The public hearing on the concept plan for a proposed water bottling factory in Middleway is scheduled for February 11, to begin at 7:00 pm. Anticipating a large crowd, the Planning Commission will conduct the meeting in the auditorium of Jefferson High School (4141 Flowing Springs Rd, Shenandoah Junction). The previous meeting on this topic ran for more than five hours, so be prepared for a long night if you attend. As of February 4, the Planning Commission had received over 1,000 comments — almost all against the project.
Is Water Extraction A Permitted Use?
Many of the public comments raise the question of whether the Planning Commission should even be considering this application. The plain reading of the ordinance, stated in many of of the comments, is that “water extraction” is not defined as a use in the Jefferson County Zoning Ordinance and therefore the applicant should request a text amendment to the zoning ordinance to define “water extraction” before the concept plan can even be submitted for consideration.
The Rules For Land Development
There are two documents that govern the development of land in Jefferson County. The Zoning And Land Development Ordinance governs the use of land in the county that is not within any of the incorporated municipalities. The Subdivision And Land Development Regulations define the review and approval process for implementing various aspects of the Zoning Ordinance.
What the Zoning Ordinance Says
The Zoning Ordinance is very clear about the priority of the Zoning Ordinance over the Subdivision Regulations. Division 1.3.B of the Zoning Ordinance states:
Where this Ordinance imposes a greater restriction than is imposed or required by other provisions of law, or by other rules, regulations or ordinance, or by private restrictions, covenants or declarations, the provisions of this Ordinance shall control, except where stated specifically herein.
What the Subdivision Regulations Say
Likewise, the Subdivision Regulations acknowledge the priority of the Zoning Ordinance. Division 20.101 of the Subdivision Regulations states (emphasis added):
The purpose of the subdivision and land development regulations is to facilitate the County Government’s review of proposals for development of land either by subdivision plat or site plan, to ensure that proposed subdivision plats or site plans meet the standards of the Jefferson County Zoning Ordinance and satisfy the legal requirements of the State and County for the subdivision and development of land, and to promote efficient and attractive development in a manner that reduces off-site impacts.
What The Staff Report Claims
The Planning Commission staff report for the Mountain Pure Concept Plan seems to invert the priority of Zoning Ordinance over the Subdivision Regulation. The report states: “Per Division 20.200 of the Jefferson County Subdivision and Land Development Regulations states that “developments for the purpose of extraction or harvesting of resources and for roads on agricultural land for the purpose of conducting the agricultural operation” are excluded from processing under the Subdivision Regulations.”
There appear to be two problems in the staff report’s reference to the Subdivision Regulations. First, the proposed use (“water bottling factory”) is clearly not an agricultural operation. More importantly, the Subdivision Regulations cannot override the Zoning Ordinance, as noted in the ordinance itself.
The staff report also seems to be carefully written to imply that water extraction is permitted without actually making a claim that has no support in the Zoning Ordinance. It states that “the groundwater wells in the Rural Zoning District are permitted” — but it specifically avoids saying that the contemplated use of the groundwater obtained from the wells is permitted.
Zoning Ordinance Complies With State Law
The county Zoning Ordinance clearly contemplates the regulation of resource extraction as a use under the ordinance, albeit in very restricted cases. According to Appendix C of the ordinance, which is a table of uses permitted under the ordinance, mineral extraction and processing is listed as a conditional use in two types of industrial zones. In contrast, the ordinance grants broad exemptions to agricultural uses of land.
Zoning Protects Agriculture
It seems clear that the Zoning Ordinance, as authorized by state law, can both 1) Allow the use of natural resources for agriculture and other uses for which the natural resources are applied as inputs to permissible activities occurring directly on a specific parcel of land, and 2) Restrict the extraction and processing of resources that are intended as outputs to be transported elsewhere.
Sean Masterson, CEO of Sidewinder LLC, talks about the proposed water bottling factory to local residents during a December town hall meeting in Middleway.
By Steve Pearson