Homeowner battling county over land disturbance violation

Annandale resident David Laux is fighting a Fairfax County court injunction charging him with violating the building code and plans to take the case to the state Supreme Court.

The county charged Laux and his wife Tara with failing to get a permit when they rehabilitated the lawn on their property at 4613 Randolph Drive in the Willow Run neighborhood. According to Laux, carrying out the procedures required by the county, including regrading the lawn, would cost $30,000.

Soon after the Laux’s bought their house in 2010, they discovered their lawn flooded every time there were heavy rains – about  four times a year – due to two culverts nearby that overflowed.To repair the flooding damage, which had turned their yard into a weedy mess, Laux replanted his lawn, which is about three-quarters of an acre.

For doing that, he was charged by the Fairfax County Department of Code Compliance with violating the county’s building code provision on land disturbance and the state Sediment and Erosion Control Act. According to the county, the Laux’s lawn project caused sediment to flow into a local stream that feeds into the Chesapeake Bay watershed.

But Laux says, “No mud was coming from our yard at all.” He claims all the sediment was from Stanley Martin Homes, which was using a pumping machine to flush out muddy sludge during the construction of the Callaway housing development on the site of the former Campbell and Ferrara plant nursery on Little River Turnpike.

Nevertheless, the Circuit Court ruled in January in favor of the Fairfax County Department of Public Works and Environmental Services, charging Laux with violating a provision of the code that prohibits any “land-disturbing activity” without an approved conservation plan and permit approved by DPWES.  

The code defines “land-disturbing activity” as “any man-made change to the land surface that may result in soil erosion from water or wind and the movement of sediments into state waters or onto lands in the commonwealth, including, but not limited to clearing, grading, excavating, transporting, and filling of land, paving of existing pervious areas or otherwise creating new impervious areas.” County approval is required for projects disturbing more than 2,500 square feet of land.

The court imposed a mandatory injunction requiring the Laux’s to “immediately cease and desist all further land-disturbing activity on the subject property, immediately install erosion and sediment control measures to protect waterways and off-site properties, and immediately seed and/or mulch all denuded areas.”

The county denied the Laux’s request for reconsideration because it says they had disturbed more than 2,500 square feet of land without obtaining approval and because they failed to submit their request within 30 days.

Laux says he was given incorrect information from the county. He thought all he needed to do was send a letter stating his intention to appeal; he didn’t know he was supposed to file a lawsuit in civil court within 30 days. 

And now that he missed the 30-day deadline, “the county says we waived our right to appeal,” Laux says. “We didn’t have a chance to make our case in court.”

Laux said he brought up the issue with Mason Supervisor Penny Gross’s office but was told, “once it’s in litigation there is nothing they can do about it.”

In a related issue, the Laux’s have been charged with a building code violation for constructing an addition and covered porch without a building permit. Their property had been placed on “hold,” which means the county won’t issue a permit to them until the land disturbance issue is resolved. The Board of Building and Fire Prevention Code Appeals is scheduled to hear the Laux’s appeal of that violation on  July 8.

A legal document filed by Laux seeking dismissal of the land disturbance case notes that a downstream neighbor filed a complaint in May 2014 with the Virginia Department of Environmental Quality and the county Department of Code Compliance charging Stanley Martin Homes with pumping sludge into the creek. A few weeks later, Jack West of Stanley Martin filed a complaint against the Laux’s for illegal land disturbance.

Laux was curious why the county is going after him and no action was taken against Stanley Martin, so he filed a Freedom of Information Act request and found many similar cases against homeowners filed by Fairfax County. He says the county wins about 95 percent of the time.

“They go after small-time homeowners,” Laux says, rather than developers, which he thinks is because developers tend to be large political donors. “That is not a coincidence,” he says.