Stockpiling of Dirt/Excessive Use of Dirt as Fill
Last Updated 11/24/2021
Limiting the Grading Permit Application as a Means to Stockpile Dirt or Utilize Excessive Fill for Projects
Loudoun County is aware of the potential misuse of private property to stockpile and accept fill dirt that is not otherwise necessary for a particular project on the property. In 2017, the Board of Supervisors authorized a change in county policy to help mitigate the issue by limiting the grading permit process as a means to stockpile dirt or utilize excessive fill for projects to address the budding countywide issue regarding excessive fill projects in the rural area.
From that time in 2017, forward, all grading permit applications that propose the import of fill to a property and are not associated with an approved site plan or construction plans and profiles, are forwarded to the Zoning Administrator for a determination as to whether the amount of fill proposed to be imported is necessary and appropriate to meet the technical requirements for the proposed development activity or use. Otherwise it is deemed to be “stockpiling of dirt” and can be considered a zoning violation. It is also noted that all site plan applications are reviewed by Zoning staff who will have had the opportunity to determine whether the amount of imported fill is appropriate for the development activity or use and will provide that input as part of the site plan review process.
Gable Farm Property
Loudoun County responded to inquiries from residents near the Gable Farm who expressed concern about fill operations on the Gable Farm property. The county thoroughly investigated the concerns, resulting in the issuance of a Notice of Violation on November 29, 2018. Thereafter, the county worked within its regulatory authority to address the violations with the property owner. Eventually, the county and the property owner agreed upon an Abatement Plan to remedy the conditions identified in the Notice of Violation. The Abatement Plan has been memorialized in an agreed Order of Abatement.
Order of Abatement
On November 3, 2021, the Loudoun County General District Court entered an Order of Abatement in the case of County of Loudoun v. Gable Family Limited Partnership, Case No. GV21011940. The Order of Abatement requires the property owner to correct the violations outlined in the Notice of Violation dated November 29, 2018. The order incorporates by reference the Abatement Plan and prescribes the specific remedial actions that the property owner is required to take. The order also required the property owner to pay $200 in settlement of the fines for its violation; this amount was received by the county on November 3, 2021.
- Read Loudoun County's November 24, 2021, news release (PDF).
- View the Abatement Order (PDF)
- View the Abatement Plan (PDF)
- Pursuant to the terms of the Abatement Order, once the remedial work has commenced, the property owner is required to provide weekly updates to Loudoun County regarding the abatement plan implementation. The property owner is procuring the necessary construction equipment to perform the required work, which as of November 2021, had not yet begun.
- The Order of Abatement requires the Gable Farm owners to complete the primary abatement actions by November 15, 2022.
- Gable Farm’s compliance with the technical requirements of the Abatement Plan is subject to confirmation by a third-party surveyor or engineer.
Site Operations History
- In October 2015, a site plan (REST-2015-003) was approved for the Gable Farm property for a personal recreation field. The plan was approved by the Loudoun County Department of Building and Development, which included a Zoning Review.
- A site plan is an engineered drawing that among other things identifies the proposed use associated with the site plan, changes of elevation or grade associated with the development of the property, final grades, erosion and sediment control measures, impact to stormwater runoff, etc. The approved site plan for Gable Farm indicated the need to bring in fill material to develop the property, and included the final elevations.
- Based on the approved site plan, a grading permit was issued to the property owner by the Department of Building and Development.
- A grading permit is required for a land disturbing event on a property that exceeds 5,000 square feet of disturbance.
- As part of the grading permit, the county is required to comply with all state and local regulations regarding the enforcement of regulations associated with the Virginia Erosion and Sediment Control (E&SC) law and Loudoun County E&SC Codified Ordinances Chapter 1220 Opens a New Window. . The “standards and specifications” for constructing and maintaining E&SC controls are spelled out as part of this in the Virginia Erosion and Sediment Control Handbook (VESCH). This includes routine inspections to determine compliance with these regulations. In the case of Gable Farm, inspections occurred on a regular basis of once every two weeks. The county’s responsibility under state law and the county Codified Ordinance is to make sure all E&SC structures comply with applicable standards and specifications listed in the VESCH (such as, silt fence, sediment traps, diversion dikes, check dams, etc.) to ensure that they are properly maintained such that erosion and sedimentation will be limited to offsite areas within the specified limitations of the E&SC controls installed onsite.
- The Virginia Department of Environmental Quality (DEQ) regulates the type of material (9VAC20-81-95, Identification of Solid Waste (D)(11) Opens a New Window. ) that is allowable as “fill” on a project. During the regular county inspections, county staff did not observe any illegal materials dumped at the site.
- In June 2017, Zoning Enforcement staff discovered that the operator was selling topsoil and millings from the site and issued a Zoning Notice of Violation. The notice was not appealed and staff issued one series of fines for non-compliance with the Notice of Violation. These fines have been paid and the case was closed given compliance with the Notice of Violation.
- In March 2017, the county responded to a complaint regarding infill material and determined that wet soil, from a local directional drilling operation sometimes called “sludge soil,” was brought onto the property. While not expressly prohibited, the county directed the property to discontinue accepting that type of material in the future, which the property owner agreed to do voluntarily.
- The county has also responded to numerous complaints regarding mud on roadways adjacent to the property. This is a relatively common complaint associated with most grading activity during certain weather conditions. In each instance, the violation was corrected.
- In September 2018, the county observed that fill elevations appeared to exceed the limits indicated in the approved site plan. Utilizing survey equipment, the county estimated that the elevations exceeded the approved elevation by approximately 7 to 14 feet. The operator disagreed with this assessment and informed staff that a licensed surveyor would be hired to determine the exact elevations. While this survey work was being done, the county requested, and the property owner agreed to cease hauling any more fill onto the site.
- In November 2018, the property owner provided the county with a copy of the survey showing the existing elevations. The survey did show that the elevations exceeded the final grades on the approved site plan, and therefore the project was not in compliance.
- Based on this demonstrated nonconformance with the plan, in October 2018, the Department of Building and Development issued a Stop Work Order for E&SC and the Department of Planning and Zoning issued a Notice of Violation in November 2018.
- As part of the Notice of Violation, the property owner was advised of the options to bring the site into compliance. The options at that time were to: (1) remove the excess fill material from the property to bring the elevation into compliance with what is shown on the approved site plan; or (2) apply for and obtain approval of a Special Exception for the “stockpiling of dirt.” Neither option was pursued by the property owner.
- On February 7, 2019, county staff met with the property owner to determine his plans for bringing the site into conformance of the approved site plan. The property owner provided a plan to the staff and indicated that the site could be brought into compliance by re-grading the site and removing some excess fill.
- On February 13, 2019, the county reviewed the plan to determine whether compliance with the site plan could be met be re-grading the site to meet the approved elevations. The county determined that the property owner’s plan was deficient and provided the following additional guidance in the points that follow.
- On February 14, 2019, the county requested a revised plan from the property owner to be submitted sometime in March. Specifically, the county requested a “Take Off Plan” that included high and low spots that will be cut or filled to include totals that will be cut or filled; total amount of dirt to be taken from the site; a narrative stating where the fill will be taken; and seal and signature of a licensed professional engineer.
- A “Take Off Plan” was submitted by the property owner on April 17, 2019; however, the plan did not provide an acceptable path forward to address the zoning violations. By 2020, the property owner discontinued pursuing a Take Off Plan. The property owner’s engineering team developed an alternative plan for erosion and settlement control onsite that will reduce high areas of fill to levels consistent with previous Rural Economy Site Plan (REST) approvals. This is the subject of the Order of Abatement dated November 3, 2021, which must be complied with going forward. A subsequent grading plan may be necessary.
- On February 22, 2019, the Virginia Department of Environmental Quality (DEQ) visited the site. DEQ noted that they would issue a letter with their findings within approximately two weeks. On March 1, 2019, the county was notified of DEQ’s finding that the "material appears to be exempt under Virginia Solid Waste Management Regulations." (PDF)
- An abatement plan was submitted by the property owner on January 7, 2020. This plan showed the excess dirt staying on site, but moved to a different part of the property.
- In 2020, the owner performed a study of the soil on the property to determine if fill material contained contaminants that may be considered harmful to human health and/or the environment. The Environmental Soil Characterization Report (PDF) was provided to the county on July 22, 2020. The analytical results from the Environmental Soil Characterization indicate that the fill material is acceptable for use as clean fill on the property based on the Virginia Solid Waste Management Regulations (9VAC20-81-95-7d) and does not contain contaminants at concentrations potentially harmful to human health or the environment.
- In November 2020, Loudoun County requested that DEQ review the Environmental Soil Characterization Report to determine if the fill material on the Gable Farm property was compliant with DEQ regulation and requirements. On February 5, 2021, DEQ responded by letter (PDF) to the county’s request, indicating the fill material did not violate DEQ regulations.
- In approximately April 2020, the Gable Farm owner and his attorney began negotiations with Loudoun County regarding the remediation of the on-site conditions and resolution of the November 2018 Notice of Violation. These negotiations culminated in the entry of the Order of Abatement on November 3, 2021.
- Submit concerns about the stockpiling of dirt and/or excessive use of fill material to the county through Loudoun Express Request as a neighborhood and property zoning complaint Opens a New Window. .
News Media Point of Contact Opens a New Window.
- Members of the media with questions about Gable Farm, contact:
Glen Barbour, Public Affairs and Communications Officer
Office of the County Administrator
Email Glen Barbour Opens a New Window.