VERONA — Three hours of debate and discussion, at times seeming more of a trial than a public hearing, led to no decision on whether Augusta County was wrong to allow a Canadian firm to draw water from Seawright Springs without seeking a new permit.
On Wednesday afternoon, the Board of Zoning Appeals took up a request by the Friends of Seawright Springs, a coalition of more than two dozen neighbors in the rural community around the Mount Sidney-area springs.
Based on the competing legal opinions offered to the board, it seemed unclear whether the December decision of Zoning Administrator Sandy Bunch could be overturned, even if the panel determined she was wrong to do so.
By the end of the hearing and discussion, which at times began to turn testy, BZA member Steven Shreckhise motioned and the board agreed members of the panel needed more time to decide the merits of an appeal. The board is scheduled to revisit the issue when it meets next on Aug. 1.
“The residents were denied the right to be heard for three months,” said Shaun Mooney, who owns property just down the road from the springs and is a member of the group, in his presentation to the board. “We’re here to ask the board for a reset to ensure the concerns of the neighbors are addressed.”
Mooney, as well as several other speakers who addressed the board, said county officials had been too willing to work with Flow while neglecting the community.
“I care that no one heard any of their concerns,” he said.
In April, Ontario-based Flow Alkaline Spring Water purchased the site with the intention of drawing no more than 100,000 gallons a day from the springs, according to county officials. The spring has been the site of intermittent commercial activity to some degree, including a long-gone resort, for at least a century.
Although neighboring property owners had begun asking questions about the possible water operation, officials cited the need for confidentiality during negotiations with the company and declined to publicly disclose any information about the proposal until an announcement on April 30 from Gov. Ralph Northam.
Northam’s office released a joint statement with other state and Augusta County officials announcing that Flow Alkaline Spring Water, doing business as Flow Beverages Inc., would invest $15.5 million to establish its first U.S. manufacturing facility at Seawright Springs. Water taken from the springs will be hauled to Verona’s Mill Place Commerce Park, where it will be packaged for sale.
A $250,000 grant from the Commonwealth’s Opportunity Fund will assist the county with setting up production facilities at the commerce park. At least 51 jobs are expected to be created, officials said.
Neighbors, however, were not impressed and immediately began organizing to stop the operation. At the end of May, Friends of Seawright Springs, having retained legal counsel, filed its request with the Board of Zoning Appeals, asking it to vacate a December decision by Bunch that allowed Flow to begin operations without seeking a new special-use permit.
On Wednesday, lawyers for the neighbors, Flow and on behalf of the county in turn addressed the board on the merits of whether an appeal is even allowed. At issue is Bunch’s letter on Dec. 4 to Flow’s legal counsel that the landowner could continue to take water from the springs as a vested right and under the limitations place on a previous landowner, who secured a special-use permit in 1996.
According to the county, as long as Flow does not exceed the limits set out in that permit of taking up to nine semitrailers and three tankers a day of water, and does not expand the operation any further, no new special-use permit will be needed for the site, which is zoned general agriculture.
According to Bunch, in 2004 a second special-use permit was granted to allow for an expanded catchment structure and other basements. No one spoke out against that permit during a public hearing at that time, according to the county.
John H. Hawthorne, an attorney at the Tysons firm of Protorae Law PLLC, speaking on behalf of Flow and Augusta County’s attorney, James Benkahla, both argued that state code and court cases make it clear that too much time has passed since Bunch made her decision of record. They said an appeal had to have been filed within 30 days, and the group didn’t file notice to the the county until May 28.
Allowing appeals to a zoning decision is unfair to the landowner, who based on that decision has already invested as much as $2 million in the project, the attorneys said.
The two attorneys also argued that based on state code members of Seawright Springs hadn’t demonstrated that they had standing to file an appeal. They said the appellants failed to show they would suffer individual harm, arguing that by their own statements there is no direct evidence their wells have been depleted, property damaged or safety compromised.
Attorney Michael Sharp of the Harrisonburg firm of BotkinRose, speaking on behalf of yje Friends of Seawright Springs, started by questioning the credibility of the 1996 special-use permit, noting that the county only has a letter but not the zoning certificate that was issued at that time.
Sharp also said based on the statements of numerous neighbors, the site had been dormant of any large-scale activity for at least 15 years, another point the county had made in arguing Flow’s operation will not represent a significant change at the site.
Sharp and Mooney also said the 30-day deadline to appeal was an impossible standard given that the company and county officials had intentionally kept the proposed operation secret until well past that time.
In regard to the deadline issue, the BZA’s attorney told members that of three cases he found, two favored Flow and one the neighbors, and it was not a matter of settled law by the Virginia Supreme Court.
Property owners speaking in support of an appeal also reiterated their concerns that a large-scale water operation may irreparably harm the spring that supplies the rural community with its drinking water. Area farms also depend on water from the spring for their livestock.
In addition, they say, an increase in the amount of large-truck traffic will pose safety hazards on the narrow country roads, which are often filled with up to 2,000 students traveling to and from three nearby schools — Fort Defiance High, Clymore Elementary and S. Gordon Stewart Middle schools.
Hawthorne, while emphasizing with the speakers, said ultimately “these concerns do not usurp the legal rights [of Flow] ... and most importantly the zoning determination.”
But the BZA’s Shreckhise, in summing up the hearing, may have spoken for many when he said, “I feel the county is wrong on both sides.”