PUBLIC HEARING AGENDA REQUEST

Sponsor:                                                                  Board of Supervisors Meeting Date:

Board of Supervisors                                                                   January 21, 2003

Staff Lead:                                                                                       Department:

Elizabeth A. Cook                                                               Community Development

Topic:    An Ordinance Amending Section 2-39(A) (1) of the Fauquier County Subdivision  Ordinance to Amend the Definition of “Immediate Family”

Topic Description:

At its October 21, 2002 meeting, the Board of Supervisors adopted a resolution referring a proposed Subdivision Ordinance amendment to the Planning Commission for its review and recommendation.  As proposed by the Board's resolution, the amendment would expand the definition of the term "immediate family" for purposes of family transfer provisions of the Fauquier County Subdivision Ordinance to include spouse, sibling, aunt, uncle, niece, and nephew. 

Background:

Section 2-39(3)(A)(1) of the Fauquier County Subdivision Ordinance currently permits family transfers to be made to a legally or naturally defined child, grandchild, or parent of the owner or owners of a parcel of land.  Virginia Code §15.2-2244, 1950, as amended, defines a member of the immediate family as "any person who is a natural or legally defined offspring, spouse, sibling, grandchild, grandparent, or parent of the owner."  That section also permits any locality to include within the definition of immediate family aunts, uncles, nieces and nephews.  The proposed amendment is intended to resolve situations where a brother or sister wishes to transfer, by family transfer, a lot to their sibling, or an aunt and uncle wish to transfer, by family transfer, a lot to a niece or nephew.  Staff has included grandparent in the proposed definition of "immediate family", as it appeared to be part of the Board's original consideration.

Requested Action of the Board of Supervisors:

Hold a public hearing and consider adoption of the attached ordinance.

Planning Commission Recommendation:

On December 19, 2002 , the Planning Commission held a public hearing on the proposed Subdivision Ordinance Text Amendment.  There were three speakers in opposition to broadening the definition and no speakers in favor of the proposed amendment.  The Planning Commission unanimously recommended that the Subdivision Ordinance not be amended to include spouse, sibling, aunt, uncle, niece, and nephew in the definition of "immediate family."

Staff Analysis:

Following is the section of the County Subdivision Ordinance related to family divisions with the proposed text amendment:

SECTION 2 – DEFINITIONS (WORDS AND TERMS)

2-39           Subdivision

3)   An exception to the definition of "Subdivision" is made and approved by the agent is permitted for the following:

A)  The single division of a lot or parcel for the purposes of a gift or sale to any member of the owner's immediate family provided:

1)      The grantee is a natural or legally defined child, grandchild, or parent, grandparent, spouse, sibling, aunt, uncle, niece, or nephew of the owner or one of the owner(s) who are married to each other.  (Amended by Board of Supervisors on July 18, 1995.)

2)      No previous transfer under this provision has been granted to the grantee in this County.

3)      The lot will not be voluntarily transferred to a non-immediate family member for at least ten (10) years except that a transfer of a shared interest may subsequently or simultaneously be made to the spouse of the grantee.  This restriction shall be noted in the deed.

4)      The grantee is 18 years of age and able to hold real property under the laws of Virginia .

5)      The purpose of the transfer is to provide for the housing needs of the grantee.

6)      The transfer is not for the purpose of circumvention of the Subdivision Ordinance.

7)      The grantor and grantee sign an affidavit duly acknowledged before some officer authorized to take acknowledgments of deeds that certifies compliance with 1 thru 6 above.

8)      Lots of five acres or greater shall be served by a right-of-way of not less than fifty feet in width; lots of less than five acres shall be served by a right-of-way of not less than twenty feet in width.

9)      Each lot created hereunder and the residue lot shall have Health Department approval for sewerage disposal to serve a minimum of a two-bedroom residue.

10)    When the residue can no longer be divided under this provision or otherwise, a note to that effect shall be contained on the plat or in the deed.

11)    If the proposed lot(s) is served by a non-exclusive right-of-way, which is maintained by means of a recorded maintenance agreement or a duly constituted homeowners association, concurrence of the association or persons signatory to the maintenance agreement for the addition of the proposed lot(s) is required.

12)    Procedures for approval shall be the same as those for administrative subdivisions contained in Paragraph 3-12(B).

13)    In the event the Board of Supervisors determines a circumvention to have occurred, the family transfer approval shall be considered void and the County may take appropriate action to require compliance with all otherwise applicable subdivision and zoning requirements or may initiate action to vacate said lot.  No zoning permits shall be issued for such lot(s).

14)        If the Board finds that an extraordinary hardship is being caused by the ten-year restriction, it may reduce the time period to alleviate the hardship.  This hardship provision shall be noted on the plat or in the deed.

During the staff's analysis of the proposed text amendment, several other counties' definitions of "immediate family" were reviewed.  Those definitions are outlined below:

Loudoun County – "A member of the immediate family" is defined as any natural person who is a natural or legally defined child, stepchild, grandchild, spouse, brother, sister, or parent of the property owner; and "property owner" is defined as the natural person(s) (a) who is the sole owner of the property; or (b) who is the (i) sole owner of all stock or other documents of ownership of the corporation, or (ii) sole partner of the general partnership, or (iii) solo managing partner of the limited liability partnership, or (iv) sole member of the limited liability company, or sole trustee and sole beneficiary, with sole possession of any right of revocation, of the trust, that is the sole owner of the property.

Stafford County – Immediate family member:  Any person who is a natural or legally defined offspring, spouse, or parent of the owner of a parcel to be divided among family members.  The grantee must be an immediate family member of the owner or owner(s), who is an immediate family member as defined.

Albemarle County – "Member of the immediate family" means the natural or legally defined off-spring, grandchild, grandparent, or parent of the owner of the property. 

Spotsylvania County – Appears to allow family divisions that are passed from parent(s) to children and is held by the children in joint ownership for five (5) years from the date of transfer.

Based on staff's review of other county subdivision ordinances, it does not appear that other jurisdictions have a broad definition of "immediate family" that includes uncles, aunts, nieces and nephews.  The Board may wish to amend the definition to include spouse, sibling, and grandparent.  Another option to consider would be to expand the definition of the grantor to allow a family transfer from the estate of an immediate family member or to permit a family division if one of the property owners is an immediate family member.

Financial Impact Analysis:

No fiscal impact analysis was required with this request.

Other Departments, Organizations or Individuals affected by this request:

Fauquier County residents