Category Archives: Zoning Requests

Update on Status of Floodplain Suit

An update on the status of Dominion’s suit against the Nelson County Board of Supervisors over the refusal of the Nelson County Board of Zoning Appeals to grant a variance for the Atlantic Coast Pipeline to cross flood plains in the County.  Documents below include Judge Moon’s Memorandum Opinion of June 21, 2019, in which he denied the County’s motion to dismiss Dominion’s lawsuit, a subsequent pleading by Dominion in which it reiterates its claim that the County’s floodplain management ordinance is invalid, the pleading in which the County defends its ordinance, and rebuttal brief by Dominion stating again why they think the suit should be dismissed.

A hearing is expected shortly, but no date has been published.  If Judge Moon rules against the County, the next step would be an appeal to the Fourth Circuit Court. That would, however, require the Board of Supervisors to spend the time, energy, and additional money to carry the suit forward.

Dominion vs Nelson County in Federal Court: April 8


Dominion’s suit against Nelson County over the refusal of the Nelson Board of Zoning Appeals to grant a variance for the ACP to cross flood plains in the County will be heard on April 8, 2019, at 11:30 a.m. in the Federal Court in Charlottesville, 255 West Main Street. Respectful attendance at the hearing is encouraged – no signs, no t-shirts, no protesting.  Be aware that seating in the courtroom is limited to ~100.

Important Upcoming Events

In addition to the one-day Spruce Creek Camp (see above), there are two other forthcoming events of note:

Dominion vs Nelson County in Federal Court, April 8, 2019:

For background information see our post on March 14, 2019.

Pipeline Air Force Drone Meet-Up, March 30, 2019:

For details see our post on March 7, 2019.  See also the recent news article, Drones change the way advocates protect the environment. 

Dominion vs Nelson County in Federal Court: April 8


Dominion’s suit against Nelson County over the refusal of the Nelson Board of Zoning Appeals to grant a variance for the ACP to cross flood plains in the County will be heard on April 8, 2019, at 11:30 a.m. in the Federal Court in Charlottesville, 255 West Main Street. Respectful attendance at the hearing is encouraged – no signs, no t-shirts, no protesting.

Why is Dominion suing Nelson County? On December 3, 2018, on a 3-2 vote, the Nelson County Board of Zoning Appeals denied four of Dominion’s applications for the variances to the County’s flood plain ordinance needed to construct the Atlantic Coast Pipeline across flood plains in Nelson. (The other seven of the original eleven applications were dismissed in January 2018, meaning ACP will have to submit new applications for them.) The Nelson County Zoning Ordinance specifically includes “Structures or facilities that produce, use, store, or transport highly volatile, flammable, explosive, toxic, and/or water-reactive materials” in the list of “critical facilities [that] are prohibited from being constructed or operated within a SFHA [Special Floodplain Hazard Area] unless a Variance is granted.” (Article 10.15F on p. 87)

Three days after the Nelson BZA denial of variances, on December 6, 2018, Atlantic Coast Pipeline filed a lawsuit against the Nelson County Board of Supervisors in the Western District of Virginia’s federal court, and it is this suit that will be heard on April 8. The suit asks the Court to:

  • enter judgement declaring that Nelson’s zoning ordinance and floodplain regulations are preempted by federal regulations and therefore null and void as applied to the ACP
  • enter an injunction enjoining Nelson County from enforcing any of its zoning ordinances and floodplain regulations that may affect ACP construction

The ACP has no federal permit to cross any waterbodies, including wetlands and floodplains.

For further information on the four variances denied by the Nelson Board of Zoning Appeals see our story from 2018.

Sidenote: The Virginia Department of Conservation and Recreation has designated March 10-16, 2019, as Virginia Flood Awareness Week. You can read about the function and value of floodplains on their floodplain Web page.

ACP Files Suit Against Nelson County

On December 6, 2018, Atlantic Coast Pipeline filed a lawsuit against the Nelson County Board of Supervisors in the Western District of Virginia’s federal court. On December 3, 2018, the Nelson County Board of Zoning Appeals denied Dominion’s request for variances to the County’s floodplain ordinance which would have allowed ACP construction across four Nelson County wetlands. The ACP suit is in response to the Board of Zoning Appeal’s denial.

The suit asks the Court to:

  • enter judgement declaring that Nelson’s zoning ordinance and floodplain regulations are preempted by federal regulations and therefore null and void as applied to the ACP
  • enter an injunction enjoining Nelson County from enforcing any of its zoning ordinances and floodplain regulations that may affect ACP construction

The ACP has no federal permit to cross any waterbodies, including wetlands and floodplains, and the Fourth Circuit Court of Appeals has vacated three other critical federal permits. It is, therefore, questionable what standing ACP has to file suit.

Read the full ACP complaint here.

Read CBS19 news coverage here.

Fuller coverage in the Lynchburg News & Advance.

Dec. 3: Nelson Hearing on ACP Request to Cross Floodplains

A Public Hearing will be held at 7 pm Monday December 3, 2018, in the auditorium at Nelson County High/Middle School (6919 Thomas Nelson Hwy, Lovingston) to review four of the deferred floodplain variance applications submitted by the Atlantic Coast Pipeline in early 2018. On January 31, 2018, ACP requested the deferrals until such time as they could provide the additional information requested by Nelson County on behalf of the Board of Zoning Appeals (BZA) for these four applications to cross designated floodplains.

There are no NEW applications at this time. The hearing will be on the four prior permit applications that were deferred at ACP’s January 31, 2018, request. The other seven of the original eleven applications were actually dismissed in January 2018, and ACP will have to submit new applications for them.  Based on a Friends of Nelson phone call to the Planning Office on November 26, no new information or documentation on the four variance requests had been received from ACP as of that date, and as of November 29 the meeting packet for BZA members, which would include relevant information, had not been posted to the BZA Web site.  The request to reopen the Variance Appeal process came to the Zoning Office via phone call rather than in writing.

The Nelson County Zoning Ordinance specifically includes “Structures or facilities that produce, use, store, or transport highly volatile, flammable, explosive, toxic, and/or water-reactive materials” in the list of “critical facilities [that] are prohibited from being constructed or operated within a SFHA [Special Floodplain Hazard Area] unless a Variance is granted.” (Article 10.15F on p. 87)

The ACP Statement of Justification for Floodplain Crossings contains the usual boiler plate ACP language: “this project is needed,” “FERC agrees this is the best route,” “it will not have adverse impacts,” “it will not affect existing or future development”, etc. Clearly not valid justifications for a variance for a 42-inch pipeline carrying natural gas at 1400 psi, and we need to speak out against it.

Come to the hearing and speak out against granting variances to ACP!  Those wishing to speak will be required to sign in before the meeting.  (As usual, ACP will probably stack their speakers at the beginning.) Nelson County has guidelines for speakers at hearings; note that speakers representing a group will have 5 minutes, individual speakers will have 3 minutes (and may not allocate their time to another individual). If you have general comments (vs site-specific ones), you should state when speaking that you want your comments entered into the public record for all four permits.

Permits are being considered for the following applications/parcels/landowners, all of whom have signed easements with ACP: