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Jefferson board gives Lowe OK

May 27, 2011
By Tricia Fulks, Chronicle Editor

CHARLES TOWN - Last week the Jefferson County Board of Zoning Appeals granted Lowe Products a variance it sought after county officials found its mulch plant in violation of the required 200-foot setback late last year.

The board approved a 50-foot buffer zone as well as the optional construction of a fence no taller than 12 feet with a setback equivalent to its height. County Zoning Administrator Steve Barney said the fence, should the company choose to construct it, must be solid and cannot include razor wire or barbwire.

Supporters and opponents alike were present at the May 19 meeting to voice their thoughts on the issue.

Attorney Michael Scales represented Lowe Products, stating various reasons why the BZA should grant the variance. But the linchpin to Scales' argument was that because the company's mulching operations have been in business since 1970 in its current location, the county had no authority to regulate it under the ordinance it was "grandfathered" under in 1988.

Scales cited Section 8-24-50 of the old code which applies to nonconforming use properties.

Scales also said in 2004 the legislature broadened upon the expansion of preexisting nonconforming industrial use properties in Section 8A-7-10C of the West Virginia State Code, which states, "Land, buildings or structures in use when a zoning ordinance is enacted can continue the same use and such use cannot be prohibited by the zoning ordinance so long as the use of the land, buildings or structures is maintained, and no zoning ordinance may prohibit alterations or additions..."

"I respectfully suggest to the Board of Zoning Appeals that there can be no regulation of what they're doing except site plan regulations," Scales said.

Scott Lowe, vice president of Lowe Products, said anything on the company's property that might be closer than the 50-foot limit will be fixed.

"We're going to follow the law," he said.

But many residents who live adjacent to mulch plant were voiced concerns at the meeting about the expanding operation's encroachment on the neighborhoods and its affect on their lives.

Judy Moore, a Ledge Lowe resident since 1976, told the board that if such a business were proposed today, it would not pass community hearings.

"No matter what your decision today, this is the first public forum citizen have ever had in which to voice their objections and concerns since the passage of the ordinance in 1988," Moore said at the hearing.

Regarding the decision, Moore expressed disappointment.

"I understand how they arrived at their decision, but we had hope for more than that," she said.

She also expressed discontent with Walt Pellish, a county commissioner, speaking on behalf of Lowe Products' variance.

"I think it was totally inappropriate that Mr. Pellish spoke, even though he insisted he was a private citizen, to influence a board whose members the County Commission appoints," she said.

At Thursday's hearing, Pellish stated he wanted to "make it very, very clear I am speaking today as a private citizen" and stressed his comments did not express the position of the commission.

As a man with a background in industry, specifically in mining, Pellish said the Lowe's operation is clean, safe and healthy and regularly inspected.

But still some citizens were concerned about their families' safety.

Nannette Jenkins, a Mecklenburg Heights resident who is expecting her first child in the coming days, stated that the noise from the plant exceeded the 65 decibel limit set by county ordinance in residential neighborhoods, which does not apply to the mulch plant.

Jenkins provided the BZA with a list of decibel readings between 60 and 96 she took within her home and on her property during the hours of 10 p.m. and 6 a.m.

"I'm very worried now how this is going to affect my baby," she said.

Zoning Clerk Jennilee Hartman said that the BZA entered deliberative session on May 19 at 6:01 p.m. and finished at 7:29 p.m., during which time they had multiple requests to consider.

Barney said the BZA felt the buffer should be enforced for the health and safety of the neighbors.

"Some separation was necessary," he said.

"We were happy that they decided that they could be regulated," Jenkins said.

She added, "We'll wait and see what happens and take the next step if we need to."

Barney said once the BZA issues and signs the findings of fact at its meeting on June 16, anyone can appeal the decision within 30 days to the county circuit court.

 
 
 

 

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