Under Virginia's erosion and sediment control statute, can a building official issue a stop work order limited to just earth-moving activities, or does it stop all construction on the site?

Plain-English summary

Virginia's Erosion and Sediment Control Law requires anyone planning land-disturbing activity to submit a plan and get permits. When violations happen, § 10.1-566(C) gives the enforcement authority a two-step stop work tool.

A delegate asked whether stop work orders under § 10.1-566(C) apply only to earth-moving on a site or to all construction, and whether a building official could allow some work to continue.

The AG read the statute as creating two distinct orders, with two very different scopes:

The first order can stop "all or part of the land-disturbing activities permitted on the site . . . until the specified corrective measures have been taken," or stop "all of the land-disturbing activities" if work began without an approved plan or required permits. That order is targeted: it applies only to land-disturbing activities, and it gives the building official flexibility to stop all or only part of those activities. It lasts seven days from service.

The second order is issued if the alleged violator has not fixed the problem after the first order. At that point the official "may issue an order to the owner requiring that all construction and other work on the site, other than corrective measures, be stopped" until an approved plan and permits are obtained. That order is much broader: it stops everything (except corrective measures), not just dirt work. And here's the key: while issuing the second order is discretionary, once it is issued, the General Assembly gave the building official "no authority to limit the scope" of it.

The AG also noted that § 10.1-566(A) provides special treatment for "single family residence" projects by allowing a plan-approving authority to waive a certificate of compliance, but the stop work provision in subsection (C) makes no distinction between single family residences and other projects.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Virginia's erosion and sediment control framework was substantially restructured in the years after this opinion. The Virginia Stormwater Management Act, the Erosion and Sediment Control Law, and the Chesapeake Bay Preservation Act were combined into a more unified scheme in Title 62.1 through DEQ's authority. Anyone working with a current stop work order should look at the current statutory text and DEQ guidance, not the 2010 numbering.

Common questions

What is the difference between "all or part" of land-disturbing activities in the first order?
Land-disturbing activities are things that physically move or expose soil: grading, excavation, clearing, trenching. The first order can stop those activities in whole or in part (e.g., stop grading but allow installation of erosion control measures). Activities that are not land-disturbing, like framing or roofing, are not within the scope of the first order.

Why does the second order sweep so much wider?
Because by the time it issues, the operator has had seven days under the first order and still hasn't obtained the necessary plan or permits. The second order is meant to be a hard stop until the operator complies. The General Assembly gave it broad scope on purpose.

Can a building official ever let drywall installers keep working under the second order?
The AG says no. Once the second order issues, the official has "no authority to limit the scope" of it. Only "corrective measures" are exempt.

What are "corrective measures"?
The statute doesn't define them in this opinion. In practice they are the steps needed to fix the violation: stabilizing exposed soil, installing required erosion controls, securing the site. The AG did not flesh out the term, but the carve-out for them is the only category of work that survives a second order.

Does this opinion apply to a homeowner's small project?
Single family residences get special treatment for the certificate of compliance under § 10.1-566(A), but the stop work provisions in subsection (C) draw no distinction between single family residences and other projects.

Who can issue these orders?
The chief administrative officer of the locality or that officer's proper designee. In many localities the designee is the building official. The opinion assumes the building official is the proper designee for purposes of analysis.

Background and statutory framework

The Erosion and Sediment Control Law requires anyone intending to engage in land-disturbing activity to submit a plan for review and approval. Its declared purpose is to prevent "the unreasonable degradation of properties, stream channels, waters and other natural resources."

Section 10.1-566 sets up the enforcement architecture. Subsection (C) creates the two-step stop work order:

• First order: issued in any of three triggering situations (sworn complaint after notice, imminent danger of harmful erosion/sediment deposition, or land-disturbing activities begun without approved plan or permits). Can stop all or part of land-disturbing activities. Lasts seven days.
• Second order: issued if the alleged violator hasn't obtained the approved plan or permits within the seven-day window. Stops all construction and other work on the site except corrective measures.

The AG's interpretive approach was textual. When statutory language is clear, plain meaning controls. Watkins v. Hall, 161 Va. 924 (1934); Virginia Dep't of Labor & Indus. v. Westmoreland Coal Co., 233 Va. 97 (1987); Roberts v. Roberts, 260 Va. 660 (2000). The General Assembly used different language for the two orders, and the AG took those differences at face value.

Citations

• Va. Code § 2.2-505
• Va. Code Ann. § 10.1-566(A), (C)
• Watkins v. Hall, 161 Va. 924, 930, 172 S.E. 445, 447 (1934)
• Virginia Dep't of Labor & Indus. v. Westmoreland Coal Co., 233 Va. 97, 99, 353 S.E.2d 758, 760-61 (1987)
• Roberts v. Roberts, 260 Va. 660, 536 S.E.2d 714 (2000)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2010/10-052-Edmunds.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

July 30, 2010

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

The Honorable James E. Edmunds, II
Member, House of Delegates
455 Short Street, Suite 204
South Boston, Virginia 24592

Dear Delegate Edmunds:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issues Presented

You inquire regarding the application of stop work orders issued pursuant to Virginia Code § 10.1-566(C), which deals, generally, with the ability to suspend construction activities when a building site does not meet certain permit or plan approval requirements. Specifically, you ask whether such orders apply to all construction activities on a particular work site or to only those activities involving earth disturbance; and you also ask whether, given certain assumptions, the building official has the authority to allow some construction to continue during the stop work period.

Response

It is my opinion that § 10.1-566(C) provides for two distinct orders that may be issued to compel compliance with permit and plan approval requirements: 1) an initial order that applies only to land disturbing activities and 2) a more restrictive second order encompassing all construction activities that may be issued for noncompliance with the first order. It is further my opinion that the building official lacks the authority to limit the scope of the second order once it is issued.

Background

For purposes of this opinion, I will assume that the conditions precedent to employing the enforcement mechanisms of § 10.1-566(C) are present. Specifically, this opinion assumes that the building official is the proper designee of the chief administrative officer for issuance of such an order and that one of the following situations exists: 1) a sworn complaint of a permit violation has been received and proper notice of the complaint has been given to the landowner, 2) noncompliance presents imminent danger of harmful erosion or sediment deposition in the waters of the state's watersheds, or 3) land disturbing activities have begun without an approved plan or the required permits.

Applicable Law and Discussion

In order to prevent "the unreasonable degradation of properties, stream channels, waters and other natural resources," the General Assembly enacted the Erosion and Sediment Control Law. The law requires persons who intend to "engage in any land-disturbing activity" to submit a plan to the applicable authority, who must then review and approve or disapprove the plan.

The Code also allows the authority enforcing the erosion and sediment control law to take action in the event of violations. The applicable statute can be applied based on its plain and unambiguous meaning. Section 10.1-566 provides two levels of orders to force compliance with the law. First, to force an owner to rectify violations, the appropriate official may

issue an order requiring that all or part of the land-disturbing activities permitted on the site be stopped until the specified corrective measures have been taken or, if land-disturbing activities have commenced without an approved plan . . . , [the official may issue an order] requiring that all of the land-disturbing activities be stopped until an approved plan or any required permits are obtained.

As the language makes clear, this order applies only to "land disturbing activities" and it permits all or part of such activities to be stopped. Once served upon the proper party, the order remains in effect for seven days.

Once the seven-day period has passed, the authority tasked with enforcing the law is given the discretion to issue a second, more stringent order:

"[i]f the alleged violator has not obtained an approved plan or any required permits . . . the chief administrative officer or his designee may issue an order to the owner requiring that all construction and other work on the site, other than corrective measures, be stopped until an approved plan and any required permits have been obtained."

With respect to the first stop work orders, the Code contemplated flexibility to ensure compliance. Under the plain language of the statute, a second order is different in its nature and scope. Although the issuance of this secondary order is discretionary, the General Assembly has granted the building official no authority to limit the scope these second orders.

I also note that although § 10.1-566(A) provides specialized treatment for a "single family residence" by allowing a plan-approving authority to waive the certificate of compliance requirement, the stop work order provision found in § 10.1-566(C) makes no distinction between single family residences and other construction projects that occur without an approved plan or the required permits.

Conclusion

Accordingly, it is my opinion that, whereas initial orders issued to redress violations of erosion and sediment control schemes may be limited to suspending only land-disturbing construction activities, subsequent orders, designed to enforce the initial order and to compel obtainment of necessary plan approval or permits, must stop all construction activities on the site, other than corrective measures, until such approval or permits are obtained.

With warmest regards, I am

Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General