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Zoning Law and the Proposed Mine

The parcel of land that General Shale wants to mine falls into two zoning districts: the entire road frontage, where General Shale proposes to build its industrial entrance (accommodating up to 16,200 trucks per year) is zoned residential. The back part of the property is zoned agricultural. Mining is not allowed by right in either of these zoning districts, but it is permitted by Special Use Permit in the agricultural district. General Shale applied for a Special Use Permit for the agricultural-zoned part of the property, and it was granted by the Board of Supervisors.

Now the company claims that this special use permit gives them the right to haul material across the residentially-zoned portion of the property.

On November 7, 2003, the Orange County Circuit Court ruled that the hauling operation was an "accessory use" to the work General Shale planned for the agricultural-zoned part of the property, and that the Orange County code allows "accessory uses" to go across zoning boundaries when a parcel of land has two zones.

Opponents had argued that this position was not in accordance with either state or county law. State law clearly holds that zoning ordinances must be uniform throughout each zone (see below). Allowing uses in split-zoned lots that are not allowed in single-zone lots would violate this requirement of the Virginia code.

Further, opponents argued that the section of the county code dealing with Special Use Permits does not grant accessory uses at all (see below). Accessory uses are only granted for by-right uses. In the case of special use permits, the code clearly intends that all uses must be explicitly spelled out.

To illustrate this, here are excerpts from the state and local laws:

  • State Law:
    The Code of Virginia requires that zoning regulations be uniform throughout each zoning district (residential, agricultural, etc.). This is spelled out in the following section of the Code:
     15.2-2282. Regulations to be uniform.
    
       All  zoning  regulations  shall  be  uniform for each class or kind of
       buildings  and  uses  throughout each district, but the regulations in
       one district may differ from those in other districts.
    

  • Orange County Law:
    • Section 70-1 of the Orange County zoning ordinance defines mining:

    • Section 70-277 makes it clear that uses are prohibited unless they're expressly granted by the ordinance, or by special use permit:

    • Section 70-302 spells out the "by-right" uses that are expressly granted in an agricultural zone:

      Note that mining is not listed among these uses.
      Also note that this section of the code allows "accessory uses", but only those that are "customarily incidental" to the uses listed in this section.

    • Section 70-303 spells out the uses granted by Special Use Permit in an agricultural zone:


      Note that no mention is made of "accessory uses".
      Clearly, the code's intent is that a special use permit must explicitly spell out all uses that are to be permitted. No "accessory uses" are to be granted automatically.

 

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General Shale/Wienerberger Mine
Modified Monday, 18-Apr-2005 18:35:07 UTC