Fred's List - Option A
Let's start with the West Virginia Constitution. That must have something to say about this. It is in fact the headwater of all state government authority. The first section is the establishment of state authority. Section 9 is the actual creation of local government and listing of local powers and duties.
WV Constitution, 1-2. Internal government and police.
- The government of the United States is a government of enumerated powers, and all powers not delegated to it, nor inhibited to the states, are reserved to the states or to the people thereof. Among the powers so reserved to the states is the exclusive regulation of their own internal government and police; and it is the high and solemn duty of the several departments of government, created by this constitution, to guard and protect the people of this state from all encroachments upon the rights so reserved.
WV Constitution, 9-11. Powers of county commissions.
A. Shall have custody of all deeds and other papers presented for record in their counties. (Through the County Clerk)
B. Have the superintendence and administration of the internal police.
C. Superintendence and administration of fiscal affairs of their counties, including:
- 1. Establishment and regulation of roads, ways, bridges, public landings, ferries and mills.
- 2. Authority to lay and disburse the county levies.
- 3. Judge of the election, qualification and returns of their own members, and of all county and district officers, subject to such regulations, by appeal or otherwise, as may be prescribed by law.
- 4. Commissions may exercise such other powers, and perform such other duties, not of a judicial nature, as may be prescribed by law.
So that is pretty much what the State Constitution has to say in the matter. I have shortened it by using outline format but kept the intent. You may have noticed the phrase "other powers and duties as may be prescribed by law". That is where the real fun begins.
West Virginia Code (WVC) is the legislative law that defines Constitutional authority. These laws or "codes" are generally separated into sections. The specific powers and duties are listed in WVC 7-1. Sections of particular importance are contained in 7-1-3 and 7-1-5.
Sec.7-1-3. Jurisdiction, powers and duties.
A. County commissions, through their clerks, shall have the custody of all deeds and other papers presented for record in their counties
B. They shall have jurisdiction in all matters of probate, the appointment and qualification of personal representatives, guardians, committees, curators and the settlement of their accounts.
C. They shall also have the superintendence and administration of the internal police and fiscal affairs of their counties, including the establishment and regulation of roads, ways, streets, avenues, drives and the like.
D Authority to lay and disburse the county levies.
E. They shall, in all cases of contest, judge of the election, qualification and returns of their own members, and of all county and district officers, subject to appeal as prescribed by law.
F. That no provision in this section may be construed to limit the authority of a county to restrict the commercial use of real estate in designated areas through planning or zoning ordinances.
Sec.7-1-3a.
A. Commissions are hereby authorized and empowered to install, construct, repair, maintain and operate waterworks, water mains, sewer lines and sewage disposal plants in connection therewith within their respective counties:
B. County Commission shall have the power to improve streets, sidewalks and alleys and lay sewers and enter into contracts for maintenance of county roads and subdivision roads used by the public but not in the state road system as follows: Upon petition in writing duly verified, of the persons, firms or corporations owning not less than sixty percent of the frontage of the lots abutting on both sides of any street or alley
Sec.7-1-3b.
A. Commissions are hereby authorized and empowered to purchase, install and maintain radio mobile communication equipment and appliances for the use of the sheriff and his deputies.
Sec.7-1-3c.
A. Commissions are hereby authorized and empowered to purchase, install and maintain photo copying equipment, microphotographic, or other miniature photographic processes, appliances and supplies designated for copying photographically or microphotographically all or any number of its deeds, documents, books, records, plats or maps, or other writing, for use by the clerks of the several county courts and to pay therefor and for the maintenances thereof out of the county treasury. The actions of the county courts in heretofore purchasing and maintaining such equipment is now ratified.
Sec.7-1-3d.
Levy for, establishment and operation of fire prevention units; financial aid.
The county commission in any county may levy for and may erect, maintain and operate fire stations and fire prevention units and equipment therefore in the county
Sec.7-1-3e.
Acquisition of land for, and operation of, public refuse dumps and sanitary landfills.
commissions are hereby empowered to acquire, by purchase, right of eminent domain, lease, gift, or otherwise, land for the establishment of public refuse dumps and sanitary landfills Provided, That the authority granted by this section expires on the first day of January, one thousand nine hundred eighty-nine.
Sec.7-1-3f.
Establishment and operation of garbage and refuse collection and disposal services.
The authority granted by this section expires on the first day of January, one thousand nine hundred eighty-nine.
Sec.7-1-3g.
Acquisition, operation, and maintenance of sewerage systems and sewage plants.
courts are hereby empowered to acquire, by purchase, right of eminent domain, lease, gift, or otherwise, and to operate and maintain, sewerage systems and sewage treatment plants Provided, however, That the power and authority hereby conferred on county courts shall not extend into territory within the boundaries of any municipal corporation, sanitary district or public service district.Sec.7-1-3h.
Authority and procedure for closing unused roads, streets and travel ways; notice and hearing; circuit court review.
Sec.7-1-3i.
County commission may cooperate with other governmental units.
Any county commission may join together in the exercise of any of its powers, duties and responsibilities, or otherwise cooperate with any other county or counties, municipality or municipalities, the government of this state or of the United States in carrying out any lawful purpose not in conflict with the constitution of West Virginia:Sec.7-1-3j.
Authority to establish county coordinating council; powers and duties of council; duties of county clerk.
Courts are hereby authorized and empowered to establish a county coordinating council for the purpose of coordinating county improvement programs with state and federal programs designed for this purpose.Sec.7-1-3k. Authority to lease, rent or permit the use of county property.
Sec.7-1-3l. Authority to establish county appraisal-assessment board; functions and duties of board; duties of assessor.
Sec.7-1-3m. Authority to employ, fix compensation for and discharge personnel.
Sec.7-1-3n. Authority of certain counties as to building and housing codes; state building code.
Sec.7-1-3o. Authority to construct and maintain county transportation, parking, and other public facilities; delegation of such authority to board or commission; financing.
Sec.7-1-3p. Authority to require permits for mobile homes or house trailers; penalty.
Sec.7-1-3q.
County commissions on intergovernmental relations created and established; composition of commission; powers and duties of commission; executive secretary; duties of executive secretary. This commission shall assemble and disseminate information concerning federal programs which provide financial assistance to the residents of their county. Such programs shall include but not be limited to,
Sec.7-1-3r. Purposes of section; county commissions on crime, delinquency and correction created and established; composition of commission; powers and duties of commission; executive secretary; duties of executive secretary.
Sec.7-1-3s. Authority to govern traffic and parking; rules and regulations; penalties.
County courts are hereby authorized to promulgate rules and regulations on property owned by or leased by such county courts
Sec.7-1-3t. Authority to make grants from general revenue funds and other funds for water and sewer systems.
Courts are hereby authorized and empowered to make grants from general county revenues and any other revenues of the county available for such purposes, to public service districts as defined and provided for in article thirteen-a, chapter sixteen of the code and to municipalities for the purpose of establishing or improving water and sewer systems.
Sec.7-1-3u. Authority of counties and municipalities to treat streams to prevent floods.
Sec.7-1-3v. Floodplain and mudslide area management; legislative findings; power and authority; enforcement; provisions cumulative.
And that the purpose of this section is to authorize and empower the several counties of this state to comply with such requirements.
(1) "Act" means the National Flood Insurance Act of 1968 (Public Law 91-152), as amended by the Congress of the United States through the fifteenth day of February, one thousand nine hundred seventy-five; and
(2) "Specified area or areas" means the area or areas specified under such act as a flood plain or mudslide area or areas within which control over construction and improvements must be exercised in order to comply with such act.
Sec.7-1-3w. Authority to establish county beautification councils; organization; county commissions not obligated for debts of councils; powers and duties; expenditures of funds by councils; authority of county commissions to appropriate moneys.
Sec.7-1-3x. County information referral service.
In addition to all other powers and duties now conferred by law upon county commissions, such commissions are hereby authorized to establish information outlets for the dissemination of information concerning the sources of community and governmental services available to the public and to refer the members of the public to the correct source of assistance needed.
Sec.7-1-3y. Authority to grant funds to nutrition programs.
Sec.7-1-3z. Authority of counties to govern business of massage.
Sec.7-1-3aa. Authority of county commissions to create and fund a hazardous material accident response program.
Sec.7-1-3bb. Levy for, establishment and operation of sheltered workshops; financial aid.
Sec.7-1-3cc. Authority of county commissions to establish enhanced emergency telephone systems, technical and operational standards for emergency communications centers and standards for education and training of emergency communications systems personnel; standards for alarm systems; fee upon consumers of telephone service for the systems and for roadway conversion systems; authority to contract with the telephone companies for billing of fee.
Sec.7-1-3dd. Authority to establish county wage and benefits review board; duties and powers; membership.
In addition to all other powers and duties now conferred by law upon county commissions, such commissions are hereby authorized to establish employee wage and benefits review boards.
If a county commission elects to create such a board, the board shall establish uniform:
(a) Employee salary scales with ranges of minimum and maximum figures for each type of position within the county. Compensation within and between each salary range shall be based on merit, commensurate with experience, education and demonstrated job performance;
(b) Job descriptions for each type of position, including assistants, deputies and employees not covered by a civil service system;
(c) Vacation policies to be consistently applied among different employees in the same type of work;
(d) Policies governing sick leave and vacation leave, including accumulation of leave from year to year;
(e) County-wide grievance policies, which shall be pursued to the fullest extent before any judicial remedy may be sought; and
(f) Other personnel practices which reflect sound, modern administrative practice.
In addition to the above duties of an employee benefits review board, the board shall establish procedures for receiving and reviewing comments and suggestions of county employees and of any citizen of the county regarding job descriptions, salary schedules and personnel policies developed for county assistants, deputies and employees not covered by a civil service system.
The employee benefits review board shall consist of the following members:
(1) One county commissioner selected by the county commission;
(2) County clerk;
(3) County sheriff;
(4) County assessor;
(5) Clerk of the circuit court in which the county is located;
(6) Prosecuting attorney; and
(7) Two county employees selected by the county commission, one of whom shall be a member of a county civil service system, in counties which have such systems, and one of whom shall not be covered by civil service. Each employee member shall be selected from a different county office. Neither employee member shall be an elected official.
The county commission shall appropriate sufficient funds for the board to accomplish in a reasonable and proper manner the duties specified herein.
Sec.7-1-3ee. Providing for payment of service fees at banking institutions.
Sec.7-1-3ff. Authority of county commission to enact ordinances regulating the repair, alteration, improvement, vacating, closing, removal or demolition of unsafe or unsanitary structures and the clearance and removal of refuse, debris, overgrown vegetation, toxic spills or toxic seepage on private land; authority to create enforcement agency; procedure for complaints; promulgation of rules governing investigation and hearing of complaints; remedies for failure to comply with commission-ordered repairs or alterations; lien and sale of land to recover costs; entry on land to perform repairs and alterations or to satisfy lien; receipt of grants and subsidies.
Sec.7-1-3gg. Lease agreements for equipment or materials with option to cancel or renew.
Sec.7-1-3hh. Authority to lease, sell or dispose of county property to the state, federal government or an instrumentality thereof.
Every county commission, building commission created pursuant to article thirty-three, chapter eight of this code and development authority created pursuant to article twelve of this chapter is authorized to sell, lease as lessor or dispose of any of its real or personal property or any interest therein or any part thereof, as authorized in article five, chapter one of this code, or to the United States of America or any agency or instrumentality thereof, or to the state or any agency or instrumentality thereof, for a public purpose for an adequate consideration, without considering alone the commercial or market value of such property.
Sec.7-1-3ii. Authority to require posting of commercial and residential addresses within municipal boundaries.
Sec.7-1-3jj. Authority of counties to enact ordinances restricting the location of businesses offering exotic entertainment.
Sec.7-1-3kk. Authority to provide for the elimination of hazards to public health and safety; penalty.
anything which the commission determines to be a public nuisance.
Sec.7-1-3ll. Clerk of the county commission duties relating to record keeping of military discharge forms.
Sec.7-1-3mm. Transfer of development rights in growth counties.
(a) In addition to all other powers and duties now conferred by law upon county commissions, if a county has been designated as a growth county as that term is defined in section three, article twenty of this chapter, those county commissions, upon approval by a majority of the legal votes cast at an election as provided in section three-nn of this article, are hereby authorized to, as part of a county-wide zoning ordinance, establish a program for the transfer of development rights in order to:
Sec.7-1-3nn. Election on ordinance for program for transfer of development rights; form of ballots or ballot labels; procedure.
Sec.7-1-3oo. Authority to enter into energy-savings contracts.
Sec.7-1-4. County commission authority to enact ordinance; ordinance provisions defining terms; restricting certain activities in relation to obscene matter; and establishing penalties for violations.
Sec.7-1-5. Duties of county commissioners; payment for services other than services in court.
A. inspect institutions within their county for housing and caring for the poor.
B. inspect the jails
C. investigate the conditions of the poor within their county
D. visit detention homes for children within their counties
E. visit and inspect bridges and bridge approaches under their control
F. general supervision over the repair and maintenance of the county courthouse, jails, houses for the poor and other county property, so as to prevent the undue deterioration thereof
G. control the purchase of furniture, fixtures and equipment and janitors' and other supplies for their county;
H. to attend the annual meetings of county assessors and such district meetings as may be called by the state tax commissioner on matters pertaining to the work of the county assessors and the county commission as boards of review and equalization; to review and equalize the assessments made by the assessors; to inspect and review the lists of property, both real and personal, made up by the assessor and his deputies for taxable purposes, and to point out to the assessor any property, real and personal, which the said assessors of their respective counties may have overlooked or omitted to place on said tax lists; to call to the attention of the assessor all real estate or personal property belonging to churches, lodges, schools or other charitable institutions which may have been overlooked or omitted by the assessor or his deputies in making up his lists of property for entry on the land and personal property books
I. to supervise the general management of the fiscal affairs and business of each county; and as a further part of their duties they shall be empowered to purchase, lease, rent, control, supervise, inspect, maintain and erect public parks, playgrounds and recreational facilities, to purchase, lease or rent equipment therefor and to employ qualified recreational directors and personnel; to construct new Four-H camps on county property
J. to operate stone quarries and sand deposits on county-owned or leased property
K. to construct buildings for or aid in constructing or equipping buildings for emergency services on sites approved by the office of emergency services
L. to operate dog pounds for county-municipalities
M. to purchase, lease, rent, control, supervise, inspect, maintain and erect public markets and to purchase, rent or lease equipment therefor and to employ qualified personnel to operate such public markets
N. empowered to purchase, lease, rent, control, supervise, inspect, maintain and erect county mental health clinics and engage in any program designated for the betterment of the mental and physical well-being of the residents of their county and to cooperate with any public or private agency for these purposes
O. to establish and participate in regional planning and development councils; to establish and participate in county commissions on intergovernmental relations as required by section three-q of this article
P. establish and participate in county commissions on crime, delinquency and corrections as required by section three-r of this article
Q. to conduct a survey of all orphaned roads within the county, which roads shall include roads or highways, not situated within a municipality, which are open to the public and which serve two or more persons, but shall exclude roads comprising or included within the state road system as defined by section two, article four, chapter seventeen of this code or comprising or included within any county road or highway system and which shall also exclude any road brought into the state road system for purposes of maintenance only by the commissioner of highways pursuant to statutory or regulatory authority; to prepare an inventory of all such orphaned roads within the county, which inventory shall be made available to any agency of the state or federal government upon request, and be filed and recorded in the office of the county clerk.
Sec.7-1-5a. Excusal of commissioner from voting where conflict of interest involved.
Sec.7-1-6. Power to punish for contempts.
Sec.7-1-7. Record books.
Sec.7-1-8. Continuance of matters at end of session.
All matters pending before any county court and ready for its decision or action which shall not have been determined or acted upon before the end of a session, whether regular or special, shall, without any order of continuance, stand continued until the next session.
Sec.7-1-9. Creation of special funds.
Sec.7-1-10. Special account for federal and state grants-in-aid authorized.
Sec.7-1-11. Purchasing in open market or competitive bids; debarment.
Sec.7-1-12. Authority for establishing county curfews; jurisdiction for violations.
Sec.7-1-13. Regulation of amateur radio antennas.
Sec.7-1-14. Custody and care of animals abandoned, neglected or cruelly treated; animals causing public nuisance, health risk or safety hazard; authority of county commission.
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-7-13Second 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 included 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.
There has been a lot of talk about how the current zoning ordinance is old and ineffective. That our current ordinance no longer meets goals of the current Comprehensive Plan. A constant theme involved the Development Review System, "LESA". Proponents of the newest ordinance proposal being voted on insist that "rampant growth" and "growth management" are not served by the current ordinance. That the current ordinance is some how less predictable in managing growth than the ordinance being voted on. These same proponents of the new ordinance have left several important details out of their support statements.
Two pop up immediately.
a. Both ordinances were found to be in compliance with the current Comprehensive Plan
b. Failure of the current ordinance to "manage growth" was corrected by amendment in 2005. Conditional Use Permit application history
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?