FOREST LAKES COMMUNITY ASSOCIATION, INC., ET AL.
UNITED LAND CORPORATION OF AMERICA, ET AL.
THE CIRCUIT COURT OF ALBEMARLE COUNTY Paul M. Peatross, Judge
PRESENT: Lemons, C.J., Goodwyn, Mims, McClanahan, Kelsey, and
McCullough, JJ., and Koontz, S.J.
ARTHUR KELSEY JUSTICE
circuit court, two property owners' associations
("POAs") sued various owners and developers of
parcels in the Hollymead Town Center ("HTC"), a
shopping center, claiming that HTC's sediment basins
discharged sediment into a creek that flowed into a lake
owned by the POAs. The POAs sought damages and injunctive
relief. Holding that the incursion of sediment had been
occurring for more than five years prior to the suit being
filed, the circuit court sustained pleas in bar brought by
the HTC defendants asserting the five-year statute of
limitations. We affirm.
the parties present evidence on [a] plea ore tenus, the
circuit court's factual findings are accorded the weight
of a jury finding and will not be disturbed on appeal unless
they are plainly wrong or without evidentiary support."
Hawthorne v. VanMarter, 279 Va. 566, 577, 692 S.E.2d
226, 233 (2010); see also Pike v. Hagaman, 292 Va.
209, 214, 787 S.E.2d 89, 92 (2016). Thus, under the
"governing standard of review" applicable to judges
sitting as factfinders no less than jurors, "we review
factfinding with the highest degree of appellate
deference." Vasquez v. Commonwealth, 291 Va.
232, 248, 781 S.E.2d 920, 929 (2016) (citation omitted). We
thus review the evidence in the light most favorable to the
prevailing parties and accept as true any reasonable
inferences that could be drawn from the evidence before the
factfinder. See Commonwealth ex rel. Fair Hous. Bd. v.
Windsor Plaza Condo. Ass'n, 289 Va. 34, 59, 768
S.E.2d 79, 91 (2014).
in the 1960s, the Hollymead residential subdivision lies just
east of Route 29 in Albemarle County. The subdivision
developer originally dug a sediment basin to support the
construction effort. The basin accumulated sediment from the
residential construction site as well as from Powell Creek,
which flowed through the watershed west of Route 29 and
underneath it through a culvert to the sediment basin. The
developer ultimately turned the sediment basin into a lake,
known as Lake Hollymead, and encircled it with residential
2003, commercial developers started construction of HTC on
property situated west of Route 29 in the watershed area that
included Powell Creek, the waterway that flowed into Lake
Hollymead. The County's planning staff recommended, and
the County Board approved, the HTC development plan that
authorized the construction of three sediment basins. All
three were permanently in place by fall 2004. The sediment
basins complied with local and state regulations, which
require the sediment basins to retain a maximum of 60% of
sediment flowing into them and allow approximately 40% of
sediment to discharge into surrounding
Lakes Community Association, Inc., and Hollymead Citizens
Association, Inc., (collectively, the "POAs") are
property owners' associations that jointly own Lake
Hollymead. Shortly after the HTC development began in 2003,
the POAs and their members complained that excessive
sedimentation was flowing from the denuded areas of the new
HTC site, into Powell Creek, through a culvert, and
ultimately into Lake Hollymead. The County considered, but
ultimately rejected, suggestions for more robust sediment and
erosion controls on the HTC site including, for example,
water-filtration and purification systems to reduce sediment
entering Powell Creek.
2004 and early 2005, members of the POAs discussed the need
to take legal action. The POAs, however, waited until 2011 to
file their suit seeking damages and injunctive relief against
the developers, contractors, and owners of the HTC site (the
"HTC defendants").At the time of filing, eight years had
passed from the start of the HTC project, and seven years had
passed since the construction of the three HTC sediment
basins. The POAs' amended complaint alleged that sediment
from the HTC site began to enter Lake Hollymead as soon as
the topography of the HTC site was denuded and destabilized
in 2003 and 2004. "After such land clearance, the
resultant runoff of sediments and silt entered Powell Creek,
and thence flowed into Lake Hollymead." J.A. at 59.
"[A]s early as 2005, " the POAs alleged,
"sediment pollution, including visible soil banks, were
already starting to form in Powell Creek and at the
headwaters of Lake Hollymead." Id. at 63.
"The runoff and subsequent deposits of silt, sediments
and pollution continue to this day, in varying amounts
depending upon site conditions, weather and the effectiveness
of erosion controls at the site, with each new release of
silt and sediments constituting a new and independent
trespass to the [POAs'] properties, " the POAs
alleged. Id. at 59. "Such sediment releases and
discharges are continuing." Id. at 60.
POAs asserted two common-law rights of action, trespass and
nuisance. They sought an award of compensatory and punitive
damages along with an injunction abating the ongoing sediment
incursion into Lake Hollymead. The HTC defendants responded
with demurrers and pleas in bar. Each of the pleas in bar
asserted that the POAs' trespass and nuisance claims
accrued as early as 2003 and no later than 2005 and thus were
barred by Code § 8.01-243(B), which provides that
"[e]very action for injury to property . . . shall be
brought within five years after the cause of action
circuit court conducted an ore tenus hearing on the pleas in
bar. After hearing evidence for a full
day, the court stated that it would take the matter under
advisement and issue a ruling after receiving briefs from the
parties. Approximately seven months after the hearing,
however, counsel learned that the case had been referred to
another judge. Shortly thereafter, a recusal order informed
counsel that the second judge assigned to the case had
recused herself from the case, and a subsequent order
reflected that it would be reassigned to yet another judge. A
retired judge sitting by designation then presided over
"a new evidentiary hearing" and required that the
exhibits presented at the earlier hearing be "moved into
evidence" in the new hearing, J.A. at 414,  which suggested that the court was
limiting itself to the record developed at the new hearing.
new evidentiary hearing, the parties offered witnesses and
exhibits seeking to identify the timing, manner, quantum, and
consistency of sediment discharge into Hollymead Lake
allegedly caused by the HTC sediment basins. The HTC
defendants asserted that the major sediment flow occurred
during the construction process from 2003 to 2004. The
discharge flow continued, they argued, on a regular basis
thereafter. By fall 2004, each of the three sediment basins
were permanently in place. Id. at 533-35, 550-51,
554-55. The County engineer responsible for administering the
water-protection ordinance testified that "there's
always some silt and sediment that flows through the
basin." Id. at 514; see also id. at
County engineer, testifying as an expert on erosion and
sediment control and watershed protection on behalf of the
HTC defendants, also stated that multiple other sites west of
Route 29 (including a mobile home park, an airport
construction site, a post office, and a church) were
connected to the same watershed and "continue to
contribute to the sediment load" that ultimately made
its way into Lake Hollymead. Id. at 503-04. Even so,
the expert opined, all of the discharge "was in keeping
with the County's regulations as well as the Virginia
erosion and sediment control regulations, " id.
at 499, and in "full compliance" with the
regulators' expectations of the efficacy of the sediment
basins, id. at 507. These "sediment
basins" were "working as they are designed to
perform." Id. at 525-26. Under these facts, the
HTC defendants contended that the cause of action for
property damage first accrued no later than 2004, resulting
in an expired statute of limitations in 2009.
POAs sought to present a slightly different factual scenario
with significantly different legal consequences. They
acknowledged the early incursion of sediment into Lake
Hollymead during the construction time-frame, but they
claimed that separate and distinct sediment incursions
occurred later, each triggering the accrual of new causes of
action that began anew the five-year statute of limitations.
This thesis, however, was not supported by any detailed
evidentiary showing. The POAs' counsel took the position
that it was unnecessary "to separate out how much silt
came from who and when and where" because that "has
nothing to do with a Plea in Bar on the statute of
limitations against these defendants." Id. at
POAs' expert witness, moreover, appeared to concede the
difficulty of measuring distinct, free-standing episodes of
sediment flows when asked, "isn't it true that there
is always silt and sediment flowing through the Hollymead
Town Center sediment basin, through Powell Creek into Lake
Hollymead?" Id. at 703. The expert answered:
"Sure. There's always sediment in every body of
water." Id. He later characterized the
continuous sediment flow as "insignificant, "
id., but he never testified that there was ever any
period of time in which the sediment flow was not continuous.
motion to strike and closing arguments, the POAs' counsel
admitted that "from the beginning, there's no
dispute by anybody that in 2005 and earlier Lake Hollymead
received a lot of sediment. It was muddy, discolored.
Sediment was coming from HTC. That's all been
agreed." Id. at 723-24. Various storm events,
he nonetheless argued, created an "intermittent
continuous sequence." Id. at 599. Counsel asked
rhetorically, "How much erosion will run off from the
bare soil at HTC and actually make it to the basin?"
Id. at 727. "Those are all things we don't
know. But what they do attribute to is a highly variable mix
of discharges from these basins." Id. The
POAs' counsel added that any "continuous
discharge" of sediment into Lake Hollymead was not a
"significant contribution" to the total amount of
sediment deposited in the Lake. Id. at 598.
alternative, the POAs' counsel argued that the sediment
discharges, even if continuous, constituted a
"continuing trespass, " and thus, "the statute
of limitations does not run because it's a continuing
trespass." Id. at 603-04; see also id.
at 725, 734. "So those sediments, whatever amount they
are, they are in Lake Hollymead, and they are still there.
They came from HTC, at least in part, and until they are
removed, it is a continuing trespass." Id. at
605; see also id. at 734. No statute of limitations
ever runs, counsel contended, until after the HTC defendants
dredge their sediment out of Lake Hollymead. Id. at
as factfinder, the court ruled against the POAs on the first
issue, whether discharge was continuous or intermittent.
"I really studied closely and listened carefully to the
Plea in Bar on the continuing flow versus intermittent flow,
" the judge stated, "and I find that the defendants
have sustained their burden, and I'm going to sustain the
Plea in Bar." Id. at 739. As for the POAs'
alternative continuing-trespass argument, the court held as a
matter of law: "I'm going to sustain the Plea in Bar
in terms of there's no continuing trespass with no