A Stafford County court will decide whether a McLean developer has cleared too much Crow's Nest land without a permit.
K&M Properties, doing business as Stafford Lakes Limited Partnership, disturbed more than 2,500 square feet of the peninsula while creating access for soil-testing equipment last month.
The developers didn't submit plans, get a permit or pay the fees county officials say that amount of bulldozing requires, and the county issued a stop-work order on Sept. 13. But the landowner holds that those steps were unnecessary and the clearing irrelevant for the type of project.
A Circuit Court judge will hear arguments Nov. 7 and rule on whether the work qualifies as land disturbance and decide if Stafford Lakes needs to file a belated clearing application.
Attorney Clark Leming, who represents the developer, said his client was just complying with a new drainfield ordinance. It requires the preliminary subdivision plan, rather than later construction documents, to include proof that each lot can support a septic system.
"All we were trying to do was test for a portion of the property not covered in a prior application," Leming said.
Each soil test takes less than an hour and all holes are refilled with the same dirt that was removed, court records explain. The process also involves removing vegetation and creating trails between test pits for equipment.
Leming argues that county and state codes don't consider that kind of work a land disturbance when it relates to drainfield testing. But Steve Judy, a deputy county attorney, contends in a Sept. 15 letter to Leming that those laws apply to repair work on existing septic systems, not developers who want to eventually install drain fields.
The county has never required permits for similar projects, court documents say. And no other stop-work orders have been issued in the past five years for such activity.
But officials say in court records that any failure to enforce land-disturbance requirements in the past does not exempt Stafford Lakes from the rules now.
The permits required before large clearing occurs ensure the work will be done with erosion and sediment control in mind, said activist Cecelia Kirkman, who made the complaint that sparked the investigation into Stafford Lakes' Crow's Nest activity. Too much runoff can degrade streams and natural resources.
"The developers are trying to get the job done on the cheap at the expense of the environment," Kirkman said. "If they are going to clear and grade, using dozers and backhoes to dig test pits, then they need to follow the same laws that everyone else is supposed to follow."
Kirkman, who founded the Save Crow's Nest preservation group, points out that there are lower-impact boring technologies for soil testing, which would not have required heavy machinery and clearing. But Leming said the dense vegetation on Crow's Nest does not allow for that method.
"There is no evidence of any erosion or runoff caused by this exercise," he said, adding an archaeological dig would disturb more land than his client's tests.
He calls the stop-work order the county's latest delay tactic.
Numerous court appeals and county decisions have held up his client's efforts to develop the land and cash in on its investment in the land, which it has owned since the early '90s.
Stafford Lakes intends to put 688 homes on a 3,230-acre piece of the environmentally sensitive tract. The courts will soon decide whether a subdivision application containing those plans meets county code without further revisions.
Planning commissioners denied the submission in January. But the developer appealed the decision, claiming it resulted from unusual--and incorrect--interpretations of laws. A trial date on that matter has not been set.
In the meantime, supervisors have asked Stafford Lakes to sell 2,887 acres of the property to the county for $33.2 million. They want to preserve the land as a state park and plan to pursue condemnation if negotiations fail.
Leming has said previously that his client believes the land, which sits between the Potomac and Accokeek creeks, is worth $60 million.
Supervisors, however, are losing patience with the landowner.
"They really walk a thin line as to whether they are acting in good faith. I think talking things out with someone and then seeing dump trucks coming off the property and holes being dug muddles things up," Milde said. "We're going to persist in this end until we reach the ultimate goal."
To reach MEGHANN COTTER:
Email: mcotter@freelancestar.com