Jefferson County Planning Commission Reports


 

Table of Contents


July 28 - Aug 25, 2009
July 14, 2009
June 9, 2009
April 28, 2009

Planning Commission Report

July 28 - Aug 25, 2009

Planning commission meetings have been single applicant actions of late. Projects on the agenda are not new applications or movement from one step in an administrative action to another. It is almost the opposite. The PC decisions are actually regarding time extension requests.

County ordinances contain time requirements for application and advancement of land development projects (subdivisions). An over-simplification of the process would be that there is a fixed time schedule in the ordinance to get from original submission of a proposed project through final approval. Ordinances also have milestone dates along the way.

The purpose of the time requirements were two-fold. First was to address an issue of approved subdivisions that were sitting for years or even decades prior to start of construction. These developments would be exempt from many new design or performance standards adopted after approval. Time limits were put in place in an attempt to ensure applications were filed under current regulation when development was ready to begin.

Second was a processing time requirement for the PC. Applicants were aware of the possibility that approvals could be delayed indefinitely through administrative postponements. Time provisions were placed in the ordinances to require action on a complete application.

Wait...................... here it comes.

These time lines were written in good faith in an era that was quite different from today. Economics of the local housing industry were favorable at every level. The demand was high, money for development and buyers was almost unrestricted. Local political discussion was focused on provision of services. How to expand central services like water and sewer. How to pay for capital improvements for schools through impact fees. The need for an updated community vision and ordinances was being addressed in a collaborative way. Citizen, agency and applicant initiated legal action based on approvals or denials were limited and rare. It was a time when time lines for the approval process fit the situation. Nothing seemed to be unreasonable for any of the parties involved. That was then.

Our current environment is very different. National economic conditions have had a tremendous impact on the local housing market. Financial institutions and government policy changes have shifted the entire supply and demand relationship. Local political focus has shifted from a how to provide services approach to a restriction of development. Planning has changed from a collaborative approach to that of an intense struggle between differing political interests. Legal actions are no longer rare. They have become routine. Throw in changes in state-enabling law and this grouping of factors have made current ordinance time lines difficult if not impossible for all parties.

Resolution of these time conflicts is also a problem. It is done through procedures outlined in the local ordinance. Simple? Not by a long shot. There are two ordinances in place at the same time. One is for those that had projects start prior to October 2008. That is the one our PC and applicants are dealing with currently. The three projects most recently addressed by the PC are:

All three have requested time extension. All three have different issues but all have the same problem. It isn't the time line itself but the subjective standard for having that time requirement adjusted. The exact process is to request a "variance" from the specific subdivision ordinance requirement. The total section of the ordinance defining this standard is section 17.1. I'll leave it to you to determine if it is a standard of compliance or subjective in nature.


 

Section 17.1 Variance

Any request for a variance from the provisions of this Ordinance shall be made in written form and shall be submitted to the Planning Commission by the Subdivider. A variance request shall clearly specify the nature of the variance being requested and the reasons for the request.

A variance request may be granted by the Planning Commission only when it is determined that:

(a) The request is not contrary to the public interest.

(b) A literal enforcement of this Ordinance will result in unnecessary hardship.

(c) The request is not the result of a self imposed hardship.

(d) The spirit of this ordinance will be observed and substantial justice done.


 

More on Variances

The reasoning for the three requests, the PC discussion issues and outcome:

Beallair is a fairly large project for this area. It is upscale in both ammenities and price. I view it as a planned residential neighborhood. Here is a map from their website: http://www.beallair.com/community/plan:large

This subdivision application was started in 2002. The concept is a five stage development with an additional phase called Beallair West. Phases one and two have completed the approval process, been bonded and construction begun. The time issue directly involves an ordinance requirement that each phase needs to reach final plat public hearing within 2 years of the previous phase approval. This particular phase had been given a time extension previously. That extension was due to expire Aug 09. This request was to extend the time limit through Aug 2010. The developer representative made an initial presentation. That presentation included statements related to the four criteria for variance discussed earlier. There was also conversation on project status and the need or reasons for the variance request. Items included interaction with WVDOH, PSD waste water treatment plant availability, potential impacts from the potential PATH power line project and financial matters related to national banking and mortgage issues.

Planning commission concerns were varied and seemed to follow individual commissioner personal areas of interest. Changing conditions in the county, outdated ordinance compliance, waste water treatment issues, verification of certain financial representations and one other matter. The last item of concern was how do any of these items match with the four requirements in granting of a variance.

After lengthy debate it was time for motions. The first motion was to approve the variance request (to Aug 2010) and a second was made. That was followed by a motion to amend the date to Dec 2009. The amendment passed on a 5-4 vote. The main motion as amended was then passed on a 6-3 vote. For those keeping score, the 12 month extension request was reduced to about four and a half months. It is still a mystery how that time somehow matched the ordinance but 12 months didn't.

Next up is Aspen Greens. The developer representative made the initial presentation. Reasons for needing the additional time for preliminary plat design was interesting. It seems that following the initial Community Impact hearing, former planning director Tony Redman made several change requests. It isn't clear if they were actual ordinance compliance issues or just personal recommendations in order to get support. There were also some public comments that the developer was attempting to address. The problems came from the approving authority and review vacuum created by Redman's departure. There was an interim planning director, staff was working on new ordinances and there were administrative items related to the conditional use permit. There was little opportunity to get design changes discussed. Some of the other issues included timing of a conditional use permit, waste water treatment lines and coordination with the PSD on right of ways.

Planning commission concerns were much like those raised for the previous applicant. Many of the same PC member personal items of interest got debated. Sewer, changing county regulations and the meaning of the four parts of variance approval.

This item also had lengthy debate even though many of the issues seem to repeat from meeting to meeting. The first motion and second was to grant the variance request (to Dec 2010). The reason being it would then match the conditional use permit expiration date. This was followed by a motion to table. The second motion failed 3-6. The main motion to approve then passed on a 6-3 vote.

The final project in this report is Allstadt's Corner. The event was probably the strangest of all. This subdivision has been in the news for several months. It is the property where the 340 flea market currently resides.

The subdivision has received all required approvals. It could start tomorrow. The problem? Several individuals and the park service have fought this project for years. There has always been a push to stop residential construction anywhere near Harpers Ferry and the park. It has always been represented that the property owner wasn't interested in selling to an entity for historic preservation.

This is where it gets strange. The developer was responding to continuing comments and questions regarding historic preservation. The intent of his variance request was to allow any interested preservation groups 12 months to approach him prior to development. The same person who spoke against granting the final approval last month led the charge to deny variance to extend the bonding requirement from 90 days to 12 months.

The irony is the developer needs the additional time to allow preservation groups an opportunity to submit legitimate purchase offers. The problem lies solely with the time restriction in our subdivision ordinance. If the approved project doesn't have a construction bond in place 90 days from final approval it must go back to square one. Denying this variance for a time extension all but guarantees the property will be bonded and developed in residential structures.

PC members went through the usual items for discussion. Holding to the letter of the ordinance as to the four criteria needed to approve was mentioned more than once in this particular request. The motion is made and seconded to deny the variance. The motion to deny passes 5-3. The logic of this action escapes me.

That ends this episode of "the gang that couldn't shoot straight".

fred

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Report on the Planning Commission Meeting July 14, 2009

There are two items that will be covered from the PC's regular meeting. First is a Final Plat hearing and action on Allstadt's Corner Subdivision. This is located in the area of a Flea Market on Rt. 340 near Harpers Ferry. This application is in a controversial area due to its proximity to Harpers Ferry National Historic Park. The item has been postponed twice. PC President has changed the order of this item. It will start with public comment. This will be followed by applicant statements on the issues raised. Then there will be an opportunity for more public comment. Staff recommendations would be made and the PC members would ask questions and comment throughout.

Public comment was fairly predictable. There wasn't anyone speaking for the project. Opposition was really just a rehearing of what were CIS items. Most comments were anecdotal without any verifiable data. Items included:

Applicant comments covered most items presented in public hearing. Staff comments include the standard statement that all conditions and standards of ordinance are in compliance.

Some PC members seemed to be searching for ways to vote against the project. A lengthy discussion included controversy surrounding the water and sewer lines crossing park property. The water line and wastewater treatment plant got most of the attention.

An executive session was called to discuss options with new PC lawyer Groh.

Two motions ended the agenda item:

Motion (Surkamp) to approve with condition that park service issue permit for the existing waterline crossing, second (Maxey). Motion fails 3-4 (Reynolds, Dailey, Deming, Sidor)

Motion (Reynolds) to approve the final plat, second (Deming) Motion passes 7-0.

The second agenda item of interest was a simple exchange between the PC and their county attorney. It was a series of statements that made one thing clear. The new PC lawyer is viewing the position as an attorney client relationship. He intends to advise the PC on issues at their request. He will also attempt to defend or advocate for any position the PC members choose to take. The correctness of a PC position will not be the over riding factor.

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Report on the Planning Commission Meeting, June 9, 2009

It was a meeting with short agenda but many important actions.

There were two key figures absent from the meeting. The newest member of the Planning Commission was not there. Neither was the County Commission representative. Tom Trumble had a previous commitment and surkamp was recovering from a vision correction procedure.

Election of officers... This item was prompted by the resignation of Bob Reynolds as the planning commission President. The election result did have a twist. Dailey was nominated to move from Vice President to President. There were no other nominations. Dailey was elected by consensus. That in itself seemed to be a little unexpected. The office of Vice President became open. Dunleavy nominated Reynolds. The odd part wasn't that there was a nomination of the person that resigned as President but that there was no objection by him. It was a very odd event. Some silence was followed by the nomination of Deming. Reynolds was elected on a 5-2 vote. It was a strange sequence of events.

Item 5 was the first applicant action. It turned out to be a pretty significant event. A request by William H Gordon on behalf of Jane Stone for a variance to extend the final plat process from May 09 to February 2010. There was also a request to reopen the file for Stonecrest Subdivision. It is on Flowing Springs Road at the intersection of Job Corp. (A previous request for time extension for this project had been denied. The file was closed due to time expiration following that action.) There was a presentation by the applicant. The staff report recommended approval. Several factors were discussed by the PC members and applicant. What it came down to was the reason for an extension request. What were the specific items that prevented the final plat from moving forward? There was a good bit of discussion and repetitive questions. It all came down to a literal enforcement of regulations. Specifically the 4 required questions in approving a variance. This particular request seemed to be denied focusing on one of those items. Self imposed hardship. Economic issues and delay due to contract negotiations were not accepted as justification for an extension.

The end result of this action is very serious for all current projects. The line has been drawn on time extensions.

Item 6 was another time extension request. James Gibson for a variance to extend the time for final plat hearing for Allstadt's Corner Subdivision. This is located in the area of the Flea Market on Rt. 340 near Harpers Ferry. This is another item that had been before the PC previously. The original hearing was on the May 26 meeting agenda. The PC held it over due to procedural questions and representations made by Scot Faulkner regarding published notice of the hearing. The delay was to establish the merit of Faulkner's statements regarding date certain scheduling. It was determined by staff that the previous scheduled hearing had been properly noticed. Back to this meeting, the applicant's representative made a statement with several key points. The first was that review had indicated that the meeting was properly noticed and the scheduled public hearing could move forward. That was followed by an explanation that the current request for a delay was to ensure there were no further issues with public notice time requirements. The final portion was to waive the 60 day time limit to a date certain. The new public hearing has been moved out to July.

The remaining agenda items were internal PC items:

Letters regarding the Flowing Springs waste treatment plant proposal and the ever popular Faraway Farms (FAF) legal appeals. It isn't over. The PC is moving ahead with some type of Federal appeal by split vote.

Charles Town has also had a Planning Commission change. Mary Lois Gannon Miller has been appointed to replace Geraldine Willingham on the town planning commission. The approach to future development in town may be modified due to the recent elections.

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Planning Commission Meeting, April 28, 2009

It was a beautiful spring evening. The flowers were at their peak of brilliance. A small gathering of friends and business associates was about....... Wait a minute, that's the wrong story! Where was I? Ah, the fourth Tuesday in April.

The Jefferson County Planning Commission was about to begin its meeting. The venue is a windowless multi purpose foundation for Charles Town's public library. The time, 7 PM. All but one of the eight current planning commission members has arrived. The staff is in place. Many of the professional representatives of agenda applicants are at the rear of the room. The final PC member arrives (Maxey) and the meeting can begin.

Let's start with approval of minutes...... Well actually not. There is a problem so that isn't going to happen.

Citizen Communications is up next. Well, actually not. There is no one wishing to address the group.

Request for postponement. Now we're getting somewhere. 4 through 7 of the agenda requested items are gone or postponed.

4. Declaration of Violation for Russell Fritts, Inc is withdrawn. Whatever the problem was got fixed.

5. Final Plat for A. Bradley Askin minor subdivision is withdrawn.

6. Final Plat for Allstadt's Corner Subdivision postponed to May 26 (No DOH permit)

7. Final Plat for William D. Rinker minor subdivision is postponed to 26 May.

Back to the action items.......

8. Consideration and Vote on the Community Impact Statement (CIS) for Faraway Farms. This item is still going on from the last meeting. You might recall that the meeting ended when two members left and there was no quorum to continue.

Wait a minute..... Maxey makes a motion. He wants to move up item 17. That is his pet agenda item. There is more to the plot. It seems he has already got himself on the County Commission agenda to say that the PC voted to move forward with a grant application entitled Chesapeake Bay Small Watershed study affair. It is to be used in the yet to be approved Mountain Study. The catch is that Dunleavey, Deming and the commissioner from Shepherdstown are going to recuse for item 8. Maxey is afraid that if any of them go home, there may not be a quorum later to address his item. That would be a problem. He is already committed to Thursday's presentation with PC approval not yet given.

Reynolds speaks up that the public items will be taken before PC items. A pretty firm statement was made and reference to expectations that those recusing would return.

The motion fails........

Back to item 8.

A statement is made that the only issue before the group is accept, accept with condition or reject the CIS. There will be no more information discussed. It is at the point of deliberation.

Maxey immediately passes out a prepared motion to accept with conditions. He begins to read.....

The discussion begins. Most of the comments relate to water. The biggest issue being on site capacity and draw down impact to surrounding property. Issue 3 was split in to two items clarifying the separate water issues. That created 5 items.

The vote is 4-1 with Sidor voting no. He raised most of the water availability issues. Most of the members commented in some way or another.

Maxey fires the next motion. Have the PC lawyer (Casimiro) draw up findings of fact and conclusions of law to provide the applicant with a clear understanding of the conditions approved. Casimiro enters the room. His position is that the acceptance and conditions are only advisory but he will draw them up. The vote is 5-0.

This whole thing will make the preliminary plat meeting interesting. The applicant will probably not agree with some of the Redman recommendations. That is where the trouble will begin. Maxey may state that the CIS approval was based on the applicant adopting all 17 recommendations. He may claim that wasn't done and therefore the CIS wasn't accepted. It doesn't make any technical or legal difference but will sway some members of the PC and Public. A pretty good strategy actually.

Let's move along to item 9. Wait a minute. Now the commissioner from Shepherdstown wants to move up item 17. Something about it being a commission priority. I don't know what commission he was talking about but it clearly wasn't this one. Reynolds simply said no.


 

Back to item 9.

A request for consideration by Peter Chakmakian for a proposed amendment to the Jefferson County Subdivision and Land Development Regulations regarding project time extensions.

The proposal was basically to add automatic 6 month or multiples of 6 month extensions to project requirements. The PC members asked a few questions. The focus was on a couple of basic points. The first was that the PC has no interest in any automatic extension. They want to review each extension request individually. The second was how to remove the provision later. Another question was the casual query about what other jurisdictions might be doing on this issue. It was a little half hearted. Probably more curiosity than interest. The commissioner from Shepherdstown also said something about changing the ordinance would somehow creep into the new ordinance. Again, I have no idea what he was talking about. The appointment actually just came to an end.

There is more to the story. Later in the meeting Reynolds admonished temporary planning director Davis for giving Chakmakian the appointment to appear. Reynolds stated that it gave too much credibility to the request. It should have done during public comment like everyone else. The PC will listen to anyone. That doesn't mean they have to take any action. It was just citizen comment. May was the backup with amen comments throughout. The exchange starts at 1:07:35 of part 1 of the webcast.

Back to the meeting........

Reynolds calls the next item (10, Director's report) but they are not going to give up moving item 17 forward. They talk about the grant both pro and con. Seems Maxey and May are the committee moving this thing. It finally ends with a 7-0-1 vote with abstention by Dunleavey to request the grant. The best part were statements that the PC can apply for the grant but a vote to accept the funds might be another matter. Strange group.

The next item was a brief discussion about when the new $85,000 planning director would be available. Jennifer Brockman is scheduled to start on the 26th of May. She will be here for two weeks before leaving on two weeks of personal business. Only time will tell if she is the lady from Philadelphia

That's a wrap.......

Fred

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If you have questions, comments, or brilliant insights, Fred would
love to hear from you.