From the Editors

Is the Zoning Referendum Unconstitutional?

As the holiday season begins, Jefferson County faces the prospect of a referendum to determine whether the current zoning ordinance, which became law November 2, will be overturned. The Observer has made known its objection to a referendum; we believe that’s why we have elections. The County Commission and staff have spent four years developing the ordinance. They have been responsive to public input, and the documents have changed over months of public deliberation. As intended, the ordinance provides clarity and certainty to the project planning process. At a time that most residents of Jefferson County are concerned about unbridled growth in the county, the new ordinance provides far better hope for smart growth than the current ordinance that almost everyone agrees has failed.

Now emerges the possibility that the law establishing the referendum option, HB4511, might violate the West Virginia constitution—or worse.

First, the referendum law says that only voters “affected” by the new zoning ordinance can vote to approve it. In other words, residents who live within the boundaries of municipalities cannot vote on the future of zoning in the county. These residents pay taxes that fund county services, elect county commissioners who run the local government, pay impact fees to the county if they build a house, but can’t vote on an ordinance that will impact their lives for years to come.

Municipal residents will be “affected” by development density in the areas surrounding the towns, and by the plans to buy parkland, build business parks, and every other function of county government. Given that zoning is one of the few policy tools that local governments have, HB4511 strips the citizens of Harpers Ferry, Bolivar, Shepherdstown, Charles Town, and Ranson of basic democratic rights.

What’s more, even municipal residents who own land in the county have no voting rights under this law—a second major flaw in HB4511 legislation. If you’re a retired farmer who has moved into town, but still own your land in the countryside, you have no vote under this law.

And here’s the third oddity. Referendum proponents don’t even have to win a vote to upend a law enacted by elected officials. All they need to do is hand in enough qualified signatures and the current law that the county is operating under right now is set aside until it is approved or rejected by ballot. Imagine this type of scenario in a state like California, where referendums are more commonplace. State government would grind to a halt every time a petition drive was instigated.

Finally, and this is where the thing gets so strange that you start to hear yourself say, “Only in West Virginia,” per HB4511 law, the referendum only addresses the zoning ordinance. It does not affect the new subdivision ordinance for the county. The subdivision ordinance is replete with references to the new zoning map and ordinance. How will the subdivision ordinance be implemented if its foundational documents are scrapped?

At a time when certainty and sanity are sorely needed, who could wish this state of affairs on our county? The only possible answer is those who want nothing more than an absence of rules altogether.