671 S.E.2d 464
Heather A. Connolly, Esq. Leonard B. Knee, Esq.
Thomas L. Clarke, Esq.
Anthony P. Tokarz, Esq.
Office of Legal Services
Bowles Rice McDavid Graff & Love
WV Department of Environmental Protection
Charleston, West Virginia
Charleston, West Virginia
Attorneys for Appellant
Attorneys for Appellee
JUSTICE STARCHER delivered the Opinion of the Court.
JUSTICE ALBRIGHT not participating.
Starcher, J.: (See footnote 1)
In the instant case we reinstate an order of the West Virginia Surface Mine
Board that upheld the denial of a quarry mine permit.
The appellant, the West Virginia Division of Environmental Protection (“DEP”), appeals from a March 21, 2007 order of the Circuit Court of Kanawha County. That order reversed and vacated a January 29, 2003 decision of the West Virginia Surface Mine Board (“Board”) that upheld the DEP's denial of a permit to the appellee, Waco Oil and Gas Co., Inc. (“Waco”), to operate a rock quarry in Pocahontas County, West Virginia. (The full text of the Board's January 29, 2003 order is appended to this opinion at Appendix A). Because the Board's order presents a thorough recitation of the underlying facts that led to the instant appeal, we will omit restating those facts in detail.
The circuit court order at issue in the instant case did not challenge the Board's
findings of fact; nor does the appellee now contend that the Board's findings were not
supported by substantial evidence. In summary, the facts are that beginning in 2000, appellee
Waco sought from the DEP a permit to operate a sandstone quarry in a quiet, unspoiled,
remote, and beautiful geographic area of Pocahontas County _ an area where tourism, second
homes, and outdoor recreation are a growing and now crucial part of the local economy. For
purposes of the instant appeal, it is undisputed and a matter of fact that the appellee's
proposed quarrying activities would have caused substantial damage to the present and future
well-being of the county, and specifically to local businesses, residents, and visitors.
After an exhaustive administrative review process, the DEP denied the permit application. Appellee Waco appealed that denial to the Board. The Board, after conducting two hearings, issued an order on January 29, 2003 which concluded that the quarrying activity proposed by the appellee would impair and destroy the recreational use and aesthetic values and the future beneficial use of the area in which the quarry was proposed to be located; and found further that the appellee's submissions to the Board and DEP as to how the appellant proposed to avoid the adverse impacts of the proposed quarrying were not credible or persuasive.
The Board additionally rejected the appellee's argument that the appellee's
permit application could only be denied if the Board and DEP concluded that no quarrying
activity per se could ever be conducted in the area in which the appellee proposed to operate
its quarry. Rather, the Board concluded that the Board and DEP could make an individual
permit application determination based on the merits of an individual permit proposal. The
Board refused to rule out the possibility that a quarry permit application in the area might be
approved in the future, if it was determined that a proposed quarry operation would not cause
unacceptable damage.
Appellee Waco then appealed to the Circuit Court of Kanawha County. In an
order dated March 21, 2007, the circuit court held that the Board was wrong in this
conclusion. The circuit court held that the appellee's permit application could only be denied
if the Board and DEP first concluded that all quarrying activity, per se, must be banned in
the area in which the appellee proposed to operate a quarry. From this conclusion, the DEP
appeals to this Court.
The circuit court's ruling regarding the Board's action was a matter of pure law
that this Court reviews de novo. Tennant v. Callaghan, 200 W.Va. 76, 490 S.E.2d 845
(1997).
The approval or denial of a quarry permit application is principally governed
by two statutes, W.Va. Code, 22-4-7 [2000] and W.Va. Code, 22-4-8 [2000], which are part
of the Quarry Reclamation Act, W.Va. Code, 22-4-1 to -29.
The pertinent portion of W.Va. Code, 22-4-7 [2000] states: (a) The director [of the Division of Environmental Protection]
may deny a permit application, modification or transfer for one
or more of the following reasons:
(1) Any requirement of federal or state
environmental law, rule or regulation would be
violated by the proposed permit.
(2) The proposed quarry operation will be
located in an area in the state which the director
finds ineligible for a permit pursuant to section
eight [of this Article].
The pertinent portions of W.Va. Code, 22-4-8 [2000] state:
The Legislature finds that there are certain areas in the state of
West Virginia which are impossible to reclaim either by natural
growth or by technological activity and that if quarrying is
conducted in these certain areas such operations may naturally
cause stream pollution, landslides, the accumulation of stagnant
water, flooding, the destruction of land for agricultural purposes,
the destruction of aesthetic values, the destruction of
recreational areas and future use of the area and surrounding
areas, thereby destroying or impairing the health and property
rights of others, and in general creating hazards dangerous to life
and property so as to constitute an imminent and inordinate peril
to the welfare of the state, and that such areas shall not be mined
by the surface-mining process.
Therefore, authority is hereby vested in the director to delete
certain areas from all quarrying operations.
No application for a permit shall be approved by the director
if there is found on the basis of the information set forth in the
application or from information available to the director and
made available to the applicant that the requirements of this
article or rules hereafter adopted will not be observed or that
there is not probable cause to believe that the proposed method
of operation, backfilling, grading or reclamation of the affected
area can be carried out consistent with the purpose of this
article.
If the director finds that the overburden on any part of the area
of land described in the application for a permit is such that
experience in the state of West Virginia with a similar type of
operation upon land with similar overburden shows that one or
more of the following conditions cannot feasibly be prevented:
(1) Substantial deposition of sediment in stream beds; (2)
landslides; or (3) acid-water pollution, the director may delete
such part of the land described in the application upon which
such overburden exists.
Appellee Waco argues that these statutes, read together, require that in order
for the DEP to deny a quarry permit application on the grounds that an individual proposed
quarrying operation would cause the destruction of aesthetic values and the future beneficial
uses of the area in which the operation would be located, there must first be a determination
that all quarrying, no matter how conducted, must be barred from the area _ in other words,
that the area in which the quarry is proposed must be “deleted” from all quarrying activity
under the foregoing provisions of W.Va. Code, 22-4-8 [2000].
This Court addressed this issue in the case of Francis O. Day Co. v. Director, DEP, 191 W.Va. 134, 443 S.E.2d 602 (1994), where the DEP Director denied a quarry permit on the grounds that, inter alia, the quarry would have a detrimental effect on the aesthetics and future use of the area in which the quarry was proposed.
In the Day opinion, this Court noted that the DEP's “denial of the [quarry] permit was not based on the deletion power[.]” Id., 191 W.Va. at 139, 443 S.E.2d at 607. This Court concluded that the “Director of the DEP retains the authority to refuse to grant a limestone, sandstone or sand surface mining permit based upon any of the criteria found in [the prior enactment of W.Va. Code, 22-4-8 [2000]].” (See footnote 2) Id., 191 W.Va. at 140, 443 S.E.2d at 608. Thus, in the Day case, this Court approved an individual quarry permit denial on any of the grounds listed in W.Va. Code, 22-4-8 [2000] without the prior exercise of the area deletion powers that are granted to the DEP in that same statute.
W.Va. Code, 22-4-8 [2000], quoted supra, requires that an application for a permit shall not be approved unless “the proposed method of operation, backfilling, grading or reclamation of the affected area can be carried out consistent with the purpose of [W.Va. Code, 22-4-1 et seq.]. Additionally, an individual permit application may be denied if “any” environmental law would be violated by the proposed operation. W.Va. Code, 22-4-7(a)(1) [2000]. W.Va. Code, 22-4-17 [2000] requires that an individual permit application, in order to be approved, must show that “all reasonable measures shall be taken to eliminate damages to members of the public[.]”
As previously stated, the appellee argues that if the DEP and Board, when making a decision on an individual permit application, wish to take into account the effects of the proposed quarry on such statutory criteria as the aesthetics and future use of the area surrounding the proposed quarry, these bodies must also make an “area deletion” decision, pursuant to W.Va. Code, 22-4-8 [2000], and must rule that no possible future quarrying may be conducted in the area.
However, W.Va. Code, 22-4-8 [2000] also provides that an existing quarry may
have its permit modified based on those same criteria, without any requirement that the area
in which the quarry is located must be deleted from all possible quarrying activity.
Moreover, W.Va. Code, 22-4-5(h)(3) [2000] authorizes the denial of an individual permit
application for an underground quarry, if the quarry will cause “serious adverse
environmental impacts [on aesthetics, future use, etc.] pursuant to [W.Va. Code, 22-4-7 or
-8].”).
We cannot conclude from the foregoing statutory language that the Legislature
intends that in order to evaluate the suitability of an individual quarry permit for a particular
site under the statutory criteria, the DEP must first take on the enormous and inevitably
somewhat speculative task of determining whether all future quarrying activity in an area
must be categorically banned. Rather, we conclude that a case-by-case permit
approval/denial process is what the statutes call for _ while reserving the “area deletion
power” to the DEP, if the agency chooses to exercise it. (See footnote 3) This analysis is consistent with our
previous decision in the Francis O. Day Co. case, supra, which the Legislature had before
it when it enacted the Quarry Reclamation Act.
Accordingly, we hold that under W.Va. Code, 22-4-7 [2000] and W.Va. Code,
22-4-8 [2000], the West Virginia Division of Environmental Protection and West Virginia
Surface Mine Board have the authority to refuse to grant an individual quarry permit based
upon any of the criteria identified in those statutes, without having to exercise the area
deletion powers that are also granted therein. The circuit court's order, reversing the Board's
decision, is therefore reversed. (See footnote 4)
On October 28, 2002, a quorum of five (5) members of the West Virginia Surface
Mine Board (“Board”) met with counsel and representatives of the parties at Huntersville,
West Virginia and conducted a site visit at locations agreed upon by the parties. On October
29, 2002, a quorum of six (6) members of the Board convened in Marlinton, West Virginia
and conducted a hearing in this appeal. At this hearing, the appellant, Waco Oil & Gas
Company, Inc. (“Waco”), was represented by Leonard Knee and Eric Calvert of Bowles,
Rice, McDavid, Graff & Love and the appellee, West Virginia Department of Environmental
Protection (“DEP”), was represented by Thomas Clarke and Perry D. McDaniel of the DEP's
Office of Legal Services. At the beginning of the hearing, the Board ruled on Waco's Motion
for Judgment on the Record and took up Waco's two motions in limine, as set forth
hereinafter. Then, both parties presented opening statements, testimony from witnesses,
exhibits and arguments of counsel.
DEP denied Waco's application for a permit for quarry mining under the authority of
West Virginia Code § 22-4-8 (2000). In its Motion for Judgment on the Record which is
equivalent to a Motion For Summary Judgment, Waco argues that under the language of
West Virginia Code § 22-4-8, the DEP's authority to deny a quarry permit is limited to
circumstances in which reclamation is impossible and, based on the admissions of DEP
personnel in discovery that reclamation in accordance with Waco's proposed reclamation
plan is possible, it is entitled to summary judgment. In response, DEP's principal argument
is that under the statutory language and case law interpreting it, it may deny a quarry permit
to avoid certain harms regardless of whether reclamation is possible.
In Francis O. Day Co., Inc. v. Director, DEP, 191 W.Va. 134, 443 S.E.2d 602 (1994),
the DEP denied an application for a permit for a limestone quarry because it found that the
proposed quarry would result in some of the harms listed in the first paragraph of former
W.Va. Code § 22-4-10 (1994, c. 61) (superceded in 2000), including a detrimental effect on
aesthetics and future use of the area. Because the statute listed these harms following its
legislative finding that there may be certain areas of the state where reclamation is impossible
and because the law in effect at the time did not require any reclamation of limestone
quarries, the permit applicant argued that DEP could not use these harms as reasons to deny
its application. The Supreme Court of Appeals rejected this purported connection between
the issue of whether reclamation is impossible and the DEP's authority to deny a permit in
order to avoid the listed harms. It based its ruling on the second paragraph of W.Va. Code
§ 22-4-10 (1994, c. 61) which gives the DEP complete authority to prohibit mining wherever
necessary to avoid the harms listed in the first paragraph.
For all purposes relevant or material to this case, the language of former W.Va. Code
§ 22-4-10 (1994, c. 61) is identical to that of current W.Va. Code § 22-4-8. Therefore, the
Board concludes that the West Virginia Supreme Court of Appeals' interpretation of this
language in Francis 0. Day Co., Inc. v. Director, DEP, 191 W.Va. 134, 443 S.E.2d 602
(1994) controls this case. As held in the Day decision, the second paragraph of W.Va. Code
§ 22-4-8 gives the DEP authority to deny a quarry permit in order to avoid the harms listed
in the first paragraph of this section, regardless of whether Waco's reclamation plan is
possible to achieve. By unanimous vote of the six members of the Board present at the
hearing, Waco's motion for summary judgment is denied.
Waco filed two motions in limine. The first of these motions seeks to prohibit the DEP
from calling Daniel Terry as a witness. The DEP's pre-hearing disclosures listed Mr. Terry
as a potential witness. At the hearing, the DEP informed the Board and Waco that it did not
intend to call Mr. Terry, making it unnecessary for the Board to address this motion.
Waco's second motion in limine is based on a fall back position the DEP took in its
response to Waco's motion for summary judgment. Although DEP's response admitted that
Waco's reclamation plan was physically possible to achieve, it argued that this plan is not
practically feasible and urged the Board to place a practical interpretation on the meaning of
“impossible” that focused on the practical feasibility of reclamation. The DEP's response
identified its engineer, Clarence Wright, as a witness. on the practical feasibility of
reclamation according to Waco's plan. Waco's motion in limine on this issue claimed
“eleventh hour” surprise and asked that DEP be precluded from presenting evidence on the
practical feasibility of Waco's reclamation plan. In the alternative, Waco requested a
continuance. Prior to the hearing, the Board denied Waco's motion insofar as it sought a
continuance. At the hearing, after hearing the Board's ruling on Waco's motion for summary
judgment, the DEP agreed not to present evidence on the issue of the feasibility of Waco's
reclamation plan, thereby making it unnecessary for the Board to address Waco's second
motion in limine.
Upon consideration of the certified record the DEP supplied to the Board pursuant to
W.Va. Code § 22B-I-7(e), the Board's observations during its site visit, the testimony heard,
exhibits admitted and the arguments of counsel, the Board, by unanimous vote of its six
members present at the heating of this matter (Michael, Nay, Cappelli, Hastings, Meadows,
and Smosna), makes the following findings of fact and conclusions of law:
1. On May 25, 2000, Waco submitted an application to the Philippi regional office of
the DEP for a permit to conduct quarry mining operations on a 76 acre area on Browns
Mountain in Pocahontas County, West Virginia. This application was assigned application
number Q-201700 by the DEP.
2. Browns Mountain is part of an anticline which follows a trend from southwest to
northeast. It is located just north of Route 39, between Huntersville and Minnehaha Springs,
West Virginia. Waco's application seeks to mine the Tuscarora, or White Medina, layer of
sandstone. On the area proposed for mining, this layer of sandstone is up to two hundred feet
thick and is beneath layers of other types of rock which will have to be removed to gain
access to it.
3. Waco acquired its property on Browns Mountain through the efforts of its agent,
Hugh Hefner. Through his company, HEFCORP-JON, Hefner acquired an option on the
Brown's mountain property in 1999. He obtained title to the property by deed dated May 19,
2000 and leased the property to Waco on May 22, 2000. Subsequently, Hefner transferred
the property to Waco by deed dated June 23, 2000. According to this deed, Waco paid
HEFCORP-JON $125,000 as the consideration for this property.
4. Mr. Hefner is also a consulting geologist and hydrogeologist. In this capacity, he
was responsible for preparation of Waco's permit application.
5. Before it submitted its permit application to the DEP, on May 5, 2000, Waco signed
an agreement with West Virginia Paving which anticipates that Waco will obtain a quarry
permit on Brown's Mountain and obligates it to transfer this permit and the property
associated with it to West Virginia Paving by May 5, 2003. In the event Waco fails to make
this transfer, it faces a monetary loss of $1.3 million.
6. Under the same terms of the same agreement, Waco has transferred at least one
other active quarry and quarrying permit to West Virginia Paving. In connection with this
transfer, the agreement contains a covenant not to complete with West Virginia Paving in the
quarry business. Under this covenant, Waco is contractually prohibited from operating a
quarry on Browns Mountain. In effect, Waco appears to be acting as an agent for West
Virginia Paving for the purpose of acquiring property and a permit for quarrying at the
Brown's Mountain location.
7. The DEP received Waco's permit application two weeks before the effective date
of the new Quarry Reclamation Act, which the West Virginia Legislature adopted in 2000.
An important distinction between this new quarry law and the one previously in effect was
that the new law added provisions for reclamation of sandstone quarries and called for the
DEP to promulgate regulations on this subject. Necessarily, DEP's consideration of Waco's
application was delayed until after those regulations were promulgated. Consideration of
Waco's application was also delayed because of a court case over property rights,
implementation of new regulations pertaining to anti-degradation under DEP's NPDES
permitting program, and the need to redesign and re-designate Waco's spoil storage area. In
addition to these unusual delays, the processing of Waco's permit involved the time
necessary for DEP to evaluate the application and request that Waco and its consultant
supply additional information DEP determined to be necessary to make the application
technically complete.
8. After DEP determined the permit application to be technically complete, it was
advertised for public comment. During the public comment period on the permit application
in January, 2002, DEP received approximately 200 letters, which were unanimous in
opposition to the permit. All of these letters were forwarded to both Waco and its consultant
for response. On March 4, 2002, a public hearing was held on the permit application. Other
than the representatives of Waco and the DEP who were present, all of the people who spoke
at the public hearing opposed this permit. The letters protesting the permit and the comments
of those who spoke at the public hearing consistently voice concerns over the proposed
quarry's impact on the aesthetics of the area and on property values.
9. After the public hearing, the members of the regional DEP permit team finished
their evaluation of the application and prepared their facts and findings and
recommendations. Every member of the permit review team: Greg Curry, geologist;
Clarence Wright, engineer; Harry Travis, environmental resource specialist; Daniel Lehman,
inspector, and Ron Sturm, permit supervisor, recommended denial of the permit upon one
or more of the bases for permit denial under W.Va. Code § 22-4-8. Their recommendations
were forwarded to the Division of Mining and Reclamation (“DMR”) headquarters so a final
agency decision could be made.
10. On July 16, 2002, the DEP acting through DMR Director Matthew B. Crum issued
a decision denying Waco's application based upon W.Va. Code § 22-4-8. In support of this
decision, Director Crum made the following two findings: (1) The location of the proposed
quarry, including the noise, blasting, dust, and general unsightliness which are necessarily
associated with a stone quarry, will prevent adjacent landowners from the normal use and
enjoyment of their properties and will cause a decline in the value of properties adjacent to
the quarry site, thereby impairing the property rights of others; (2) The foregoing impacts
will result in the destruction of aesthetic values, recreational use and future use of the area
and surrounding areas in this especially scenic and tourist-oriented area.
11. Within thirty days of its receipt of the DEP's July 16, 2002 decision, Waco filed
an appeal with the Board.
12. In addition to the letters opposing the quarry and the comments in opposition to
it at the public hearing, the County Commission of Pocahontas County is on record
unanimously opposing Waco's permit application. Commission President, Joel Callison
explained his reasons for opposing this application. His principal reason for opposing this
quarry permit, as Commission President, was protection of the quality of life for the people
who live in the area. A secondary reason for opposition is the effect of the quarry on the
aesthetics of the area, which impacts tourism in the county. Tourism has been the only
business or industry in the county that has grown and shows growth potential for the future.
This is because of Pocahontas County's natural beauty and location. Mr. Callison stated that
it is not easy for the County Commission to oppose something that may bring jobs to the
county, but in this case, it is a question of what is good for the county for the long term
versus the short term.
13. In contrast to its position on this permit application, the County Commission
supported Waco's application for a new quarry permit at Linwood. Mr. Callison, who was
a member of the Commission when it took its position on the Linwood application, explained
the differences he saw between that application and the one in this case. The Linwood
application involved a site where a quarry had already been in existence for a number of
years. By comparison, Browns Mountain is a pristine area. Mr. Callison also explained he
supported the DEP's decision on the permit application at the Linwood site, because this
decision imposed modifications on the existing permit which placed greater limits the
aesthetic impacts of that quarry operation than had existed before. There is no zoning in
Pocahontas County.
14. Gail Lowery, Executive Director of the Pocahontas County Tourism Commission
testified that Pocahontas County has become one of the most prominent tourist destinations
in West Virginia and the eastern United States. It attracts 900,000 visitors per year. These
visitors come from all over. In the winter, the largest numbers of visitors come from North
Carolina, Florida, Georgia and the South. In the summer, the county's largest tourism
markets are Virginia, Ohio, Maryland and West Virginia. State Division of tourism statistics
indicate that overnight guests spend an average of $70 per person per night. The estimated
annual economic contribution to the Pocahontas County economy from tourism is between
$20 and $30 million. This is in contrast to about $1.8 million in logging related dollars paid
to Pocahontas County. Since 1997, tourism's economic contribution has increased by 19.5%
and is projected to increase by 5% per year. As many as 1200 people are directly employed
in the county in tourism-related jobs and in total it is estimated that 2000 jobs either directly
or indirectly result from tourism.
15. The local tourism bureau in Pocahontas County advertises in 35 to 40 national
magazines. The image projected in every one of these ads is a beautiful, pristine outdoor
place where one can get away from it all. The pristine beauty of Pocahontas County is also
featured in 30 to 40 magazine articles each year. Some examples of magazines which have
featured Pocahontas County include; Southern Living, Blue Ridge Country, Country
Discoveries, Outdoor Explorer, Birder's World, Bike Midwest, Recreation Moves, Blue
Ridge Outdoors, Bike, Bicycling, Fly Fisherman, American Angler, American Motorcyclist,
Rider and Canoe and Kayak. Pocahontas County has also been featured as an outdoor
recreation mecca in travel articles in quite a few newspapers, including; the Washington Post,
the Baltimore Sun, the Mountain Times, the Richmond Times Dispatch, and the Roanoke
Times, as well as almost all of the newspapers in West Virginia.
16. While the ski resort at Snowshoe is what many people might associate with
tourism in Pocahontas County, the county also draws many people on a year round basis who
come to enjoy its scenic beauty, hiking, mountain biking, trout fishing, hunting, outdoor
recreation and history. The principal attraction of Pocahontas County for those who enjoy
these activities is its quiet, unspoiled atmosphere. Pocahontas County also has more state
parks and forests than any other county in West Virginia. Five state parks, two state forests,
a large part of the Monongahela National Forest and segments of the Allegheny Trail and the
Greenbrier River Trail are in Pocahontas County. The fact that over 60% of Pocahontas
County is owned by either the state or federal government has contributed to the preservation
of much of the county in an unspoiled natural state.
17. The general area of Route 39 between Huntersville and Minnehaha Springs,
including Browns Mountain, is a very special area which is highly valued for its aesthetic
attributes. There is no heavy industry. There is no source from which dust is produced by an
industrial operation. There is no source from which noise is produced with any regularity.
The only disturbance of the natural landscape in the area is from logging. Generally, the
places where logging has been done are near the mountain tops in the area and, for the most
part, are not visible to the general public from highways in the area. Knapps Creek, which
is popular with both local residents and visitors to the area for its trout fishing, flows gently
through a break in the anticline at Browns Mountain, along Route 39. Because the air is so
clear, many more stars can be seen in the night sky there than in more developed areas. An
unusual quiet is pervasive.
18. People have long appreciated the qualities of the area. Robert E. Lee is reported
to have written the following from Huntersville in August, 1861:
“The views are magnificent ... the valley is so beautiful, the
scenery so peaceful. What a glorious world almighty God has
given us. How thankless and ungrateful we are, and how we
labor to mar his gifts.”
Valley Guide, February/March 2002.
19. Appreciation of the special atmosphere of the area around Brown's Mountain
continues in modern times. Route 39 has been honored with special recognition of its scenic
and aesthetic attributes. Businesses whose existence is based specifically on the aesthetics
and recreational value of the area have been established. Both as visitors and on a more
permanent basis as home owners, people from other parts of this country and the world come
to this area seeking its aesthetic qualities: qualities that are increasingly rare elsewhere.
20. The segment of Route 39 from the state boundary with Virginia through
Pocahontas County to Richwood in Nicholas County, West Virginia has been designated by
the West Virginia Division of Highways as the Mountain Waters Scenic Byway. It has had
this status since July 17, 2000. Gail Lowery of the Pocahontas County Convention and
Visitors Bureau, who testified before the Board, was active in the efforts to obtain scenic
byway status for Route 39 and remains active in efforts to promote the route as a scenic
byway. The segment of Route 39 in Virginia, from Interstate 64 west to the state boundary
with West Virginia, has had scenic byway status for a number of years. Ms Lowery and her
counterparts in Nicholas Counties are seeking scenic byway status for the segment of Rt. 39
from Richwood to U.S. Route 19. An announcement of scenic byway status for this segment
is anticipated to be made soon. After this designation is made, the four counties in which
Route 39 will have scenic byway status, Bath and Rockbridge Counties in Virginia and
Pocahontas and Nicholas Counties in West Virginia, plan to make joint efforts to promote
Route 39 and to obtain federal funding for beautification projects and enhancements, such
as bike paths, along its route. It is anticipated that the facts that the Mountain Waters Scenic
Byway will connect two major traffic arteries and that it will be promoted by two states will
help give projects along its route a higher priority in obtaining federal funding.
21. Gordon Josey and his wife own Camp Twin Creeks at Minnehaha Springs. It
occupies 127 acres on Route 39, about two miles from the proposed quarry site as the crow
flies. Camp Twin Creeks is a children's summer camp. Mr. Josey and his wife purchased
this camp about two years ago for $900,000. Since then, they have invested nearly $500,000
in capital to upgrade the facilities at the camp and plan to continue to invest approximately
$100,000 per year in the future. In addition to the capital Mr. Josey has invested, he estimates
that he spends $50,000 to $60,000 per year in the local economy for materials, supplies and
other expenses necessary for the operation of his camp. The Camp also employs three local
people on a full-time, year-round basis and twelve additional local people between memorial
day and labor day. Including employees from the local area and counselors, many of whom
come from outside the area, the Camp employs ninety people at the peak of its operations in
the summer.
22. Mr. Josey has experience operating and working at children's summer camps in
this country and in Europe. After several years of operating camps owned by others, Mr.
Josey decided to purchase his own camp. He looked at six or seven camps in Pennsylvania,
upstate New York and Maine before seeing Camp Twin Creeks. When they first entered on
the property at Camp Twin Creeks, he and his wife were very impressed with the beauty and
unspoiled nature of the area. Mr. Josey says the area is so quiet that dogs can be heard
barking at a distance and at night there is only the sound of bullfrogs to keep you awake.
23. Three hundred seventy children attended Camp Twin Creeks in the first year of
its operation under Mr. Josey's ownership. Five hundred fifty children attended Camp Twin
Creeks last year. Mr. Josey projects that six hundred fifty children will attend his camp in the
coming summer. Most of his campers come from Washington, D.C. and Baltimore. Many
campers also come from Florida, Atlanta and overseas. According to Mr. Josey, the biggest
draw his camp has for campers is the area, because it is so unspoiled and pretty. Because of
the Greenbrier, Snowshoe, and the Homestead nearby in Virginia, this area of West Virginia
has a wonderful reputation in the metropolitan Washington, D.C. area. Parents who bring
their children to Camp Twin Creeks often spend additional time in the area at local bed and
breakfasts and enjoy mountain biking and hiking.
24. Jean Dunham has owned and operated the Carriage House Inn bed and breakfast
on Route 39 in Huntersville for about ten years. She purchased the Carriage House Inn after
she decided to move to West Virginia from California to escape the pollution, overgrowth
and earthquakes there.
25. The Carriage House Inn is about a mile from the proposed quarry site. It has five
rooms and a suite, each of which has its own bathroom. It is in a house that was built in 1852
and which served as a makeshift hospital during the Civil War. In addition to the Inn, she
also has two gift shops on the premises. Both sell crafts made by over one hundred twenty
area artisans. Ms. Dunham has invested approximately $ 250,000.00 in capital in her
property and business. Her bank recently valued the business at $450,000. She spends
$35,000.00 per year on operating expenses, 80% of which is spent locally.
25 [sic]. Attributes which draw guests to the Carriage House Inn are the scenic beauty
and aesthetics of the area. Guests enjoy sitting outside by the raised bed gardens or on the
porches, enjoying the wildlife of the area and the quiet that is interrupted only by the sound
of bullfrogs. According to Ms. Dunham, it sometimes so quiet that she can hear the sounds
neighbors make over a mile away. Activities her guests enjoy in the area include fishing,
hiking, hunting, and mountain biking.
26. Most of the guests come to the Carriage House Inn from the Washington, D.C.
area, New York, the Carolinas, Florida and Colorado. Some guests come from as far away
as Australia, New Zealand and Europe. About two weeks before the Board's hearing in this
case, Ms. Dunham hosted a reporter from Germany who was writing about West Virginia for
a travel publication in that country. According to this reporter, the area around the Carriage
House was his favorite area of the state. In the past year, after the terrorist attacks on the
World Trade Center and the Pentagon on September 11, 2001, Ms. Dunham has had a
number of guests from those areas who sought refuge in the quiet beauty of the Huntersville
area. Ms. Dunham promotes the Carriage House in magazines, newspapers and on a web site.
The Carriage House has received favorable reviews in a number of travel books and articles.
Ms. Dunham brought a stack of such publications that was about a foot high with her when
she testified before the Board. Out of these, she identified the coverage her inn had received
in National Geographic's Hidden Corners of the United States as the one of which she is
most proud.
27. Don Nordstrom and his wife operate the Ambassadors For Christ Retreat near
Huntersville. It is about a half mile from the site of the proposed quarry. Ambassadors For
Christ Retreat is a non-profit, non-denominational Christian retreat. It has been operating for
over thirty years and is capable of housing 120 persons. Its accommodations include motel-
type rooms, cabins, bunkhouses, RV hookups and campsites for tents. A meeting facility is
available for groups to hold programs, seminars and classes. The Retreat hosts 2,200 to 2,400
guests each year. There is an upward trend in the number of people who come to the Retreat
as guests. In the first nine months of 2002, the hotel/motel tax collected on what guests pay
for lodging at the Retreat exceeded what was collected for all of 2001.
29 [sic]. People are attracted to the Retreat by the peace and quiet and natural beauty
of the place. As soon as they arrive, first-time guests note the natural beauty. Shortly
thereafter, they notice how quiet it is. The quiet of the night, itself, is an attraction with
nothing but the sound of bullfrogs, whippoorwills and the water of the creek that flows
through the Retreat, bubbling by. According to Mr. Nordstrom, “with the windows open in
the summer, it's better than a sleeping pill.” Guests at the retreat usually schedule free time
so they can get out and enjoy the outdoor recreational opportunities and activities that are
available in the area.
30. The homes and property in the area closest to the proposed quarry and which,
therefore, will be affected most by it are located on Browns Mountain Road and in Possum
Hollow. Browns Mountain Road begins at its intersection with Route 39 and from there runs
upward initially along a flank of Brown's Mountain and then on to the top of the mountain
Residents of this area are a mix of people from one of two backgrounds, those who have
purchased second homes or retirement homes there and those who are the current generation
of families which have lived in this area for many generations. There are a total of thirteen
homes on Brown's Mountain Road. Seven of these homes are owned by full time residents
of Brown's Mountain and the rest of the homes are second homes or retirement homes. The
people who own the second homes or retirement homes are from Louisiana, Florida,
Maryland, Ohio, and West Virginia.
31. Norman Wolcott and his wife have owned property on Browns Mountain Road
near the top of the mountain where their second home is located. Their home is 1.2 miles
from Route 39 and about three fourths of a mile from the proposed quarry. They spend
approximately three to six months per year there, during all four seasons. Over the years they
have owned property on Browns Mountain, the Wolcotts have invested $50,000 to $60,000
there.
32. The Wolcotts' principal residence is in Rockville, Maryland. Rockville is a
congested, noisy suburb of Washington, D.C. At Brown's Mountain, they sought a place to
get away from city life. Dr. Wolcott initially learned of the Brown's Mountain area and was
attracted to it by the descriptions of the natural beauty there he heard from a friend of his in
the military service who had flown over the area many times and described it as the most
beautiful country on the eastern seaboard. The Wolcotts visited the area several times before
buying their property there. What they found in the area was a place of absolute quiet, free
of pollution and full of wildlife. In the clear air, many more stars can be seen than in urban
areas like Rockville.
33. Possum Hollow is immediately to the east or southeast of Brown's Mountain and
Brown's Mountain Road, along Route 39. The proposed quarry on the side of Browns
Mountain would face the four homes in Possum Hollow. All four of these homes are owned
by persons who have descended from the Howsare family, which has lived in Possum
Hollow for at least four generations. One of the homes, the Howsare family home place, is
owned by Margie Howsare and her husband. Ms. Howsare bought the family home place
from her brother for $22,500 in 1990. She and her husband have spent approximately
$60,000 in upgrades since then. According to a bank's appraisal earlier this year, this home
is now valued at $95,000. The family home place faces the side of Brown's Mountain which
Waco proposes to quarry.
34. Ms. Howsare has lived all of her thirty six years, except for a three to four year
period, in Possum Hollow. During the time she was away from Possum Hollow, she lived
in very populated areas. Until that time, she didn't realize how quiet and peaceful it is in
Possum Hollow or that such an atmosphere is quite rare.
35. The permit application meets all of the technical requirements of the Quarry
Reclamation Act. Waco also made some effort in an attempt to reduce the aesthetic impact
of the proposed quarry. These measures included locating the quarry on the east side of
Brown's Mountain, thus limiting visibility from the west; locating the quarry in the wind
shadow of Browns Mountain and the hollow created by Evans Branch to mitigate dust and
noise propagation; limiting the size of the cuts to limit the amount of exposed material; and
providing for contemporaneous reclamation and revegetation of the quarry site, with
complete highwall elimination, to limit the amount of exposed highwall during the active
mining operations at the quarry.
36. Waco complains that they were not aware that the DEP was going to use impact
on aesthetics as a basis for permit denial, and that they were therefore not given an
opportunity to address DEP's concerns with aesthetics prior to permit denial. However,
Waco was given an opportunity to address these concerns during the de novo hearing before
the Surface Mine Board.
37. The proposed quarry operation would significantly impair the aesthetic values of
the Brown's Mountain area, The haul road from the quarry will enter Rt. 39 almost directly
across Knapps Creek from the Devils Backbone, a well known geologic feature, and adjacent
to a popular trout fishing hole in Knapps Creek. The highwall created during the active
mining will be plainly visible to west bound travelers on Rt. 39. The scenic values of this
stretch of Rt. 39 and Knapps Creek are substantial and would be difficult to overstate. The
development of a quarry in this area will destroy these values, which form the basis of the
tourist industry in Pocahontas County.
38. Part of the DEP's basis for denying Waco's application is its finding that the
quarry would cause “destruction of aesthetic values, recreational use and future use of the
area and surrounding areas”. July 16, 2002 denial letter. The Board upholds DEP's decision
to deny the application on this basis. The Board does not uphold DEP's denial decision on
the basis of decrease in property values.
39. The Board was very impressed by the testimony of County Commission President
Joel Callison and Gail Lowery of the Pocahontas County Convention and Visitors Bureau.
Tourism is an industry that has been developed in this area. It is a big industry. It is based
upon the recreational values of this area. It is based upon the aesthetic values, specifically,
of the Brown's Mountain area. This is supported by the testimony regarding the scenic
byway, as well as other evidence before the Board. The Board concludes that the area where
the permit is proposed by Waco's application is a very special area. Because the Board
believes that this is such a special area, it is clear that the impact of this quarry, as proposed
and presented, will be sufficient to impair and destroy the recreational use and the future use
of the area, as well as the aesthetic values of the area.
40. The Board finds, as a general matter, that the testimony of Waco's permitting
consultant, Mr. Hefner, was not wholly credible. Certainly, the Board finds that his testimony
was not credible on the noise issue. Also, his testimony about the contemporaneous regrading
of highwalls was not credible, as pointed out in the testimony of Clarence Wright.
41. The Board heard contradictory evidence about the extent of the noise, blasting,
dust, traffic and general unsightliness that will result from the quarry Waco proposes.
Because the Board believes that it is sufficiently clear that the quarry as proposed and
presented will, in any event, impair and destroy the recreational use and the future use of the
area as well as aesthetic values, the Board does not believe it is necessary to make specific
findings and conclusions as to the precise extent of noise, blasting, dust, traffic and general
unsightliness in terms of decibels of noise, numbers of blasts, number of disturbed acres, or
traffic count.
42. As in the case of the testimony of Mr. Hefner, the Board finds that the testimony
of the real estate appraiser, Mr. Pratt, was not wholly credible. Specifically, his opinion that
the value of the improvements to real estate in the area of the quarry would decrease to zero
over a period often years was simply unbelievable.
43. The statute, West Virginia Code § 22-4-8, specifically allows denial of a permit
if there is an impairment of property rights of others. However; in no way does the Board
base this decision on decrease in property values. It recognizes that there may be a decrease
in the property values of some of the neighbors of this quarry if it is allowed to operate, but
that is going to be true in the case of every quarry permit anywhere in the state. The Board
does not think that is sufficient reason to deny this permit or any permit. There has to be a
broader impact on property values than just the effect on the neighboring properties or those
in the backyard of the quarry.
44. The Board heard argument, and some evidence, about the role of public sentiment
in this permit decision. The Board's decision is not based in any way on public sentiment.
The Board did consider the testimony from the citizens in terms of the substantive comments
they made or points they made. It believes Director Crum analyzed this issue properly: you
don't count the number of people to make a decision, but you do listen to what they are
saying and consider whether there is any basis for their comments.
45. One other thing the Board wants to be clear about is that it is not in any way
saying there can't be a quarry in Pocahontas County, nor is it saying there can't be a quarry
in this general area. The Board is not even saying there can't be a quarry on Brown's
Mountain. The Board is just saying that the quarry, as proposed, will have too great of an
impact on the tourism industry and the aesthetic values of the area. Therefore, this permit
should be denied.
46. The decision of the Board is without prejudice. The company has the right to
reapply for a quarry permit at that location if it feels that there is some way to address the
concerns specified by DEP and also by this Board in its decision. By this decision, the Board
does not intend to delete this area from all consideration as a quarry site.
47. Waco has made much of the fact that after its application became technically
complete, DEP did not advise it that a decision to deny the permit might be made, based on
concerns raised by the citizens' comments and protests. Under such circumstances, and
whenever possible, the Board encourages the DEP to let a permit applicant know that permit
denial is a possibility so that either: the applicant can address the possible reasons for denial;
or, the applicant will not spend money uselessly responding to requests for permit corrections
when the permit will be denied in any event.
48. After the Board announced its decision at the hearing in this matter, the Appellant
filed a Motion to Reconsider and for Specific Relief. The DEP filed a Response to this
Motion. and the Appellant filed a Reply to the Response. The Motion to Reconsider was
considered by Board members Michael, Nay, Hastings and Cappelli on January 22, 2003.
Members Meadows and Smosna were contacted by phone by the Chairman of the Board on
January 27, 2003.
49. The Motion argues that the decision of the Board violates the new Quarry
Reclamation Act, because that Act only allows denial of a permit for three reasons, none of
which encompass the Board's rationale in this case.
50. The Board concludes that the second reason for permit denial, as set forth in the
new law at § 22-4-7, authorizes the denial of the permit in this case. That section allows
denial of a permit if “the proposed quarry operation will be located in an area in the state
which the director finds ineligible for a permit pursuant to section eight (22-4-8).”
51. The Board agrees with the DEP that § 22-4-8 allows an individual permit to be
denied for any of the reasons in that section, even if the area is not permanently declared off
limits to quarrying. In this particular case, the Waco application was denied not only because
the proposed quarry is located in a special area, but also because this specific application
proposes a quarrying method which will substantially impair the aesthetic values and future
recreational uses of the area. A future application for quarrying in this area could conceivably
propose a method of quarrying which does not cause these negative impacts.
52. The Board's interpretation of the meaning of § 22-4-8 is consistent with the way
in which the former § 22-4-10 (which is essentially identical) was interpreted by the West
Virginia Supreme Court of Appeals in the Day case, discussed above. That is, the DEP has
the authority to deny an individual quarry permit for any of the criteria contained in § 22-4-8.
As in the Day case itself, this authority can be exercised to deny a particular permit, without
deleting the area from all future quarrying.
53. The Board will presume that the Legislature was aware of the Day case, and the
Supreme Court's interpretation of the former § 22-4-10, when it reenacted this section as the
new § 22-4-8. “(I)t being presumed that the legislators who drafted and passed it were
familiar with all existing law, applicable to the subject matter, whether constitutional,
statutory or common, and intended the statute to harmonize completely with the same”. Hudok v. Board of Educ. of Randolph County. 187 W.Va. 93, 415 S.E.2d 897, 899-900
(1992). The Board does not believe that the language in the current § 22-4-7 implicitly
overrules the Day case.
54. Accordingly, by unanimous vote of the six members who considered it, the
Motion
to Reconsider is Denied.
WHEREFORE, the Board, by unanimous vote of six of its members present at the
hearing of this matter, (Michael, Nay, Cappelli, Hastings, Meadows and Smosna), AFFIRMS
the DEP's decision to deny Waco's permit application.
ENTERED this 29th day of January, 2003
Pursuant to an administrative order entered on September 11, 2008, the Honorable Thomas E. McHugh, Senior Status Justice, was assigned to sit as a member of the Supreme Court of Appeals of West Virginia commencing September 12, 2008 and continuing until the Chief Justice determines that assistance is no longer necessary, in light of the illness of Justice Joseph P. Albright.
The 2000 enactment of the Quarry Reclamation Act, W.Va. Code, 22-4-1 to -29, created a separate statutory section governing quarries, but included language from earlier statutes that governed quarries and other mining activities.
The circuit court also held that the Board was implicitly required to tell the appellant how the appellee could modify its permit application to make it acceptable to the Board. We see no authority for such a requirement, implicit or explicit.