In the latest chapter in the running battle between Fauquier County and a self-described sod farmer, county officials are seeking a permanent injunction to stop Michael Hawkins from accepting construction dirt and debris on his southern Fauquier property. But their efforts are running afoul of a clogged county court system that has allowed Hawkins to continue importing dirt – literally – by the truckloads.
The new motion for a permanent injunction, filed June 17, comes close on the heels of a temporary injunction filed March 5 that was designed to stop Hawkins from taking in fill dirt and debris while his various court cases are pending. But that temporary injunction case will not be heard until February, 2022. And the new, permanent injunction that the county sought on June 17 is easily months away from a trial too.
Meanwhile, Hawkins continues to import excess construction dirt from VDOT and commercial projects to level land for what he says is a sod farm, but what the county says is an illegal dump. “I’m still hauling in” dirt, a defiant Hawkins said in an interview two weeks ago.
Michael Hawkins continues to import fill dirt onto his southern Fauquier property, despite citations from Fauquier County.
County officials have been trying since September 2018 to find ways to stop Hawkins from taking dirt onto his farmland without a special permit. County Attorney Tracy Gallehr declined to comment on Hawkins’ practices or the issues caused by the courts’ delays.
“It is what it is. We are at the mercy of the judicial system, and the ability to get these things scheduled. And we’re in a highly unusual time right now,” she said. Gallehr said the courts had become backed up after the postponements last year due to COVID-19; the circuit court serves three counties and has a backlog of criminal cases too.
Hawkins expressed some frustration with the courts; he hoped he would win one of his cases that is pending at the state Supreme Court. But a Supreme Court clerk said it was her best guess that the court would not even decide whether to hear that case until October.
The injunctions, however stalled, are the latest moves in the county’s attempts to stop Hawkins that date back to 2018. It has long been the county’s position that by accepting tons of dirt from construction sites without a permit, he is violating zoning laws, aggrieving his neighbors and endangering the environment. Hawkins argues that he is taking in the dirt to fill valleys and ravines on his property to level the land for a sod farm.
He said in a court filing that he receives $20 to $50 per truckload from contractors who dump on his property, and he said in a deposition that he intended to import a million cubic yards – roughly 100,000 truckloads – just for the rear part of his property. (A later court filing, though, said that was just a “guesstimate.”)
“As of March 3, 2021, no less than 1,883 truckloads have been hauled to the property during 2021,” the county stated in its motion for the preliminary injunction, nearly “six times the amount of dirt that is allowed in a year.”
On September 13, 2018, the board of supervisors adopted a zoning change that limited the amount of fill dirt farmers could take onto their land without a special permit. Hawkins was cited for exceeding the limit, but appealed. He eventually lost, but in an August 2019 case wherein Hawkins appealed a separate citation for erosion and sediment control violations, Circuit Court Chief Judge Douglas Fleming Jr. ruled that Hawkins was running an agricultural operation. Under state law, agricultural operations are largely exempt from zoning regulations.
Hawkins has used that ruling to justify his continued operations. The county has appealed the ruling, and the matter now sits before the Supreme Court. If Hawkins prevails, it will only bolster his argument that he is running an agricultural operation exempt from zoning rules. “I told I told them this from day one, I said win, lose or draw, I am prepared to fight this thing all the way to the Supreme Court,” Hawkins said.
Meanwhile, the county has continued to cite Hawkins for exceeding limits that restrict how much fill dirt can be imported onto agricultural properties. The latest, on January 25, claimed that Hawkins was far exceeding those limits. Hawkins appealed those citations to the Board of Zoning Appeals on April 1. He lost, and has since appealed that decision to Circuit Court. No hearing date has been set yet.
As he fights his various cases, Hawkins continues to take in fill dirt. The county, fed up with this practice, filed a motion on March 5 for a temporary injunction to get him to stop while his cases are pending. But then, realizing that might only bring a temporary solution, the board decided to seek a permanent injunction. That injunction, filed June 17, seeks to stop him permanently from taking in excavation material unless he gets a special exception from the Board of Supervisors; the injunction also demands that he remove all the fill that was brought onto his property so far.
Responding in court papers, Hawkins denied that his activities on the farm have been unlawful and says he obtained “significant governmental approval” to take in the dirt well before the 2018 zoning amendment was adopted. As another defense, he said he is acting as manager of his limited liability company, and the county had no grounds to make him personally liable. The county, for its part, argued that Hawkins’s LLC was a “sham entity.”
Meanwhile, Hawkins pledged to fight on. “I hope I got enough money to see it through because I'm taking it all the way,” he said.
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Court backlog delays county's effort to stop fill dirt operation - Fauquier Times
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