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Va. high court hears Orange County case
Mining company and county square off against opponents of shale mine.

Date published: 11/7/2004

The Virginia Supreme Court heard oral arguments Friday from opposing attorneys in what is referred to in Orange County as "the General Shale case."

At issue is the validity of the county's zoning ordinance, which both the brick-maker General Shale Products and the county say has the last word in the matter.

The Friends of Barboursville don't agree. The group has objected from the start to General Shale being granted a special-use permit for the part of its property that enjoys an agricultural zoning in order to mine shale and transport it to its brick-making plant in nearby Somerset. To get the mined material to the plant, trucks must use a road that crosses a part of property that is zoned residential.

The Friends of Barboursville are identified in the suit as John J. Capelle, et al., because the Circuit Court found FOB to have no standing to sue Orange County.

In arguing for Capelle, David Bailey told the seven Supreme Court justices that the Orange County landowners wanted to have the court rule the special-use permit null and void. He said the critical issue in the case was that while mining is allowed in an agricultural zone with a special-use permit, it is not allowed in a residential zone.

"It is clear that the Code of Virginia says localities must zone by district," he said, and that the accessory use of the road which runs through the residentially zoned land is not allowed.

The justices asked Bailey why the special-use permit was not included in the trial record and why it was not presented. Opposing attorneys said the permit was never entered into evidence in the original trial.

Robert Dybing represented Orange County and Frederick Payne represented General Shale.

Payne told the court that the county ordinance was clear and that by granting the special-use permit the supervisors knew, and approved of, the road being used to transport material from the mine.

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