2016-08-17 / News

County, Shoosmith await ruling on landfill expansion

By Jim McConnell

A retired Chesterfield Circuit Court judge is expected to rule on the county’s motion to dismiss a lawsuit filed against it earlier this year by the owners of a local landfill.

Judge William R. Shelton, who was filling in for Judge Lynn S. Brice, presided over an hour-long hearing on the county’s motion last week.

Shoosmith Bros. filed a civil complaint for declaratory judgment in March, seeking relief from a county ordinance it claims has been improperly applied to prevent it from conducting landfill operations in a rock quarry on its Lewis Road property.

The county contends that, nearly 20 years after Shoosmith obtained a conditional-use permit to use the quarry as a landfill, the company is attempting to avoid compliance with the terms of that permit.

“We now know that this case is about the interpretation of a single zoning condition,” said County Attorney Jeff Mincks during last week’s hearing.

Mincks noted that there was “a lot of opposition” to Shoosmith’s plan to expand into the quarry. Forty-seven citizens spoke against the company’s request for a conditional use permit at a 1997 public hearing. Another 1,500 signed a petition asking the Board of Supervisors to deny the permit.

To “ease citizens’ concerns,” Mincks recalled, Shoosmith submitted a list of 26 zoning conditions that would govern its use of the quarry for landfill purposes.

One of those conditions requires the company to receive approval from the Board of Supervisors, under Article VIII of Chapter 11 of the County Code, prior to converting the quarry into a landfill cell.

“The only reason we’re even talking about this is because Shoosmith proffered they’d go through the Article VIII process,” Mincks told Shelton. “Now they want you to interpret the zoning condition in a way that no longer requires them to obtain Article VIII permission.”

Shoosmith’s attorney, Andrea Wortzel, argued that Article VIII doesn’t apply to landfills regulated by the Virginia Department of Environmental Quality. The county’s jurisdiction over such landfills is limited to land use and siting, she said.

After extensively studying the technical specifications of Shoosmith’s quarry landfill plan, DEQ concluded it was sound and published a draft of the company’s amended solid-waste permit for public consideration last year.

Following a contentious July 2015 public hearing, the county requested that DEQ delay further action until staff could determine whether Shoosmith’s plan satisfies the terms of its conditional-use permit.

The county hired a consultant to study Shoosmith’s design documents and present its findings to the Board of Supervisors. The consultant, Golder Associates, identified a number of concerns.

The executive summary of Golder’s report noted “technical constraints, physical concerns and unknown operating conditions” in Shoosmith’s plan that could result in “cascading system failures that would be very difficult, if not infeasible to repair or recover from.”

After county staff and the consultant’s representatives met several times with Shoosmith officials, the company agreed to incorporate all recommended safeguards into its quarry landfill design.

At that point, staff recommended approval of Shoosmith’s application, but multiple members of the Board of Supervisors remained uncomfortable with the unique nature of the company’s plan.

There’s only one quarry in the commonwealth currently being used as a landfill. The city of Bristol, which straddles the Virginia-Tennessee border, received state approval to conduct landfill operations in a quarry in the mid-1990s.

The Board of Supervisors was scheduled to vote on Shoosmith’s plan last November, but before it could do so, the company withdrew its Article VIII application.

There was speculation that Shoosmith intended to re-file the application after two newly elected supervisors, Chris Winslow and Leslie Haley, took office in January.

Instead, DEQ issued Shoosmith a state permit in February to operate the quarry landfill. The company’s attorneys subsequently studied the case further and concluded that it was no longer required to obtain county permission under Article VIII.

“Shoosmith believes it’s DEQ’s permitting process that governs the quarry cell,” Wortzel said during last week’s hearing.

The county disagrees.

Deputy County Administrator Bill Dupler wrote to Shoosmith in March, inviting the company to refile its Article VIII application.

In a separate letter to DEQ, Board of Supervisors Chairman Steve Elswick and then-County Administrator Jay Stegmaier noted that conducting landfill operations in the quarry without permission from the board would constitute a violation of Chesterfield’s zoning regulations and trigger enforcement action by the county.

Potential penalties include discontinuance of Shoosmith’s conditional-use permit for the quarry and the loss of zoning for the property.

Shoosmith filed suit three weeks after receiving Dupler’s letter.

“Localities are not pre-empted from regulating solid waste landfills by the fact that the state also regulates them,” Mincks said last week.

That’s now up to a judge to decide.

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