On Sept. 8, Kelly Goes, West Virginia's Secretary of Commerce (and director of the West Virginia Development Office), visited Jefferson County for a series of meetings about the proposed brownfield development project at the site of the Old Standard Quarry at Millville.
This issue is controversial. Ms. Goes, in her capacity as development director, approved this project despite the fact that it would violate Jefferson County zoning. It's a classic case of Charleston playing "big brother" to local government.
Director Goes met first with Lyn Widmyer, president of the Jefferson County Commission, then with John Maxey of the county Planning Commission. Finally, she met with four citizens who had expressed dismay to me about her decision.
The meetings lasted all day.
I scheduled the meetings, picked Ms. Goes up at the Martinsburg airport and took her for a tour of the Old Standard site before the first meeting.
Delegate Tiffany Lawrence and I sat in on all the meetings and I took the director back to the airport at the end of the day.
In the 2008 session of the state Legislature, I voted for a bill that was designed to encourage the development of "brownfields." A "brownfield" is a site that has been contaminated by previous industrial use.
I strongly support brownfield development because I think that if development is to occur, better it clean up dirty land than be put on clean land.
This bill said among other things that a brownfield project would, once approved, be exempt from any further scrutiny under local land-use laws. Any of the oversight normally done by local planning officials after project approval would be done by the state.
Storm water management, for example, would be under the bailiwick of the Department of Environmental Protection.
The bill also said that if local officials were to unreasonably hold up the project, the state could step in.
I thought these provisions made sense. Unfortunately, when the Legislature approved rules under which the Development Office would administer the brownfield development program created by the bill, it exceeded the scope of the bill on both points.
Compounding the problem, no legislator representing Jefferson County knew about this rule until the Jefferson County Commission was notified about a month ago that the project had been approved.
A "rules" bill is a compendium of specific instructions to the executive branch of government as to how to implement a particular bill. There are more than a hundred rules bills each year, and they are combined into several "bundles."
The folks at the West Virginia Environmental Coalition always monitor environmental bills to make sure nobody has tried to slip something through in the environmental bundle. I have asked them to keep their eyes peeled for poorly written (intentional or otherwise) land-use rules.
This particular rule was inserted in the commerce bundle, not the environmental one. Nobody from the Environmental Coalition saw it, nor did any legislator representing Jefferson County.
Most lobbyists who ply their trade at the state Legislature are honorable people, but there are a few charlatans, as is the case in any profession. We all try to keep our eyes open for skullduggery, and we catch most of it, but a few things slip by, and this was one that did.
I have never seen a more clever usurpation of a law by a rule than this one.
When I heard about the development director's decision and thereby the existence of the rule in question, I asked the chief counsel of the Joint Committee on Rulemaking Review (the committee that handles all rules bills) to examine both the original bill and the rule implementing it.
I suggested that the original bill exempted only an approved project from further local planning (meaning an application would have to conform to local zoning before being approved by the Development Office), but that the rule exempted even an application.
Anytime a rule is found to exceed the original statute the rule is void.
Goes now believes I am correct.
"There is no exemption for applicants from land-use planning," she wrote me on Aug. 26.
This means that any future applications, from that day forward, must go through zoning.
This project is not yet stopped, because the Development Office believed it was acting properly when it approved the Old Standard project, but there may be some kind of legal action in which her memo to me will be pertinent.
The Development Office used the fact that the county Planning Commission turned down a request for a zoning change of the area around Old Standard as proof that local officials were being unreasonable. It was blissfully unaware that the Planning Commission usually turns down a request for a zoning change, but that doesn't necessarily kill a project.
Even without a zoning change, a developer may request a variance or a "conditional use permit," which is often granted. Old Standard applied for neither.
I have been criticized in some quarters because the Sept. 8 meetings were private. I would have preferred they be public, but Director Goes did not want them public.
I had a choice of private meetings or none at all.
I believe these meetings helped to convey the deep-seated anger in Jefferson County about the state making a decision that should have been made locally, so I think I made the right decision to go ahead with the meetings.
Ms. Goes did not rule out a public meeting at some point.
Finally, another columnist for The Chronicle, writing about another issue, said a couple of weeks ago "administrators don't interpret law, they follow it." That is at once a logical fallacy and extremely naive.
How can one "follow" instructions without understanding them? Some instructions are clear. Others are not, and those require some interpretation to be understood. Administrators necessarily interpret laws every day.