HomeMy WebLinkAboutSUB198800097 Other 1992-12-17COUNTY OF ALBEMARLE
Department of Zoning
401 McIntire Road
Charlottesville, Virginia 22901-4596
(804) 296-5875
December 17, 1992
Eugene Ray and Carolyn B. Rushton, IV
1508 Greenleaf Lane
Charlottesville, VA 22903
RE: Board of Zoning Appeals Action
AP-92-06; Estate of Charles W. Phillips
Tax Map 63, Parcels 14, 14H, 14I, and 14J, 45B2, 45133 and
45B4 (original parcel 14)
Dear Mr. and Mrs. Rushton:
This letter is to inform you that on December 16, 1992 during the
meeting of the Albemarle County Board of Zoning Appeals, the Board
(3:2) overruled the Zoning Administrator's determination of number
of parcels and corresponding development rights. The Board felt
that the notes on the plat should be followed in that the property
could not be further divided.
Anyone aggrieved by a decision made by the Board can appeal the
decision to the Circuit Court of Albemarle County within thirty
(30) days of the decision.
If you have any questions, please contact our office.
Sincerely,
* elia GC
. McCulley A.I.C.P
Zoning Administrator
AGM/sp
cc: Dana and Christina Elzey
Steve Raynor
STAFF PERSON: Amelia McCulley
PUBLIC HEARING: December 16, 1992
STAFF REPORT - AP 92-06
APPELLANTS: Eugene Ray and Carolyn B. Rushton, IV (parcel 14I)
Dana M. and Christina Elzey (parcel 14J)
The applicants appeal the Zoning Administrator's determination
under Section 34.3 of the Albemarle County Zoning Ordinance.
DETERMINATION:
The property of the Charles W. Phillips estate, originally tax map
63, parcel 14 consisted of two (2) parcels at the date of adoption
of the Zoning Ordinance: one parcel lying on the east side of
Route 621, and the other :n the west side. (See attachment A for
1980 tax map.) Therefore, four (4) development right remain with
parcels 14, 14H and/or 14I. (Since the adoption of the Ordinance,
this property has been subdivided into parcels 14, 14H, 14I, 14J,
45B1, 45B2, 45B3, and 45B4.) See attachment B for current tax map.
APPEAL:
Approved and recorded subdivision plats dated after the adoption of
the Ordinance, establish the fact that no development rights remain
with this property.
PROPERTY:
This property is located at Eastham, off Route 20 on both sides of
Route 621 between Pantops and Stony Point. On the 1980 tax map, it
was shown under one (1) parcel number, number 14. It currently
consists of a total of nine (9) parcels: four (4) on the west side
of Route 621 and five (5) on the east side.
It appears that most of the parcels have been sold. Parcels 14,
14G and 14H remain in the Phillips estate.
HISTORY:
Charles and Mary Sue Phillips obtained the property in 1948. In
July, 1959, a right of way for Route 621 was given to the Board of
Supervisors of Albemarle County. This is found in Deed Book 352,
Page 281, found in attachment C.
A review of the relevant subdivision history is as follows:
1) The property on the west side of Route 621 was divided in 1988
into four (4) lots. These lots ranged from 2.4 to 2.9 acres in
size. No additional development rights remain. These are now
shown on the tax maps as parcels 45B1, 45B2, 45B3 and 45B4.
(See attachment D.)
STAFF REPORT - AP-92-92-06
Page 2
2) The property on the east side of Route 621 was divided in 1988,
creating one (1) 21 acre lot. This lot is shown as parcel 14G.
(See attachment E.)
3) The residue of the 21 acre lot was divided in 1990, creating
four (4) lots. (See attachment F.) These lots are shown as
parcels 14, 14H, 14I and 14J. Parcels 14J and 14I belong to the
appellants. These parcel acreages are as follows:
Parcel 14
Parcel 14H
Parcel 14I
Parcel 14J
26.876 acres
21 acres
30 acres
2.683 acres
APPELLANT'S JUSTIFICATION:
(See the justification letter in Attachment I.)
The Zoning Administrator's determination was in error due to the
following:
1) The developer has abandoned the "rights" he now seeks to assert;
2) Because lots have been sold to others and is not under common
ownership, the developer has restricted his right to subdivide
further.
RELEVANT CRITERIA FOR DETERMINATION OF PARCEL OF RECORD
Of the several criteria applied to these determinations, the most
relevant is that of a former Board of Zoning Appeals case, with the
Inglecress or Ann Sanford property on Owensville Road. It is not
a case of the descriptive clause of the deed, as with the Blandemar
or Rosenstiehl property. It is instead, the fact that at the date
of adoption of the Zoning Ordinance, the property was divided by
the fee -simple ownership of the State Road #621 right-of-way.
The findings of Judge Pickford of the Albemarle Circuit Court in
the case of Ann Sanford V. Albemarle County Board of Zonina
Appeals, 3984-L is the pivotal point of my determination. There is
the basis for this local ruling in City of Winston Salem V. Tickle,
281 SE 2d 667 of the North Carolina Court of Appeals (1981). The
ownership of others severs or subdivides the property into separate
parcels. In the Sanford case and the subject determination, it was
the Commonwealth of Virginia for highway right-of-way which has
created separate parcels.
STAFF REPORT - AP-92-06
Page 3
ZONING ADMINSTRATOR'S JUSTIFICATION:
(See the Official Determination letter in Attachment G.)
1. The right-of-way for Route 621 subdivided Parcel 14 into two (2)
separate parcels on the date of adoption of the Ordinance. This
results in four (4) development rights on the west side of the
road, based on the minimum acreage of 2 per lot or house. None
of the lots are large enough to subdivide. In addition, it
results in five (5) development rights on the east side of the
road. One of these was utilized with the creation of parcel
14J; therefore, four (4) additional rights remain.
2. The subdivision plat does not reflect a review and determination
of number of parcels of record on the part of either the owner
or the County. Even if one were to assume that either the
County or the owner had determined it to be all one parcel,
there is no rational basis for perpetuating a mistake.
3. The sale of some of the involved property does to prohibit or
restrict in any way, the further subdivision of this property in
accordance with the finding of additional development rights.
There is an Attorney General's opinion to that effect in
Attachment H. The Phillips estate is entitled to allocate these
rights as they see fit.
Staff will not comment on the equity of the fact that the lot
purchasers, and neighbors may have relied on the understanding that
this property could not be further developed. This is a legitimate
concern for the appellants, and is one to be resolved between them
and the sellers of the property.
AGM/
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RIVANNA DISTRICT SECTION 63
ALBEMARLE COUN.,'
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RIVANNA DISTRICT
Mt4B]wet.ala4Tu4a a Fa4eB]LL OIBTIIDI4Y.1NtOxlICIf4Y. 0lf.)
SECTION 63
a
To the Board of Supervisors of Albemarle County:
WHEREAS, a petition has been or is being submitted to the Board
of Supervisors of Albemarle County requesting the establishment as a part
of the Secondary System of State Highways of a certain road/street, said
road/street being at a End of Route 621, about 0.5 miles S.E.of Route 20,
and thence extending in a S. E. direction about 0.6 miles to Dead End; and
WHEREAS, the said road/street proposed to be established as a part
To: Deed
State Highway
Secondary Syst
Fee $ 3.50 -
of the Secondary Satstem of State Highways extends or will extend along,
through or over lands owned by the parties hereto:
NOW, THEREFORE, for and in consideration of the benefits accruing !i 11
or to accrue to the undersigned landowners, said landowners do hereby execute"
their consent to give unto Albemarle County, without compensation, each as
to the lands by him owned, an easement and right of way for said road/street !i
along, through or over said lands, said easement and right of way to be 30 feet
in width, together with such additions. widths as may be necessary for the
extension and maintenance of road slopes and/or ditches and all necessary
drainage facilities, said right of way to be free from all encroachments.
IN WITNESS WHEREOF, we have hereunto set out hands and seals this
25th day of July, 1959.
Witness to mark
Gladys H. Ward
STATE OF VIRGINIA
COUNTY OF ALBEMARLE, to -wit:
C. W. Phillips (SEAL)
Nary Sue Phillips (SEAL)
E. M. Frazier (SEAL)
her
Lucy C. (X) Frazier (SEAL)
mark
William Floyd Collier (SEAL)
Mary E. Collier (SEAL)
I, J. R. Harper, a Notary Public in and for the County aforesaid,
II
in the State of Virginia, do certify that C. W. Phillips, and Mary Sue Phillips,
whose names are signed to the foregoing writing, bearing date on the 25th day'
of July, 1959, have each acknowledged the same before me in my County aforesaid.
My term of office expires: °1211�2.
Given under my hand this 25th day of July, 1959.
J. R. .. .. .....
STAT'r. OF VIRGINIA ATT��M/IENR_(/
COUNTY OF ALBEMARLE, to -wit:
r, Gladys H. Ward, a Notary Public in and for the County of Albe-
marle in the State of Virginia, hereby certify that E. M. Frazier, Lucy C.
Frazier, William Floyd Calker and Mary H. Collrer, whos:: names are signed to
the foregoing s;riting bearing date on the 25th day of July, 1959, have and
each has acknopledged the seme before me in my County & State aforesaid.
Given under my hand this 19th day of August, 1959,
My commission expires: July 21, 1963.
Gladys H. Ward, Notary Public
I �YYCyyay. �
Oli
.i APPROVAL FIN STTx t lr of TITLE
THE SLJ®NLjIH OF THE LAW OESCABEo TnE I4 SnO*N "fist hF+iE.ee IS e1TN OF
F_LL C"SENT Br C,_:. PS
llipi O&2T8 8 OBTAIrvEL � AGmf Cate
Alwe t . .L.ER ,NNE Ov . , D£SinEi " TO THE BEST OF w %n10,v LEDGE
'nE ..+.LFkSi_NEC O.:NER, NEETS A11 THE REOUn£NENTS REGAROirpa BOOfo Of SupV. X
�ntiru+:/v%..i' Cwi TnUSTEES.:..! THE PLRTTING OF SUBDIVISIONS.
+EFEn&,CE TO FUTURE FOTENTi:1 Tx- AbeMode Co.
• vZLOP• 14T IS TO 6E OEENEO AS
THEORETICAL OHLY.ALL STATENENTS
AF71%EO TO THIS PLAT ARE TRUE ANON
. -i"nE lrSlT,Grl6ie -- 'E,
wit It, bagavy e/ frument
N"r-Iwy,d aatae in N..s 3"yR; of
Tc�.a/g IS" ri- Y ChGirrnon Pommg Com. pare
IIY CGa ExP DEC. B - 1988 AjbaaT.Orle County
R3dk, Arc Cbyd QuJ Bcuin
1. 3.13 3d 20d6aa IID. NOTES:
,. 62.05 2 Sd a.43 S61°14'39"E I. Loh and reaidui acreage are not in a flood picjr,
}. ti2°03'S2" 5Iw.11 27097 3Od.43 54da22'S �E IfrJ. 11 270.9T 24d33 906°36'3 j'E 2. tots are aoryd R4.
5 30°505S. 3. One dwelling unit per lot.
6?i°2011
215.27 116.46 115.03 S48°02'29"W 4. The residue maY be divided Into I lot of leas than 21 acres.
. " 731°54'215. 27 83.52 83.39
134.34 S74°4291"W 5. Lo411Nu4 ho-a no division rights.
. .n" 121.72 I17.60 S39°3514" W
NOTES:
6. The 0.512 Dare M" is to be joined to Dolts] 43B and is
w a, separpfs Wilding lot.
7. Lots and reaN" hate a mlnimaln of 30,000 p. N. 9 77°i2' S7" E - - of conllp.Iwe area 1n slopes of Is" than 25%. ..- 70.
6. 5'rs°1 dsdicofed to D"bc use I. make O total
Of 2S' from f of Routs 621. ` `R0L erV 9. Min mum front satba•A Of 75', side 25' , rear 35'. Parcel45 ` rAL. °` 'r Q•
10. Residue acreage 108.3 scree.
IIold" has at least 250' rand homage remaNrq.
12. Irons Set or rand at o11 corners.
> LOT \ �`��. a CF
2.656 ACRES
PARCEL 45C u
W J'W
n WAYNE A. HALL
• D. 8. 699 •115 i o q0 TO Las
w y9S'
I I e r ACRES
T
a, 5 LOT 1 1
40" a r3 g 5 77° 47' 19" E S 6 6 ° 56'
E S 78 33'40'E
v 263.22 Par[ rl 5�.3
313.23 i
_ N LO ry•a/ ^ o
a w a 2.904 ACRES 8 o/DI
r
° u PARCEL 45 B ^ o i
N ;80° 26' 19" W
N 8.289 ACRES
ti
m:o• LOT 4 • v
m 14 Division rights removing with puce] 2.483 ACRES 32032'4
/1 P w
8.801 ACRES (TOTAL)
m
753.05 y �26 8 35" W
N 7]° 07' of.. W c u 022
8 '® 0,71, 40R�
PARCEL 434 LIZZIE SPROUSE 0.0 376.139 1v) 62) /005237"W ,
A7 N%MENi" _
SURVEY SHOWING N+LVI FvAIC(I- 4_e�
TAX MAP
63 PART OF PARCEL 14'- a PARCEL 458
THE CHARL.ES , W. PHILLIF-3 PRdPE�-� LTI!
RIVANNA DISTRICT AaARLE _'�v Op
LEj
DATE MARCH 7 COl1jdTY I V - IA 1%?
SCALE 1 ` 200 FEET 1988 R6Visrxl MAY 13 , I ,
o OBBIR L l0�
• '.G6Ef7T L. LUM CEfiTIFICATEN4 a
S :-PPROVAL
THE SUBDIVISION OF THE LAND DESCRIBED
HEREIN IS WITH 71�E FREE CONSENT
AND IN ACCORDANCE WITH THE DESIRES
OF THE UNDERSIGNED OWNER,
PROPRIETORS , OR TRUSTEES. ANY
REFERENCE TO FUTURE POTENTIAL DE-
VELOPMENT IS TO BE DEEMED AS
THEORETICAL ONLY. ALL STATEMENTS
AFFIXED TO THIS PLAT ARE TRUE AND
TO THE BEST OF MY KNOWLEDGE.
�-Z liv _
Io wit the foregoing instrument was ac -
knowledgJed before me this p�/BDay of
1988 4j,!/
MY rf1M FYP f1Fr A _'QAA
r. M.
�ronSet
_% Sao
3
41
STATE VIE NT OF TITLE BK
THE LAND SHOWN HERE WAS OBTAINED
BY Charles Phillips D.8 278-368
AND TO THE BEST OF MY KNOWLEDGE
MEETS ALL THE REQUIREMENTS REGARDING
THE PLATTING OF SUBDIVISIONS.
,a 4A,& I F 4001f. 7-2$ • 88
APPROVED FOR RECORDATION a DATE
63 PARCEL 19AI
5=1„ W WILLIgM CpL
029Pc0363
Iron LIER
fiTl h
I 63
v r M. RCEL 14C
�CCG` 14� TNOfVIAS LESTER
m 0 D. B. 888 505
d
D. B. 278 368
J
o°
21.00 ACRES
T
- -
�� y
Q
M
63 PARCEL
a Q
np
AL
14D
MORRIS
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D. 8.
563 - 023
M M
Iron Set
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J
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NOTE:
1.
Lot and residue ore' not In flood plain.
Ng
fd QI
T
M 63
2.
Lot zoned RA.
C)It
CIJ
ARNOLD
P
ARCEL
3.
One dwelling unit per lot:
. B1E
4.
Minimum front setback 75 feet.
4
5.
Residue has at least 250' road frontage
750
545
remaining.
5$'
04
6.
This lot may not be further divide°.
427 n,n
W Iron Fd. 721 SW Of
7. The residue may be divided into I lot of less
than 21 acres.
8. Lot and residue have a minimum of 30,000 sq. It of
contiguous area In slopes of less than 25
9 5 feet dedicated to public use to make a total of
25 from CL of Route 621.
N
v ti N 79 ° 459 4i
a 43, 091, E
CO N
co SURVEY SHOWING o
TAX MAP 63 PART OF FARCE'_
THE CHARLES PHILLIPS
558.26
560 54' 03 E
14
PROPERTY
I I Garner
11
1 � Delta- 01008'01"
Rodius = 9891.86
Arc = 195.73
ROUTE 621
11
I Delta = 02015 52"
I Radius = 2638.28
IIArc _ 104. 27
Iran Set
`y1r,AL� 0a
Or X
The lend use requ I at Ions Iated/descr Ibed herein we Iaposed purauent to the A beaer le
Co,nty Zaninq Ordinance In effect this date end ere net restrictive ...anon[ nnnlnq
.Ith fhe lend And their appearance on this plat 1a not Intended to l.Ms. them es suds.
MY CDRRI510N
/ z / /PFV
CHARMNJ RA'TIING COM. ORii te�y 'j M��T [•
ALBEMARLE 1"TY F✓ Boord of S1."nor
AlCenrvle CMIY
.40. DELTA RADIUS ARC TANGENT C. BERRIN6 CHORD \9
1Z9
1 2'S6'07" 2638. 28' 135is, 67. 59' N32'26'10"N 135. ]4' \4F O�0
2 29.57'58" 234.11' 122:44: 62. 66; N19-07'26E
121.05; RC15 H�CA
181
4. 24°9'00" 293'19124.43130 542-01:06 25919P
5. 81°41'35" 1,N7"W . '
,.8 77.24 N45°01'49"E 116.86, 3PCK g\'
6. 53°28'04" 260.27' 242.27' 130.71 N59°12'35"E 233.62, 13�'
II I
pqe Fd. 6.72
SW .1 Cnmer /
/ L'/Z1•fF.
Iran s 1 / /7 f•
F
1'32o vs
3z• / / SOLD
7-9d2 LOT D '-
.21
1
�In
T
00 3),
VO4"'02"IE. -133.16
O
1
z
�P,
i Po31
Irm Set
1�.
\\N7 W.
PTURT 1.41M
CERTIFICATE ND.
LAPo�-
L= i
0� D. B. 278 368
2.683 ACRES
NGTES:
1.
the readue -Y not ee 1unAer dvded.
2.
'1
YMG* pYgGIG d 1"" I..Idv.
3.
are not In flood plain.
Theca I -r I, ere e:nad RR.
e.
S.
One duetting unle y r lot.
Iron sk.r. at ell
An" won id.
.
I... tb... l..nO.d.
6.
Ravi. 621 he. an eel.tlnq
7.
RIM.a.of efront .etb.ck 7S feet.
8.
Soot le setback I. 100' Free All
9,
esem..
ityu lets and tee lv r.eldua
Acreage each have of
30.001{ sq. ft. of lace.. than 75i
10.
Thai du. he. at I.xt 250�
irontaq. r eawnq,
I I.
there 3 lots mY rat be ee lortfer OiviGed.
12
S Itel d.d.W to WWe Yae le ,A,, 0 Ia101
m
of Z5' from IL of Rovte 621 for Im D.
13,
ID
Lot D halt aebq feu, D/W , d.elbq And
trust aytem.
LOT B 21.00 ACRES _ NowtCH M EN//T F-
D. B. 278 - 368 _ ce,15 { I 1414 14-� 14T
1 a L �TT' �J -
462.20 W 20" Cedor
WJ°O 7�e 43 13
Iron 6e�' 5
PARCEL 14 CHARLES W. PHILLIPS O. B. 276 - 368
( RESIDUE 26.8 7 6 ACRES )
S1anp
• 4544 Jr. 5.1
F. C. NT • \ 95•' 235.3'
I ft"I 196•
PLAT SHOWING SURM VISION OF
TAX MAP 63 PARCEL 34
Inn R.
Jr. N.
PARCEL 14G
LINDSAY R. BARNES , JR. I
D. B. 1029 - 363 plat
THE CHRRLES PHILLIPS PROPERTY
RIVANNA DISTRICT, ALSEMARLE COUNTY, VIRGINIA
KALE 1" = 200' DATE: AUGUST 10, 1989
R03ERT L. LUM REV.I/4/90
-AND PLANNING & SURVEYING
DAL,HYRA, VIRGINIA
id -
LOT C 30.00 ACRES
D. B. 278 - 368
50 L-D
J
I P �
� d
N 7-92
Set
A I
m
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t
=
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1 t
m
Ill
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ST! S6 p
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COLLIER
L
W 1\=-T PN'
19 Al
PARCEL
B
COUNTY OFALBEMARLE
Department of Zoning
401 McIntire Road
Charlottesville. Virginia 22901-4596
(804) 296-5875
September 24, 1992
Steven L. Raynor
414 East Market Street, Suite B
Charlottesville, Virginia 22902
RE: OFFICIAL DETERMINATION OF NUMBER OF PARCELS - Section 10.3.1
Tax Map 63, Parcels 14, 14H, 14I and 14J, 45B1, 45B2, 45B3,
and 45B4,(originally Parcel 14); Estate of Charles W. Phillips
Dear Mr. Raynor,
The County Attorney and I have reviewed the chain of title you have
submitted for the above -noted property. It is the County
Attorney's advisory opinion and my official determination, that
this property consisted of two (2) parcels at the date of adoption
of the Zoning Ordinance: one parcel lying on the east side of
Route 621, and the other on the west side. Since the adoption of
the Ordinance, this property has been subdivided.
Each of the two (2) lawfully separate parcels as of 1980,is
entitled to associated development rights. This determination
results in one (1) additional parcel than is shown with a parcel
number on the 1980 County tax maps.
This determination is based on the.fact that fee -simple right-of-
way was dedicated to the Commonwealth of Virginia for State Route
621 on March 21, 1973, as recorded in deed book 526, page 523.
Therefore, on the date of adoption of the Ordinance, this property
was subdivided by the ownership of others. Furthermore, the road
split the property for practical purposes. This determination is
consistent with the findings in the Circuit Court in the case of
Ann Sanford v Albemarle County Board of Zoning Appeals.
A review of the relevant subdivision history is as follows:
1) The property on the west side of Route 621 was divided in 1988
into four (4) lots. No additional development rights remain.
September 24, 1992
Steven Raynor - D-92-05
Page 2
2) The property on the east side of Route 621 was divided in 1988
and again in 1990, into a total of five (5) lots, only one of
which is below 21 acres. The creation of parcel 14J (under 3
acres) required one of the development rights. Therefore, the
remaining four (4) development rights are to be allocated
between parcels 14, 14H and 14I, as shown on the current tax
maps. These are shown on the plat dated revised January 4, 1990
by Robert L. Lum, and consist of 26.876, 21 and 30 acres
respectively. Because there is common ownership between these
three parcels, they may be recombined and redivided with County
approval. Be advised that two (2) development rights are
necessary to divide or to locate a second dwelling on an
existing 21 acre lot. Only one (1) is necessary when the
acreage is increased to 23.
Anyone aggrieved by this decision may file a written appeal within
thirty (30) days of the date of this letter. If you have any
questions, please feel free to contact me at your convenience.
Sincerely,
VWf. d' ICfAmelia G. McCul y, A.I. P.
Zoning Administrator
AGM/
cc: Jan Sprinkle
Gay Carver
Lettie E. er, Clerk to the Board
NOTE: One (1) additional parcel from 1980
One (1) by 1980 tax map, two (2) by determination
Or eie�
a
COUNTY OF ALBEMARLE
Office of County Attorney
416 Park Street
Charlottesville, Virginia 22901
Telephone 296-7138
GEORGE R. ST.JOHN November 12, 1992 JAMES M. BOWLING. IV
COUNTY ATTORNEY DEPUTY COUNTY ATTORNEY
Amelia McCulley
Zoning Administrator
Albemarle County
401 McIntire Road
Chalottesville, Virginia 22902-4596
In re: Phillips Estate
Dear Amelia:
I have found an attorney general's opinion which seems to
refute the position taken by Ray Rushton in his appeal of your
decision on the Phillips Estate.
This opinion states, first, that where a subdivision plat is
put to record containing lots which are large enough to allow
redivision under the density provisions of the zoning ordinance,
this can be done without vacating the first plat, and
furthermore it is a matter of right.
Second, this opinion holds that adjoining land owners have no
vested right to keep lots within the first subdivision from
being redivided, absent some private restrictions put on that
first plat.
I am enclosing a copy of the opinion, which is on pages 327
and 328 of the 1979-1980 Report of the Attorney General.
Sincerely yours,
George R. St. John
County Attorney
GRS/sw
Enclosure
REPORT OF THE ATTORNEY GENERAL 327
a clear
criminal, if a competent patient consented to the procedure.
provides
o accomplish the
Thus, while the Supreme Court of Virginia has not spoken
have raised, I would answer
definitively to the questions you
'
each in the negative because I find no basis for liability.
rhaps, the more
Assembly intended
ek a voluntary
-
1See 44 54-325.3, 54-325.4, 54-325.5:1, and 54-325.6 0£ the
der the decision
Code of Virginia (1950), as amended.
,ge any hasty and
7
conseiuences to
has a valid and
Beal v. Doe,
SUBDIVISIONS. RESUBDIVISION OF LOTS. NO VESTED RIGHT TO
1."
MAINTAIN LOT SIZES IN ABSENCE OF GENERAL PLAN RESTRICTIONS.
;olute immunity to
)ctors to inform
October 26, 1979
ices.
:e particularity,
The Honorable Geoffrey W. Cole
=atute which would
Commonwealth's Attorney for Clarke County
Lability when a
You ask whether owners of subdivision lots have a vested
;ligence upon a
In
right to maintain the lots of other owners at a certain size,
bent. other
and whether 4 15.1-482 of the Code of Virginia (1950), as
it no liability
Ponter v. Ponter,
amended, requires vacation of the recorded plat of a
itutional right to
-
subdivision from which one or more lots have been sold before
sband]; rra v.
husband
�_
resubdivision of one or more lots may be effected.
Dnsent oMu
Jessin v.
You have stated that the parcels in question are of
cnsent];
9) [nontherapeutic
fifteen acres each and were part of a recorded subdivision.
the
petent consent is
The Clarke County subdivision ordinance requires that
be in
50) (sterilization
subdivision into parcels of forty acres or less
conformity with the ordinance. The proposal giving rise to
your inquiry is to resubdivide one of the fifteen -acre
marked that the
parcels into three five -acre plots.
s that voluntary
Vested Rights
t manner and with
not violative of
nd the Law (1970).
I assume that the persons asserting vested rights are
could
persons whose lots were conveyed to them by reference to a
t7s spouse
invasion
subdivision plat that reflected a general plan of
r an of
ital relationship,
development. It has been held that, in the absence of a
tient defeats any
general plan for development restricting lots to a certain
th ed. 1971). "In
size, a conveyance of lots by reference to a recorded map or
f civil liability
plat does not in itself raise any implied covenant that the
to a
lots shall remain as shown on the map or plat, or that they
submission
'his result ca-• }^
may not be later changed in size or further subdivided.
$ 174
are litigated .a
20 Am.Jur.2d Covenants, Conditions and Restrictions
the necessary covenants or other terms
�f the practice."
(1965). However, when
and conditions restricting lot sizes are in the deed of
conveyance itself, or otherwise in the chain of title, the
because with
resubdivision of originally platted lots
.ming
See, e.g.,
2is Vaprohibited.
Fdbe committee 8 659, 239
e
:ent.
E
Supra. Moreover
;ht o£ privacy and
an abortion,
The provisions of the enabling act regarding
>tain
S81 U.S. 479 (1965)
subdivisions, 54 15.1-465 through 15.1-485, do not require a
does not likely
subdivider to set forth restrictions on lot sizes either,in
ability, civil or
deeds or on plats; therefore, the recordation of deeds and
328 REPORT OF THE ATTORNEY GENERAL
plats under those provisions does not in itself give rise to
any implied covenant as to lot sizes. Accordingly, it is my
opinion that unless there is a general plan for the
development restricting lot sizes in a subdivision, there is
no covenant between subdivider and purchasers, or among
purchasers, as to the lot sizes and the purchasers have no
vested right in retaining the status quo.
Vacation
You indicate that the local practice in the case of
resubdivisions is to proceed to approve and record the plat
just as in the case of a subdivision pursuant to § 15.1-475.
Vacation of a plat under § 15.1-482 requires either an
ordinance or the consent of the other landowners.
Section 15.1-430(1) provides that a resubdivision is to
be treated as a subdivision, and that a resubdivision is any
division into two lots. A resubdivision is handled in the
same manner as a subdivision. J.C. Penne v. Villa e of Oak
Lawn, 349 N.E.2d 637 (I11. App. Wi kerson v. Marks,
538P.2d 403 (Ariz. App. 1975). Accordingly, any division of
subdivided property requires compliance with the provisions
of § 15.1-475, governing approval of plats.
Not every change in a subdivision plat requires that the �- plat be vacated to effect the change. Certainly -where the
developer makes changes affecting lot sizes, vacation is
necessary. See Opinion to the Honorable Benjamin L.
Pinckard, Commissioner of the Revenue for Franklin County, dated September 26, 1978, a copy of which is attached.
Vacation is proper where the purpose is to remove a lot from
a plat. Bob Lame, Contractor v BuennaQel, 301 N.E.2d 671
(Ind. 1973).However, the division of one parcel of a
subdivision into two or more parcels constitutes a
resubdivision, which may be accomplished without vacating the
original plat.
Accordingly, I am of the opinion that the situation you
describe constitutes a resubdivision so that it is not
necessary to satisfy the vacation requirements of
§ 15.1-482.
'This case also holds that where a landowner acquires
vested rights through the chain of title they are not
extinguished by vacation of the plat.
SUBDIVISIONS. STATUTORY EXEMPTION FOR SUBDIVISIONS
ANTEDATING ADOPTION OF ORDINANCE. NO SEPARATE AUTHORITY TO
PROHIBIT BUILDINGS ON LOTS ABUTTING PRIVATE ,"PAPER STREETS."
Eugene Ray & Carolyn B. Rushton
1508 Greeleaf Ln.
Charlottesville, VA 22903
October 22, 1992
County of Albemiarle
Board of Zoning Appeals
Department of Zoning
401 McIntire Road
Charlottesville, VA 22902
Dana M. & Christina Elzey
Rt. 7, Box 199
Charlottesville, VA 22901
i�R,
, i F°; ;...,
%T- 23 1992
ZONING 5. EPA! ii i
��crJ�s ETr�
Re: OFFICIAL DETERMINATION OF NUMBER OF PARCELS - Section 10.3.1
Tax Map 63, Parcels 14, 14H, 14I and 14J, 45132, 45133, and 45134, (originally parcel 14);
Estate of Charles W. Phillips, dtd. September 24, 1992.
To Whom it May Concern,
It is our opinion that the Zoning Administrator's determination was in error due to the following:
1. The developer has abandoned the "rights" he now seeks to assert.
2. Given that the application for additional rights was made after lots 14I and 14J were
conveyed, the developer restricted his right to subdivide further by conveying the property with
the existing plat.
3. The Zoning Administrator's approval was based on the assumption that (as of September
24,1992) parcels 14, 14H, 141, and 14J were under "common ownership." In fact, 14I was sold
by deed dated June 29, 1992 and 14J by deed dated August 4, 1992, thus nullifying a material
assumption of the approval.
We respectfully request that the Board of Zoning Appeals overturn the Zoning Administrator's
decision.
Sincerely,
Eugen . Ray Aush 6n, rV
Carolyn B. Rushton
Dania, M. Elzey
Christina Elzey
17 J,r c,