State Bd. of Health of Com. of Va. v. Godfrey

• Citation: 223 Va. 423,290 S.E.2d 875
• Decision Date: 30 April 1982
• Docket Number: No. 790956,790956
• Court: Supreme Court of Virginia
• Parties: STATE BOARD OF HEALTH OF the COMMONWEALTH OF VIRGINIA, et al. v. Joseph E. GODFREY, et al. Record

Page 875

290 S.E.2d 875

223 Va. 423

STATE BOARD OF HEALTH OF the COMMONWEALTH OF VIRGINIA, et al. v. Joseph E. GODFREY, et al.

Record No. 790956.

Supreme Court of Virginia.

April 30, 1982.

R. Leonard Vance, Asst. Atty. Gen. (Marshall Coleman, Atty. Gen., James E. Ryan, Jr., Deputy Atty. Gen., on briefs), for appellants.

B. L. Dunford-Jackson, Culpeper (B. Waugh Crigler, Davies, Crigler, Barrell & Will, P. C., Culpeper, on brief), for appellees.

Before CARRICO, C. J., and COCHRAN, POFF, COMPTON, THOMPSON, STEPHENSON and RUSSELL, JJ.

COCHRAN, Justice.

In this appeal, we review the ruling of the trial court in a proceeding under the Administrative Process Act (APA), Code §§ 9-6.14:1 et seq., initiated by applicants to obtain a permit for installation of a septic tank.

On August 26, 1977, Joseph E. Godfrey and Adlyne Godfrey, husband and wife, filed a bill of complaint against the Commonwealth of Virginia, Department of Health, and James B. Kenley, M.D., State Health Commissioner. As subsequently amended, the bill named as defendants, in addition to the Department of Health and the Commissioner, the other members of the State Board of Health. ¹ Complainants alleged that the action of the defendants (collectively, the Board or the agency), in sustaining the denial by the Culpeper County Health Department of a permit to install a septic tank and drainfield on certain land of the Godfreys aggregating approximately forty acres, was arbitrary, capricious, and unreasonable, and denied them due process. The amended bill sought to have the trial court order the issuance of the permit.

The Board moved the trial court to restrict its review to the record before the agency when the decision to deny the permit was sustained and to consider only the two sites for which applications had been formally denied by the agency. Denying the motion, the court ruled that it would permit the parties to introduce the testimony of witnesses and that it would receive evidence concerning the installation of a septic tank and drainfield at any location on the forty-acre tract.

At trial, two witnesses testified for the Godfreys, George Bernard Miller, who had contracted to purchase the forty-acre tract, and Joseph Godfrey himself. The Board relied solely on the agency record. By final decree entered March 28, 1979, the trial court ruled that the Board was "arbitrary, capricious and unreasonable" in denying the permit for installation of a septic tank, and ordered the Board forthwith to issue the necessary permit.

On appeal, the Board not only challenges the ruling of the trial court on the merits but also contends that the court erred in admitting evidence outside the agency record. In oral argument, the Board abandoned an additional contention that the court erred in hearing the case before the Godfreys had exhausted their administrative remedies.

The agency record shows that Miller first applied for a septic-system permit in December of 1976. Stanley Borders, employed by the Board as Sanitarian for the Culpeper County Health Department, rejected the application because of "very slow absorption rate in plastic type clay of upper horizon, evidence of seasonal water table at about 30 [inches] and restriction of water flow due to clay flows in lower horizon." On December 17, 1976, W. W. Burke, the Sanitation Supervisor for Culpeper County, and H. V. Bodkin, Regional Sanitarian for the area that included Culpeper and other counties, filed soil evaluation worksheets supporting Borders' rejection of the application. Burke and Bodkin reported a seasonal water table at twenty-four to thirty inches and Bodkin also listed as a problem the poor absorption rate in the "Blackjack" soil. ²

Miller employed R. B. Thomas, Jr., Ltd., a Manassas civil engineering firm, to evaluate soil conditions on the Godfrey property. Thomas reported on March 3, 1977, that on two proposed sites the topsoil and subsoil were unsuitable but that a two to three and one-half foot layer of sandy soil underlying the clay upper horizon would support a drainfield. Thomas recommended installation of the drainfield at a depth of seven feet below the surface of the ground. Plats and site development plans were attached to the report.

Miller and Godfrey applied for a permit for either of the sites recommended in the Thomas report; Borders rejected the application for essentially the same reasons that he had previously stated in disapproving Miller's 1976 application. His superiors, Burke and Bodkin, again filed soil evaluation worksheets that listed as problems a seasonal water table, limited depth of "weathered rock" (the sandy material reported in the Thomas evaluation), variable depths to weathered rock, predominance of plastic clay, and hard rock at shallow depths.

On April 27, 1977, at the Board's request, W. J. Meyer, a soil scientist at Virginia Polytechnic Institute and State University, conducted a soil investigation of the two Thomas sites. Based on his examination of nine site borings, Meyer reported:

Problems with the site include: variability in depth to weathered parent material, clay flows in part of parent material, plastic clay subsoils with expected slow or nil rates of absorption, a seasonal water table in horizon with gray above plastic clay, and limited area of deeply weathered diabase not restricted by hard rock.

At Godfrey's request an informal administrative appeal was conducted by the Culpeper County Health Department on May 10, 1977. Dr. R. S. LeGarde, Director, informed Godfrey, Miller, and their attorneys, by letter that after consideration of the two Thomas sites and the site proposed by Miller in 1976, the Department confirmed the rejections. Dr. LeGarde pointed out that Thomas had recommended installation of the drainfield at a depth of seven feet, whereas one of the borings upon which Borders, Burke, and Meyer based their evaluation showed hard rock at fifty-six inches, and the others at forty-two inches. Godfrey next requested a formal hearing on the applications, as authorized by Code § 9-6.14:12.

Miller employed T. A. Houston and Associates, Ltd., environmental geologists, to determine the feasibility of installing a conventional septic drainfield on the Godfrey land. Houston's report, dated May 31, 1977, recommended use of "special design considerations," including a 10,000 square-foot drainfield area, a sewage lift pump, deep drainfield trenching, surface grading, installation of tile drains at a depth of seventy-two inches, and on-site Health Department inspection during construction. Houston's site 1, the preferred location of two that he evaluated, included the second Thomas site previously rejected and some additional area. In view of the partial identity of sites, Borders refused Miller's request to examine the Houston sites until the pending appeal was concluded.

The formal hearing was conducted on June 29, 1977, attended by Miller, the attorneys for Miller and Godfrey, and by Houston, Borders, Burke, Bodkin, Meyer, and Dr. LeGarde. The agency record included a transcript of the testimony as well as the Thomas and Houston reports previously filed.

Houston was the applicant's primary witness. He amplified his soil analysis and recommendation for a special design system. He agreed that a conventional septic system would not function on his proposed site 1, but he though his specially designed system would be satisfactory. In making a seismic survey, he had observed no seasonal water table in the deeper, weathered material, although he found such a table in higher strata, and he concluded that the "hard rock," represented to be a problem, consisted of weathered concentric boulders that could be removed by a backhoe. Since the site was sloped, there would be adequate surface drainage to make the proposed system acceptable.

Burke said that Houston's proposal was not novel to the area, that the same kind of system had been tried within the past ten to fifteen years. According to Burke and Borders, four out of twelve similar systems in the same type soil within two miles of the Godfrey property had failed within the preceding nine years. Burke maintained that to protect the high water table from pollutants it was necessary to refuse the permit.

Meyer had not examined Houston site 1, although he had visited the Thomas site included therein. He expressed concern that the weathered sandy soil, upon which the viability of the Houston proposal depended, would not extend the full length of a drain line or drain slope, but would be found to lie in pockets that would fill up. In view of Houston's testimony, however, Meyer suggested that the Commissioner consider having the landowner designate the drainfield lines and make test borings along the lines to determine whether there was continuity of the permeable weathered material.

By letter dated July 28, 1977, the Commissioner denied the applications for the two Thomas sites. He based his denial upon the reports of poor percolation rate, poor subsurface drainage, and a water table, and upon Meyer's testimony that soil of the type in question varies in depth to solid rock, and that the varying depth produces pockets.

Nevertheless, the Commissioner, noting that Houston had suggested that other locations on the property, not evaluated by the local Health Department, might support a septic system, was of opinion that this additional information should be assessed. He further stated that the local Health Department "will consider issuing a septic tank permit" if the following minimum soil conditions "are demonstrated to be present in the exact location" proposed for the drainfield:

a) Thickness of at least three feet of weathered diabase situated deeper than the planned bottom of the tile field trench at all points along the proposed location of the tile field.

b) No evidence of water table in the soil.

c) Weathered diabase to be continuous and without hard rock interruptions,...