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This text
amendment is requested by Ray M. Pennington, III. Mr.
Pennington owns 2.8 acres (Pin: 6958-38-7138) on Mountjoy
Road. The parcel is zoned RC/Rural Conservation.
The County
and Mr. Pennington are engaged in litigation over this
parcel and whether it is buildable. The Zoning
Administrator and, on appeal, the Board of Zoning Appeals
have found that the lot is not a buildable lot, based on the
following facts, findings and conclusions:
- The
lot was a remnant of the 1973 Mountain View Estates
subdivision; a residue created when a surveying error
incorrectly established the boundaries of the site.
- When
the error was discovered in 1977, the parcel was
recorded on a plat stamped by Richard E. McNear as agent
for the Board of Supervisors stating: “This transfer of
land does not come under subdivision control and can
therefore, be put to record.” Mr. McNear’s recollection
was that the parcel was allowed to be recorded as a wood
lot, not intended as a building lot.
-
Because the minimum lot size for parcels in the Rural
Conservation district at that time was 10 acres or 5
acres for a family transfer, the lot as configured could
not have legally been created as a separate buildable
lot.
- The
lot was carried on the tax records as a separate lot,
but was not taxed as a buildable lot, except for an
error made in 2002 which was subsequently corrected.
- A
building/zoning permit for a house on the lot was denied
in 1987 upon an interpretation by the Zoning
Administrator that the lot was not created as a building
lot.
- Mr.
Pennington purchased the land in 1993/1994, and, in 2003
submitted an application for a building/zoning permit to
construct a home on the lot. In response to the
request, Mr. Pennington was informed by the Zoning
Administrator that his lot was non-buildable. Mr.
Pennington appealed this decision to the Board of Zoning
Appeals. The BZA affirmed the decision of the Zoning
Administrator. Mr. Pennington then appealed to the
Circuit Court where the case is pending.
Mr.
Pennington’s proposed text amendment is designed principally
to deal with his problem with the County, allowing him to
construct a home on the subject lot.
First
Pennington Proposal
Mr. Pennington
suggests a text amendment to the Zoning Ordinance to allow
the subject lot, and other unbuildable lots in the County,
to become buildable, subject to certain limitations. As
proposed, the amendment would make buildable any lot where a
metes and bounds description or plat of survey was recorded
in the land records of Fauquier County prior to January 1,
1980, or any lot identified as a separate lot on the
Fauquier County real property identification map and taxed
as a separate parcel on or before January 1, 1980. The
amendment specifies that development of the lot must meet
all Zoning Ordinance requirements except minimum lot size,
lot area and lot width requirements and limits the size of
the house that can be built on the lot to 1,500 square feet
for lots under 2 acres and 2,800 square feet for lots 2
acres or larger. In addition, the amendment proposes that
any non-conforming lot with a dwelling already constructed
on it be legalized, with limits on the extent of expansion
allowed on such lots.
Staff Analysis
The proposed
text amendment raises significant issues with potentially
widespread implications. Staff has been independently
assessing the issue of illegal and/or unbuildable lots over
the last year, with the thought of bringing forward a text
amendment to the Board on the issue for consideration. The
County’s records are such that it is exceedingly difficult
to determine in any comprehensive and systematic way the
extent to which illegal or non-conforming lots exist and the
extent to which these non-conforming lots are currently
unbuildable. It is unknown just how many potential lots a
text amendment on this issue could affect or where such lots
are located.
There are two categories of lots which this text amendment
potentially impacts:
1. Tax lots that aren’t actually legal lots.
These lots may be reflected on the Commissioner of Revenue
records as separate lots, but, in fact, were never legally
created as lots through the appropriate land use process.
This category includes lots which may have been illegally
transferred through metes and bounds descriptions (in
violation of State & Local Codes) and lots which were
actually recorded as boundary line adjustments—i.e., not new
parcels, but additions to existing parcels—but then
incorrectly mapped on Commissioner of Revenue records as
separate lots.
2. Lots that do legally exist as separate lots,
but which aren’t buildable. These lots include those
created for a variety of purposes: access, open space, wells
or other utilities, wood lots, etc. Such lots often did not
meet the zoning ordinance requirements in place at the time
they were created because they were exempt from such
requirements because they were not being created for house
construction. In the case of open space lots, the lots may
be necessary to meet the zoning requirements for a larger
subdivision. In the case of access lots, well and other
utility lots, many were often not utilized for that purpose
or have been abandoned for that purpose and therefore have
no use.
A third category of lots, those that were legally created
but which do not meet the current zoning ordinance
requirements, are not affected by this amendment, as
proposed. Such lots are already considered buildable
pursuant to Section 2-403 of the Zoning Ordinance, which
provides “if a lot was legally recorded prior to the
effective date of this Ordinance, and said lot met the
requirements of the Zoning Ordinance in effect at the time
of recordation, then notwithstanding the minimum lot area,
frontage and lot width requirements of the district in which
located, said lot may be used for a use permitted in the
district provided all other regulations of the district can
be met.”
How Many Lots Fall Into Category 1 or 2, Above?
It is difficult
to determine how many existing lots in the County are
illegal and/or unbuildable. One indicator is parcel size.
For example, the current minimum lot size for RA and RC
parcels is 2 acres. Filtering through the Commissioner of
Revenue records in GIS shows more than 1,200 parcels zoned
RA or RC which are less than 2 acres in size, with over 800
of these lots currently vacant. Many of these lots are
likely buildable lots, falling under the third category
noted above: lots created legally prior to the current
regulations. But lot size is not the only indicator of lots
that may have been illegally created or are unbuildable.
Lots created for other purposes, such as utilities or
right-of-way purposes, may very well be larger and meet
minimum lot sizes. Many boundary line adjusted areas exceed
two acres, but are still unbuildable as separate lots
because they do not legally constitute separate lots.
Staff began keeping a list of unbuildable lots about a year
ago, and to date 45 unbuildable lots have been identified.
Most (87%), like the Pennington property, were not legally
created as lots through the subdivision property. More
specifically:
|
Type of Lot |
Number of Lots |
% of Lots |
|
Lots “created”
as boundary line adjustments; lots are actually
part of another parcel but tax maps incorrectly
show as separate parcel. |
27 |
60% |
|
Other lots not
legally created through subdivision process,
meeting zoning ordinance requirements, but
mapped on tax maps as parcel. |
12 |
27% |
|
Lots created as
open space. |
4 |
9% |
|
Other |
2 |
4% |
|
Total |
45 |
100% |
In addition, staff has identified “unbuildable” lots where
homes have been built, to include an instance where the
County issued building permits for such a home. It is not
known how many other lots with existing homes may fall in
this category. In the identified case, the “lot” was
created through a boundary line adjustment, and is therefore
legally part of another lot.
Proposed Text Amendment
Staff does not
believe the proposed amendment reasonably or clearly
addresses this very complex issue.
Part A of Mr.
Pennington’s approach would make any lot described by metes
and bounds or recorded on a plat prior to 1980 a legal
buildable lot. This, in staff’s opinion, casts a very broad
net and would legalize many of the unbuildable lots in the
County, including those that were created specifically for
other purposes (open space, access, wells, other
utilities). In addition, the practice in the 1970s was to
describe boundary line adjustments in metes and bounds or by
a recorded plat, and it does not seem that the proposed
language would exclude such boundary line adjustments,
making any such area into a buildable lot (including those
now shown in the land records as part of another lot).
Staff is even
more concerned about part B of Mr. Pennington’s proposal,
which would allow any parcel that existed as a separate lot
in the Commissioner of Revenue records as of 1980 to have
status as a buildable lot. Staff has found dozens of
unbuildable parcels in the Commissioner’s records that were,
in fact, created as boundary line adjustments into another
parcel. That is, a parcel was not actually created, but
rather a piece of one property was moved into the adjoining
property. In many cases, this boundary line adjustment was
incorrectly mapped, resulting in the boundary line
adjustment area showing up as a separate lot in the
Commissioner of Revenue records. Despite being shown as a
separate parcel on the map, few of these parcels which staff
has found have actually been taxed as buildable lots. In
most cases, these lots are still under joint ownership with
the parcel to which they were to be added. It is not clear
what public purpose would be served by converting all such
slivers into buildable lots.
Part C of Mr.
Pennington’s proposal is unclear to staff. It seems to be
saying that the parcels eligible through A & B above must
meet all current Zoning Ordinance requirements except for
lot area and width. Mr. Pennington’s parcel actually meets
the current Zoning Ordinance requirements for lot area and
lot width.
Staff believes
the broad language proposed in A, B & C would effectively
convert most of the illegal lots in the County into legal
lots and unbuildable lots in the County into buildable
lots. While staff agrees that there are some instances
where this might be appropriate, staff does not agree that
almost every such lot should be so converted. Over the last
year, the Zoning Administrator has done 17 interpretations
on this issue, telling 17 different landowners that scraps
of land reflected on the tax map parcel as separate lots are
not, in fact, separate legal lots of record and, therefore,
must be incorporated into the main parcel. Each of these
parcels was under the same ownership as the lot to which it
was legally joined, and while each had been taxed as a
separate lot for years, none had been taxed as a buildable
lot. Only one of these 17 property owners appealed the
Zoning Administrator’s determination, and the one who did
withdrew the appeal after being shown clear evidence that
the lot was, in fact, part of a boundary line adjustment
into another lot. The proposed text amendment would have
had the affect of transforming each of these “illegal” lots
into legal, buildable lots, creating an economic benefit for
the property owners, no doubt, but addressing no
identifiable public policy problem.
That is not to
say that there aren’t cases which raise more difficult
policy issues for the County, and the Pennington parcel is
one of these. Certain factors suggest that it is
unreasonable to make the Pennington lot buildable. The lot
had been identified as unbuildable for almost 20 years,
since 1987 when the former Zoning Administrator denied a
permit to build a house on the lot. The lot has not been
taxed as a buildable lot. The current owner purchased the
land in 1993/94 and one could argue he knew or should have
known it was unbuildable. Neighbors could have reasonably
expected that no home would be built on the lot.
On the other
hand, there are many factors in this case one could argue
support converting the lot to be buildable. The lot could
probably have been created in 1974 had most of the other
lots in the subdivision been smaller and the surveyor hadn’t
made the error in the parent parcel boundaries. In
addition, the lot meets the minimum two acre lot requirement
in the Zoning Ordinance today for the zoning district.
While most of the lots immediately adjacent are much larger,
10+ acres, immediately adjacent to the south is an even
smaller RC zoned lot (1.5+ acres) with a home built on it.
Other specific
parcels raise even more questions, and in staff’s opinion,
clearly support a text amendment to create a remedy. Most
troubling as an example is an “illegal lot” on which a home
has been built. The subject 2.0 acre parcel was actually
created as a boundary line adjustment in 1982 and was to be
added to the adjoining 2.0 acre parcel. Zoned RA, the
parcel does meet the minimum lot size requirements for the
zone. It could not, however, be divided from the parent
parcel today because no density remains to create it. A
house was built on the property in 1992, with permits issued
by the County. Because it was not legally a separate lot
at the time, such permits should never have been issued.
The property has subsequently sold, and the current owner
had no involvement in the original transaction. Here is a
case staff believes the Ordinance clearly needs to rectify.
The lot has been listed on Commissioner of Revenue records
as a separate lot, taxes have been paid as though it was a
separate building lot, and the County contributed to the
problem by issuing building permits for the property.
Second
Pennington Proposal
Mr. Pennington
amended his first proposed text amendment. The revised
proposal by the applicant presents two alternative
approaches to the issue.
The first
alternative states, in essence, “if a non-conforming lot was
created prior to January 1, 1980 and such lot meets the
minimum lot size, frontage, lot width, and applicable area
requirements …[it] may be used for the uses permitted in the
district….” The applicant’s proposed language for this
alternative goes on to specifically exclude lots created
through boundary line adjustments or lots created for
specific purposes, such as well lots, utility lots and open
space lots.
This first
alternative addresses two concerns raised in the prior staff
report. First, the new proposal states that the lot must
meet all Zoning Ordinance requirements; previously it did
not have to meet minimum lot size, area, and width. The
potential scope of his proposed amendment is narrowed by
requiring the lot to comply with the current Code, although
how much of a reduction is unclear. In addition, this
amendment eliminates the express reference to lots
erroneously assessed as building lots. Again, this limits
the potential breadth of the amendment. Notwithstanding the
improvement in the proposal, the impact of the amendment
remains unclear. If the Board wishes to entertain this
proposal, staff would suggest that such lots not be made
buildable outright, but rather that a special exception or
Board/Planning Commission approval of a waiver be required
in order to assess the lots on a case-by-case basis.
The second
alternative amendment proposed by Mr. Pennington is a change
to the subdivision ordinance to add the following to Section
4-27:
Notwithstanding
anything to the contrary herein, the Planning Commission or,
upon appeal noted within thirty (30) days next following the
decision of the Planning Commission, the Board of
Supervisors, may grant variations and exceptions to the
general regulations of this ordinance in unusual situations
or when strict adherence to the general regulations will
result in substantial injustice or hardship.
The powers of the
Planning Commission and, upon appeal, the Board of
Supervisors hereunder shall include the power to validate a
lot that was nonconforming when created but subsequently
conformed with this ordinance. The Planning Commission or,
upon appeal, the Board of Supervisors may, as a condition of
such variation or exception, and where justified by the
circumstances, require that the square footage of a
residence or other permitted structure be limited to account
for the topography, shape, size, or other unusual condition
of the property.
This alternative
has not been the subject of an advertised amendment. If,
therefore, the Board of Supervisors is interested in
pursuing this alternative, it will have to be remanded to
the Planning Commission for advertisement.
This alternative
is based upon Virginia Code §15.2-2242 which provides in
pertinent part: “A subdivision ordinance may include: 1.
Provisions for variations in or exceptions to the general
regulations of the subdivision ordinance in cases of unusual
situations or when strict adherence to the general
regulations would result in substantial injustice or
hardship….” Given that this remedial language is proposed by
Mr. Pennington to resolve his particular problem, one must
ask, if this amendment is adopted, what constitutes
substantial injustice or hardship? The Pennington lot was
illegally created. When it was created, the law required
that it be boundary line adjusted into one of the legal
lots. This was never done. To keep Mr. Pennington from
profiting from illegal conduct of a predecessor in interest
hardly seems a substantial injustice or hardship.
Staff would also
note that the second alternative broadens, rather than
narrows, the possibilities for creating new lots where
building lots are not now allowed. In addition, the use of
the language “nonconforming lot” is not consistent with the
provisions of the Zoning Ordinance. The Pennington lot, and
many other lots in this situation, are not actually
“nonconforming lots” under the Zoning Ordinance, but rather,
“illegal lots.”
On March 29,
2007, the Planning Commission unanimously recommended denial
of the proposals. The Planning Commission adopted the
following resolution:
A Resolution to
Recommend Denial of a Proposed Text Amendment
Whereas, Raymond M. Pennington, III has filed an application
to request the County to amend the Zoning Ordinance to
permit certain lots or parcels which were not lawfully
subdivided to be utilized as building lots under terms and
conditions set forth in the proposal, and has also requested
consideration of proposed alternative amendments; and
WHEREAS, the
Planning Commission has conducted a public hearing on the
proposed amendments; and
Whereas, pursuant to Section 15.2-2286 of the Code of
Virginia the Board of Supervisors may amend the Zoning
Ordinance when the public necessity, convenience, general
welfare or good zoning practice warrant such amendment; and
WHEREAS, the
Planning Commission has considered the applicant’s argument
in support of the proposed amendments, the reports of county
staff and public comment related to the application; and
Whereas, the Planning Commission has determined that the
applicant’s proposed amendments and suggested alternatives
are not consistent with good zoning practice, not in the
best interest of the public, not consistent with the general
welfare, and otherwise fail to satisfy the standards set
forth in Section 15.2-2286 of the Code of Virginia, now
therefore be it
RESOLVED
this 29th day of March 2007 that the proposed
text amendments and suggested alternative amendments be
forwarded to the Board of Supervisors with a recommendation
for denial.
The Board of
Supervisors held a public hearing on the proposed amendment
on May 10, 2007. After closing the public hearing, the
Board voted to defer action on the proposed amendment for 60
days.
During the
Board’s discussion of the proposed amendment, there was some
indication that a more narrowly focused text amendment
legalizing certain lots with existing homes was desired. In
the event that the Board would like to initiate the more
narrowly focused alternative amendment in conjunction with
action on the Pennington amendment, staff has provided a
resolution for such initiation as attachment 5.
Attachments:
1.
Douglas Baumgardner
Correspondence dated March 14, 2007
2.
Resolution to deny
Pennington Amendments
3.
Ordinance to approve
Pennington Alternative 1
4.
Resolution to send Pennington Alternative 2 to
Planning Commission for reconsideration
5.
Resolution to Initiate
Staff-Prepared Alternative Amendment
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