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2017-06-14 / Featured / Front Page

Shoosmith expansion plan hits a roadblock

Zoning board rejects appeal to skirt county
BY JIM McCONNELL STAFF WRITER


The Board of Zoning Appeals ruled last week that Shoosmith Bros., which is planning to expand its landfill to a nearby quarry, must comply with a conditional use permit issued by the county 20 years ago. 
JAMES HASKINS The Board of Zoning Appeals ruled last week that Shoosmith Bros., which is planning to expand its landfill to a nearby quarry, must comply with a conditional use permit issued by the county 20 years ago. JAMES HASKINS Despite describing the document as “ambiguous” and “poorly written,” the Chesterfield Board of Zoning Appeals ruled last week that a local landfill must comply with the terms of a conditional-use permit it obtained from the county 20 years ago.

Following a public hearing in which more than a dozen citizens urged the board to enforce the 1997 permit, it voted 3-1 to uphold county Planning Director Kirk Turner’s determination that Shoosmith Bros. Inc. needs permission from the Board of Supervisors to conduct landfill operations in a rock quarry on its 264-acre Lewis Road property.

Shoosmith filed an appeal with the Board of Zoning Appeals after receiving Turner’s March 10 letter, arguing that he erroneously interpreted one of the zoning conditions the company voluntarily submitted as part of the 1997 case.

“I agree [Proffered Condition 19] can be interpreted in a couple different ways,” acknowledged John Caperton, the board’s chairman, during last week’s meeting. “But if you consider the totality of the staff report, it is clear to me that the county intended to have final approval [of Shoosmith’s quarry plan].”

In casting the lone dissenting vote, Vice Chairman Graham Daniels concluded the “plain English” of the proffered condition does not support the county’s position.

“Should this matter go back before the Board of Supervisors? I agree it should. But we can’t legislate that. What we’re being asked to decide is whether it has to go back to the Board of Supervisors by virtue of Condition 19,” Daniels said.

“If [Condition 19] was meant to give the county another bite at the apple before Shoosmith could do anything with the quarry, it doesn’t say what it ought to say,” he added.

The Board of Zoning Appeals’ ruling is another setback for Shoosmith, which plans to extend the lifespan of its landfill by about 19 years by storing solid waste in the 250-foot-deep quarry.

It’s unclear at this point whether the company intends to file an appeal in Chesterfield Circuit Court.

A circuit court judge dismissed Shoosmith’s lawsuit against the county last year, ruling that the company had not yet exhausted its administrative remedies.

Since Shoosmith already has spent a significant sum of money on engineering and other technical details in the development of its quarry conversion plan, it has incentive to pursue all legal avenues at its disposal.

Shoosmith presented its plan to the county in July 2015, seeking approval by the Board of Supervisors.

County staff hired an outside consultant to study the document and determine whether the quarry could be used as a landfill without jeopardizing the health and welfare of county residents.

Once Shoosmith agreed to amend the plan to include the consultant’s recommendations, staff supported approval of the company’s application.

But in the wake of a contentious October 2015 public hearing, during which 22 citizens spoke against using the quarry as a landfill and the county’s consultant acknowledged “technical constraints, physical concerns and unknown operating conditions” in Shoosmith’s plan, members of the Board of Supervisors expressed apprehension about approving the proposed expansion.

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 approval from the state of Virginia to conduct landfill operations in a quarry in the mid-1990s.

The board was scheduled to vote on Shoosmith’s application in November 2015, but before it could do so, the company withdrew it.

To the chagrin of county leaders, the Virginia Department of Environmental Quality issued Shoosmith a state permit in February 2016 to use the quarry as a landfill.

Shoosmith subsequently concluded that it no longer needed approval from the Board of Supervisors to begin work on the quarry.

Advised in a letter from former County Administrator Jay Stegmaier that such action would constitute a violation of the landfill’s zoning, Shoosmith filed suit against the county in Circuit Court.

The company argued that the county already approved its quarry landfill plan in February 1999, when then-County Administrator Lane Ramsey signed a document certifying that “the location and operation of the facility” are consistent with all applicable ordinances.

The county said that at the time of Ramsey’s certification, Shoosmith had not yet submitted any of the technical details of its plan for evaluation by staff.

When he dismissed Shoosmith’s lawsuit last year, Judge William Shelton effectively told the company it had no cause for legal action against the county until the Board of Supervisors voted one way or the other on its application to expand the quarry under Chapter 11, Article VIII of the Code of Chesterfield.

Instead of re-filing that application, however, Shoosmith sought an official determination from Turner, then appealed it to the Board of Zoning Appeals.

Shoosmith’s attorney, Andrea Wortzel, told the Board of Zoning Appeals last week that the company shouldn’t be required to file an application because Article VIII of the county code deals only with waste that isn’t already regulated by DEQ.

Shoosmith doesn’t intend to store any such waste in the quarry, Wortzel said.

Wortzel also argued that the county is pre-empted from requiring additional approval by the Board of Supervisors because Shoosmith already holds a state permit. “DEQ has determined that the location and operation of the landfill are protective of human health,” she added.

Assistant County Attorney Rob Robinson suggested that issue is outside the jurisdiction of the Board of Zoning Appeals.

While Robinson conceded that Article VIII typically wouldn’t apply to the Shoosmith case, he said the company should be forced to honor the conditions it voluntarily proffered to obtain the 1997 conditional-use permit.

“At that time, there was significant concern among staff and citizens about repurposing the quarry as a landfill,” Robinson noted. “Shoosmith proffered 26 conditions and the Board of Supervisors approved 25 of them. The board approved the case with those conditions because it believed compatible land-use could be achieved.

“Once accepted by a governing body, such proffered conditions have force of law. They are not something an applicant can just walk away from.”

During the public hearing last week, Midlothian resident Bob Olsen described Shoosmith’s appeal to the Board of Zoning Appeals as “an end-run attempt to circumvent the system.”

His opinion was shared by several of the other speakers. Stacy Sallerson, an attorney who lives near the landfill, noted that the Board of Supervisors in 1997 required the Article VIII application for the quarry expansion “as a safety net to protect the public.

“To ignore that at this point would do a great disservice to the citizens of Chesterfield,” she said.

Another speaker, Diana Parker, said the proffered conditions from the ’97 case were “well thought-out” and the decision about whether to approve the use of the quarry as a landfill should be made by the Board of Supervisors.

Ultimately, three of the four members of the Board of Zoning Appeals present at last week’s meeting agreed with that point.

“The language [in Proffered Condition 19] is ambiguous,” said Joseph Chandler, who represents the Matoaca District on the board. “But I’m inclined to support the county.” ¦

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