On May 25, 2006, Charles Town's government was kind enough to provide three, public education sessions on their comprehensive plan in the Town Hall conference room. Planner Jeremy Camp, Attorney Linda Gutsell, and a representative of View Engineering - all gave spoken presentations with Power Point. Below is the full formal presentation by Ms. Gutsell at the 3 PM meeting, which stops just before the question and answer portion.

I'm not a lawyer, I but have provided comments and questions after several of the points made by Ms. Gutsell in the text that follows. Referred to laws are available, too. Most outstanding to me is the question:

Do Ms Gutsell's remarks adequately address the fact that Section 8A-3-14, states:

"The jurisdiction of the municipal planning commission shall not extend beyond its corporate limits."

This citation is not directly cited in Ms. Gutsell's presentation. Note the specific corporate limits as they are described in the Town's Charter. - JS

"Hi. Good to have everyone with us today. I'm, as Jeremy said, here to talk about the boring stuff - often people find it so - which is to cover the legal, the statutory provisions and other laws that have to be taken into consideration as part of the planning process.

"As many people have become aware in the past few weeks, the section of the West Virginia Code Chapter 8A is the part of the code which was adopted by the Legislature specifically to address the power of local government to engage in planning and zoning activities.

" This area of the law previously appeared in Article 24 of Chapter 8, but the new law was enacted by the State Legislature in its regular session of 2004 to replace that former law. What the zoning and planning law in Chapter 8A actually consists of is an empowerment law.

"That is, it gives to the local government the power that they need to do this - to do planning and zoning. And the reason it's necessary for the State Legislature to do that is because local governments do not inherently have the power to plan and to zone. Planning and zoning is an exercise of what's called the police power."

"Local governments do not have the police power.

"The police power belongs to the state.

" The only way that the local government can engage in police power activities is when the state delegates that power to them through legislative enactment, such as Chapter 8A.

"So the power to plan and to zone is a delegation of the state police power to allow us to engage in this activity."

"When we talk about the police power, we are not talking about the officers driving up and down the streets in cruisers, although that is actually part of it.

"The police power, basically, is the power to enact laws within Constitutional limits to promote and preserve the peace, security, safety, morals, health and general welfare of the community.

"That's generally what we mean when we talk about, in the legal sense, the police power."

"That is, we act through this legislation to do away with rights that existed at common law. Under the common law, landowners were free to use their land however they saw fit.

"They were, more or less, limited only by the maxim that you were required to use your own property so as not to injure the rights of another. And that's on the rights of another on their own property, that is, what rights they had to enforce against adjacent and nearby property owners - were pretty limited.

"Fundamentally, they were limited to the four concepts of light, air, water, and support.

"That was pretty much the only right you had to exercise against your neighbor in terms of what they could do with their land.

"So, when we begin to zone and plan, we are actually acting in a derogation of those common law rights, because in the zoning plan, people are suddenly not free to use their land however they choose, except as limited by those legal maxims.

"The thing you have to understand is the statutes in derogation of the common law, which is part of the fabric of West Virginia law by virtue of our original Constitution in this state, must be strictly construed.

"That is, they are construed against the government and in favor of civil liberties. And therefore, if you want to limit people's rights that they had under the common law, you have to do that very expressly and completely within the scope of your written law.

"If it's not there, it's not a power of limitation that you have, because those types of laws are strictly construed.

"The other thing you have to keep in mind about Chapter 8A is that it does not exist in a vacuum.

"It's part of the statutory and legal quilt-work, if you will, of West Virginia law.

"It co-exists and inter-acts with other statutory provisions which also, in some way, touch upon the powers of the governmental regulations, control, planning, zoning and other things with respect to land use and development.

"And planning and zoning, to be effective, must be accomplished in the acknowledgement and consideration of the codes in existence and operation of these other related laws.

"We're going to put some of those up on the screen to help people follow along."

COMMENT: For a comprehensive plan and urban growth boundary to be part of an annexation process does it have to be included in this part of the law that states:

§8-6-1. Annexation of unincorporated territory.
(a) Unincorporated territory may be annexed to and become part of a municipality contiguous thereto only in accordance with the provisions of this article.
(b) Any farmlands or operations as described in article nineteen, chapter nineteen of this code which may be annexed into a municipality shall be protected in the continuation of agricultural use after being annexed.
(c) Any new imposition of a tax or any increase in the rate of tax upon any business, occupation or privilege following annexation shall be applied in accordance with the provisions of section five, article thirteen, chapter eight of this code.

"Municipalities have pretty much always in this state had the power of annexation, and under the current law, there are three methods by which a municipality can annex additional territory and bring that territory within its limits.

"The first is by election." [(a) ANNEXATION BY ELECTION §8-6-2. Petition for annexation ]

"That's a process where the people who already live in a municipality can bring a petition and say to the City Council: '

"We'd like you to reach out and take in this other piece of territory.

"Then it has to go to a vote, which includes the voters within the municipality and the voters in the territory sought to be annexed. And unless that vote passes, that annexation does not occur.

"The other method is the annexation without election and that's where a majority of the freeholders of territory outside the city limits can, by petition, come to the City Council and say:

"We are the majority of the owners of this territory and we want you to bring us into the city and here's our petition. We'd like you to consider bringing us inside the city limits.'"

[ (b) ANNEXATION WITHOUT ELECTION §8-6-4. Annexation without an election ]

"Now, if a petition of that nature is presented to the City Council, then the City Council may or may not accept it.

"And that has been, more or less, the exclusive method of annexation in Charles Town for a number of years.

"Each year they are presented with an increasing number of petitions, whereby people are asking to be brought into the city and that has more than addressed the city's needs at this point, or desires to bring in additional annexation, or any additional territory by annexation.

"The third method of annexation is the annexation by minor boundary adjustment, which unfortunately, what comes to mind as a minor boundary adjustment is not defined in the state law.

"But that is a method whereby a municipality, which just wants to make a minor adjustment in its boundary, can survey and designate that territory and then make that application to the County Commission, which has the power to determine that it is a minor adjustment.

"Then it is approved in that way."

"One of the concerns about annexation has been brought up in the meetings of the last few weeks is that in the event that a municipality would annex territory that included an agricultural operations.

"There have been concerns that that would mean those operations would have to cease.

"But, of course, you know, because you usually don't have farming going on inside the city limits.

"Apparently the word has been told to some people that: 'Well if you land is annexed, you can't farm anymore.

" Well, that's absolutely not true. And. in fact, Section 8-6-1, the State Legislature specifically provided for the continuation of any agricultural operation that is underway, if that property is annexed into the city, that it has to allow it to continue to engage in that agricultural use.

"One wonders how necessary this is, given the fact that farms are not urban uses and therefore are not desired territories for cities.

"It's simply not attractive annexation. Those are not annexations the city needs.

"But if it should ever happen, then, in fact, the farms and the agricultural uses are entitled to continue.

"And, as I was saying to the group this morning, there are living examples, right now, in Berkeley County out across from War Memorial Park.

"There is a small farmette, if you will, that for years and years, cattle and horses grazed there and that was annexed. They had to be allowed to continue that.

"And, at least, as long as a couple of years ago, there were still horses on that property in the city's limits.

"Same with the piece of property behind the city park, the War Memorial Park in Martinsburg, Dr. Townsend continues, I think, to this day, maybe, to keep horses on that property.

"I mean, all of that was a result of: 'Yes they are in the city limits. But those operations are already there and therefore are absolutely protected under state law.'

"And this has really more to do with a subdivision outside the city limits on land that is actually abutting the corporate limits of the municipality.

"Although it is outside the city limits, the State Legislature gives the cities the power to approve the subdivision of land abutting on its borders.

"And the stated reason for that is that the city is entitled to determine whether or not the proposed subdivision will impede or prevent the further development and extension of such municipality where such subdivision is situate.

"So one of the purposes of this piece of legislation is to protect the ability of municipalities to expand through annexation or otherwise, and also to protect their street system, to recognizing that adjacent developments will be using street systems and in many cases are oftentimes also using other city services.

"Now under this provision, a final plat is not even supposed to be recorded in the county clerk's office, unless it bears upon it the date of the approval of the city.

"There's not been anyone around here that knew anything about this law. And I'm not sure if it's ever been done in Jefferson County, but in fact this (...inaudible...) is not supposed to be recorded in the county clerk's office unless it's been approved by the city which the land adjoins.

"Interestingly enough, a lot of people have looked at this as an anachronism.

"They believe that it has been more or less rendered moot by the enactment of Chapter 8A.

"As recently as 2005 in the case of "Brown versus Bolivar" which, of course, arose right here in Jefferson County, our Supreme Court said: "No." Chapter 8A did not act to abolish this law. It still has full force and effect.

"So, this is something that interacts with the powers of planning and zoning.

"We all got to look at Chapter 7, Article 20, which is legislation which gave counties the Local Powers Act - which gave counties the authority to impose impact fees on new development so as to offset their proportional share of the resulting need, the result of increased needs within the county's jurisdiction."

"A lot of people read this law and say:

"That's really funny.

"That only gives the county the ability to impose impact fees.

"Why doesn't it give the cities the ability to do that .because, you know, if there's growth, population and otherwise, they're going to need a lot more services, too?

"Well, the simple fact is that the cities don't need the Local Powers Act.

"Cities already have the power to enact fees, to tax, and to put in place assessments to provide such governmental services as they provide. Counties didn't have that power.

"That's why they need it, the Local Powers Act, even though the cities didn't.

"And the cities have always had the power to tax and assess fees and do sidewalk assessments and so forth and so on. Counties, on the other hand historically, had very, very limited power, and compared to cities actually still do have fairly limited powers."

"Historically speaking, the only purpose for the establishment of counties was for the assessment and collection of taxes on land.

"That was the original and sole purpose for counties.

"And that was what the sheriff was; he was, basically, the tax collector.

"And, of course, as modern - as time progressed, the needs became different then the legislature had given more and more powers to the County.

"But originally, the counties had none of those powers that the cities had. And until the enactment of the Local Powers Act, they really did not have means to raise funds to keep up with growth.

"So this was really important for the County.

"Although, so far Jefferson County, I think, is still the only county, for obvious reasons, the only county in the state that is using this."

"And this was the law which authorized the establishment of county-municipal development authorities.

"Now, where a development authority has been established, and I know our County has one, for example, here in Jefferson - and we have one in the city - they have certain duties under the statutory scheme.

"And it is their job to work with federal, state, and local officials so as to promote, business and industry, commercial ventures so as to promote the development of those things within their area.

"And when you look at the list there (referring again to screen. - JS), we're not just talking about factories, Sheetz stores and things like that. If you notice down there at the bottom (referring again to screen. - JS), it talks about the advancement - they're looking at a broad scope of economic development.

"It talks about the development and advancement of industrial, commercial, agricultural, and recreational development within the area.

"So, of course, when you're going to do planning and zoning, you want to know what your local development authorities are working on because their plans are certainly something that would have to be taken into consideration and they're going to be the best advised with respect to those things."

"So that is something that certainly needs to be kept in mind, when you're talking about things like planning and zoning. And that can become particularly important, I think, when you're talking about something like transportation systems.

"Cities build streets.

"Since all the county road systems went into the state road system back in the early thirties, there haven't been many county roads; but the cities got to build streets and so forth, and so that's probably one of the areas where that would most often come into play."

"The other law that you have to keep in mind: there is an enormous amount of case law - both federal and state - that addresses the zoning and planning issue.

"One of the things of particular interest in Jefferson County, and some of the things that are trying to be accomplished in Jefferson County with planning and zoning, is the legal concept of exclusionary zoning.

"There are a number of federal and state case decisions out there which have really taken local governments to task for the practice of what's called exclusionary zoning.

"Exclusionary zoning basically means land control regulations that singly, or in concert, tend to exclude persons of low to moderate income, for example, from that planning jurisdiction, or tend to exclude any particular type of land use.

"There's nowhere in that jurisdiction that land use is provided for. But, primarily, the courts really take interest when the zoning and planning schemes have the effect of excluding moderate and low income persons from your community.

"Some of these lawsuits brought against local governments for exclusionary zoning are very extensive.

"They can be financially devastating to a local government and, interestingly enough, the burden of proof of the challenger need make to make a prima facie case, is not very high.

"They don't have to prove that the government intended to exclude low and moderate income people. They don't have to prove that there was a conspiracy afoot, or something like that.

"All the challenger has to show, to make a prima facie case of exclusionary zoning, is that the regulatory scheme has the effect of, or tends to, result in the jurisdiction not providing its fair share of the particular housing type.

"So that's a pretty low threshold that a challenger would have to meet. Whenever planning and zoning, especially when controlling unmanageable growth is at issue, a jurisdiction always has to be very careful that they are not running afoul of the concept of exclusionary zoning."

"So with that background in mind, we can turn to Chapter 8A and we can talk somewhat about what a comprehensive plan is and how you get one.

"The state code defines the comprehensive plan as "the plan for the physical development including the land use, setting forth guidelines, goals and objectives for all activity that affect growth and development in the governing body's jurisdiction.

"Clearly there has been some concern in recent months about annexation and how that inter-acts with comprehensive planning.

"But annexation is a power the municipalities have and, so long as there is a possibility and potential for annexation which will increase the population of that city or increase the land mass within that city's limits, annexation is an activity, which, under the very definition of comprehensive planning, has to be taken into effect, that has to be taken into consideration because it is an activity that affects growth and development.

"The failure to discuss that would be very problematic.

"Now, the fact that you're looking for the potential for future annexation is all very speculative.

"Now, obviously, nothing that the municipality would do in that regard would have any force of law. I mean, they can look at the potential for annexation of bringing territory in from the outside of the city limits.

"And they can say: 'Well, wouldn't it be nice if growth occurred in this way and this use occurred in this way?

" But until, obviously, that land would actually come into the city limits, it's very speculative, it's just kind of hopeful of 'This is what we think' but it has no force of law.

"Therefore, it doesn't constitute an exercise of jurisdiction, which is a fancy word which just means 'authority.

"It's not an imposition of your (the County's - JS) authority on that land because, as long as that land remains in the county, it's under their control and authority.

"It wouldn't have anything to do - the city can wish all day long about how that land might be used.

"But, until it becomes land that's in their limits, it's just that. It's wishing. It's not an assertion of authority. And that's how it's treated in the comprehensive plan."

"A comprehensive plan, according to the code, is to be the basis for land development that can be reviewed and updated on a regular basis.

"And, in fact, then later, the legislature said: "Not only should it be reviewed and updated on a regular basis, you actually have to do it every ten years."

"That's one of the significant issues, I think, as Jeremy will tell you, that the City of Charles town is facing in that we have some significantly outdated subdivision regulations and outdated zoning ordinances.

"And our comprehensive plan is much more than ten-years-old, and, in itself, it is obsolete.

"We don't have the regulatory mechanisms that we need, in some respects to prevent undesirable things in development.

"So, unless and until we update and re-do these regulations, and in order to do that, we have to have a comprehensive plan.

"So that's part of the impetus for this, and Jeremy is going to talk about that later.

"Also the state law tells us that the comprehensive plan is a written statement of not just present, but future land use and the development patterns, and it gives you an idea of the descriptive materials that should be included in your comprehensive plan.

"Now, a comprehensive plan, as I noted a moment ago, is an indispensable prerequisite and the basis for zoning.

"As the Legislature had told us in 8A-7-1, if a governing body, municipality or county - the governing body has to adopt a comprehensive plan before it can enact its zoning ordinances."

"So it's a necessary prerequisite.

"That is so, even though the new law - the Chapter 8A law - does preserve existing zoning ordinances.

"It basically says: 'If you have an existing zoning ordinance that was lawfully adopted under the prior plan, then it remains in full force and effect, until you amend it. When you amend it, you must bring it into line with the requirements of Chapter 8A.

"And, because our comprehensive plan was so old, we felt that, in the true spirit of Chapter 8A, that would have to mean adopting a new and updated comprehensive plan as well.

"Same thing with subdivision regulations.

"The comprehensive plan is a necessary prerequisite to the adoption of the subdivision and planned development ordinance.

"And just like zoning ordinances, Chapter 8A did preserve pre-existing ordinances.

"But again, when you want to amend them, then you have to bring them in compliance with Chapter 8A.

"I know that locally there's been some [d]ebate among attorneys whether that means any amendments or rewrites.

"I think the safer, more conservative position would be changing any amendment would have to bring the entire ordinance into compliance with Chapter 8A.

"The legislature then told us what the purpose and goals of a comprehensive plan are, and I certainly will not read all of those, you can see they are numerous.

"And anyone who takes the time to read them, I think will pick up something else there in 'subsection (d)' where it lists the ten purposes of a comprehensive plan - is that when you read all those, it's somewhat overwhelming.

"I mean there seem to be things that can be mutually exclusive, like: 'How could we possibly satisfy and provide for all of these things?

"And I suppose my answer to that would be: 'Yes, it's a really daunting task.

"And that's why there is so much study and so much considered before a comprehensive plan is finally adopted. it's a very long process, because it is difficult to balance and juggle these sometimes competing interests.

"So how do they do that?

"Well they start off, [t]he first thing that the planning commission has to do when they want to adopt a comprehensive plan, you have to engage in a period of study, and that study is the time for them to gather information, make examination, and surveys and so forth.

"The first thing that they have to do is they are to determine what the current conditions are. And then from those, any predictors out there in the market place, or in the Census, or whatever else is available to them in- available to them.

"They have to extrapolate from those current conditions and try to determine what will the probable future conditions be. Because, really, when you're doing a comprehensive plan that you want to have last for ten years, you need kind of have a crystal ball.

"You want to look into the future because that's what you're planning for. You're planning for what going to happen in the future.

"That's the first thing that the law requires the planning commission to do.

"That study obviously has to enable them to develop a plan that's going to address all those goals and to address the thirteen required components which are identified in Section 8A-3-4(c)."

"You see, there are thirteen specific things which must be addressed in the comprehensive plan.

"All of those are going to require some level of study and examination.

"It's worthy to note, I didn't put all the text out here on one screen.

"But it's worthy to note that the very first one - "Land Use" - states in the remainder of the text in that subsection - that the land use must include the planning of goals and programs for growth and/or decline management, and projected population growth is defined.

"And this looking into the future, trying to figure out what it's going to be and what you're going to need. That is the critical mandate of what comprehensive planning is all about.

"The study also can be used to address certain optional elements.

"The code lists six, which it says, expressly, is not the exclusive list.

"It can include, but is not limited to, these additional six elements."

"I believe the current draft of the city's comprehensive plan does address all of those optional elements, as well as those mandatory components.

"The study process, mandated by state law, includes public input.

"The law does not specify the method for the planning commission to secure that public input but allows the planning commission to determine the process of getting that information, develop for itself, what process it's going to use.

"The study process includes requesting input from other affected governmental units, as you see there in sub-section (d). ( refers to an image on a screen - JS). That's another required part of it.

"And the prescribed study period leads to the drafting of the comprehensive plan, which the planning commission feels that this is a plan that we can get behind and recommend to our governing body.

"At which point then, the state law requires that the planning commission to have a hearing.

"Not three, not four, not five.

"A single hearing which is required to be published, a notice is to be given to the public by legal publication through class one legal advertisement."

"This is a code provision there that classifies your legal advertisement.

"As you see there, it states the class one legal advertisement shall be published one time in a qualified newspaper published in the publication area.

"For the purpose of the planning commission's hearing on a proposed comprehensive plan, that publication must occur not less than thirty days prior to that hearing.

"Obviously we've heard from a number of members of the public in the last few weeks who feel that the notice is inadequate.

"To that, I can only say that is a legislative problem.

"Take that to your legislators.

"It's their law.

"They need to change it.

"I don't believe in legal advertisements either. I'm as guilty as the next person, and I've probably missed out on a lot by not reading them.

"After the public hearing, the planning commission then has - after receiving the public's comments - the planning commission then has to take a vote on it.

"Now, oddly enough no where in the code, I don't know what kind of an oversight - I have to assume it's an oversight - but nowhere here does it say that the planning commission has the option of not approving their draft.

"We have to assume they do, but the state law doesn't actually say that - it goes on and talks as if the planning commission, of course, is going to approve the proposed comprehensive plan, when in fact we all know, that based on public comment, they may go back to the drawing board and make some changes, as in fact has been done by the City of Charles Town.

"But I just found it very odd that there's nothing in the state law that provides for the planning commission to turn it down, but we assume that they, in fact, are able to reject their first draft and go back and work on it some more."

"After that, they submit it to the governing body and the planning commission is required actually to appear at the first meeting of the governing body that occurs after that submission and presents the plan to the governing body, that would be, of course, would be the Council or the County Commission at the county level.

"The County Commission or the City Council, as the case may be, also has to conduct a public hearing.

"And that also has to be - notice to the public has to be given by a class one legal advertisement, as we described before, and that has to be published at least fifteen days prior to the date set for the public hearing.

"At that point in time within the later of ninety days or three regularly scheduled meetings of the governing body, they must vote on it.

"They have the option of adopting it, rejecting it, or making amendments to it, in which case it goes back to the planning commission and the process continues.

"Those are the legal requirements."