Questions Remain About Limestone Ordinance Proposal (Virginia)

By Erika Jacobson Moore
(Created: Wednesday, November 25, 2009 10:19 AM EST)

As the Board of Supervisors' Transportation/Land Use Committee makes its way slowly through the concerns raised about proposed policies intended to better protect groundwater and residents in the Rt. 15 corridor north of Leesburg, debate is still raging about whether the government is taking the best approach and what unintended consequence might result from the restrictions.

For months residents from the Raspberry Falls community, as well as other property owners within the boundaries of the proposed Limestone Overlay District, have raised concerns that the policies would put unnecessary restrictions on their property while continuing to protect developers and new property owners more than existing residents in the district. Critics have called for the county to slow down the review process to allow for agencies, like the Environmental Protection Agency, to weigh in on the plan.

"The people you are seeking information from are entrenched," Raspberry Falls resident Michael Spak said during the board's public input last week. "They're just reinforcing what they've said previously. I ask you to do away with this for 12 to 24 months, form a committee that's not dominated by special interest groups either for or against and get to the bottom of questions residents are asking."

Residents have questioned the scientific research used to reach the recommended policies and whether there is enough evidence to show the restrictions will have any positive impact on water quality, particularly in areas like Raspberry Falls where residents have already seen their community wells reach contamination levels.

"We need to make sure we are reviewing all the science that goes into putting any regulations in place," resident Laura Maschler said. "The vested rights are protected with the developer. It is the burden of the person who now lives in Loudoun, who pays taxes in Loudoun, who drinks water in Loudoun. We're all here and we're all asking each and every one of you to recognize the importance of pausing and getting the real scientists in here."

Time, however, may be on residents' sides, as it does not appear the policies will be reported out of the Transportation/Land Use Committee any time soon. At its work session last week, supervisors continued working their way down a matrix of issues and questions presented by members of the board, residents and outside parties, but did not come close to finishing the work. Committee Chairman Kelly Burk (D-Leesburg) said the work would continue into December and even January, if needed.

If approved, the overlay district would apply to land known for karst features, including limestone outcropping and sinkholes, along the Rt. 15 corridor. The merits of additional development restrictions have been debated for two decades and a previous attempt to create a Limestone Overlay District was overturned in court because of inadequate public notice.

One of the main issues raised at the Nov. 18 meeting was the requirement for setbacks from karst features, including sinkholes, sinking streams and rock outcroppings.

Under the proposed ordinance, a setback of 100 feet would be required for development of new houses, pools and auxiliary dwellings, among other major land disturbing activities. That setback could be reduced to 50 feet, based on the findings of a geophysical study, which would be required before any land disturbing activity occurred.

Land disturbing activities less than 720 square feet would be exempt from the restrictions, under the board changes, if they are at least 20 feet from karst features. The Planning Commission proposed the 20-foot distance as a minimum setback for all land disturbing activities. Swimming pools, homes and accessory dwellings of that size would still require geophysical testing, however.

The committee also accepted a change suggested by the Health Department that wells and drainfields could be within 10 feet of a karst feature.

Many of the comments made by residents and outside agencies questioned the setback requirements, calling them "arbitrary" in nature. Project manager Larr Kelly told the committee he looked to the ordinances created by jurisdictions around the country to determine what might be best setbacks for the LOD.

"They range from 500-foot setbacks to no setbacks," Kelly said of what he found. "We looked at numbers that were generally used. We tried to get a reasonable distance and then there is some relief built into the ordinance to move closer."

That answer was not enough for at least one committee member. County Chairman Scott K. York (I-At Large) asked Kelly to bring back empirical data to show why the setbacks were chosen.

"I understand looking at others, but making a determination of what we are doing without scientific data to say that the others are correct" does not seem like enough," York said.

The ordinance is about looking forward to new land disturbing activities, Supervisor Sally Kurtz (D-Catoctin) said, as nothing can be done to change the locations and development patterns of homes and buildings already constructed on karst land.

"Onerous regulations are not the object of this game," she said. "There is a requirement of risk avoidance."

Kurtz noted that it is possible for people and communities to live on karst land with no problems, as long as the work has been done to protect those people, homes and businesses in the future. "After all, all of Clarke County is on karst," she said. "If you had proper regulations in place, why is it considered bad?"

Under Clarke County's Spring Conservation Overlay District no structures, except public utility structures, are allowed within 400 feet of the spring; certain uses such as mining, underground storage of chemical or petroleum products for commercial or industrial purposes, feedlots, and sanitary land fills; and the minimum lot size is two acres.

Kurtz did ask Malcolm Field of the EPA to weigh in on what was being proposed in the LOD after she met him at a talk at the Lucketts Community Center.

"I knew the citizens had made contact with him and they certainly trusted what he had to say," she said.

Field also is working with Raspberry Falls and Loudoun Water on the community's water quality problems, which are being evaluated separate of the LOD.

After reviewing the document, Field's questions and comments were integrated into the matrix the Transportation/Land Use Committee is working from in its review of the proposal. Among the issues he raised were whether the 20-foot minimum setback requirement for any land disturbing activities was overly restrictive and whether there was too much emphasis placed of the need for geophysical studies.

County staff members maintained the geophysical studies would be the best option for determining whether construction or development could occur in a certain area, weighing both the accuracy and the cost to the property owner. The geophysical studies typically cover a distance of 300 feet, Alex Blackburn, from the Department of Building & Development, said, adding that most of the professionals work with homeowners and landowners to determine what they want to develop before deciding how to place the line.

Field also questioned how the county would address false positives and false negatives that he said the geophysical studies can turn up. While the committee has not come to that issue at its meetings to date, county staff has responded by saying all studies will be done by professionals who will certify the tests were done to industry standards that were developed with quality control.

Education and notification is also a sticking point for supervisors and residents alike. The committee has already decided to remove the word "warning" from any notification of potential homebuyers, saying it would indicate there is something wrong with the property, but the best way to inform newcomers to the area remains in questions.

Kurtz says she would like to see a simple notice on tax bills and land deeds that says the property is in the Limestone Overlay District and then homeowners or landowners can decide whether they want to investigate more. Kurtz recalled a new homeowner who recently came into the county upset because she signed a contract on a home before she learned the house was in a karst sensitive area.

Most supervisors agreed that notification was important, but said they were not sure what the appropriate level would be.

"We need to convey tat being in the Limestone Overlay District is not a bad thing. These things that are in place have mitigated the issues. It's just that there are some different requirements," Burk said.

Only York expressed concerns with including notification, noting that no notification is needed for those properties in the Mountain Overlay District. The county does require notification for those in the Airport Overlay District and near the quarry, but those activities, he said, pertain to noise and are occurring throughout each day.

"We have the MOD which we have done appropriately because we want to protect the environment and for which we have no notice," he said, pointing out the LOD was also "trying to protect the environment as well as homeowners. We've got standards in place that would require an additional landowner action to apply to ensure that their structure is not being built on a sinkhole. Why philosophically should we treat this any different than we do the mountain district?"

While an agenda has not been finalized, the Transportation/Land Use Committee is scheduled to meet again at 6:30 p.m. Wednesday, Dec. 16. For more information about the LOD, visit www.loudoun.gov/limestone.

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