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.

Read more at:
http://www.leesburgtoday.com/articles/2009/11/30/news/9975limestone112509.txt

Pennsylvania Town Fights Big Coal on Mining Rights

Attilia Shumaker, an environmental activist, stands on the porch of an abandoned house that she said was abandoned because coal mining caused the land beneath it to shift, cracking the house's foundation and basement in Blaine Township, Pennsylvania May 12, 2009.

Comment: Good Luck to the PA community in fighting Corporate Greed! Virginia needs to ban uranium mining and milling now! In addition, open pit mining is blasting, so fly rock and tremors will cause foundation problems around the uranium site. In addition, the blasting will disrupt the wells and ponds in the area.

Published on Monday, June 15, 2009 by Reuters
by Jon Hurdle

TAYLORSTOWN, Pennsylvania - A small Pennsylvania town is trying to ban coal mining in a battle being played out across the state as rural communities try to assert control over mining, gas drilling and other businesses.

Attilia Shumaker, an environmental activist, stands on the porch of an abandoned house that she said was abandoned because coal mining caused the land beneath it to shift, cracking the house's foundation and basement in Blaine Township, Pennsylvania May 12, 2009.

A small Pennsylvania town is trying to ban coal mining in a battle being played out across the state as rural communities try to assert control over mining, gas drilling and other businesses. Blaine Township, a community of 600 about 40 miles (65 km) southwest of Pittsburgh, hopes to trigger a legal battle that could determine the rights of municipalities throughout the United States to control corporate activity.

Blaine Township, a community of 600 about 40 miles southwest of Pittsburgh, hopes to trigger a legal battle that could determine the rights of municipalities throughout the United States to control corporate activity.

Some legal experts say the township is highly unlikely to win that fight. For now the dispute is in federal district court, where major energy companies have sued the township over three ordinances that would ban coal mining and require companies in any business to disclose their activities to local officials.

Penn Ridge Coal LLC, a unit of Alliance Resource Partners, and Allegheny Pittsburgh Coal Co., a unit of Allegheny Energy, say Blaine's laws violate their corporate rights.

The companies say the ordinances would prevent them from mining 10.6 million tons of recoverable coal beneath the township -- enough to supply electricity for 2 million people for a year.

The township has gone further than any of the 120 U.S. municipalities -- most of them in Pennsylvania -- that have passed ordinances to curb corporate activity such as factory farming or spreading sewage sludge, said its lawyer, Tom Linzey of the Community Environmental Legal Defense Fund [1].

Of three townships sued by corporations over their ordinances, only Blaine has refused to back down, Linzey said.

Elsewhere in Pennsylvania, towns are resisting efforts by energy companies to extract natural gas from the massive Marcellus Shale formation amid fears that toxic chemicals used in drilling are contaminating ground water and endangering human health.

CREEKS DIVERTED

In Blaine, residents are seeking to prevent coal mining -- which they expect to begin there in 2011 -- because they fear it will ruin their houses and disrupt water supplies, as they say it has in surrounding areas.

They want to block longwall mining, a technique that rips tons of coal from underground without putting anything in its place, causing the land above to sag. The practice, which has been used in coal-rich southwest Pennsylvania since the 1970s, has cracked the walls, roofs and basements of homes and opened fissures in the land, diverting or draining creeks and ponds.

In neighboring Morris Township, Tammy Bowman pointed to a pile of broken wood and concrete -- all that's left of an outbuilding she said was destroyed by shifting ground from mining beneath her 19th century farmhouse.

"It just started to drop and drop," she said. "It got so bad, you couldn't even walk in the door."

One section of her house is held up with mechanical jacks.

Near the village of Graysville, the 62-acre (25-hectare) Duke Lake, once used for fishing and boating, now sits empty after the shifting ground opened a crack in its retaining wall, environmentalists say.

Blaine's three ordinances, passed in 2006, 2007 and 2008, also assert that communities have a right under the U.S. Constitution to control business within their boundaries and that corporations do not have constitutional rights as "persons" to sue municipalities for passing laws that would hurt corporate interests.

"This illegitimate bestowal of civil and political rights upon corporations prevents the administration of laws within Blaine Township and usurps basic human and constitutional rights guaranteed to the people of Blaine Township," says the township's Corporate Rights Ordinance of 2006.

To implement the ordinances, township supervisors are now campaigning for "home rule," a legal code that transfers some powers from state to local control and is commonly used to raise taxes or increase the number of supervisors on a board.

ESTABLISHING HOME RULE

Blaine supervisors want to use home rule to establish what they say is the township's constitutional right to control corporate activity. Voters on May 19 approved a plan to set up a commission to study the proposal and recommend whether to adopt it.

A third lawsuit has been brought by Range Resources, a natural gas company, asking the court to invalidate Blaine's demand that corporations disclose their activities.

Penn Ridge Coal and Allegheny Pittsburgh Coal are asking U.S. Judge Donetta Ambrose of the Western District of Pennsylvania to declare Blaine's ordinances invalid and unenforceable.

In April, Judge Ambrose denied the township's motion to dismiss the case. She is expected to rule late this year.

Linzey predicted the case will eventually go to the U.S. Supreme Court because it pits energy companies who want to exploit one of America's richest coal seams against residents who are determined to resist what they see as rapacious mining.

He conceded the court is unlikely to overturn more than 100 years of established law that gives corporations rights as "persons" under the constitution, but he said the expected outcome would become a springboard for a popular campaign for a constitutional amendment to strip corporations of those rights.

Blaine's supervisors said they want to establish a principle of local self-government that will inspire other communities.

"Who dictates how we are going to live here?" asked Board spokesman Michael Vacca. "Should it not be us?"

(Editing by Daniel Trotta and Cynthia Osterman)

http://www.commondreams.org/headline/2009/06/15-1