Refereeing the Referendum

Mon, Dec 1 2008

After four years of workshops, public hearings and re-writes, the new Jefferson County zoning ordinance went into effect November 2. The document will completely transform the way planning and zoning takes place in the county. The old “LESA” system of splitting up large farms far from towns is out—as are parent-to-child transfers and the traditional minor subdivisions, which allowed landowners to carve out two lots every five years with little planning oversight.

New to the county is a zoning map that clearly identifies separate planning zones for the county, pushing development towards higher density areas of Charles Town and Ranson. The application process itself will be streamlined, and, according to the planners, more quickly processed.

Not everyone in the county is happy with the new ordinance. Some believe it will cost far more to move proposals through the planning process and require expensive lawyers and engineering fees along the way. They don’t like the restrictions for environmentally sensitive areas like the mountainside around Shannondale near Mission Road. And they dislike the almost 300 pages of uber-detail that make up the new ordinance.

Then there are the people unhappy with the actual process of the ordinance approval. Their argument goes something like this: Because zoning rules for the county are being rewritten in fundamental ways, popular approval through a referendum should be required to approve them. Five decision-makers — even if they were elected by ballot—should not be allowed to drastically change the zoning ordinance.

The West Virginia legislature gave voters authority to trigger a ballot initiative on zoning when it passed HB 4511 earlier this year. The law allows 10 percent of affected, “qualified” registered voters to trigger a referendum within 90 days of passage of a new zoning ordinance. Qualified voters are those that live in the county (but not in the municipal areas) and were registered voters as of the last general election.

Jason Williams, head of elections department at the Secretary of State Office, said that the law allows for the participation of only those “affected” by the new zoning ordinance. In other words, only non-municipal residents will be able to petition for a referendum, and later vote on the referendum. This means that even if someone lives in Charles Town but owns land outside of the city limits, and are therefore acutely impacted by the new zoning rules, they will not be able to vote on the referendum.

According to Jennifer Maghan, Jefferson County Clerk, there are currently 28,280 registered voters in non-municipal areas of the county; so 2,820 qualified petitions would be needed to trigger a vote.

In a strange twist, as soon as the petition is handed into the county with sufficient qualified signatures, the new zoning rules will be suspended until a referendum is held. According to Jason Williams of the Secretary of State’s office, this is an exception to the normal way petitions are held. Typically, laws stand in effect until a referendum is actually held.

Another oddity is that while the new zoning map and zoning ordinance are vulnerable to being overturned by referendum, the sister ordinance which governs the rules of subdivisions—and contains many clauses that specifically relate to the new zoning ordinance—cannot be challenged by popular vote. According to many leading planning experts, this could lead to confusion and chaos in the overall planning environment in Jefferson County. “There is currently a great deal of uncertainty when it comes to Jefferson County zoning,” said Charles Town land use attorney Mike Cassell. “It appears that there are some in the county government who want to keep it that way.”

As of November 18, Ronda Lehman, a Jefferson County resident who is spearheading the petition drive, said she had collected over 1,100 qualified names. Lehman says she is confident she will be able to collect 3,000 signatures by the December 31 deadline. When asked how she would vote if a referendum was held, Lehman said she would vote in favor of the new zoning ordinance. “Yes I would vote for it; it is better than what we have now.” She added that she wanted to referendum because, “the majority of residents don’t know about the new ordinance. I think if it comes to a special election people will get educated on the issues.”

Maghan said that the most recent special election, the table-gaming referendum in June 2007, cost the county over $80,000. That referendum was paid for by Charles Town Races and Slots, but a zoning referendum would be paid for by Jefferson County taxpayers. Because residents of municipalities would not be eligible to vote in the referendum, Maghan anticipated the price tag will be between $70,000 and $90,000.

Frances Morgan, president of the County Commission said, “If the requisite number of signatures are gathered then I have no difficulty placing it on the law and holding a special election.” She added that the commission would “undertake a public education campaign on the benefits of zoning.” She confirmed that any public education campaign organized by the county government would be solidly in support of the “Yes” campaign as the majority of the commissioners are supportive of the new zoning rules.