Agenda - Planning Commission - 04/02/1996

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Page 2 ~, March 1996 z.g. Zoning ~Violation -- Landfill Owner Convicted Twice for Same Permit Violatio,h Lawless v. County of Chesterfield, 465 S.E.2d 153 (Virginia) 2995 In 1954, Lawless got a conditional use permit to operate a landfill in Chesterfield County, ~a. The permit allowed him to operate for five years. In 19~9, the county Board of Supervisors amended the permit. The board found tho, re was exposed waste at the site, Lawless was discharging processing waste off,-site, and there were not adequate buffer zones between the landfill and its neighbors. The new permit conditions required Lawless to stop "all landfilling activity" and file closure plans within 30 days. After the plans were approvedi Lawless would have to clean up and close the landfill. Lawl{ss did not comply with the new permit conditions. The county code I · made violations of certain provisions a misdemeanor, punishable by fines rang- ing from ~10 to $1,000. The code also stated each day a violation continued would be}a. separate offense. In 19~2, the county charged Lawless with criminal violations of the county code. LaWless was convicted of a misdemeanor and fined. In 1943, the county again charged Lawless with criminal violations based on the ex,act same facts p he did not stop landfill activities and did not file closure pl!ans. At trial, a county zoning inspector testified that the landfill's condition idid not change since 1989, and that the only reason for the current criminal c~harge was Lawless' failure to file a closure plan within 30 days of the 1989 perrriit amendment. Lawleis asked the court to dismiss the county's case because he was already convicted !for the same offenses. He said state law did not give the county power to ~ake each day a violation existed a separate offense. The court denied Lawless' ~equest. Lawless was convicted again and fined $1,000. LawleSs appealed. DECISION: Reversed. The tri~l court should have dismissed the county's case because Lawless was already, convicted of a misdemeanor based on, the same facts. The cot~nty had no authority to make each day s violation a separate crimi- nal offensq. State statutes did not expressly give counties that power, nor did they implylit. The state statute that gave counties power to enact zoning ordi- nances authorized ordinances that made each day a separate offense only when determining civil penalties (which were limited to a maximum fine of $3,000 and to being, charged once for each 10-day period in which the violation existed). It said noth!ng about counties being able to make each day a separate criminal offense. AlSo, the power was not implied because it was not necessary to allow counties tolenforce· their zoning ordinances ~ they could get court orders to make violaiors comply. Gratmyi's Cottage I~c. ~: To~vn of Occoqua~, 352 S.E.2d 10 (1987). Gordonlv. Board of Supervisors of Fai~fax Comity, ~53 S.E. 2d 270 (1967).