Leesburg Faced with Dam Lawsuit

The Town of Leesburg may be headed to court if no resolution can be found between the municipality and one of its largest homeowner’s associations.

The Exeter Homeowner’s Association filed a lawsuit last year seeking to get the town to take responsibility for a stormwater management dam on the HOA’s property. The HOA has since extended two settlement offers to the Town Council, both of which were rejected following discussions in closed sessions.

What neither party is disputing is the location of the dam, with both sides affirming it falls on HOA property. However, the residents contend that the deed of easement and the plat recorded by the town and HOA in 1990 put the onus for any repairs or enhancements to the dam on the town’s shoulders.

The HOA represents 829 homes on 215 acres between Rt. 15 and Battlefield Parkway. Efforts to establish ownership of the dam have been ongoing for three years, started by an August 2014 letter received by the HOA from the Virginia Department of Conservation and Recreation. The letter noted that the Exeter dam had been cited as a high-hazard dam and needed to be brought into compliance with state regulations. An engineer hired by the HOA in early 2015 to determine the price tag for bringing the dam into compliance was just under $1 million. A town staff report presented to the Town Council also noted annual maintenance costs of $21,000, in addition to $60,000 in costs every six years to prepare studies required by the state.

The HOA formally petitioned the council to assume ownership of the dam, and thus the responsibilities to bring it up to state regulations, in the summer of 2015. Council members declined, but asked the town’s General Assembly delegation to support a measure that would allow private entities to attain grants for the repair and retrofit of dams. That bill, introduced by Sen. Jennifer Wexton (D-33), has not passed in the last two legislative sessions.

Exeter Dam

With no help from Richmond and at a seeming impasse with the town, the HOA formally filed its lawsuit in July and, according to Town Attorney Barbara Notar, the lawsuit is in the discovery phase with a pretrial conference yet to be scheduled. The suit is seeking declaratory judgment to determination of the ownership of the dam. The plaintiff points to the deed of easement in its lawsuit, which provides that the HOA “grants and conveys unto the Town…[e]asements and rights-of-way for the purpose of installing, constructing, operating, maintaining, adding to or altering present or future storm drainage ditches, lines, or other storm drainage structures and facilities, plus necessary inlet structures, storm water management facilities, and any other appurtenances necessary for the collection of storm water (storm drainage) and for its transmission through, upon and across the property of [Exeter Escrow Inc.], said easements and rights-of-way being more particularly described on [the Plat].”

Notar disputes the assertion that the dam is the town’s financial responsibility.

“It’s not the town’s dam, it’s the HOA’s dam,” she said.

A call to Bruce Easmunt, the Fairfax-based attorney representing the HOA, was not returned.

krodriguez@loudounnow.com

4 thoughts on “Leesburg Faced with Dam Lawsuit

  • 2017-02-08 at 10:24 am
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    Does anyone know the purpose of a “stormwater management dam”? The current controversy aside, it seems every year we read about some kid that drowns in one and I question the logic of these always popping up around residential areas. What value do they provide?

  • 2017-02-08 at 1:38 pm
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    I’m no expert Mr. D, but damns and their water bodies are good. They allow the settling of sediments and other debris in the inpoundment, rather than flushing down stream, which I believe is the most obvious reason. They provide wildlife habitat, terrestrial and aquatic, where none existed prior, not to mention recreational opportunities for us two-leggers.
    They provide emergency water sources for firefighting, livestock, and in a pinch, ourselves. Then there’s the basic human instinct to be near water: Who doesn’t want to live on a lake, the ocean, or a river? It’s brain stem level stuff.
    There was a time when government encouraged and assisted in the construction of water retention projects — Ponds, lakes, and whatnot. Sadly, those days are long past since the environazi’s seized control of every conservation agency in the country, and promptly instituted their ignorant, party line, mantra that all damns are bad.
    If I was a rich man, I’d have two of the sweetest ponds on my place. Instead of dried out stream beds 7 months out of the year, there would be positive habitat for fish, waterfowl, and a slew of other critters.
    If I had to live in Exeter, I’d be super happy to see a lake out back, rather than a sterile (for wildlife) field that needed mowing once a week most of the year.
    Again Mr. D, I don’t know any of the particulars in this case — I was just throwing some benefits, since you asked.

  • 2017-02-08 at 2:50 pm
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    Thanks, Chris. That’s what I was looking for. Beyond the aesthetics, my guess is the capturing the sediment is the main benefit so that “filtered” water goes downstream. Makes sense.

  • 2017-02-08 at 4:36 pm
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    Apologies for the misspelling of dam. As you can see from the article Mr. D, enviro’s at the state agency, in desperate need of something to justify themselves and their expense, will always make it hard to practice actual, real life, conservation.
    The lack of creativity, common sense, and environmental practices based on science, instead of politics, negatively impact our viewscapes, water quality, and most importantly, the wildlife we share our rock in space with.
    These people are not interested in improving our environment, rather, they’re interested in regulating everything, and always, always, looking to stick it to the common folks, much like they’re doing in this case.
    Remember the completely made up Chesapeake Bay Protective Ordinance they tried to pull a few years back? It did nothing for the Bay; instead it was a jobs program for enviros, and a regressive expansion of government control over private property. It was laughable for those people attempting to tell landowners they knew more than landowners did about their own land.
    The next time someone starts lamenting about water quality, ask them why government pours salt and other chemicals, by the thousands of tons onto roads. All reasonable people understand the purpose, but they always, always, blame private landowners for water quality degradation, while turning a blind eye to government environmental abuse.
    Sorry for the rant Mr.D. This is a pet issue of mine…

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