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Wednesday, July 1, 2015

Homeowner battling county over land disturbance violation



The Laux backyard with the Calloway development behind the fence.

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.


The area on the Calloway construction site where the developer pumped out muddy water.
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.

43 comments:

  1. Textbook Penny Gross:
    She does nothing for the Homeowner, and turns a blind eye to the transgressions of the Developer.

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    Replies
    1. No, not textbook Penny Gross. But your ignorant comment is textbook Mollie.

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    2. Mollie and her supporters must also be complaining the Circuit Court that found against the Laux's and in favor of Fairfax County is also on the developer's payroll in addition to Penny Gross.

      And for those commenters who obviously have an impediment comprehending English, it takes more than a homeowner reseeding their lawn for a Circuit Court to find the homeowner (in this case the Laux's) violated the prohibition against "Land-Disturbing Activities" without an approved conservation plan and permit.

      The fact the anti-Gross mob comes out and blows-up any story no matter how irrelevant into another reason to kick Gross out of office demonstrates the utter lack of substance of Mollie and her over-rated capability to "listen."

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    3. David Laux7/1/15, 7:33 PM

      If you read the article, you may remember reading that the circuit court did not look at any evidence because the County failed to give notice as to how to appeal the violation. The court granted summary judgment without weighing any facts. Had they done so, the case wouldn't be headed to the VA Supreme Court.

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  2. This is how Supervisor Gross treats her constituents?

    Developers are treated to high density projects and a blind eye to infractions. Desperate homeowners attempt to remedy the mess they are left with and get cited rather than receiving help from their elected official, Supervisor Gross.

    Could Supervisor Gross have helped her constituent at the get-go? Could this have been resolved without litigation? You betcha!

    Its past time for new leadership in Mason District.

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    Replies
    1. The Stanley Martin "Calloway" development is NOT a "high-density" project.

      If Stanley Martin violated any land-use or pollution of the bay provisions then it needs to be penalized the same, if not more severely than a small homeowner.

      However, the cries of Penny favoring "developers" at the expense of homeowners is beyond stupid.

      If this is the best Mollie and her supporters have this campaign season then they are even lamer than Swanson and her one-issue, one-huge-donor campaign.

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    2. But they weren't penalized at all. But I guess she doesn't favor developers, especially the ones that donate heavily to her campaign. Let's just ignore facts.

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  3. It isn't that hard to pull permits7/1/15, 10:45 AM

    Why didn't the homeowner bother getting permits for anything he did? Lawn re-grading is one thing, but an unpermitted addition is another.

    Typical MUH FREEDOMS this is my house and I can do anything I want!! attitude that pervades Mason District. No. No you cannot.

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    1. As the article stated, the County has placed their property "on hold" for the upcoming years it will take to resolve this litigation in court.

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  4. I asked Penny for it not to rain this week, and what do you know, there was a big thunderstorm last night! Another case of Penny not listening to her constituents.

    To the one very whiny person who always posts "Its past time for new leadership in Mason District." :

    A. Get a life and a grip. 75% of the issues you bark about have nothing to do with Penny. Penny and her staff has always been very quick to take care of needs and issues that her office is capable of in my neighborhood.

    If she can not do anything, her office let's us know and leads us to the correct agency. That is what governing is, these folks are not superheroes.

    B. Penny is going to cruise to re-election against whatever carnival barker is running against her in November just like the carnival barker that ran in June. So maybe you should start a new hobby like cooking or yoga or something of that ilk because your efforts to denigrate Penny have been very unsuccessful!

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    1. I agree that Penny isn't responsible for every mishap in Mason. However, she's nevertheless continuing to receive a lot of blame for things beyond her control because of the perception that she's indifferent to her constituents. The neophyte so-called carnival barker who ran against Penny last month received many more votes than anyone expected. That's largely because Penny has angered a lot of residents with her unresponsive leadership style. Although the results of that primary should have served as a wake up call for Penny, I doubt if she got the message. So, we'll see how well Mollie Loeffler does in November. I wouldn't count your chickens just yet. Penny has a real knack for annoying constituents and her reputation for being dismissive is quickly spreading.

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    2. " received many more votes than anyone expected", "her reputation for being dismissive is quickly spreading"...all very data-driven thoughts.

      The election results should have been a "wake up" call to the NIMBY carnival barkers to get a new hobby.

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    3. LOL!!! As in "75% of the issues you bark about have nothing to do with Penny"? Now there's a well researched figure! It's Penny's good fortune that JSwan was an even bigger train wreck than she is. Karen Garza recently made Penny look like a rank amateur and the so-called NIMBY'S have been forcing her to pretend that she's paying attention to someone other than her close friends. Penny is a follower not an innovator. She clearly can't keep up with the pace of change in Mason. Penny owes her political career to Sharon Bulova and no one except Bulova would notice her absence. I'm not looking forward to yet another four years of more competent local citizens and county officials vainly trying to bring her up to speed. Time for a change.

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    4. Also at election time do not vote for Sharon Bulova she has no one running against her but send her a message and do not give her your vote.

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  5. I'm not a supporter of Penny Gross, but she has no discretion to affect the enforcement of increasingly strict federal and state laws intended to prevent the flow of pollution into the Chesapeake Bay.

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    1. If you click the link in the article, the Erosion and Sediment Control Act is a Fairfax County ordinance, not a state or federal. The Board of Supervisors is the plaintiff in the lawsuit, so it's hard to say she has no control.

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    2. You're incorrect. The pertinent sentence reads: "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." (emphasis added). The building code code violation is obviously local. However, If you click on the link, you'll discover that localities are responsible for enforcing the STATE sediment and pollution act. That explains why the BOS is involved.

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    3. Erosion and Sediment Control is Chapter 104 of the Fairfax County Code. Look under the County Code Section at http://www.fairfaxcounty.gov/dpwes/construction/codes_standards.htm

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  6. I miss Campbell & Ferrara.

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    1. Campbell & Ferrara relocated to 8351 Richmond Highway, Alexandria, VA 22309. It's not that long a trip from Annandale.

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  7. I know that things in Annandale have gone quickly downhill in many ways since Penny Gross has been in her position. It's time to get some new blood. Not saying it will fix everything, but it might stop the bleeding. Of course, I've now moved out of Annandale partially due to the decline over the last 10+ years

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  8. Ellie - can you dig a little deeper? You state that all Mr. Laux did was re-seed his lawn. But the county injunction is requiring him to regrade.

    If Mr. Laux indeed re-graded his backyard and changed the flow of water, it doesn't seem he has much of a case.

    This issue has nothing to do with the board of supervisors but rather a citizen who didn't follow zoning and code issues.

    And considering that the opposition to Gross is pounding that drum incessantly, they must certainly be in agreement here that Mr. Laux is INCORRECT in this issue.

    Ellie - please let us know if Mr. Laux re-graded his backyard. That is the crux of the issue.

    This is as egregious of a violation as homeowners paving their front yards (like most of the houses across street from Fire Station 410 in Bailey's Crossroads) - it negatively impacts the design of storm sewer systems and in addition to allowing pollution into the waterways, it contributes significantly to flooding.

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    1. As previously stated, the court case is Board of Supervisors v. Laux. The county did not allege that Mr. Laux regraded his lawn, only that by replanting his lawn he violated the Erosion and Sediment Control Act, even though the Act specifically exempts landscaping. So the County is wasting time and resources trying to make him regrade his lawn, even though it wasn't regraded. Remember that when they say they don't have any money for the schools.

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  9. These comments blaming Gross are pathetic.

    First, critics complain there is no code enforcement by Fairfax County.

    Then, when there is a report of code enforcement by Fairfax County the critics complain the county is enforcing the codes inappropriately and should focus on developers and leave "small homeowners" alone.

    This blog post does not provide sufficient information to decide which party in this dispute is correct, at best it reports on the existence of the dispute.

    If this is the type of situation opponents of Penny Gross are going to use to launch their campaign - with claims Mollie "listens" and Mollie will make sure Fairfax County will not enforce any codes against small homeowners (especially homeowners that crowd 15 unrelated individuals into a SFH) Mollie and her supporters are short a screw and are lame excuses for a credible candidate and campaign.

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    1. David Laux7/1/15, 7:39 PM

      I think the criticism is that the County goes after a small homeowner that replanted his lawn and did not go after a land developer that was caught in clear violation of the law. Especially when the facts show that we only replanted the lawn. It's frustrating from a homeowner standpoint and from a taxpayer standpoint because I know how much the County is spending to fight a losing battle. I tried to resolve this matter by contacting Penny Gross and she said there's nothing she can do even though she's listed as the Plaintiff in the case. I agree it's hard to evaluate evidence based on a blog post, but after the VA Supreme Court rules in our favor, it'll be pretty obvious. At that point, I hope the Penny supporters will re-evaluate their opinion of her, especially when she says there's no money for schools.

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    2. This blog post does not provide sufficient information to decide which party in this dispute is correct, at best it reports on the existence of the dispute.

      Eight to nine acres cleared for a construction site vs someone's backyard. Hmmmm.

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    3. I don't think its appropriate to ask an elected official (Penny Gross) to intervene in active litigation before the court, regardless of the situation. Quite frankly that would be an abuse of power The courts are there to adjudicate the law without interference from elected officials or political pressure.

      That fact that the BOS is named as the plaintiff's is a simple legal technicality - since they are the elected body the BOS is automatically named as both plaintiffs and defendants in any county lawsuits.

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    4. According to vpap.org, Mr. Laux made a fairly large contribution to Jessica Swanson's campaign. Perhaps this article has more to do with politics?

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    5. $250 is a large contribution? Penny received over$100000 from land developers.

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    6. Re. Anon 6:09 "First, critics complain there is no code enforcement by Fairfax County."
      Yes, because, for the vast majority of Fairfax residents who witness code violations, there is effectively no code enforcement. That is the de facto policy of Jeff Blackford’s Department of Code Compliance. Jeff gets paid over $140,000 a year to not enforce the code and he does a good job with that. Apparently he and the County Attorneys have devised an unpublished manual of 1001 ways to not enforce the Fairfax County Code. The County Attorneys are fond of telling us that they don’t represent the citizens of Fairfax, they represent the Board of Supervisors. That being the case I must conclude that if the County Attorneys and the Department of Code compliance are conspiring to not enforce the code it is because the Board of Supervisors does not want the Code enforced in many areas of the County so if you want to return to a rule-of-law based system as opposed to our rule-by-decree system, you need to change the Board of Supervisors into a different Board of Supervisors.
      “Then, when there is a report of code enforcement by Fairfax County the critics complain the county is enforcing the codes inappropriately . . .”
      Yes, again. In my experience, one can spend 100+ volunteer hours on many neighborhood destroying violations attempting to get the Department of Code Compliance to do enforcement with no or almost no effective enforcement, activity yes, enforcement no. Many many tax dollars spent but neighborhoods still taken over by commercial interests who’s interests are served by capturing and wrecking stable, excellent neighborhoods and schools. Wrecking neighborhoods is an extremely lucrative activity it turns out and politics, as we know, is an extremely expensive business. This is one of the reasons why fines paid for even the most egregious and chronic violators are extremely rare in Mason District and citizen-critics are attacked. Our Supervisors love their developers. You don’t fine your allies you fine your critics and as a policy level supervisor in the Zoning office once implied, everyone has violations so everyone should shut up about the DCC ‘s failure to enforce unless they are looking for trouble.
      I, like most people in Mason District, had minor violations for at least a decade and the Department of Code Compliance and the County Attorneys showing no interest whatsoever until two days after a Washington Post article was published, an article in which I and others criticized the DCC. I received a Notice of Violation with 13 violations listed and I was not the only whistle blower interviewed in that article who received unusual and intimidating special consideration from the County. I don’t bring this up because I hate government. On the contrary I very much value government, i.e. good government but Fairfax has massive and serious problems with corruption, it may be legal in today’s legal environment but it is still corruption in any ordinary sense.
      I am one of those critics who complain that the county is enforcing the codes inappropriately and our numbers are growing at an alarming rate. Failure to uniformly enforce the law is serious problem. Vindictive abuse of process is a very serious problem.
      I don’t claim to know all the particulars of the Laux’s zoning issues but I know something is rotten in Fairfax and what I do know about this particular case is alarming from both an environmental and abuse of process point of view.

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  10. Remember also that even after she announced her candidacy, Mollie stated in LinkedIn that she was advertising director for the AnnandaleBlog.

    So is it really a surprise that there is an anti-Penny slant to the articles in the Blog.

    Don't expect objectivity or responsible reporting in the Blog. Just whining, complaining, and innuendo.

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    Replies
    1. I'd say Ellie just posts articles, and the comments add the whining and complaining on both sides. There has been nothing inherently slanty in any of the stories I've read. Furthermore, it's her blog, she can post what she wants, objective or not.

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    2. Exactly, she posts what she wants and when she wants. While Ellie will deny it, she is essentially Mollie's communications director. She can, as you say, post what she wants whether it is accurate or complete or responsible, and it becomes "fact."

      For instance, this article is definitely slanted to make one feel that the government is unfairly going after the little guy in favor of the developer. (But in other posts, the county is ironically not doing enough to go after code violators . . . .)

      If the county is asking Mr. Laux to regrade, why didn't Ellie report that Mr. Laux did NOT regrade. Mr. Laux claims that himself but that should be the reporter.

      If indeed all Mr. Laux did was roto-till his soil and throw down some seed, it does seem to be quite a kerfuffle. But there seems to be more to the story and that is my chief complaint about the AnnandaleBlog - incomplete and one-sided reporting.

      And true, it is Ellie's decision and her blog. So an informed reader takes that into consideration.

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    3. @958. Posting stuff on the internet does not make it fact, it just makes it stuff posted on the internet.

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  11. Are any of the court records for this case available online? I'd be curious to read both sides. There appears to be more to this story. Also is there any connection to this case to Mr. Laux's August 2013 case before the Board of Zoning Appeals?
    http://www.fairfaxcounty.gov/dpz/bza/weeklyagenda/wa20130807.pdf

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    1. I'm not sure if they're available online, but I will email them to anyone interested. The more people hear of this story the better.

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    2. Or better yet, perhaps Ellie could publish them here.

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  12. Mr. Laux does not come to this situation with "clean hands" - as noted in the article he built an addition to his home along with a covered porch without a permit. This leads me to believe that perhaps maybe he did a bit more than "replant" his lawn.

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    1. Why would the County tell a homeowner to file a civil lawsuit against a developer? Isn't it the job of our Supervisor, BOS and county staff to help homeowners/taxpayers with these types of situations?

      I am sure Supervisor Gross is on a first name basis with people at Stanley Martin and could have interceded early on to help.

      Laux's situation is disgusting. Time for change in Mason District and FFX County.

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    2. The porch was permitted. The addition was not. It had to be started because a special permit had been issued which would have expired had construction not started.

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  13. Without reviewing all of the facts, I am not sure that we can jump to conclusions on who is to blame. What we can speculate based on this article are the types of cases that Department of Code Compliance (DCC) is willing to take to litigation. Time after time, residents trying to protect their property values and to keep their communities from declining never see the repeat offenders affecting their neighborhoods face litigation. They are told that litigation is expensive, and that Mason District is short on lawyers. This shows that environmental issues, which have big lobbies, are given due attention. I am not saying that they should not, I am just wondering when the common citizen, who does not have a lobby, will see DCC go after repeat offenders in neighborhoods with the same fervor.

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  14. I cannot understand why the citizens are so lacking in knowledge of the need to get drainage issues approved by the county.
    I would have expected the Mason District Council of Civic Associations to keep our homeowner associations informed of these requirements.
    Perhaps the council can work on informing us of this PDQ.

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  15. If Supervisor Gross is named in the lawsuit, she has decided it needs to be litigated. Time to get rid of these career small time politicians and get in citizens who want to improve our community. Enough with kickbacks, this should be a short term position, not lifetime!

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