Fairfax County Cracking Down on Running Bamboo:
Potential Fines on Landowners
By Michelle A. Wahab
Fairfax County recently amended the County Code to help it clamp down on property owners who allow uncontrolled bamboo overgrowth to spread from their property to others by implementing fines against such owners. The new penalties go into effect on January 1, 2023 and property owners could face fines of $50 (and up to $200) per day if they fail to contain the running bamboo on their property. Also, it is important to note that under this amended Code provision, an “owner” not only includes homeowners’ associations that own common area land, but also includes condominium associations with common element land to maintain and associations that are responsible for maintaining an easement area on someone else’s property. Here is what associations, especially those with bamboo growing on or near their common areas, need to know before the change to the Code takes effect:
- Only “running bamboo” is subject to fines.
While owning and planting bamboo in Virginia is not illegal, and bamboo can seem like an aesthetically pleasing and simple privacy barrier for the edges of properties, it is an invasive species of which certain varietals grow fast if left uncontrolled. Plant the wrong kind of bamboo and before long your yard (and possibly neighboring properties) will be filled with bamboo stalks. The change to the Fairfax County Code specifically applies to and penalizes failure to contain the growth of “running bamboo,” meaning any species that is characterized by “aggressive spreading behavior,” and includes bamboo from the genus Phyllostachys. In that Virginia still allows running bamboo to be sold, if interested in planting bamboo, make sure to specifically ask for “clumping bamboo”, which grows more slowly, is noninvasive, and would not subject a property owner to penalties under the ordinance.
- Property owners can be penalized even if they did not plant the bamboo.
It makes sense that landowners who plant running bamboo and allow it to spread unchecked to other properties could be penalized for failing to contain the growth, but the change to the County Code also places responsibility on owners who merely permit bamboo to spread from their property as well, even if they were not the ones who initially planted it. For example, if bamboo spreads from an owner’s property onto the association’s common area, the association is required under the County Code to take active steps to control the spread from the common area to other properties, such as by diligently pursuing its removal – including through legal action, if necessary. Failing to take such action could subject the property owner to County-imposed fines. Note that this also applies to owners who purchase properties where bamboo is already growing; such owners could potentially face fines as a result of the actions of the prior owners if bamboo growth from the property is not adequately controlled or neutralized.
- The Penalty Process
The Department of Code Compliance (“DCC”) for Fairfax County is tasked with investigating complaints regarding the running bamboo prohibition and issuing fines and penalties. The DCC would first give property owners the opportunity – thirty (30) days – to remove or contain any unlawful bamboo coming from their property before proceeding with penalties. Should owners fail to take any remedial action, then the DCC could issue fines according to the following schedule:
- $50.00 per business day for the first violation;
- $200.00 per business day for subsequent violations within 12 months of the first violation; and
- Penalties max out at $2,000.00 per 12-month period, per incident.
In regard to the maximum penalty, note that if there are multiple instances of running bamboo violations coming from a property, that each incident could be the subject of a separate fine, with each incident in a 12-month period posing the potential, if not corrected, for a maximum in $2,000.00 of monetary penalties.
Property owners may appeal the violation notice issued by the DCC to the County Executive within ten (10) days of delivery of the violation notice of violation or challenge the penalty in the Fairfax County General District Court.
Important Take Aways: We urge associations in Fairfax County that own or maintain land to evaluate the bamboo currently on their properties to ensure that any running bamboo is not spreading outside the boundaries of the common areas, comment elements or easement areas, as applicable. Should you notice any aggressively spreading bamboo, consider building deep barriers or trenches around the bamboo to contain it as much as possible and consult with a horticulturist to determine what additional steps may be necessary to control and contain the spread or eradicate bamboo growth on or from the property. Also be cognizant of the fact that, under the amended Code, it does not matter whether the association, as the owner of the property, initially planted the bamboo. Property owners who do not take active steps to control the spread of running bamboo from their property onto neighboring properties run the risk of incurring fines levied by Fairfax County. Associations should also consider whether their governing documents currently (or should) prohibit owners from planting or allowing the spread of “running bamboo” on their own lots.