it in the press), I would estimate that the applicant has a
greater than average (but not air tight) chance of getting the
decision overturned. Given a variety of variables, it will likely be
upheld at the Circuit Court level but overturned at the state supreme
Keep in mind that Jefferson County is the only county in WV with
county-wide zoning, and even then, it is a limited "loosey-goosey"
system, which I advocated abandoning in favor of standard zoning when
I worked there. They are getting close to rewriting their subdivision
and zoning ordinances soon...so it will be interesting to see how it
goes and what results.
The property had to pass through what is called the "LESA" system,
which assesses property outside of the "Growth" area for
appropriateness for development. It assesses distance to developed
areas, schools, emergency services, quality of soil (to remain as
farmland) and surrounding land uses. The property passed this test
so, if the zoning ordinance is faithfully administered, the developer
should have gone into the process with a general presumption that the
development is appropriate.
Nowhere in the zoning ordinance does it say that they can take whether
it is a Civil War battlefield into account. If it was, then this
argument could be used against any development, as most of Jefferson
County, in one way or another, is a Civil War battlefield.
Apparently, they also provided a traffic study that said the roads
system will not be overburdened by traffic that went unrefuted in the
record, yet the BZA concluded that the traffic would be unacceptable.
This (apparently) is not based on information in the record.
Keep in mind that there are two stories here....the macro
story...regional and national interest in preserving the
battlefield...and the micro story....no-growth locals (most of whom
are relatively recent transplants) who are happy to co-opt this issue
as a convenient reason to oppose another "evil" housing development.
As someone who is both a planner, and an APCWS member, I find that the
real problem here is that there has been no advanced planning on what
the community believes is worthy of preservation. This allows every
place where there was a skirmish to become a potential "reason of the
week" by the no-growth locals to fight every housing development that
The County needs to identify what areas are worthy of preservation,
adjust the zoning in those areas so they do not become housing
developments, and administer that policy/ordinance. Once in place,
then this argument should not be accepted on lesser sites.
In this respect, Washington County did a good job by studying the
Antietam viewshed and placing protections for that area on their
zoning map. Jefferson County needs to do the same.
I was always strongly in favor of changing the rules and making them
tougher, but you cannot make up land use (or any other) law by fiat,
which some of the elected and appointed officials there want to be
able to do.
Planning processes are about setting up rules to regulate development,
and adminstering those rules...it is not about placing a property
owner's rights into the hands of an appointed board to decide, for
reasons not enumerated in the ordinance, if you can develop your
property. This robs a property owner of their property rights without
the due process of amending ordinances, then administering those
There IS an opportunity here for preservationists to influence their
ordinance rewrites so this kind of fight doesn't happen again in