Response to staff comments: DRAFT 4 Nov

(pg 8)

However, the notion that area surrounding Shepherdstown should be developed in an appropriate fashion is pertinent to this rezoning request. The intensity of the Industrial/ Commercial District is not in keeping with the surrounding property and surrounding area.

The transportation network is not adequate to allow the proposed zoning classification and the growth and development patterns existing are not conducive to potential heavy industrial operations.

(Applicant is requesting to see the traffic data used by staff for their transportation analysis. Potential Heavy Industrial operations on this property are not allowed under the current Zoning Ordinance (JC Zoning Ord 8.1A)

In general, based on the nature of the applicants proposed use there may be limited impact of business competition with the existing core communities in the county. However, if this development does not occur as planned, the proposed district does allow commercial activity that would impact the existing business centers.

It appears that there is an attempt to make the proposed rezoning fit the site.

(Hello... WV Code and the county zoning ordinance require the applicant to demonstrate that the proposed zoning "fits the site")

(pg 9)

Of importance is that the applicant is requesting a zoning classification that currently exists in the County in the industrial park. The industrial park has been established for the types of activity that the applicant has requested. Commercial and industrial developments can occur in a number of ways and in a number of alternative locations in the County.

There are a large number of commercial and industrial vacancies that can accommodate this kind of development.

(and this property is one of them. The property and its location are right. It is the current zoning designation that is wrong)

Adding to a saturated market decreases the value of all property zoned that designation as the demand is low and the supply is high. Further, while it is important to "Encourage and support commercial, industrial, and agricultural activities to provide a diversified and sound economy" in the County, that does not mean every site is conducive to such use or should be rezoned to the maximum allowable use. There may be situations where a request cannot fit the site and there are time when a creative solution can allow for the applicants need on a particular site.

While the most offensive and intensive uses of a heavy industrial nature are restricted by the Development Review System, the district still permits under "Principle Permitted Uses" uses of heavy industrial nature by right. The applicant has tried to minimize the differences between the Industrial/Commercial District and Residential/Light Industrial/Commercial district. Due to the noteworthy differences in the two districts, it is hard to minimize the differences. To highlight, there are two "Principle Permitted Uses" in the Industrial/Commercial district that are distinctly different from the uses permitted in the Residential/Light Industrial/Commercial. Those permitted uses are "heavy industrial uses" and "adult uses."

(Applicant would ask the Planning Director or any staff member to point out where an "adult use" could be placed on this property and still comply with current zoning regulations) (Applicant would also ask the Planning Director or any staff member to point out where a Heavy Industrial use could be located anywhere on this slide under current zoning regulation) While it may be easy to dismiss the more intensive and offensive uses that are heavy industrial in nature, since there is the Development Review System, it is important to know that as long as an applicant can meet the requirements set forth in the Development Review System process they are entitled to that use.

(pg 10)

The applicant has highlighted the primary use of the property as "...to provide low impact, high quality commercial, distribution, professional services and retail in the area." Staff believes all of these intended uses are more appropriate in the Residential/Light Industrial/Commercial district. Additionally, both the Comprehensive Plan and Zoning Ordinance state that retail services and consumer oriented commercial uses should be limited in the Industrial/ Commercial district.

Since retail sales of goods made from the region are an important goal of the applicants intended uses, the district requested by the applicant discourages such uses.

(The actual language in the zoning ordinance states "It is not the purpose of this district to encourage the use of land within the district for retail services; however, it is anticipated that there may be areas or locations where retail services can be reasonably and logically considered due to their relationship with other uses existing within the district, as well as their relationship with the district boundary line or the configuration of the property and the relative scale of the project". I would ask the Planning Commission members to judge if this provision "discourages" commercial and associated retail business.

The applicant argues that the size of the site would limit uses of heavy industrial.

With over 13 acres for use, it appears that statement is unfounded. The lot sizes in Burr/Bardane Industrial Park are generally 2.5 - 6 acres in size and allows for variety industrial uses. There is the ability for heavy industrial uses on this site.

(This is an absurd statement on its face. Setbacks, surrounding zoning and existing distance restrictions prohibit "Heavy Industrial" uses on the subject property. Again the applicant would ask the Planning Director or any staff member to identify where a heavy industrial use could be placed on this property and still be in compliance "by right" with the current county zoning ordinance)

In the information provided, the applicant asserts that the proposed use on the site is mixed use, excluding residential activity,

yet the requested zoning district is not mixed use in its design.

(The academic "mixed use" term as applied by planners means a mix of residential and something else. Out in the real world, the applicant considers a district that allows commercial and small business uses, retail and wholesale agricultural operations, organic vegetable production , small restaurants, professional medical offices, veterinarians, art galleries, day care centers, public safety facilities and a seasonal produce/artisan market to be "mixed use" of the property)

The applicant contends that this site should have been zoned Industrial/Commercial since 1988.
Their basis for this statement is that there was a restaurant on the site in 1988 when zoning was adopted. The structure burned in 1993. Considering the use that was on the property in 1988, it seems excessive that Industrial/Commercial would have been appropriate for this site. The restaurant use was considered a non-conforming use in the Rural district. Since that time there has been no commercial activity commenced on the property to establish a commercial use. While the applicant did receive a Conditional Use Permit for a work/live development, no commercial activity took place on the property. Additionally, while there is a farmers market on site, that did not reestablish the commercial use nor did it constitute a new commercial use. Much like a farmer with their own seasonal stand, that does not constitute a commercial use, such stands are an accessory use to the farm operations.

(Applicant actually stated that "the property has been in continuous commercial use since 1968". The rest of staff comment in this paragraph is opinion, out of context and addressed in the applicants opening documents and statements.)

Staff Recommendation

The applicant has provided documentation that they believe supports the request for rezoning and has attempted to demonstrate an apparent consistency of the proposed rezoning with certain provisions contained in the Comprehensive Plan. The applicant's analysis is based more on the use the applicant is proposing, rather than the requested zoning district.

The merits of the proposed use may be honorable, however state law requires the requested zoning district be evaluated not the use.
As such Staff does not recommend approval of the requested rezoning from Rural to Industrial/Commercial.

(Applicant agrees. The proper classification of this property to meet the goal of prohibiting residential development and continuing its local commercial growth is the right thing to do)

(pg 11)

As noted on page 12 of the Plan, "its recommendations are (by their nature and intent) general and, as such, sometimes conflicting. It will not be difficult to find two that individually justify and conflict with many land use proposals."

Additional consideration of the proposed rezoning should include the following:

As noted above, State statute provides that "Before amending the zoning ordinance, the governing body with the advice of the planning commission must find that the amendment is consistent with the adopted comprehensive plan." [See WVC 8A/7/9(c)] This subsection of the State Code goes onto state that, "If the amendment is inconsistent, then the governing body with the advice of the planning commission, must find that there have been major changes of an economic, physical or social nature within the area involved, which were not anticipated when the comprehensive plan was adopted and those changes have substantially altered the basic characteristics of the area."

There have not been major changes of an economic, physical or social nature within the area that where not anticipated when the current Comprehensive Plan was written in 2004.

As noted above, Staff supports the applicants proposed use and the concept, but cannot support the proposed zoning district. The proposed district is significantly out of context for the surrounding uses and the area of the property. Additionally, the district permits more intense uses than the applicant is proposing for the site. Staff believes that if a zoning district where to be chosen, that the Residential/Light Industrial/Commercial district may more appropriate for the request, as it is in keeping with the proposed use of the property. However, staff has not evaluated if that would be consistent with the Comprehensive Plan.

Staff also believes that the Conditional Use Permit (CUP) is specifically designed for this type of situation when the use is outside the norm in the available zoning districts.
In the past the Staff and the applicant have discussed the merits of this project and their options for a CUP or a rezoning. The applicant could tailor the uses, the number of structures and the size of the structure for the particular application of this site. A Conditional Use Permit could be crafted for the particular use proposed and allow the flexibility that fits the needs of the applicant.

(Staff seems to be at odds with the county zoning ordinance and comprehensive plan. Their reliance on zoning by exception clearly defeats the entire concept of zoning in the first place. The true purpose of zoning is predictability of land use for property owners and their neighbors. The process for a zoning map change is clear in both WV Code and the Jefferson County Zoning ordinance. Each district has specific allowed uses and standards. Relying on conditional use permits (CUP) as land use policy is actually no policy at all. CUP approval and denials are totally arbitrary without upper limit restrictions. There is no predictability for land owners and their neighbors. The current comprehensive plan talks about the need to improve land use regulations in Jefferson County. I don't think the comprehensive plan intent was to make an undefined conditional use decision the primary land regulation strategy.)