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‘Time-Phasing’ Subdivision Law Violated Dillon Rule

A local ordinance that allowed the county to require “time-phased” development of a subdivision – four lots every four years – as opposed to approval of the entire 65-lot subdivision in one plan, exceeded the county’s authority under the Virginia Code and an Orange County Circuit Court strikes the ordinance as a violation of the Dillon Rule.

Brian Smith, a professional engineer and licensed in Virginia testified as an expert for plaintiff as to the cost of developing land owned by them of 175 acres near Barboursville. He prepared a Master Plan to develop land into 65 lots at the two-acre minimum with roads and access off State Route 33.

The Orange County planning director said that in order to get the Master Plan approved, Strong either had to get the property rezoned or they could develop under the subdivision ordinance which permitted four lots every four years, which would take over 32 years to accomplish under the Master Plan. The director told plaintiff he would not get “by right” approval for 65 lots.

The costs for Smith’s work to lay out a plan to submit a subdivision starting with the eight lots already approved and for work with other professionals including septic, road design, storm water and erosion control, VDOT consulting and surveyor costs would amount to $22,000-$25,000. Smith did not submit any plan for approval by the county.

Certified soil scientists J.T. Frazier testified that his fee for site development for 65 lots was $20,000-$40,000 to locate drain fields, do soil samples and use of appropriate equipment for each lot. Licensed surveyor Robert W. Coleman Jr. testified he did the necessary surveying work on the eight-lot subdivision and his professional fees for the necessary surveying work for the 65 lots was approximately $25,000-$35,000.

Finally, Diane Strong testified plaintiffs had spent $35,000 to date to get the eight-lot subdivision approved and it would take another $100,000 to develop the land into a 65-lot subdivision. Under the current ordinance of time-phasing, it would take 40 year to develop the land.

Although the Strongs never formally submitted the plan to the county, they discussed the plan through their agents that if the plan were submitted it would not be considered for approval in any manner other than the time delayed scheme for development. The court finds plaintiff has standing to seek declaration of its rights under the Declaratory Judgment Act.

Defendant Board of Supervisors (BOS) says there is express statutory authority given to Orange County to make valid the subdivision ordinance, in Va. Code § 15.2-2240.

This case presents a matter of first impression. The court finds the authority cited by BOS, Bd. of Super. v. Georgetown Land Co., 204 Va. 380 (1963), did not address the validity of the enabling legislation, as the court must do in the case at bar. Therefore, this court finds that before it gets to the question of presumptive legislative validity, it must apply the Dillon Rule and determine if the power to delay the pace of development of lots as provided in this subdivision ordinance exists. It has to look at Code §§ 15.2-2240, 2241 and § 2242 to see if there is an “express power” or “one by necessary implication” that permits the limitation of subdivision of lots into a minimum of two-acre parcels as permitted by the zoning ordinance. A board does not have unfettered discretion when it decides what it may include in a subdivision ordinance. It may exercise discretion only as permitted in Code §§ 15.2-2241 and -2242.

Strong v. Orange County BOS (Peatross) No. CL 08000293, Oct. 1, 2012; Orange County Cir.Ct.; Susan E. Cooke for plaintiff; Sharon E. Pandak for defendant. VLW 012-8-150, 4 pp.

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