Letter to the Editor: Buckingham needs to take another step
Published 6:40 pm Saturday, February 25, 2023
On Feb. 13, the Buckingham Supervisors voted to send to the Planning Commission a request to amend the County’s zoning code to remove metallic mining as an activity allowed in any district.
Before the vote, Supervisor Don Matthews asked about the rights-based ordinance and suggested sending that ordinance to the Planning Commission as well.
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Thank you, Matthews. The two ordinances together would be a stronger protection for our county and here are the reasons why:
The permission to do a zoning ordinance in this case is given to local municipalities by Virginia Code 15.2-2280. It says that any city or county can “regulate, restrict, permit, prohibit and determine… the excavation or mining of soil or other natural resources.”
This plan has the blessing of the County Attorney, E. M. Wright. The problem is that an ordinance like this would be at risk because it steps on federally-recognized corporate personhood rights that might be grounds for litigation. Why? Read on!
Courts have given corporations the right to be compensated for the loss of future profits if the government restricts their activities. It is not unusual for corporations to sue localities and force their hands to change the zoning back to favor the corporation, based on the fifth Amendment “takings clause.” If Buckingham County has a zoning ordinance that results in the limiting of future profits of a company, the county can be sued. Pretty crazy, right?
On the other hand, the rights-based ordinance doesn’t propose that we regulate metallic mining in Buckingham County; rather, it insists we protect the rights of the people and communities here to be free of toxic trespass. Wright says that the County can’t pass the rights-based law because of Dillon’s Rule. But in 2019, the state legislature granted its municipalities general police powers through which communities can adopt policies to protect public safety and health in Virginia Code § 15.2-1102.
Municipalities have been given “permission” and granted powers “which are necessary or desirable to secure and promote the general welfare of the inhabitants of the municipality”. Dillon’s Rule does not, therefore, prevent us from passing this rights-based ordinance as Wright claims. We have permission to protect our public safety and health, which is what this ordinance does.
The section of the rights-based ordinance that speaks to Prove it (safe) First acted as a deterrent in Wisconsin as state law for 20 years. No mining permits were requested during this time period when this law was on the books.
Any law can be challenged with enough money and power. The two laws present roadblocks to stand up to powerful corporate interests. Land-use or zoning ordinances, have a long history of being thrown out and counties acquiescing to corporate demands.
I ask the Board to pass the rights-based ordinance, which is already written, and also work to complete a zoning ordinance. Corporations would see that Buckingham is not a wide open opportunity as Aston Bay claims on its website. Rather, it has a fence of protection around it that says to them: No (Toxic) Trespassing.