Present: All the Justices
ROBERT L. SANSOM
v. Record No. 981492 OPINION BY JUSTICE CYNTHIA D. KINSER
April 16, 1999
BOARD OF SUPERVISORS OF
MADISON COUNTY
FROM THE CIRCUIT COURT OF MADISON COUNTY
Lloyd C. Sullenberger, Judge
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
______________________
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
“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
______________________
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.
2
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
3
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 § 15.1-475(B)(3) (now § 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
______________________
3
Pursuant to Code § 15.1-475(B)(1) (now § 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 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
5
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.
6
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.
7
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 § 15.1-466(A)(3) (now Code § 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.
______________________
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.
8
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-
9
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
10
of each party. West v. Mills, 238 Va. 162, 168, 380 S.E.2d
917, 920-21 (1989). In addition, Code § 15.1-475(B)(3)
(now Code § 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 § 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.
11
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.
12
For the reasons stated, we will affirm the judgment of
the circuit court. 5
Affirmed.
______________________
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.
13