Special Issues

Fred's List - Option B

I'm glad you decided to join me. Let's get started.

It has been brought to my attention that governing done well is actually boring. The job is fairly simple.

1. Understand what it is that you are supposed to do.

2. Get some information to make policy decisions.

3. Tell staff to implement those polices.

4. If you are unsure of anything, refer to #1

My basic philosophy is that things are only as difficult or complex as you make them.

I have created a list of what local county government is supposed to do. It seems like the list is long. There seem to be many difficult areas of concern. Fact be told that is only because the WV Constitution and WV Code have been amended to include many things that are allowed but few that are required. That required thing is listed as "duties". "Authorized" or have the "power to" are simply buzz phrases for things to do when electeds get bored. Electeds do get bored and quickly. It starts about 4 weeks after they take office. That is when the realization sets in. The job has specific duties. Nothing more and nothing less. All the motions to enact campaign promises have been found illegal or couldn't get a second. Promised programs are being done by someone else. Who knew? That great idea that they JUST had was popular in 1983 but isn't so great now. Then it happens...

Time to do the job. Put the play things away and do the tasks that were identified in item number one above (we will keep coming back to that).

WV Constitution pretty much tells us what local governments, specifically the County Commissions, are supposed to do.

1. Protect documents of record.

2. Supervise the internal police (if they want some).

3. Manage the tax money.

4. Oversee elections.

That's it!

In fairness, the Constitution throws in a little disclaimer:

"Commissions MAY exercise such other powers, and perform such other duties, not of a judicial nature, as may be prescribed by law."

I don't have a problem with that. Let's talk about WVC 7-1-3 and 7-1-5. That is where the "as prescribed by law" hangs out.

I am going to be taking artistic liberty with some language. Want to tell you that up front. It is important to translate some of the Code sections to plain statements. Summary code sections are in the "dry" version of this report. I'll also give the links to the actual code sections for those that are having trouble with sleep.

WVC 7-1-3 Jurisdiction, Powers and Duties.

Capital A-F are the serious items.

This is a repeat of the Constitution with a couple of campaign kickers added.

They "shall" is another buzz phrase for duty.

A, B, C and E are duties. D and F not so much...

Duties:

a. custody of all deeds and recoded record.

b. probate matters to settle estates.

c. internal police and fiscal affairs

e. monitor and certify elections

Authority or power are buzz words for "when you get around to it" or "when you get bored" (actually they are the same thing).

Authority:

d. set tax rates (within specific guidelines)

e. this section will not limit the CC from restricting commercial land uses through planning and zoning.

That is the end of the "duty" section.

Authority and power are in the rest of 7-1-3. It takes the legislature some time to list all the special interest Code changes. It runs from 7-1-3a thought 7-1-3oo. I think it is appropriate that this section ends with 7-1-3oh oh ;-)

There are a few items in the authority section that I tend to marginally support. It is no where near the 42 listed in Code.

7-1-3a. CC are authorized to Build, operate and maintain sewer and water systems. They can also contract to maintain subdivision roads.

7-1-3t. CC can allocate general revenue or any other funds to PSD and municipalities "for the purpose of establishing or improving water and sewer systems".

7-1-3dd. CC can establish a wage and benefit review board. It even lists who should be on it and the what issues should be addressed.

7-1-3ff. Create an agency to deal with abandoned, unsafe or unsanitary structures in the county.

There is one more that is really near and dear to my heart...

7-1-3mm. with approval of voters, establish a program for the transfer of development rights (TDR)

A good TDR program is probably the number one protection of property values when zoning is applied. It compensates landowners when a zoning ordinance gives benefits to some and takes away flexibility from others. It also has the ability to deal with a long list of issues. Historic properties, regional recreation facilities, infrastructure design... the list is almost endless. These are difficult to set up but are probably the best tool for equitable land use policy and growth management.

Just a few words about WV Code 7-1-5. It is titled Duties of county commissioners. There are 17 items. Most of them are written with more of an authorizing language.

The single item that comes closest to "shall" is item I.

7-1-5I. to supervise the general management of the fiscal affairs and business of each county. It is actually the section that authorizes the CC to create a parks and recreation program. What that has to do with management of the fiscal affairs is beyond me.

Start the drum roll... All this data and talk is simply to create my list of what the CC job is.

Fred's List:

1. Maintain custody and protect documents of record. (through the County Clerk)

2. Oversee and certify county elections.

3. Determine essential government services and budget tax revenues to fund and provide them.

4. Handle probate and estate matters.

5. Board of Equalization and Review for citizen property tax appeals.

That's it. Not that simple but this is the list. I am not going to say that there aren't extensions of these 5 items. The land use Genie is out of the bottle. That will continue to be an issue that elected officials will have to deal with. That doesn't mean that it needs to get more complicated. It means that electeds will have to find a way to simplify regulation and create goals. Hopefully, they will establish consensus goals first.

I intend to measure performance of the County Commission by simply placing their actions next to the list to see if they fit together. I will do the same with candidates. Do policies and expenditure of public funds match my list.

Links...

WV Constitution, Article IX-11

 

WV Code 7-1-3, WV Code 7-1-5

 

Zoning, Part 1

part one of a five part series

West Virginia Code 8A-7-1 Authority for Zoning Ordinance

(a) The governing body of a municipality or county may regulate land use within its jurisdiction by:

 

(1) Adopting a comprehensive plan

(2) Working with the planning commission and the public to develop a zoning ordinance; and

(3) Enacting a zoning ordinance

 

It sounds so simple......................

 
Link to WVCode 8A-7-1
 

WV Land Use Code has been amended over the years. Some of those amendments were written specifically for or because of Jefferson County. Jefferson County adopted its first zoning ordinance July 7, 1988. That ordinance has also been amended several times. The title of the current zoning ordinance "Zoning and Development Review Ordinance, Jefferson County, West Virginia", will become important later in this series.

A discussion of development and the future of Jefferson County started to rise in the public consciousness. It was the mid to late 1990s. There were several events that brought attention to the issues of population growth during that time. In 2000 began the era of ordinance rewrite. A comprehensive plan rewrite was the first step. Four years later the document was completed and adopted. Next was the subdivision and zoning ordinance updates. Public discussions were held, consultants hired and planning staff started to expand.

The first blush of actual documents for public review appeared in mid 2006. Full ordinance drafts were being released in June of 2007. There was a flurry of activity as the zoning document took shape. A draft was released in Nov 2007. That went to a series of public hearings. It was quite a time. The meetings were long and tempers were getting short. It was the nature of the beast. One of the items of contention was putting the new zoning regulation on a ballot for voter approval. This item alone caused local and state legislators to amend WV Code in early 2008. The change made provision for citizens to petition the county commission to hold a vote on the new zoning proposal.

This voting issue caused two discussions to be front page news at the same time: a. should there be a vote and b. the content of the document itself. All the public comment and various positions of elected officials caused 5 zoning drafts to be released from February through August 2008. The county commission adopted the fifth draft as the new zoning ordinance on October 2, 2008.

They had chosen to move forward with the ordinance without a vote. A citizen group began the petition process and was successful in meeting standards set by the recent WV Code changes. A vote was going to be required. The newly adopted ordinance was suspended and elected officials began to debate how and when to hold the zoning referendum. That election date has been announced as November 7, 2009.

Now it is time to do a little more detail about WV Code and what this vote is about. The issue isn't landscape requirements, tree cutting or how many houses could be built. The issue as defined in WV Code is the change from our current "nontraditional" zoning regulations to simply "zoning". So what's the difference? It may not be what some think.

 

Zoning, Part 2

part two of a five part series

Let's talk a little about the vote itself. What is it about?

As we discussed earlier, the vote is supposed to be on a technical issue, the change in type of zoning, not just adoption of an updated set of regulations or amendments. It may seem subtle but there is a very real difference in the two county ordinances. I'll offer two items that will hopefully frame the voting information.

First is the actual code section that covers the ordinance replacement process. It is WVC 8A-7-13 "Process to replace nontraditional zoning ordinance". This is the new code section that was added specifically to address public opportunity to vote on a newly proposed zoning style instead of an amendment to existing regulations.

Link to WVC 8A-7-13
 

Second are the WVC definitions for nontraditional zoning and zoning.

---

(t) "Non-traditional zoning ordinance" means an ordinance that sets forth development standards and approval processes for land uses within the jurisdiction, but does not necessarily divide the jurisdiction into distinct zoning classifications or districts requiring strict separation of different uses, and does not require a zoning map amendment.

 

(gg) "Zoning" means the division of a municipality or county into districts or zones which specify permitted and conditional uses and development standards for real property within the districts or zones.

---

 

Similarities and differences between zoning types are difficult to explain but important. The upcoming zoning vote in Jefferson County is technically about the difference between two zoning definitions. The "zoning" definition is pretty straight forward. It creates a defined area with specific permitted and conditional uses. Zoning by statute also requires a map indicating the defined areas. Each mapped area has a descriptive title and narrative identifying what type of land use is permitted. I will use an actual area designation and narrative from the proposed ordinance for this example:

 

---

Sec. 1.301 Agricultural (AG) District

A. General. This district is a use-based district intended to permit agriculture to be the primary and preferred use of land and restrict residential uses or activities that interfere with agriculture or where home owners would be impacted by the noise, dirt, or odors associated with agricultural uses.

This designation (AG) is accompanied by a chart of permitted, conditional and prohibited uses.

---

 

The narrative of conditional uses for a specific area are available in the overall document. The following is a section that explains the standards required to allow a "group home" conditional use in the (AG) district.

 

---

Sec. 2.405 Group Residential Home and Group Residential Facility

"A group residential home and group residential facility shall be a permitted residential use of property for the purposes of zoning and shall be a permitted use in all residential zones or districts. In the Agricultural (AG), Farmstead (FS), General Commercial (GC), or Business Park (BP) Districts, group residential home and group residential facility will only be permitted if the following conditions are met:

A. AG and FS Districts. Where the subject property is a lot that was recorded as of the effective date of this ordinance and no home presently exists on the property or the property is so small as to be unable to be put to a permitted use, one group residential home and group residential facility may be permitted.

---

 

I hope that you can see through this example that the new ordinance provides a specific set of standards for land use in the (AG) district. The intent is for the property owner and adjacent property owners to know what is and isn't allowed on a certain property. There is no opportunity for a use that isn't listed without a rezoning of the property. That rezoning process would be through application by the land owner. It would have to be reviewed by the public and approved or rejected by our local governing body. If the rezoning is approved, a map change would be required indicating the property had other permitted uses.

I mentioned earlier that rezoning and specifically map change would be important. That is what will eventually define the difference between nontraditional and traditional zoning. Let's move on to a brief look at the nontraditional zoning we have now. Many of the same words apply. Designated districts (areas) that have a list of permitted uses. Maps are required. I'll use the same type of district and permitted use sections as in the previous example.

Our current ordinance has a Rural District. It is similar to the (AG) district in the proposed ordinance. Again, I'll use the area designation and description from the ordinance:

 

---

Section 5.7 Rural District

The purpose of this district is to provide a location for low density single family residential development in conjunction with providing continued farming activities. This district is generally not intended to be served with public water or sewer facilities, although in situations where the Development Review System is utilized, it may be. A primary function of the low density residential development permitted within this section is to preserve the rural character of the County and the agricultural community. All lots subdivided in the rural District are subject to Section 5.7d Maximum number of lots allowed. The Development Review System does allow for higher density a Conditional use permit is issued.

---

 

The Rural District (RD) has a list of 23 permitted uses. Prohibited uses are also listed in the zoning document. Conditional uses are not identified. There is a process for requesting uses and densities not otherwise on the permitted use list. Here is the actual section:

 

---

Section 6.1 Development Review System (DRS)

The purpose of the Development Review System (also referred to as DRS) is to assess a particular sites development potential based on criteria which determine the agricultural longevity of the parcel in combination with the presence of and compatibility with public services adjacent and in close proximity to the site. The DRS is a numerical rating system designed to function within the framework of the traditional zoning districts referenced in this ordinance. All commercial uses and those uses which are not permitted in zoning districts shall be governed by the procedures set forth in Article 7 and all sections that reference requirements to obtain a conditional use permit. It shall be unlawful to commence construction of any commercial uses or uses which are not permitted uses in a zoning district without obtaining conditional use permit approval.

 

Section 6.2 Issuance of a Conditional Use Permit

Application for a conditional use permit shall be made before construction of any uses not listed as permitted uses within the appropriate zoning district. Upon receipt of an application, the site will be evaluated by the Planning and Zoning Staff using the Development Review System. The two major components of the System, the Soils Assessment and the Amenities Assessment, consist of criterion which each possess a numerical value that is weighted relative to its importance as an indicator of a parcel's agricultural significance or its development potential. The total numerical value of the combined criteria is 100 points: the Soil Assessment contributes 25 points and the Amenities Assessment contributes 75 points. The highest total numerical value of the combined criteria indicates that a parcel is more suitable for agriculture, whereas, the lowest numerical value indicates that development is more appropriate for the site. A score of 60 points or less advances the application to the Compatibility Assessment as provided in Section 7.6. A score of more than 60 points may be evaluated by the Board of Appeals before it can be advanced to the Compatibility Assessment Meeting Stage.

---

 

The subtle difference between these two processes is the aspect of knowing what uses will be allowed on a property. The current nontraditional ordinance has an application for conditional uses based on fixed criteria but not what the use and density might be. There is no requirement for a zone classification change or map change in the nontraditional zoning ordinance.

Go get that cup of coffee. Time to start talking about predictability, land use and process differences between traditional (proposed) and nontraditional (current) zoning. We'll pick it up in part 3.

 

Zoning, the Vote: Part 3

part three of a five part series

Time to start talking about predictability, land use and process differences between traditional (proposed) and nontraditional (current) zoning. We'll take that up now.

Discussion has been swirling about why there is a need to change Jefferson's zoning ordinance. Drafters and proponents of the new zoning ordinance have made statements that inluuded the need for growth management, protection of open space, protection of historic view sheds, geologic issues and "LESA". LESA is the buzz acronym for Land Evaluation and Soils Assessment. It is part of the current ordinance. LESA is the scoring system used to determine IF a property could be considered for a use other than that specified in each particular zone.

There is no simple way to describe all the technical differences between Jefferson's two ordinance proposals. I will attempt to give a very basic comparison on the key predictability and process differences. The best way to that is through a side by side comparison of the particular section that allows change of use in both ordinances.

Comparison of the amendment process between current and proposed ordinances.

This is from the current zoning ordinance, commonly described as LESA.		From the proposed ordinance...
Section 6.1 Development Review System (DRS)		Sec. 12.402 Conditional Uses: Generally
The purpose of the Development Review System (also referred to as DRS) is to assess a particular site's development potential based on criteria which determine the agricultural longevity of the parcel in combination with the presence of and compatibility with public services adjacent and in close proximity to the site. The DRS is a numerical rating system designed to function within the framework of the traditional zoning districts referenced in this ordinance. All commercial uses and those uses which are not permitted in zoning districts shall be governed by the procedures set forth in Article 7 and all sections that reference requirements to obtain a conditional use permit. It shall be unlawful to commence construction of any commercial uses or uses which are not permitted uses in a zoning district without obtaining conditional use permit approval.		A. General. Conditional use applications are decided after public hearing by the Board of Zoning Appeals. Conditional use approval is required for all uses and structures which are listed in Table 2.201A and Table 2.201B as conditional uses. The hearing is intended to determine whether the conditional use complies with all applicable provisions of this Ordinance and its proposed location and design are such that it meets the needs of the community for such use without creating adverse conditions or a nuisance in the neighborhood.
		B. Application; Simultaneous Processing. An application for a conditional use may be processed simultaneously with other zoning applications, and approval of the other applications may be a condition of approval of the conditional use. However, in the case of land development plans, a conditional use approval, if required, is a pre-condition to application. Each application shall be processed on its own independent merits according to the standards applicable to the application.
		Required Findings. A conditional use shall be granted when the Board of Zoning Appeals makes findings of fact that: The proposed development complies with all of the applicable standards of Division 2.400, Limited and Conditional Use Standards; and
		The nature and intensity of the operations involved in or conducted in connection with the use and the size of the site in relation to it are such that the proposed conditional use will be of the same character in terms of intensity and open space or landscape requirements of other areas in the neighborhood that are similarly zoned; and
		in connection with any conditional use will not be more objectionable to nearby properties by reason of noise, fumes, vibration, or other characteristics than would the operations of any permitted use not requiring conditional use approval;

Both ordinances have provision to change "by right" land use through a review process. The difference between the two?

----------------------------------------------------------------------------

Current Ordinance or (NO vote)	Proposed ordinance or (YES vote)
a. Specific numeric standard prior to consideration	a. List of potential conditional uses
b. Proposed change of use detailed	b. Additional standards in various sections
c. public hearing process	c. proposed conditional use detailed
d. Neighborhood compatibility review.	d. Public hearing process
e. No change of allowed use without agency approval	e. No conditional use allowed without agency approval.

Again, I will leave it to the reader to form an opinion on how the two ordinances compare in simplicity and predictability at this point.

Time for part 4. That will be my opinion on which ordinance provides actual predictability.

Zoning, Part 4

part four of a five part series

It's time for my opinion about the ordinances.

Two pop up immediately.

a. Both ordinances were found to be in compliance with the current Comprehensive Plan

Predictability of allowed land use and potential changes to those uses is one of the most important factors in regulation. Simply put, the current ordinance has a more defined set of standards. That is embodied in the scoring (point) system referred to as LESA. This system is not a guaranteed change approval. It is a defined minimum standard of what will be required to APPLY for conditional use changes from zoning regulation. The proposed ordinance has a longer list of items to be considered but the end process is arbitrary through decisions of appointed citizen agencies.

The final consideration is how these ordinances were created. Our current ordinance is based on regulation of issues that local citizens and land owners felt were important. Current zoning regulations have been amended numerous times since their original enactment. These amendments have allowed the zoning document to grow and change. The changes have been to address specific public views regarding a multitude of new concerns.

The proposed ordinance was created from an entirely different perspective. Outside "experts" were hired to draft the document. The process chosen was that of putting in every conceivable regulation and standard initially. The adjustment was to be made by removing the most egregious portions. That left many unnecessary restrictions and conditions. It also allowed many politically motivated provisions to remain in the document. Clarity and predictability were lost.

I will be truthful about my vote regarding the zoning issue. Originally, I had believed that as bad as the new ordinance is that it might be something to work from. The change in the process for conditional use approvals and method for rezoning might be better defined. I don't believe that any more.

Researching both ordinances has taken me to a single conclusion. Predictability and straight forward presentation of the current ordinance more than out weighs benefit that might be gleaned from the cumbersome excess regulation of the proposed ordinance. The current ordinance is doing the job it is supposed to do. Assign land uses by zone. The proposed ordinance goes way too far in regulating items that have nothing to do with land use, public health or protecting land values.

I have voted "NO" to changing from our current ordinance. IF there are issues or short comings in the current ordinance it is because appointed and elected officials have failed, not the ordinance. The grossly over reaching new proposal is in no way a starting point for future consideration.

Part 5 will be after the election. Where do we go from here?