By Tricia Lynn Strader, Special to The Journal
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BERKELEY SPRINGS - As Morgan County commissioners continue to work on a proposed zoning ordinance, residents have been eager to share their comments and concerns.
Citizens got that opportunity during a public hearing last week on the proposed 75-page Morgan County Zoning Ordinance. The session attracted about 90 people to what was called an educational public information meeting, where county leaders could listen to public comments and discuss any changes needed.
A debate developed over whether the county should enact the ordinance at all, how it affects some residents or business owners and what legal issues are regarding certain portions of the document.
County Commission President Brenda Hutchinson reiterated to residents that the commission does not plan to enact the ordinance without approval from voters. The commission plans to place it on the ballot come November.
Commissioner Tommy Swaim has said he is against zoning. If it does not pass, Commissioners Brenda Hutchinson and Stacy Dugan have said they do not plan to reintroduce the zoning ordinance in the near future.
The ordinance was drafted by joint cooperation of the Morgan County Planning Commission Land Use Subcommittee and a six-member commissioner-appointed Citizens Advisory Group.
Zoning advocates believe zoning is needed to control development, and to protect the area's natural beauty, waterways and natural resources. They also want to implement impact fees, which cannot be charged without a zoning ordinance.
David Schwartz, George Farnham, Bert Lustig, of the Rural Water Committee, and Bob Rayner are among the zoning advocates.
"I moved here from a densely populated area up north to adopt this county," Rayner said during Thursday's hearing. "I am impressed with the forward-thinking nature. No plan is perfect. You can add and subtract."
Reuben Darby opposes zoning but served on the land use subcommittee. He was worried about too much restriction on industry.
"Industry pays more taxes," Darby said.
Others agreed there should be encouragement of business to take tax burden off residents.
Larry Lower thought it was a modest proposal that allows for changes in the future, which he said is critical. "We need to look at the future. But I'd like to see a fairly intensive education program between now and an election. People may not search out the answers themselves."
Some said many of the ordinance sections were too vague and open to too much interpretation by the County Commission.
Attorney Jerry Berman said he generally supports zoning to keep the area's rural character.
"I grew up in Hawaii. My people didn't want zoning, just two hotels. Now you can't see the beaches. I've read the comprehensive plan, the subdivision ordinance, and this ordinance. They're not easy to understand."
He said those who drafted the ordinance should have an educational seminar to explain what they intended to do about rural character, density and commercialism.
"That's called the legislative intent. Not just maps or overlays. I need more information," he said.
Darby countered the county should not educate at taxpayer expense.
"We had that in Berkeley County, and it was propaganda. If pro-zoners want to educate, that's what the First Amendment is all about. As far as the county educating, this document is perfect, not taking one side or the other," he said.
County Commission candidate Bradley Close said the $34,000 spent on the zoning study and ordinance could have been better spent elsewhere.
"Please read the entire ordinance carefully," he said. "Now, think about three things. We need jobs. Let's invest this time and money in creating jobs. Second, the best use of any property is best determined by those who have a vested interest in that property. And the County Commission and Planning Commission already have various ordinances in place (like the subdivision ordinance). With those and the free market, we can grow without any other restrictions."
Critics including Jim DuPont challenged a 1 percent rule within the ordinance, which says 1 percent of eligible voters need to place an amendment on the ballot. As it stands now, the ordinance says substantive changes to the zoning map or text can be changed by the County Commission enacting the amendment, placing the amendment on the ballot, or placing the proposal on the ballot if petitioned to do so by at least 1percent of affected eligible voters.
Section 8A-7-8 of the West Virginia Code stipulates amendments can be placed on the ballot if petitioned by at least 10 percent of eligible voters.
If the ordinance passes, he said, "the issue will be taken to court. I'll wager $1,000 with anyone on the panel willing to take that bet."
Many citizens said it does not comply with state law and the one percent clause is illegal.
Former Commissioner Bob Ford spoke on behalf of PROMOTE, a property rights advocacy group. He challenged the commissioners to a debate on zoning to air local radio, funded by PROMOTE.
"Seeing the County Commission put their legislative hats on," he said, "I believe we need to stick by the state code. Fifty thousand dollars to $60,000 has been spent in attorney fees defending the county. Many issues in this ordinance are bogus. And the 1 percent rule will be overturned. That number is so low, it could harm a citizen trying to get relief. A few people could stop something."
Delegate Daryl Cowles, R-Morgan, once served on the Planning Commission and was involved in drafting the comprehensive plan. He is also a builder. Speaking as a citizen, he said there already are enough ordinances on the books that could be amended.
"There's harm in impact fees," Cowles said. "A building permit could cost $13,000 for a doublewide on two acres. That could be a first-time homebuyer, or your son or daughter. Under this ordinance, Unger's Store could not reopen. An antique shop in Greenwood would not be allowed. And it's hurtful to farmers."
Zoning advocates countered that impact fees would be charged to builders. While saying they wanted to protect against overdevelopment and did not want to pay the bill for added infrastructure, anti-zoning advocates said fees will be added to home prices and passed to taxpayers.
The most criticism by many was the cost to taxpayers for the zoning study and implementation/enforcement of the controversial ordinance.
Todd Farris and others asked how the county will pay for a full-time zoning administrator or court costs if challenges are made, and Hutchinson said it is not in the budget yet.
Cowles said costs could ultimately be in the hundreds of thousands for staff, attorney fees, and enforcement.
Meanwhile, David Schwartz said zoning is necessary to protect the water supply, environment and to promote clean air. "The developers overwhelmed Martinsburg. We need to keep our small-town quality. You have provided a provision for non-conforming uses, so there is flexibility," he said.
Fifth-generation farmer Phil Harmison explained the trials of farming with existing federal, county and state regulations.
"We just don't need more regulations," he said.
Lynn Morton has a business on 80 acres in the western part of the county, and she is worried that the proposed zoning restrictions would prevent her from expanding.
"I might be stifled by the size restriction," she said. "We are a quarter-mile from our neighbor. How would that hurt anybody? I was told to move to light industrial area. Why move somewhere when I have 80 acres? What do I do now? Do I move my business to the back 40 acres I have in Hampshire County? That would eliminate jobs here."
During the public meeting, Hutchinson gave a presentation describing what a zoning ordinance is and how it would be enacted. There would be five zoning districts, three overlay districts and allowances or restrictions for each district. Supplemental or conditional uses would be approved by a zoning board of appeals, made of five appointees. A zoning administrator would be hired at a possible salary of $50,000.
Copies of the Morgan County Zoning Ordinance are available at commission offices, public libraries and www.morgancountywv.gov. Written comments may be submitted via e-mail by Wednesday tobhutchinson@morgancountywv.gov, tswaim@morgancountywv.gov, or sdugan@morgancountywv.gov.
