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.”