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Friday, October 16, 2015

Annandale homeowner takes land dispute with county to federal court

Flooding on the Laux property before he tried to fix it.
The legal dispute between Annandale homeowner David Laux and has risen to a higher level, as the Laux’s are taking their case to a federal court.

The conflict started over a year ago when Laux and his wife tried to rehabilitate the lawn on their property at 4613 Randolph Drive in Willow Run in an effort to prevent flooding during heavy rains. The Department of Code Compliance charged them with violating county rules by disturbing more than 2,500 square feet of land without an approved plan.

According to the county, the lawn work undertaken by Laux caused erosion and sediment in a small stream between his backyard and the Callaway housing housing development under construction on the former Campbell and Ferrara plant nursery property. Laux charges that Callaway developer Stanley Martin’s actions to pump out water on the construction side caused the sediment built up.

The county ordered Laux to regrade his property, which Laux said could cost $30,000. A surveyor has estimated it would cost $5,000 to $6,000 for a plan, $1,000 for a permit, and as much as $25,000 for implementation.

Barrier wall
Laux intended to appeal the code violation, but says neither the notice of violation nor the response from Fairfax County Department of Public Works and Environmental Services (DPWES) Director James Patterson  provided instructions on how to appeal, and when he asked a county inspector, Melissa Smarr, what he needed to do, she gave him incorrect information.

The county filed suit against the Laux’s. They thought they would have an opportunity to present evidence and bring witnesses to court  “But because, we didn’t initiate the lawsuit, we couldn’t argue the facts,” Laux says. The Fairfax County Circuit Court ruled in favor of the county last January.

Laux appealed the ruling to the State Supreme Court, which notified him Oct. 9 that it won’t take the case. No concrete reason was given other than “it wasn't a reversible error.”

Laux then filed a federal lawsuit Oct. 13 in the U.S. District Court in Alexandria against Patterson, the Fairfax County Board of Supervisors, and the commonwealth of Virginia charging the state court violated the Laux’s due process rights by preventing them from arguing the facts. “If the state denies you due process, you can sue under the Civil Rights Act,” he says.

It could take months of legal maneuvers before the case goes to trial, but Laux is confident he will prevail. “If it gets to the point when facts come out, we have all the facts on our side,” he says, although he’s concerned they could be tripped up again by procedural issues.

Meanwhile, Laux fixed the flooding problem on his yard, so he says there’s no need to regrade the lawn. He installed a four-foot cement barrier wall this summer to channel water away from his yard and prevent erosion.

The country took Laux to court over that project because there’s an injunction against building on the property, and the county won’t give the Laux’s a permit until the grading issue is resolved. Laux argued that the county required him to put up sediment and erosion control  measures but didn’t specify what type, although DWPES preferred a silt fence. The judge ruled in favor of the Laux’s Oct. 7.

At the same time, Stanley Martin put in a new, larger culvert near the Laux property. The combination of the new culvert and barrier wall has successfully stopped the flooding problem, Laux says. There was no flooding on Laux’s or his neighbors’ yards during the heavy rains of Oct. 2-3, he notes.

“We don’t appear to need regrading now,” he says. He isn’t sure why the county is continuing to demand regrading unless “they want to justify the expense of the personnel hours and litigation they’ve put into this.”


  1. So when the initial story on this issue was posted on July 1, 2015, Mr. Laux posted a comment in the comments section that stated:

    "....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..."

    So the VA Supreme Court will not even consider his case. Perhaps its time for readers to re-evaluate the merits of his case, as well as to question the real motivation behind this story to begin with.

    1. The real motivation is to highlight what can happen if a homeowner fails to get the required permits and approvals before undertaking a project.

    2. Good for you Laux! I'm sure the County had no intention of helping you. In fact, the county zoning enforcement person had no idea how to tell you to appeal. All the time Penny Gross steps back so she doesn't have to help the homeowner but to let the county ordinance people do the dirty work. This county is the worse because of the people, the supervisors and their minions, who pretend to run the county are the worse.There is a $100 million deficit in the county and the only way the BOS knows how to fix it is to build as many apartments and townhouses as they can in every vacate space they can find. They try not to do anything so they can't be sued, thus they do nothing! We desperately need a change. Let's start with Supervisor Gross, she is the vice chair of the do nothing good county supervisors!

    3. Getting the County to help with storm water issues is a nightmare. In Annandale Acres we have serious unaddressed storm water issues going back 40 years. The Supervisor has been no help whatsoever. Activity and money spent, yes. Help, no. Mr, Laux had little choice but to take matters into his own hands. His biggest mistake was in reporting a pollution violation by the adjacent property developer. Had he not done that, we would not even know his name. There is a term for this. Mr. Laux has been Pennied.