December 15, 2003

 

Brian S. Ray, L.S.

Roger W. Ray & Assoc.,Inc

1717-1B Allied Street

Charlottesville, VA 22903

 

RE: OFFICIAL DETERMINATION OF PARCELS AND DEVELOPMENT RIGHTS - Tax Map 14, Parcels 7 & 8 (Property of Dorothy Sheridan Estate and Wachovia Bank) Section 10.3.1

 

Dear Mr. Ray:

 

The County Attorney and I have reviewed the title information for the above-noted property. The County Attorney's advisory opinion and my official determination is as follows:

 

The portion of Parcel 7 that is the residue of Tax Map 13, Parcel 11 is comprised of two separate parcels.  Tract [A], as identified on the map key and containing 436.75 acres has four (4) theoretical development rights. Tract [B], as identified on the map key and containing 91 acres has five (5) theoretical development rights.

 

The portion of Parcel 7 that existed in 1980 and is identified on the map key as [C], [D], [E], [F], [G] & [H] is determined to be one parcel with five (5) theoretical development rights.

 

Tax Map 14, Parcel 8 that is identified as [I] and [J] on the map key is determined to be one parcel with five (5) theoretical development rights.

 

The basis for this determination is summarized as follows. A map key, prepared by Roger Ray and Associates showing the location of Tracts [A] through [I], the 1980 tax map and the current tax map are attached to this determination.

 

Tax Map 14, Parcel 7 (Part- This is the portion of the former TM 13-11 that was added to TM 14-7 in 1999 [A] [B]

 

The most recent instrument for Tax Map 13, Parcel 11 recorded prior to the date of adoption of the Albemarle County Zoning Ordinance, (December 10, 1980) is in Deed

 

Book 298, page 592, dated February 2, 1952. This deed conveyed eight tracts of land from James S. Carpenter and May R. Carpenter to John E. Sheridan. Below is a description of Tract FOURTH that contains Tax Map 13, Parcel 11, as shown on the 1980 tax map.

 

FOURTH:  This property consisted of three tracts of land that were conveyed to James Carpenter by the deed recorded in Deed Book 289, page 352. The tracts are described as follows:

 

(a) All that certain tract or parcel of land on the Pasture Fence Mountain containing, by estimation 596 acres, being the remainder of 992 ¼ acres. A plat of the original parcel, made by Simms and Parrott, dated September 1881, is of record in Deed Book 250, pages 444 – 445.

 

The 596-acre tract includes [A] on the map key.

 

(b) All that certain tract or parcel of land adjacent to but not adjoining said tract of 596 acres described under (a) above and adjoining the tract of 396 acres containing 6 acres.

 

The 6-acre tract is identified as Parcel 9 on Tax Map 13. It is not a subject of this determination. The 396 acres is designated as Tax Map 13, Parcel 10.

 

(c)     All that certain tract or parcel of land in Brown’s Cove near Doylesville, containing 91 acres, more particularly described on a plat by Hugh F. Simms, S.A.C., dated April 1919, of record in Deed Book 170, page 102. (This plat is in the file) This is [B] on the map key.

 

The 91-acre tract is identified as [B] on the map key. The deed notes that reference is made to all of the deeds and plats for a further and more complete description of the three tracts of land conveyed by this paragraph. It is determined that the recordation of this deed established FOURTH Tract (a), containing 596 acres [A] and FOURTH Tract (c), containing 91 acres [B] as separate parcels of record, as defined in Section 10.3.

 

Deed Book 1836, page 171, dated March 23, 1999, contains a Deed of Release in which heirs of Phillip Lee Sheridan decline to exercise a right of first refusal and direct that the parcel be sold.

 

Deed Book 1836, page 177, dated June 10, 1999, conveyed an undivided one-half interest in 236.25 acres from Wachovia Bank and Dorothy F. Sheridan under the Will of John E. Sheridan to L. Dale Shenk and John D. Eshlman. The property is shown on a plat by Roger W. Ray and Assoc. dated June 3, 1999. It is a portion of Tax Map 13, Parcel 11. The residue of the parcel is added to Tax Map 14, Parcel 7. One (1) development right is assigned to the 236.25-acre parcel. The 436.75-acre residue retained four development rights. The plat notes, “Should an official determination of parcels of record for T.M. 13-11 disclose more than one parcel exists, then those additional development rights shall be assigned with the residue of T.M. 13-11 being added to T.M. 14-7.”

 

It is determined that this deed did not serve to combine the parcels. The note on the plat regarding the potential that an official determination would disclose additional parcels preserves the separate identity of the parcels described as Tract FOURTH (a) and (c) in Book 298, page 592.

 

Therefore, as a result of this transaction, Tax Map 13, Parcel 11 retained 236.25 acres and one development right. The 436.75-acre residue of TM 13-11 was allotted four development rights. These four development rights are assigned to the tract described as Tract FOURTH (a), designated as [A] on the map key. Tract Fourth (c), designated as [B] on the map key has five development rights.

 

Tax Map 14, Parcel 7 AS SHOWN ON THE MAP OF 1980  [C] [D] [E] [F] [G] [H]

 

The most recent instrument for Tax Map 14, Parcel 7 recorded prior to the date of adoption of the Albemarle County Zoning Ordinance, (December 10, 1980) is in Deed Book 298, page 592, dated February 2, 1952. As noted above, this deed conveyed eight tracts of land from James S. Carpenter and May R. Carpenter to John E. Sheridan. Below is a description of Tract FIFTH that contains the portion of Tax Map 14, Parcel 7.

 

FIFTH: All that certain tract or parcel of land in Brown’s Cove near Doylesville, containing 56 acres. A further and more complete description of this land is contained in Deed Book 298, page 80.

 

The deed states further, “While some of aid tracts of land above described are described on plats of survey, others are not, and some of the plats are old and may not be entirely accurate. Conveyance of all of said tracts of land hereinabove described is therefore in gross and not by the acre, it being the intent of this deed to convey to said John E. Sheridan all the lands owned by James S. and May R. Carpenter, situated in White Hall Magisterial District of Albemarle County, Virginia.”

 

The applicant has submitted deeds and plats that show Tracts [C], [D], [E], [F], [G] & [H] were either separate parcels or residues of land transactions prior to 1921. However, on the basis of this deed, it is determined that the parcel identified as Parcel 7 on the 1980 tax map and further identified as [C], [D], [E], [F], [G] & [H] on the map key is a single parcel of record in as defined in Section 10.3.

 

This determination is based on the following:

 

1.       This determination is consistent with the definition of “lot of record” found in the Zoning Ordinance: The term “lot of record” means a lot shown on a subdivision plat or other lawful plat or legal description which is lawfully recorded in the Clerk's Office of the Circuit Court of Albemarle County, Virginia. (Amended 6-14-00)

 

2.       This deed describes the parcel in the singular as a certain tract or parcel. The deed it refers to for a more complete description, Deed Book 298, page 80, dated November 17, 1951, also describes the 56-acre parcel as a single tract. Further, the property was described in Deed Book 232, page 159, dated July 13, 1936 and Deed Book 214, page 278, dated October 3, 1931, Deed Book 175, page 581, dated February 26, 1921 as a single parcel. There is no reference in these deeds to any prior deed that holds this property as anything but a single parcel.

 

3.       Deed Book 227, page 199, dated April 17, 1935 contains a Deed of Trust in which a tract of 91 acres and this tract of 56 acres were put up to secure a bond of $300.00. Here again, the 56-acre parcel is described in the singular.

 

4.       This determination is consistent with Diversified Development Co. v. Houchang Sendi and Eloise Sendi, a 1994 case decided in the Circuit Court of Fairfax County. It was ruled in that case that the subject property was a single parcel because it had been conveyed by a single metes and bounds description and unambiguous language in the deed described the land as a single parcel. While there was reference to prior deeds, that reference in itself did not signal an intent to treat the parcel conveyed as anything other than a unitary tract.

 

5.       Based on the Sendi decision, we find that the deeds and plats recorded between February 28, 1919 and December 17, 1853 that described these as separate tracts did not preserve the separate identity of these tracts.

 
Tax Map 14, Parcel 8 [I] [J]

 

This determination begins with Deed Book 271, page 204, dated October 30, 1948. This deed conveyed 303.5 acres from Levi P. and Alberta Maupin to H. W. Smith. The deed notes that this property was described as containing 277 acres in Deed Book 264, page 494. However, an old plat made by B.T. Parrott in 1894 showed the property contained 303.5 acres. In 1946 C. H. Shapliegh made a tracing of that old plat and dated it May 1946. This deed (271/204) contains the tracing of the old plat by Shapliegh with changes made by A. L. Cumbow, dated October 25, 1946. The revised plat shows the property was conveyed in two parcels, Tract No. 1 containing 73 acres and Tract No. 2 containing 230 ½ acres. It is determined that the recordation of this deed established these two tracts as separate parcels of record.

 

Deed Book 279, page 64, dated May 1, 1948 conveyed 303 ½ acres from H. W. and Myrtle V. Smith to J. S. Carpenter. The property is described as being in all respects the same property as was conveyed in Deed Book 271, page 204.

 

It is determined that this deed maintains the separate identity of Tract 1 and Tract 2 as shown on the Cumbow plat that is dated October 25, 1946.

 

Deed Book 298, page 592, dated February 2, 1952 conveyed eight tracts of land from James S. Carpenter and May R. Carpenter to John E. Sheridan. Parcel 8 is a portion of the Tract SECOND described below.

 

SECOND: (Includes [I] [J]) All that certain tract or parcel of land containing 303.5 acres conveyed to James S. Carpenter by the deed recorded in Deed Book 279, page 64. The property was described as containing 277 acres in 1894 on a plat by B.T. Parrott. However, C. H. Shapleigh copied that plat in 1946 and recorded it in Deed Book 271, page 205. C. H. Shapleigh calculated the acreage to be 303.5 acres. 

 

It is determined that this deed maintains the separate identity of Tract 1 and Tract 2 as shown on the Cumbow plat that is dated October 25, 1946.

 

Deed Book 416, page 471, dated March 4, 1966 conveyed 80.56 acres from John E. and Dorothy F. Sheridan to John F. and Nancy R. Sheridan. The property is designated as Tract B on a plat of Paul M. Saunders, dated November 1965. It is further described as being a portion of the land conveyed to John E. Sheridan in Deed Book 298, page 592. Tract B, the 80.56-acre parcel is now identified as Parcel 9A on Tax Map 14.  The creation of this parcel reduced the area of both parcels included in Tract SECOND by an unknown amount. Tract A, the 83.07-acre parcel is now identified as Parcel 9B on Tax Map 14. It is not a part of this determination. A composite sketch showing the location of these tracts is in the file. It is determined that this deed maintains the separate identity of Tract 1 and Tract 2 as shown on the Cumbow plat that is dated October 25, 1946.

 

Deed Book 611, page 490, dated December 21, 1976 conveyed 43.60 acres from Dorothy F. Sheridan and the National Bank and Trust Company, Executors and Trustees under the will of John E. Sheridan to John F. and Nancy R. Sheridan. The property is shown on a plat by Morris Foster, dated December 20, 1976. It is further described as consisting of three parcels:

 

ONE: A portion of T.M. 14, P. 8A, described also as a portion of Tract THIRD in Deed Book 298, page 592, containing 16.29 acres. (This tract is adjacent and to the north of the 303 ½ acres shown on the Cumbow plat. It is not a part of the property that is the subject of this determination.)

 

TWO: A portion of T.M. 14, P. 8A, described also as a portion of Tract Second in Deed Book 298, page 592 containing 17.01 acres. (This is a portion of [I])

 

THREE: A portion of T.M. 14, P. 8A, described also as a portion of Tract Second in Deed Book 298, page 592 containing 10.30 acres. (This is a portion of [I])

 

It is determined that this deed maintains the separate identity of Tract 1 and Tract 2 as shown on the Cumbow plat that is dated October 25, 1946. However, as a result of this transaction the acreage of Tract 2 as shown on the Cumbow plat is reduced. The area of the residue is not provided on the plat.

 

The most recent instrument for Tax Map 14, Parcel 8 recorded prior to the date of adoption of the Albemarle County Zoning Ordinance, (December 10, 1980) is in Deed Book 628, page 621, dated July 6, 1977. This deed conveyed 9.018 acres from Dorothy F. Sheridan and the National Bank and Trust Company, Executors under the will of John E. Sheridan to John F. Sheridan and Nancy R, Sheridan. The property is shown on a plat by Morris Foster, dated December 20, 1976 and later revised on July 6, 1977.  The property is further described as a portion of tax parcel 14-8 and also a portion of a larger tract described as Tract Second conveyed from James S. and May R. Carpenter to John E. Sheridan by a deed dated February 2, 1952 and recorded in Deed Book 298, page 592. The 9.018 acre parcel is now identified as Parcel 8B on Tax Map 14.

 

On the basis of this deed, Parcel 8 is determined to have been comprised of two separate parcels of record as defined in Section 10.3 on the date of adoption of the zoning ordinance. The parcels are the residues of the tracts shown on the Cumbow plat. Each of these parcels had five development rights. The residue acreage of these parcels is not provided on the revised plat.

 

Deed Book 1398, page 733, dated November 10, 1993 conveyed 48.113 acres from Dorothy F. Sheridan and the Jefferson National Bank, Executors and Trustees under the will of John E. Sheridan to John F. Sheridan and Nancy R, Sheridan. The parcel is described as being a portion of Tract SECOND conveyed to John E. Sheridan by the deed recorded in Deed Book 298, page 592. The parcel is shown on a plat by Morris Foster, dated April 27, 1982. The plat indicates that the 48.113-acre parcel is to be added to Parcel 9A. No development rights were transferred with the 48.113-acre parcel.

 

This transaction conveyed all of what remained of the property identified as Lot 1 on the 1946 plat by A. L. Cumbow, with the exception of approximately 2.8 acres. This area is identified on the map key as Tract

 

. [J]. Based on the information submitted with the application, we have determined that Parcel 8 is comprised of one parcel that includes [I] and [J] on the map key. This determination takes the following factors into account:

 

1.       We acknowledge that this deed references Deed Book 298, page 562, which in turn references Deed Book 271, page 205 which includes the plat by A. L. Cumbow. That plat shows Parcel 8 was comprised of two separate parcels; Lot 1 with 73 acres and Lot 2 with 230.5 acres.

 

2.       We acknowledge that there is no indication in the deed or on the plat that it was the intention of the owner to include the entire fee of Lot 1 in this conveyance. The distances and bearings on the Foster plat do not agree with those on the Cumbow plat. The departing lot line on the Foster plat indicates that it was known that a portion of the original Lot 1 was not conveyed with the 48.113 acres. However, the following supercedes this finding.

 

3.       We find no express language that either reserves or creates the 2.8 acre area as separate parcel. It appears that, while the owner was aware of the A. L. Cumbow plat, the 48.113 acre off-conveyance did not preserve the separate identity of the original Lot 1 and Lot 2.

 

4.       Regulations in effect in 1982 when the plat was drawn and in 1993 when the deed and plat were recorded required parcels to have frontage, a building site, the amount of residue of revised parcels and a designation of development rights. The 2.8 acre area did not meet these criteria.

 

This determination is based on the information submitted with the application and public records. We may reconsider this determination upon receipt within thirty days of additional information regarding the owners’ intent or other considerations concerning the area identified as [J] on the map key.

 

Based on this history, these development rights may be utilized if all other applicable regulations can be met. These development rights are theoretical in nature but do represent the maximum number of lots containing less than twenty-one acres allowed to be created by right. In addition to the development right lots, as many parcels containing a minimum of twenty-one acres may be created as the property can support, if all other applicable regulations can be met.

 

If you are aggrieved by this determination, you have a right to appeal it within thirty days of the date notice of this determination is given, in accordance with Section 15.2-2311 of the Code of Virginia.  If you do not file a timely appeal, this determination shall be final and unappealable.  An appeal shall be taken only by filing with the Zoning Administrator and the Board of Zoning Appeals a notice of appeal which specifies the grounds for the appeal.  An appeal application must be completed and filed along with the fee of $120. 

The date notice of this determination was given is the same as the date of this letter. If you have any questions, please contact me.

 

Sincerely,

 

 

John Shepherd

Manager of Zoning Administration

 

Enclosed: Map key, 1980 Tax Map & 2002 Tax Map

 

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