“The developers and their attorneys are continuing to threaten lawsuits and, in some cases, actually file suit. They won’t be happy until they can build whatever they want, wherever they want, whenever they want with no restrictions.” –Joe Coakley, resident Charles Town

“What we have here is Gucci planning. Only those who can buy Gucci will be able to afford to live in Jefferson County. It is depressing, the county has been hijacked by a bunch of elitists. They would rather see not another house built in the county.” –Eric Lewis, developer
In 2005, the Jefferson County Commission hired Kendig-Keast, a Chicago-based consultancy, to rewrite the County’s planning and zoning ordinance. Ten months later, the first full draft of the new land use laws were on the county web site (www.JeffersonCountyWV.org).
According to the draft ordinance, the key goals of the new planning era are to increase affordable housing, protect the environment, preserve agricultural land and historic structures, and make the planning process smoother for all involved.
In March 2007, the County Commission held a two-day workshop on the new planning and zoning ordinances. Lane Kendig of Kendig-Keast presented the latest draft ordinance and asked for input from key stakeholders. Attendees included farmers, developers, planners, and politicians.
Kendig explained his approach to the County Commission. “We have included everything we can think of, and taken the toughest approach on the details of the ordinance.” Kendig explained that the county could remove any item they didn’t like. For example, the current draft does not allow maintenance workers or plumbers to leave their vans in front of their homes at night. If the County wanted to change this they could, he said.
Not everyone is happy with this approach. “This is totally backward” said Michael Cassell, local attorney and former legal counsel for both the Jefferson County Planning Commission and Board of Zoning Appeals. “To achieve good planning goals, one should start with general principles and build from there, rather than starting with the most restrictive and detailed ordinances available and subtracting from there.”
A new zoning map
The new planning and zoning ordinances would create nine new zoning areas in the county. The current rural agricultural zone would become Countryside (CS) and Agricultural (AG) zones. Minimal development will be allowed in the CS-zoned areas. The residential growth areas—typically places around the municipalities such as Charles Town, Ranson, and Shepherdstown—would become Urban, Suburban Estate, and Suburban zones. Deciding where the dividing lines between these zones fall will be one of the most controversial aspects of the new ordinances.
Kendig has been asked to draft the new boundaries for the Urban, Suburban and Suburban Estate zones. “I will base my lines on where the current municipal boundaries are, the roads nearby and the developments that already exist.” Kendig’s  urban/ suburban zoning map will be submitted at future meetings in Jefferson County, possibly as early as April 2007.
Creating a zoning map for the rural areas has taken a different path. In 2006, the County Commission asked The Agriculture Task Force—an independent group of farmers and farm professionals—to come up with their suggestions for a new zoning map for the rural areas of the county. (See pg. 9 for a draft map.)
According to Bill Grantham, a member of the task force and a seventh-generation Jefferson County farmer, specific criteria were used in drawing up the rural  zones. “We followed the green infrastructure. Our goal was to protect water ways, water filtration areas, recharge areas for aquifers and historic areas.”
“Unfortunately the lines have to be drawn somewhere” said Kellie Boles, the county’s agricultural development officer, who also sits on the Ag Task Force. “Yes, we may end up with a zoning map where there is a farmer on one side of the road who can subdivide their land with a 10-acre density, and a farmer on the other side of the road with a 40-acre density. But what are you going to do? Someone has to draw the lines.  I believe that if we are making the decision [on where the zoning lines should be] based on the best preservation of natural resources, then what we are doing is best for the county.’
“Asking a group of farmers to draw the zoning map is not a good idea” says Mike Shepp, head of Ranson-based engineering firm Dewberry. “They have their own point of view. It would be like asking a select group of developers to draw the zoning map. The consultant from Kendig-Keast should do it.”
When asked if other stakeholders should be able to provide input into where the zoning lines should be on the map, Grantham said “Let them step up to the plate. We have diddled around on this, wasted time. I welcome other people’s input. Any landowner in the county should comment on this zoning map.”
According to County Commissioner Jim Surkamp, the zoning map is still very much in flux. “The Ag Task force very eloquently made the argument and suggested rules for the county,” he said, “But this is very early in the process. There is so much fluidity in the county right now with the annexations going on with the municipalities. It is going take some time till we get the final lines drawn on the map.”
At the end of the two-day draft planning ordinance workshop at the County Commission, a staffer took down the Ag Task Force’s proposed zoning map from the wall. It was rolled up and handed over to Lane Kendig who took it back to Chicago.
How much is enough?
The proposed draft planning ordinances will lower the number of homes that can be built in the county. The primary method of density reduction is the use of new formulas, such as “open space ratios” and “max gross densities.”
For example, in the existing “residential growth” areas—according to the best case scenario—developers can build 65-75 clustered single-family homes on 20 acres. Under the new rules (comparing apples to apples) a developer will be able to build only 30-40 single-family homes with at least 15 percent of the lot being left as open space.
The major change in the rural areas is the separation of the area into CS and AG zones. In CS, little or no development will be allowed. Some have likened this to a preservation easement blanket being placed across half the county.
The other half of the county will be zoned Agricultural (AG). According to Kendig, this AG zone will be similar to the current rural agricultural zone, where for every 100 acres, eleven clustered single family homes can be built, with 90 percent of the land being protected as open space. This, however, is the starting point. Considerable reductions will also be achieved by factoring in the impact of development on the county’s resources. Before a developer can even apply the new density ratios to a piece of land in the AG zone, they must subtract land that must be protected due its historical, environmental or agricultural importance. The net result will be severe cuts in the number of potential homes in the AG zone as well.
Changing the process
The application process for subdivisions will be changed under the new rules. In the past, the process took around 12 months and involved the planning commission at the half way mark (community impact) and at the end of the process (final plat).
 The new process could be as short as six months, and would involve the Planning Commission at the start of the application, at a proposed new “concept” stage in addition to the halfway mark (“preliminary plat”) and at the end (“final plat”). The point of this increased involvement of the planning commission is to weed out those applications that would never gain permission as well as giving early guidance to developers on how to meet the county’s new standards.
Frances Morgan, the new president of the County Commission explained the purpose of the ordinance rewrite.
‘A good set of rules should take care of a lot of the problems. We all hope for a smoother process.”
Paul Burke, head of the Jefferson County Planning Commission,while acknowledging that the process is still young, says he is not happy with the latest draft ordinance. “It is not easy to understand the current draft. If it was clearer, then public comment would be more fruitful.” Indeed, Burke has proposed his own alternative ordinance for the county, known as Plan B.
Developer Eric Lewis, who was invited onto a steering committee by the County Commission to give his input to the planning ordinance drafting process, is also not happy with the new rules. “You need to be a mathematician to work out the numbers. The tables are very hard to understand. I think the ordinance draft as presented is a disaster. It goes way overboard in taking away liberties and property rights.” 
Kendig is more positive about the problem, “We have tried to address all the things the Planning Commission is worrying about. For developers we have tried to give them maximum flexibility, to come at a project two or three ways. We have built in a reward system so they will develop the kinds of communities we want.”
According to county commissioners and Kendig, the earliest possible time the new ordinance could come into effect would be September 2007, though early 2008 is also possible.
Build Out
As well as looking at the details of the new ordinance, the County Commission is also keeping an eye on the big picture. It has asked Kendig-Keast what the maximum population of Jefferson County would be once it was built out as pemitted by the rules contained in the new ordinance. This would be when all of the available parcels that can be subdivided are developed in the county.
Kendig-Keast will provide their estimate of this maximum build out towards the end of the planning process. Once the consultant provides the build out population, the county commission will be able to “tweak” the density assumptions in the new ordinance plan. This will allow the county to “tamp down” the possible population of the county, and thereby control the impact on the county’s resources, such as schools, police and roads.
Kendig said that Jefferson County would be built out in 75 years. “I know the residents of Jefferson County have been in shock at the recent amount of development” said Kendig, “but look at the history of Reston, Virginia. They went through two bankruptcies before they built out.”
According to Burke, if the draft ordinances were to come into effect, the population of Jefferson County would increase to 300,000 people (it is currently around 50,000 people). “This will overwhelm the road system and water supplies in the county” said Burke. In his support for Commissioner Corliss at a recent election, Burke was calling for a maximum population of under 90,000 people in the county.
“This is wild speculation” said attorney Michael Cassell. “There is no evidence to support this claim. This is pure political hyperbole. What we are seeing here is a government attack on private property rights.”
Growth or Slow Growth
The pendulum could be swinging towards slower growth in Jefferson County. Recent  elections  of  Jim Surkamp and Frances Morgan, both planned-growth proponents; the draft planning ordinances with lower densities; the new draft zoning map; the removal of Paul Raco as head of Department of Planning and Zoning—all could be indicative.
Developer Eric Lewis sees the problem as the newcomers to the county, “They want to pull up the drawbridge” says Eric Lewis. “In five years time unless the populace wakes up, developers will only be able to build out in the municipalities, and they in turn will annex all the land in the county. There will be no more county left, only Charles Town, Ranson,  Harpers Ferry, and Shepherdstown.”
Bill Grantham proudly shares that the eighth generation is taking over the operations of the Grantham farm, and the first child of ninth generation is on the way. Grantham sees the conflict as being between “preserving the history and green infrastructure, or paving the county with asphalt”.
“I am so tired of hearing growth or no growth” says Commissioner Jim Surkamp “I think our choice is between being smart or being dumb. We need clear, transparent and predictable rules. The only difference between me and the developers is a matter of degree. We chose Kendig-Keast because they have never lost in the courts, they take a scientific approach to planning. I am very hopeful about the future of planning and zoning in the county.”
Mike Shepp, of Dewberry, disagrees. “Clearly, the goal of the county commission is to stop growth. They will slow it down, no question about that. But the consequence will be an increase in house prices. As the subdivision process becomes more costly, the developer will pass these costs onto the homeowner. It will become impossible for people who work in the county to live here.”
Kendig has seen all this before. He has provided guidance to counties around the United States as they struggle with rapid growth. How does Jefferson County compare to these other counties? “Most of the counties I work with don’t ask for help,” says Kendig. “What is exciting about Jefferson County is they are trying to protect what they have before it is too late. They want to preserve the farm land, the historic structures, the rivers. That has got to be a good thing.”

Thomas Harding is a licensed realtor and partner in Greg Didden Associates in Shepherdstown and a developer with Rattlesnake Run Inc.