
    CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
    D. H. Brown v. James B. Kenley et al.
    March 13, 1984
    Case No. (Chancery) CH-4447
   By JUDGE PHILIP L. RUSSO

The question is whether or not there is substantial evidence in the record to support the decision of the State Health Commissioner and was his decision arbitrary and capricious?

The court was much impressed with the manner in which the Hearing Officer conducted the hearing and his reasoning in recommending that the permit be issued. In making this statement, the court is not in any way demeaning the Commissioner or his reasoning.

It appears that the main basis for the rejection of the permit was the finding of gray mottles in the soil which is indicative of a high seasonal water table. However, it seems that the other findings of the Hearing Officer, namely that it is not possible to say when the property was affected by seasonal high water, and it can only be said that it occurred sometime during the soil forming process which could have been hundreds or thousands of years ago; all other properties in the vicinity of this lot are served by septic tanks and they seem to be functioning properly; no repair permits have been issued for lots in Block Al despite the fact that the houses are twenty-five to thirty years old; the closest city sewer line available to the said property is about 2400 feet from the property in question; the subject property was inspected and examined two days prior to the hearing and borings to the depth of four feet did not indicate the presence of high water at that time; the annual rainfall to the date of the hearing was above the average; no health hazards resulting from failing septic systems have been reported in the vicinity of where this property is located and no use can be made of the property without septic systems, and according to state representatives there are no viable alternatives. It seems to the court that all of the positive findings in favor of the issuance of the permit outweigh the one negative finding of the gray mottles in the soil which could have occurred hundreds or thousands of years ago.

The court is of the opinion that there is not substantial evidence in the record to support the decision of the State Health Commissioner and that his decision was arbitrary and capricious.  