HANOVER COUNTY v. BERTOZZI
September 18, 1998
Record No. 972283
OPINION BY JUSTICE
CYNTHIA D. KINSER
FROM THE CIRCUIT
COURT OF HANOVER COUNTY
Richard H.C. Taylor,
Present: All the Justices
Hanover County (the County) seeks reversal of the circuit
court’s judgment ordering the County to review A.G. Bertozzi’s
(Bertozzi) plats for Sections A through G of his proposed
subdivision titled Sugar Maple under the terms of zoning and
subdivision ordinances in effect prior to October 9, 1996.
Because Bertozzi failed to submit complete applications and plats
for Sections F and G before an October 9, 1996 deadline, we will
reverse the circuit court’s judgment with respect to those two
sections. As to Sections A through E, we will reverse the trial
court’s judgment and remand the case because the record is devoid
of any evidence concerning whether the County’s disapproval of
Bertozzi’s applications and plats for those sections was based on
the applicable ordinance, or was arbitrary or capricious.
On October 9, 1996, the Hanover County Board of Supervisors
(the Board) adopted zoning and subdivision Ordinance Nos. 96-17
and 96-18, which significantly changed the rural subdivision
requirements for the County. However, the revised ordinances
contained a "grandfather clause" that permitted
"[c]omplete applications for final subdivision approval
which have been filed before the close of business on October 9,
1996, which were in compliance with all substantive zoning and
subdivision ordinance requirements in effect on that date [to] be
reviewed in accordance with those requirements."
In a letter dated May 7, 1996, Bertozzi’s agent informed the
Hanover County Planning Office (the Planning Office) that
Bertozzi was interested in developing a subdivision on 181 acres
of real estate that he owned in the County. Bertozzi sent the
Planning Office three drawings that showed the existing division
of the land for tax purposes and two tentative subdivision
Subsequently, on October 9, 1996, Bertozzi recorded a plat
subdividing his property into seven tracts labeled Sections A
through G. Each section contained slightly more than 25 acres.
That same day, Bertozzi filed applications with the Planning
Office for final approval of "SECTION ‘A’ through SECTION
‘E’" of Sugar Maple subdivision. Along with the application
for each 23-acre section of the subdivision, Bertozzi submitted a
plat showing the division of the section into four lots. On each
plat one lot was labeled the "First Division" and
contained approximately two acres. The remaining 23 acres were
subdivided into three lots, one consisting of approximately two
acres and the remaining two containing approximately ten acres
each. However, the letter to the Planning Office that accompanied
the applications stated that the "[f]iling for review of
Sections ‘F’ and ‘G’ will be forthcoming." Thus, Bertozzi
did not file applications or plats for final approval of Sections
F and G before the close of business on October 9, 1996.
The Board, by a letter
dated October 29, 1996, notified Bertozzi that it disapproved his
subdivision applications for Sections A through E of Sugar Maple
"because of failure to record first division
lots (Title I. Art. 5. Sect.
2.7-1)." The noted defect in Bertozzi's
applications was based on an alleged administrative
interpretation of the previous zoning and subdivision ordinances.
This interpretation, referred to as the "twenty-five acre
Rule" (the "Rule"), permitted developers to
subdivide their land into more lots than would have been allowed
under a strict interpretation of the previous ordinances.
Allegedly, under the "Rule," a landowner, who recorded
a plat subdividing a large parcel of land into 25-acre tracts,
must next record, by deed or plat, a two-acre "First
Division" lot in each of the 25-acre parcels. The landowner
could then subdivide the remaining 23 acres into two ten-acre
tracts and one three-acre tract. According to the Board, Bertozzi did
not comply with the "Rule" because he submitted his
subdivision plats for Sections A through E before he recorded a
deed or plat for the "First Division" lot in each of
the 25-acre sections.
Bertozzi appealed the Board's disapproval to the circuit court
and asserted that his applications and plats fully complied with
all the requirements of the County's zoning and subdivision
ordinances in effect before the October 9, 1996 revisions and
that the Board's disapproval was, therefore, both
"improper" and "arbitrary and/or capricious."
After considering memoranda and argument by both parties, but
without receiving any evidence, the court ruled in favor of
Bertozzi. In its decree dated July 30, 1997, the court directed
that the "subdivision plats titled Sugar Maple, Sections A-G
. . . be accepted and reviewed by the County pursuant
to the requirements of ordinances in effect prior to October 9,
1996 . . . ." The County appeals.
We will first
address whether the circuit court erred in giving Bertozzi the
benefit of the "grandfather clause" with regard to
Sections F and G. Although Bertozzi did not submit the final
plats for Sections F and G to the Planning Office before the
close of business on October 9, 1996, he argues that his
applications were, nevertheless, complete by that deadline.
According to Bertozzi, he advised the County on October 9, 1996,
that the plats for Sections F and G would be forthcoming and that
they were, in fact, submitted the next day. He also argues that
the County had notice of Sections F and G because he gave the
County tentative drawings of the entire subdivision on May 7,
1996. We disagree.
"Where the language in an ordinance . . . is plain
and unambiguous, it must be given that plain meaning or
intent." Board of Supervisors of Fauquier County
v. Machnick, 242 Va. 452, 456, 410 S.E.2d 607, 609
(1991). In order to have a subdivision plat reviewed under the
terms of the County's prior ordinances, the plain and unambiguous
language of the "grandfather clause" requires a
landowner to have filed an application for final subdivision
approval before the close of business on October 9, 1996. The
application had to be complete and in compliance with all
substantive zoning and subdivision ordinance requirements.
Bertozzi did not file applications and plats for Sections F and G
before the October 9, 1996 deadline. Neither his cursory
statement in his October 9, 1996 letter to the Planning Office
that final plats for Sections F and G would be
"forthcoming" nor his tentative May 1996 drawings
showing Sections F and G constitute a complete application. Thus,
Bertozzi did not comply with the requirements necessary to
receive the benefit of the "grandfather clause." We
hold, therefore, that the circuit court erred in ordering the
County to review Sections F and G under the terms of the zoning
and subdivision ordinances in effect prior to October 9, 1996.
We next address the circuit court's decision regarding Sections A
through E of the subdivision. In doing so, we must "examine
the record to determine whether the evidence sustains the court's
findings of fact . . . and those of the [County]." West
v. Mills, 238 Va. 162, 168, 380 S.E.2d 917, 921
The circuit court reviewed the County's disapproval of Bertozzi's
application pursuant to Code ? 15.1-475(B)(3) (now Code
? 15.2-2259(C)) which provides, in pertinent part:
If a local commission or other agent disapproves a plat and the
subdivider contends that such disapproval was not properly based
on the ordinance applicable thereto, or was arbitrary or
capricious, he may appeal to the circuit court having
jurisdiction of such land and the court shall hear and determine
the case . . . .
Thus, Code ? 15.1-475 limits the circuit
court’s review to a determination regarding whether the County’s
disapproval was "not properly based on the ordinance
applicable thereto, or was arbitrary or capricious." West,
238 Va. at 168, 380 S.E.2d at 920.
Despite this specific
statutory directive regarding the scope of its review, the
circuit court never enunciated any finding that the County's
disapproval was either not based on the applicable ordinance, or
was arbitrary or capricious. In fact, the court could not have
made any such finding because it did not receive sufficient
evidence from either party upon which to base a decision.
For example, the County applied the requirements of the so-called
"Rule" to disapprove Bertozzi's applications; however,
this "Rule" was an unwritten, administrative
interpretation of the County's prior zoning and subdivision
ordinances that is not readily apparent from reading the
ordinances. Therefore, evidence regarding the existence of the
"Rule," its purpose, and its prior application was
crucial. Without such evidence, the circuit court could not have
determined whether the County's disapproval "was not
properly based on the ordinance applicable thereto, or was
arbitrary or capricious."
Nevertheless, Bertozzi contends that on March 14, 1997, the
circuit court held a hearing during which the court heard
evidence and reviewed exhibits. However, correspondence between
counsel reflects that the March 14, 1997 meeting with the circuit
court was a "pre-trial conference" to "review the
status" of the case and was not an evidentiary hearing. In
addition, no transcript or written statement of facts of that
conference exists. See Rule 5:11.
Furthermore, during oral argument on June 24, 1997, for the
purported purpose of presenting a final decree to the court, the
County noted the lack of evidence and questioned the basis for a
final order. The County also included the lack of evidence in its
objections to the final decree. Moreover, the circuit court
stated in its decree that it had reached its decision after
considering Bertozzi's petition, the County's response,
memoranda, and argument of counsel. Thus, the court itself
acknowledged that it did not receive or consider any evidence on
the issue. Therefore, having a record devoid of any evidence and
factual findings, we cannot "examine the record to determine
whether the evidence sustains the court's findings of fact."
West, 238 Va. at 168, 380 S.E.2d at 921.
Accordingly, we will reverse the circuit court's judgment with
respect to Sections F and G and enter final judgment in favor of
the County. We will also reverse the circuit court's judgment as
to Sections A through E, but remand the case for an evidentiary
hearing regarding whether the County's disapproval of Sections A
through E of the subdivision was "not properly based on the
ordinance applicable thereto, or was arbitrary or
Reversed and remanded.
 The applications and plats
for Sections A through E bear a stamp showing receipt by the
Planning Office on October 9, 1996. The applications and plats
for Sections F and G contain no such receipt stamps. Bertozzi
acknowledged in his brief to this Court that the plats for
Sections F and G were not submitted to the Planning Office until
October 10, 1996.
 The "Rule" was
purportedly based on two provisions of the prior ordinances,
specifically the definition of the term "subdivision"
and the minimum lot size for a single-family dwelling.
"Subdivision" was defined as "[t]he division of a
tract or parcel of land into three (3) or more parts, any of
which contain an area of ten (10) or more acres, but less than
twenty-five (25) acres . . . ." Hanover County, Va., Code
tit. III, ? 2-6 (1972). The minimum lot size for a
single-family dwelling in the A-1 Agricultural District was
"2 acres, after the first conveyance all lots must be 10
acres or greater." Id. at tit. I, art. 5, ? 2.7-1.
This limitation on the scope
of the circuit court's review does not mean that the court cannot
approve a plat after finding that a disapproval was not based on
the applicable ordinance, or was arbitrary or capricious. See
Hylton Enter., Inc. v. Board of Supervisors of Prince
William County, 220 Va. 435, 442, 258 S.E.2d 577,
582 (1979) (finding statutory language authorizes circuit court
to approve plat).