On October 24, 2006 the Register Herald posted a sensational headline story, saying that the Plateau Action Network and the National Parks and Conservation Association were out to stop the Roaring Rivers development. This is not true. 

PAN has been a supporter of the project from the very beginning. The appeal is directed at the County administrators for perceived failures to properly interpret Fayette County’s Unified Development Code (UDC).

In the spring of 2005, PAN produced a position statement expressing general support of a quality residential development adjacent to the New River Gorge National River. PAN also expressed support for protecting the valuable resources of the park. We think both are possible and we (mostly Gene Kistler and Randy Boyd) worked diligently with the National Park Service, LRC, county administrators, and other members of the public to get to a positive, quality outcome for all.

Most of the development issues in the UDC have been dealt with many times in other projects in the county and the procedures for measuring and complying has become pretty routine. All except for the the viewshed issue.

The Viewshed issue has been so prominent because:

1) New River Gorge National River, a unit of the National Park system, is a national treasure and is a proven important asset to this county and the region.

2) A National Park Service surveys show that sight seeing is the number one activity enjoyed by park visitors and the exceptional views of intact forest are a valuable, fragile resource worthy of our consideration.

3) This development stretches for nearly 10 miles along our National River.

4) LRC told the public in its “Facts and Information” dated July 25, 2005: “In fact, with the plan we currently have for development, we do not anticipate that our community will even be visible from any ground level vantage point in the area.”

5) The National Park Service made a sophisticated, computer generated viewshed analysis, using parameters provided by Land Resources Corp. The model shows nearly 80 home sites are likely to impact the viewshed.

6) LRC did some “balloon tests” but never made the tests on any of the 80 lots in question.

7) This is the first test of the UDC.

8) How the county deals with this development will set a precedent for others that are certain to follow. In fact, this is just phase one of this project- 804 acres out of the 3,680 acre development, with a total housing plan for approximately 1,840 homes.

 It is important that we get this right, now. 

In February of 2005, PAN helped Land Resources Corporation (LRC) to secure their zoning reclassification by urging them to withdraw a flawed application before it was submitted and voted on. The application was likely to be rejected, and LRC would then have had to wait a year before re-applying. Gene Kistler, PAN board member and a Planning commission member, worked with LRC to produce a solid application.

In August of 2005 Gene Kistler made the motion to approve the zoning change and to approve the Planned Residential Development (PRD) overlay. The PRD overlay allows flexibility and encourages sensitivity to the natural setting and allows for clustering of houses and green spaces. The Planning Commission voted in favor of the zoning change and the PRD overlay.

The County Commissioners accepted the Planning Commission recommendations and the project was handed off to the County Zoning Enforcement Officer- the ZEO. It is the ZEO’s  job to see that the many details of the development comply with the County’s UDC. The Roaring Rivers project is huge and it is the first test of the county’s new UDC. 

Over the past two years, we have discovered a number of problems with the UDC. These are acknowledged by LRC, PAN and the county. We are making good progress in addressing these problems.

In February of 2006 the ZEO began to prepare his decision and comments on the plan. This was the “staff review”. There were two important errors: 

One stated that the Unified Development Code contains no provisions to consider viewshed. To the contrary, the UDC plainly states that “exceptional views” may be taken into account when considering approval of a sub-division plan. 

The second point was that the ZEO said that any prohibition of building on lots of concern could constitute a taking, potentially requiring the County to reimburse the developer at market value for those lots. This position is contradicted by state Supreme Court case law. McFillan v. Berkeley County Planning Com'n, 190 W.Va. 458, 438 S.E.2d 801 (1993).  The ZEO was presented with the evidence that he was wrong on these two points. Yet…

In April, two months later, he included these things in his final “Opinion and Findings of Facts”. We were mystified.

So, PAN and the National Parks and Conservation Association (NPCA), the National Committee for the New River (NCNR), and the West Virginia Highlands Conservancy (WVHC) appealed the ZEO’s decision to the Board of Zoning Appeals (BZA).

On September 12, 2006, the BZA heard sworn testimony where the ZEO admitted his “oversight” in interpreting the UDC and the point about “outstanding views”. The ZEO also admitted he had no legal counsel and no sound basis for his opinion about “takings”.

In the end, the Board of Zoning Appeals decided that: “…The ZEO complied with the applicable provisions of the Unified Development Code of Fayette County. The ZEO considered all matters presented to him by the applicant and those opposed to the subdivision plan. The ZEO has broad discretion with the code. ...the appeal is denied.”

Interestingly, the ZEO’s admission of making a mistake was noticed by Anna Sale, reporter for West Virginia Public Radio. From the 5 hours of testimony that first night, she selected that particular 5-10 second clip as the most significant point to include in her report.

The BZA decision, findings, and explanation give no clue as to how they arrived at their conclusion that the ZEO had done his job. We are again, mystified.

So, now there is another opportunity to ask someone- now the Circuit Court – to make the county comply with State and County codes. What started out as an effort to address the important viewshed issue has sadly, become an effort to hold public officials accountable to the basics of upholding the laws we already have and to use the tools we have in the UDC.

The Citizens of Fayette County have spent considerable resources in tax dollars and in personal time being proactive with planning and developing our Comprehensive Plan and the Unified Development Code.  Fayette County is one of just two counties in West Virginia that have Zoning and a plan for development. In West Virginia, Fayette County is seen as a smart, progressive county. Good planning results in a better quality of life which is attractive to quality businesses and their employees.

The Plateau Action Network is an all volunteer organization. Its mission statement is to promote responsible economic development and sustainable environmental management. PAN initiated the effort raise awareness, secure the engineering company and the funding for Fayette County’s $400,000 sewage infrastructure plan. PAN is well respected by State and federal agencies for being a positive, productive organization. PAN received the first Congressman, Nick Rahall Environmental Stewardship Award for its positive collaborative efforts to clean up Wolf Creek- the source of Fayetteville’s drinking water. PAN supported, and many PAN members turned out to help build Play-it-ville. PAN has given scholarships and participated in the Leadership Fayette County program. We have brought educational and entertaining environmental programming to Fayette county schools. PAN has demonstrated it’s commitment to improving the quality of life in our community.

 LRC has spent $millions in engineering studies, marketing and buying land, cutting in roads, and surveying in and clearing lots. They have even already sold a number of them. They have done all of this before securing clear approval from the county. They can rightfully claim they have been “approved every step along the way” but that does not mean the approvals have been properly made.

PAN also, has done everything asked of it by the laws of the State and the County and PAN has been approved in its right to petition the government to for perceived wrongs.

In spite of the diversions from the original issue, of protecting the viewshed, the PAN board has been making every effort to avoid this appeal. We have met with Roaring River’s general manager and county administrators and Commissioners. It seems that we are close to a resolution, though there could be no assurances without proper public meetings. And the deadline to appeal has arrived.

A resolution to address many of the problems with Fayette County’s UDC has been drafted and is being reviewed. We hope that it can eliminate any further need for this appeal to the court. We also expect that the positive changes will be of benefit to LRC in the future phases of their development.

Our participation in the Roaring Rivers rezoning and plat approval process has been forthright and positive. We are eager to see a quality housing development take place here because it will help to protect the park, it will be an economic boon to the area and, in turn, our school system will benefit from the property taxes.

·         The next County Commission meeting, in the court house on

Tuesday, October 31^st at 9:00 AM.

·         We seek acknowledgement that the UDC, as it is, does allow for consideration of outstanding views.

·         We seek acknowledgement that modifying a plan does not constitute a taking.

·         We seek acknowledgement that public administrators may not be capricious in their decisions and that they are obligated to render accurate findings of fact and reasoned explanation of the decision reached.

·         We seek to clean up the county codes, bring them into compliance with state code, correct typographic errors, clarify and objectify the UDC viewshed language.

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