SB 171: Undoing 50 years of good
Last year, hundreds of Hardy County residents turned out to oppose the permitting and installation of an industrial log fumigation facility on property zoned agricultural, adjacent to homes and sensitive ecosystems. If certain West Virginia legislators have their way, however, they will silence our community from having ANY voice in such important local matters in the future. Some background:
For over a century, local control over land use planning and zoning has been an essential “home rule” function of local government. County and municipal planning and zoning programs prevent incompatible land uses (like factories being constructed in residential areas), protect property values, protect open spaces, and protect family farms and neighborhoods. Authorized by legislatures throughout the United States, including West Virginia, such programs allow residents, through their elected local officials, to determine how best to distribute, balance, and protect residential, agricultural, commercial, industrial, recreational, educational, public, historic, conservation, and transportation and infrastructure land uses throughout the community.
Local land use planning and zoning authority has been enshrined in the laws of West Virginia for nearly 100 years. In Chapter 8A of the WV Code, the West Virginia Legislature has codified its findings that the orderly planning of land development and uses is vitally important to a community. The State Code explains that county planning commissions are integral to helping communities plan for land development, land use, and the future. Comprehensive plans must address the current and future needs of agriculture, residential areas, industry and business, as well as set forth a vision for future growth that is economically sound, environmentally responsible, and supportive of community livability to enhance quality of life. Governing bodies of municipalities and counties need, and are in the best position to exercise, flexibility when planning for and authorizing land development and use.
Hardy County, West Virginia has administered a comprehensive local planning and zoning program since 1973. This program reflects an extensive process that considered the wishes and protection of the community at large and continues to evolve to adapt to inherently dynamic community needs and circumstances. Agricultural, commercial, industrial, public, and residential zones have been carefully and thoughtfully designated throughout our 583-square-mile community, and the program contains procedures by which landowners can seek rezoning, variances, or conditional use authorizations from local officials. Put simply, Hardy County’s land use planning and zoning program works — for all of us.
In the recently convened Regular Session of the West Virginia Legislature, local control over land use planning and zoning is under unprecedented attack, putting at risk the very notion of home rule over essential local governmental functions. Special interests have apparently convinced some legislators that local land use programs are an impediment to industrial/commercial projects or otherwise represent a threat to “agricultural operations” and should be preempted in favor of State control, or no control at all. We strenuously disagree. Local government decisionmakers are in the best position to safeguard family farms and to ensure that proposed development projects are compatible with community land uses and regional economic goals.
In 2022, for example, the Hardy County Planning Commission emphatically said “NO!” to a proposal to construct nineteen 600+-foot-tall wind turbines on residential zoned property on Short Mountain in Baker. In 2023, vehement and passionate local public opposition to a proposal to construct and operate an industrial log fumigation (methyl bromide) facility on agricultural zoned property between Baker and Moorefield induced the project sponsor to withdraw its application for a State air pollution permit. That both projects were, and are, wholly inconsistent with the Hardy County Zoning Ordinance is the primary reason they did not proceed. If legislation currently moving forward in the West Virginia Legislature is enacted, both projects may once again advance over the intense opposition of County residents, this time with meaningful local control over land uses having effectively been wrested away by the Legislature. Unless citizens of Hardy County rise and oppose these bills, we literally risk upending fifty years of sensible and orderly land use planning and development in Hardy County.
Senate Bill 171 passed the Senate 32–0 on January 12, 2024, and has been referred to the House. The bill prohibits all fifty-five West Virginia county commissions from adopting any ordinance that “contravenes or is stricter than any state law … relating to agricultural operations” and would “revoke[]” any such existing local laws. Similarly, the bill prohibits West Virginia county commissions from adopting any ordinance that “alters the permissible use or application” of any registered pesticide, herbicide, or insecticide. If enacted, the County would be rendered powerless, for example, to require that an industrial log fumigation facility be located in an industrial zone. Any number of what reasonably should be considered “industrial operations”, appropriate only in industrial and/or commercial zones, would be statutorily deemed “agricultural operations” not subject to local land use controls. The Hardy County Zoning Ordinance effectively would be upended.
House Bill 2459 would exempt “wholesale electric generating units”, e.g., wind turbines, from local zoning laws. The bill would declare that wholesale generating units are a “permitted use” in any and all countywide zoning districts. Yes, that means that 600+-foot-tall wind turbines could be installed in a residential zone or subdivision, subject only to Public Service Commission approval. Any meaningful local control over the siting of wind turbines, or industrial-scale solar farms, would be eviscerated.
These are but two concrete and immediate examples of incompatible development projects in Hardy County that were vigorously opposed by County residents and rejected by community leaders yet could become inevitable unless citizens make their voices heard. Ongoing lobbying efforts in the Legislature by special interests bent on gutting fifty years of local land use planning and zoning authority in Hardy County put the future of this County in serious jeopardy.
We would encourage our fellow Hardy County residents, and organizations committed to ensuring continued local control over local land use planning and development, to contact (by email, phone, or in person) Members of the WV House of Delegates and WV Senate in opposition to Senate Bill 171 and House Bill 2459, or any other legislative proposal to preempt local control over critical local land use decision making. Contact information can be found wvlegislature.gov/Senate1/roster.cfm and wvlegislature.gov/House/roster.cfm. Hardy County’s land use planning and zoning program has served this community well for over fifty years. We must not cede local control over an essential and longstanding government function to unaccountable decisionmakers who otherwise tomorrow may authorize an inherently dangerous industrial operation right next door, or approve massive, towering wind turbines in your neighborhood. This issue is urgent, and it should matter to all of us.
Toni Mathias Harvey, Wardensville
Neil Gillies, Baker
Barry Conaty, Lost River
Crossposted from the Moorefield Examiner, a guest editorial published January 16th.
