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SANSOM v. BD OF SUPERVISORS OF MADISON CO. (59856)


SANSOM

v.

BD OF SUPERVISORS OF MADISON
CO.


April 16, 1999
Record No. 981492

ROBERT L. SANSOM

v.

BOARD OF SUPERVISORS OF MADISON COUNTY

FROM THE CIRCUIT COURT OF MADISON COUNTY
Lloyd C. Sullenberger, Judge
Present: All the Justices
OPINION BY JUSTICE CYNTHIA D. KINSER


Robert L. Sansom (Sansom) owns a 191-acre tract
of real estate located in Madison County (the County). In order
to effect a subdivision of this tract of land, Sansom had a plat
prepared depicting a division of the 191 acres into parcel C,
containing 48.788 acres, and parcel D, containing 70.385 acres,
leaving a residual parcel (the residue) of 71.886 acres.
[1] A 9.29-acre, closed landfill that the County formerly
operated is located wholly within the residue. The area
previously used as a landfill is the focus of the controversy in
this appeal.

Pursuant to Article 4-3-1, Madison County,
Virginia, Subdivision Ordinance (Mar. 29, 1974, as amended) (the
Ordinance),
[2] the circuit court determined that a "substantial
surface drainage course" is located on the landfill area
and, consequently, upheld the County’s denial of
Sansom’s application to approve his subdivision plat.
According a presumption of correctness to the court’s
factual findings, we conclude that the court properly held that
the County based its denial on the applicable ordinance and that
its decision was neither arbitrary nor capricious. Thus, we will
affirm the judgment of the circuit court.

I.

On March 7, 1997, Sansom submitted to the
County an application for approval of his subdivision plat.
During a joint meeting of the Madison County Board of Supervisors
(the Board) and the Madison County Planning Commission (the
Commission) on April 2, 1997, the Commission members expressed
concern about Sansom’s plan to construct a road over the
landfill in order to provide access to the residue from Route
652. The Commission considered a letter dated January 9, 1997,
from Robert M. Roberts, P.E. (Roberts), to the County
Administrator, in which Roberts suggested that, if Sansom
followed certain recommendations for building the access road, it
would not create any adverse effects with regard to the closed
landfill. Sansom’s attorney advised the Commission that his
client was willing to construct the road in accordance with the
standards outlined in Roberts’ letter but that Sansom would
not accept a drainage easement prohibiting any land disturbing
activity in the landfill area that would alter the existing
drainage course.

The Commission recommended to the Board that
Sansom’s application be denied based on the following
articles of the Ordinance: "Article 1, second paragraph,
Article 4-1-4, Article 4-3-1, Article 4-4-6 and Article
5-3." The Board then convened its meeting and subsequently
denied Sansom’s application "because of concern about
the risk that might be created by a new access road across the
closed landfill."
[3]

On May 29, 1997, Sansom filed an "Appeal
and Motion to Approve Subdivision Plat" in the circuit court
pursuant to Code Sect. 15.1-475(B)(3) (now
Sect. 15.2-2259(C)). Sansom alleged that the Board’s
decision was not "properly based upon the Madison County
Subdivision Ordinance under the articles specified in writing on
the plat, and that the provisions of the local ordinance, as
construed by the [Board], are beyond the authority granted by the
enabling statutes." Sansom further asserted that the
Board’s disapproval of his application was arbitrary and
capricious because the decision was based on reasons other than
those provided by the Board. Finally, Sansom alleged that the
request by the Board for a drainage easement over the entire area
of the old landfill, which would in effect prohibit any land
disturbing activity in that area, was an unconstitutional taking
of land without compensation.

After the court denied Sansom’s motion for
summary judgment and the Board’s motion for partial summary
judgment in a decree dated March 4, 1998, this matter proceeded
to a bench trial on March 16, 1998. During that trial, testimony
from several witnesses established the following facts relevant
to this appeal.

The residue fronts on Route 652 for 1,851.8
feet. The former landfill area runs parallel with all but 50 feet
of that road frontage. The state highway department would not
authorize a road entrance from Route 652 into the residue within
the 50-foot frontage outside the former landfill area because of
inadequate sight distance along the highway. The department did,
however, approve access from Route 652 into the residue at a
point along the road frontage where the closed landfill is
situated. A road going from that point to the remaining section
of the residue would traverse the landfill.

The licensed land surveyor who prepared the
subdivision plat described the landfill area as a pasture that
slopes generally downward from west to east, with some
depressions typical of those in any field, and that contains an
area on the southern edge where surface drainage flow
concentrates. He noticed the presence of some check dams that had
been constructed to help control erosion. Although the surveyor
acknowledged that he saw evidence of surface water drainage on
the landfill area, he denied seeing a "substantial surface
drainage course" across the landfill.

Roberts testified that the drop in elevation of
the landfill area from west to east is approximately 70 feet. His
physical examination of the landfill revealed the presence of
three drainage swales that run from west to east. Two of the
swales eventually run out, and surface drainage from them becomes
sheet flow that continues to travel in a southeasterly direction
until it reaches the remaining swale near the perimeter of the
landfill. The residue also contains six check dams, five of which
are located within the area of the landfill cover. These check
dams are used for erosion and sedimentation control and to lessen
the velocity of the surface drainage. Finally, three earthen
berms are located on the landfill that also aid in the prevention
of erosion.

Based on his calculations of the amount of
runoff for a 2, 10, 25, and a 100-year storm event, Roberts
opined that there is substantial runoff from properties adjacent
to the landfill and from the landfill itself and that the runoff
could create erosion problems and infiltrate the landfill. He
also stated that, if the flow of the surface water is impeded and
allowed to collect, it could cause generation of leachate from
the landfill. Finally, based on his examination of the site and
its physical features, Roberts responded affirmatively to a
question regarding whether the drainage flow across the landfill
is a substantial surface drainage force. Nevertheless, Roberts
maintained his position that a road could be constructed across
the landfill without adverse consequences if it were built in
accordance with the recommendations that he had made in his
letter to the County Administrator.

Upon considering the evidence presented during
the trial, the circuit court determined that the Board properly
applied Article 4-3-1 of the Ordinance. The court reasoned that

evidence of a combination of drainage
structures . . . over the closed landfill
constitute a substantial surface drainage course located
on the residue within the area being subdivided and the
board was justified in requiring an easement prohibiting
land-disturbing activity including the roadway within
this area.

The court further stated, "Since the law
permits the board to protect drainage in a subdivision, that the
primary concern is the closed landfill, does not make the
requirement that the road be located other than across the
landfill arbitrary or capricious."
[4]

On April 22, 1998, the circuit court entered a
final decree dismissing with prejudice Sansom’s appeal and
motion for the reasons stated in the record. Sansom appeals.

II.

Code Sect. 15.1-466(A)(3) (now Code
Sect. 15.2-2241(3)) provides that "[a] subdivision
ordinance shall include reasonable regulations and provisions
that apply to or provide . . . [f]or adequate
provisions for drainage and flood control
. . . ." Pursuant to the directive contained
in this section, the County enacted Articles 4-3-1, 4-3-2, and
4-3-3 to deal with flood plains and drainage courses, flood
control and drainage structures, and erosion control,
respectively.

Article 4-3-1, the provision at issue in this
appeal, does not define the term "substantial surface
drainage course," nor is it defined elsewhere in the
County’s Ordinance. "When . . . a statute
contains no express definition of a term, the general rule of
statutory construction is to infer the legislature’s intent
from the plain meaning of the language used." Hubbard v.
Henrico Ltd. Partnership
, 255 Va. 335, 340, 497 S.E.2d 335,
338 (1998) (citing City of Virginia Beach v. Flippen, 251
Va. 358, 362, 467 S.E.2d 471, 473-74 (1996); Marsh v. City of
Richmond
, 234 Va. 4, 11, 360 S.E.2d 163, 167 (1987)). An
undefined term must be "given its ordinary meaning, given
the context in which it is used." Dep’t of Taxation
v. Orange-Madison Coop. Farm Serv.
, 220 Va. 655, 658, 261
S.E.2d 532, 533-34 (1980). "The context may be examined by
considering the other language used in the statute." City
of Virginia Beach v. Bd. of Supervisors of Mecklenburg County
,
246 Va. 233, 236-37, 435 S.E.2d 382, 384 (1993).

On brief, Sansom argues that the term
"substantial surface drainage course" must be construed
as a "prominent, well-defined topographical feature such as
a creek bed, ravine or gully in which surface water concentrates
and through which it is channeled . . . away." He
asserts that it cannot encompass a nine-acre, gently-sloping,
grass-covered, "cow" pasture. However, the County used
the disjunctive "or" in the opening phrase of Article
4-3-1: "When any stream or substantial surface
drainage course is located in the area being subdivided."
(Emphasis added.) Thus, we conclude that the County did not
intend for the terms "substantial surface drainage
course" and "stream" to denote the same kind of
topographical features. Sansom’s interpretation of the
phrase "substantial surface drainage course" would
"violate the settled principle of statutory construction
that every part of a statute is presumed to have some effect and
no part will be considered meaningless unless absolutely
necessary." Hubbard, 255 Va. at 340-41, 497 S.E.2d at
338 (citing Sims Wholesale Co. v. Brown-Forman Corp., 251
Va. 398, 405, 468 S.E.2d 905, 909 (1996); Raven Red Ash Coal
Corp. v. Absher
, 153 Va. 332, 335, 149 S.E. 541, 542 (1929)).

Sansom also assigns error to the circuit
court’s conclusion that a "substantial surface drainage
course" is located on the closed landfill. He asks this
Court to reverse the judgment of the circuit court and to order
that his subdivision plat be approved for recordation as
submitted to the County.

In reviewing the circuit court’s judgment,
we accord a presumption of correctness to the factual findings in
favor of each party. West v. Mills, 238 Va. 162, 168, 380
S.E.2d 917, 920-21 (1989). In addition, Code
Sect. 15.1-475(B)(3) (now Code Sect. 15.2-2259(C))
limits the circuit court’s review to a determination of
whether the County’s disapproval of Sansom’s
subdivision plat was "‘not properly based on the
ordinance applicable thereto, or was arbitrary or
capricious.’" 238 Va. at 168, 380 S.E.2d at 920
(quoting Code Sect. 15.1-475); accord Hanover
County v. Bertozzi
, 256 Va. 350, 355, 504 S.E.2d 618, 620
(1998).

Using these principles, we find that the
circuit court properly determined that a "substantial
surface drainage course" is situated on the landfill area of
the residue. As the County noted, Roberts testified that
significant surface drainage flows across the landfill area from
adjacent properties and from the former landfill itself. When
specifically asked if the drainage flow across the landfill is a
substantial surface drainage force, he responded affirmatively.
The presence of drainage swales, earthen berms, and check dams in
the landfill area confirms the volume of surface drainage and the
need to control the flow of water and to prevent erosion. Even
the land surveyor testifying as a witness for Sansom acknowledged
the presence of check dams and an area on the southern edge of
the landfill where surface drainage flow concentrates.

Thus, we conclude that the County’s denial
of Sansom’s application to approve his subdivision plat was
properly based on the applicable ordinance and was not arbitrary
or capricious. Under the terms of Article 4-3-1, the County was
justified in permitting no land disturbing activity, including
the construction of the access road, in the area where the closed
landfill is situated. The fact that the County’s decision
also alleviates its concerns with regard to the risks that might
be created by constructing an access road across the former
landfill does not change our conclusion.

Finally, Sansom summarily argues that a
predicate for the application of Article 4-3-1 is that a
"substantial surface drainage course" actually be
"located in the area being subdivided." He contends
that the area being subdivided is parcel C and parcel D, not the
residue where the landfill is located, and that, therefore,
Article 4-3-1 is not applicable. We find no merit in this
argument because it ignores the definition of the term
"subdivision" in Article 2-38 of the Ordinance:
"The divisions of a lot, tract or parcel of land into two or
more lots, tracts or parcels . . . ." The
parcel of land being subdivided is Sansom’s 191-acre tract,
which includes the residue and thus the closed landfill.

For the reasons stated, we will affirm the
judgment of the circuit court.
[5]

Affirmed.

 

 

FOOTNOTES:

[1] The subdivision plat did not include
the boundaries of the residue.

[2] Article 4-3-1 of the Ordinance
provides as follows:

Flood Plains and Drainage Courses.
When any stream or substantial surface drainage course is
located in the area being subdivided, no land disturbing
activity except to build approved bridges shall be
permitted within fifty (50) feet of the stream or
drainage course, and provisions may be required for an
adequate easement along the stream or drainage course for
the purpose of widening, deepening, relocating,
improving, or protecting the streams or drainage course
for drainage purposes. Such easements shall not be
considered part of the required road width. Flood plain
limits shall be established with reference to current
flood plain maps or by current soil survey and
engineering methods, and shall be furnished to the Board
of Supervisors or its agent by the subdivider. To insure
development of lots containing sufficient land upon which
to place structures without impeding natural drainage,
the subdivider may be required to provide elevation and
flood profiles.

[3] Pursuant to Code Sect. 15.1-475(B)(1)
(now Sect. 15.2-2259(A)), the County Administrator wrote the
following reasons for denial on Sansom’s subdivision plat:

Denied by Madison County Board of
Supervisors on April 2, 1997, under Article 1, Article
4-1-4, Article 4-3-1, Article 4-4-6 and Article 5-3 due
to concern about risk of proposed access road to residue
over the closed landfill. Relocation of proposed access
road to residue so that it does not cross closed landfill
required.

The General Assembly repealed Title 15.1
effective December 1, 1997, in Acts of Assembly 1997, c. 587.
Since Title 15.1 was in effect during all times relevant to this
appeal, we will cite Title 15.1 with references to the
corresponding sections in Title 15.2.

[4] The Court also concluded that it was
unnecessary to determine whether Article 4-4-6 of the Ordinance,
concerning drainage easements, is applicable and that Article
5-3, concerning road access, does not pertain to this case.

In its previous decision denying summary
judgment, the court had determined that references to Article 1
and Article 4-1-4 on the subdivision plat were not relevant to
any alleged deficiencies in the plat.

[5] We do not need to address
Samson’s remaining assignment of error regarding whether the
residue constitutes a "lot" under Article 4-4-6 of the
Ordinance.

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