Opinion
Chancery No. 00-12
01-11-2001
LEOCADE LEIGHTON Petitioner v. VIRGINIA DEPARTMENT OF HEALTH Respondent
MEMORANDUM OPINION
This is an appeal of a case decision pursuant to the provisions of the Administrative Process Act, Va. Code Ann. §9-6.14:16. Petitioner, Leocade Leighton asserts that the Director of the Rappahannock-Rapidan Health District erred in his decision after an informal hearing. Va. Code Ann. §9-6.14:11. Ms. Leighton's appeal to this Court is subject to the limited review provided by Va. Code Ann. §9-6.14:16. In order to prevail, the petitioner must demonstrate that the Director erred as a matter of law. Va. Code Ann. §9-6.14:17. The instant appeal is not a trial de novo.
Judicial review is limited to a determination of "(1) whether the Department acted in accordance with law; (2) whether the Department made a procedural error which was not harmless error; and (3) whether the agency had sufficient evidential support for its findings of fact." Johnston-Willis Ltd. v. Kenley, 6 Va. App. 231, 242 (1988). Additionally, the Director determined that the petitioner lacked standing to administratively appeal decisions by the Department. Ms. Leighton challenges this finding as well.
The instant appeal arises out of litigation that has proceeded for over a decade on the docket of this Court. Ms. Leighton successfully challenged the validity of governmental approvals of the subdivision in which she resides in Fauquier County, Virginia. As a result of that challenge, it has been necessary for those whose lots comprise the illegal subdivision to resubmit a new subdivision plat for approval by the county. No such approval has been forthcoming.
While awaiting subdivision approval, the Court has maintained oversight of a variety of issues affecting the original subdivision and subsequent improvement of the parcel. Among those matters considered by the Court have been those of drainage, easements, and permits. No new plat has yet to be approved.
In the course of this litigation, the petitioner has articulated a variety of concerns respecting matters that may adversely affect the approval of a new plat. One such concern involved a drainfield and well on one of the parcels within the subdivision that is presently owned by Philip C. and Linda M. Gibson.
By letter dated September 24, 1999, Ms. Leighton requested both an informal and adjudicatory hearing before the Department pursuant to the Health Department Regulations. She asserted in her request for the hearing and in the instant appeal that the original approval for a drainfield on the Gibson property was flawed. The drainfield's placement too near to the well violated then existing Health Department regulations. Additionally, she contends that the boundary line proposed for the Gibson's lot would encroach upon the minimum set-back provided in the regulations of the Health Department. Lastly, Ms. Leighton pointed out that a shed has been placed on the drainfield contrary to Health Department Regulations.
Ordinarily, a neighbor would not have standing to complain about the validity of the governmental approval of the construction plans for his neighbors' drainfield. However, this is no ordinary case. Many years ago, this Court found that the subdivision in which Ms. Leighton, the Gibsons and other residents was void in its inception. While Ms. Leighton, her neighbors, the developer, and the county have struggled to correct this problem, the Court has maintained an oversight role and has ruled upon various matters that affect the subdivision process. However, as the Court has previously noted, it cannot subdivide the property for the parties.
Although Ms. Leighton is not the owner of the lot and parcel occupied by Mr. and Mrs. Gibson, she is a person affected by the proper application of the health department regulations with respect to the siting of the drainfield. A failure to comply with applicable subdivision regulations does not prevent, "…the recordation of the instrument by which such land is transferred or the passage of title as between the parties to the instrument." Va. Code Ann. §15.2-2254 (3). However, a failure to properly subdivide the parcel may impede future plat approval and places significant limitations on the use of the property by the owner. Leake, et. al. v. Casati, et. al., 234 Va. 646 (1988).
This is an appeal from the decision arising out of an informal hearing. Ms. Leighton was entitled to such a hearing and to a review of the record by this Court as an aggrieved person. Her use and enjoyment of her property is limited by the need for the approval of a subdivision that conforms to county requirements. Where the county requires conformity with Health Department regulations precedent to subdivision approval, the actions of the Department are subject to administrative scrutiny and upon a limited review by this Court.
The Court finds that the provisions of the regulations in effect at the time the drainfield was approved control the locating of the well on the Gibson's property. It matters not whether the digging of the well preceded or followed the construction of the drainfield. To the extent the commissioner's finding differ from that of the Court's, it is so modified. When the drainfield was constructed, there had been no special exception cited to the regulations in effect, that would support a variance upon a showing of an absence of evidence of a threat to public health or the environment. Similarly, the grandfather provisions of a later regulation cannot be used to give perpetual existence to an activity, where the life of the permit sought to be continued is specifically limited in time.
The Court will affirm the remaining findings of Dr. Burns. This Court may not compel the Health Department to commence proceedings against the Gibson's or the original applicant, and declines to do so. Similarly, this Court finds that the enforcement of the regulations is a matter resting within the sound discretion of the Health Department. Although this Court may exercise oversight of this case, it may not subdivide the property and will not mandate the steps required to obtain subdivision approval.
Although Ms. Leighton is entitled to a finding with respect to the validity of the actions of the Health Department, such a determination may only serve to guide those who seek or those who would approve any future subdivision of the property. Ultimate approval of the subdivision or enforcement of the regulations of the Department of Health lies outside the jurisdiction of this Court to mandate.
Ms. Leighton may draw a Final Order in this case, to which the parties may note their exception.
Entered this ___ day of January 2001
__________
Thomas D. Horne, Judge Rule 1:13
Endorsements