Starcher
CHARLESTON - To preserve tourism in Pocahontas County, the state Supreme Court has blocked operation of a 76-acre sandstone quarry.
On Nov. 14, all five Justices upheld the West Virginia Surface Mine Board, which denied an application of Waco Oil and Gas Company for a quarry permit.
The Justices reversed Kanawha Circuit Judge Paul Zakaib Jr., who ruled last year that Waco Oil and Gas could operate the quarry.
Zakaib held that the Mine Board could not declare a quarry unsuitable for an area without declaring the area unsuitable for any quarry at any time.
Justice Larry Starcher wrote that determining whether to ban all quarrying in an area would present an "enormous and inevitably somewhat speculative task."
"Rather, we conclude that a case by case permit approval/denial process is what the statutes call for," he wrote.
The quarry "would have caused substantial damage to the present and future well being of the county, and specifically to local businesses, residents and visitors," he wrote.
Waco Oil and Gas applied in 2000 for a Department of Environmental Protection permit to operate a quarry on Browns Mountain, between Huntersville and Minnehaha Springs.
Waco owners intended to transfer the permit to West Virginia Paving.
The Department of Environmental Protection received 200 letters, all in opposition.
At a public hearing in 2002, no one favored the quarry except Waco representatives.
Gail Lowery, director of the Pocahontas County tourism commission, testified that the county attracted 900,000 visitors a year.
She estimated that 1,200 persons held jobs relating to tourism.
Owners of a summer camp for children two miles from the site, a bed and breakfast a mile away, and a religious retreat half a mile away all opposed the quarry.
After the hearing, an Environmental Protection review team recommended denial.
Matthew Crum, director of mining and reclamation, adopted their recommendation.
Crum wrote that a quarry would impair property rights of others and destroy aesthetic values and recreational uses in a scenic area oriented to tourists.
Waco appealed to the Surface Mine Board, which denied the permit despite finding that the application satisfied all technical requirements.
"Tourism has been the only business or industry in the county that has grown and shows growth potential for the future," their decision stated.
The principal attraction is the quiet, unspoiled atmosphere, they wrote.
"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," they wrote.
"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," they wrote.
Four homes in Possum Hollow would face the quarry, they wrote, and all four belonged to the Howsare family that had lived there for at least four generations.
"The Board concludes that the area where the permit is proposed by Waco's application is a very special area," they wrote.
Waco Oil and Gas appealed to Kanawha Circuit Court, pleading that the state must approve a permit unless the state has banned all quarry operations in the area.
Zakaib agreed, but the Supreme Court of Appeals reinstated the Mine Board's order.
In an unusual move, Starcher did not summarize the case but simply attached the Mine Board's order to his opinion.
Heather Connolly and Thomas Clarke of the Department of Environmental Protection represented the department.
Leonard Knee and Anthony Tokarz, both of Bowles Rice in Charleston, represented Waco Oil and Gas.
