Attachment B










TO:       Albemarle County Board of Supervisors


FROM:     Larry W. Davis, County Attorney

          Greg Kamptner, Assistant County Attorney


DATE:     May 24, 2004


RE:       Subdivision text amendment; response to comments from

          James W. Theobald, Esq., from Hirschler Fleischer, dated March 21, 2004


     We have reviewed the comments from Mr. Theobald in his letter dated March 31, 2004 to Neil Williamson, which were submitted on behalf of the Free Enterprise Forum.  We offer the following responses:


1.              COMMENT:  In the definition section, the term “subdivision” includes a reference to the establishment of a condominium regime.  I am not sure how condominiums are treated in Albemarle County, but in most jurisdictions, they require site plan approval rather than subdivision.  Virginia Code § 55-79.43.B obviates the need for subdivision approval to the extent a condominium has been approved through a site plan process.


RESPONSE:  The definition of “subdivision” is not in conflict with Virginia Code § 55- 79.43(B).  Section 55-79.43(B) does not preempt local subdivision regulations, so the two provisions may co-exist.  The Zoning Ordinance’s site plan regulations allow condominiums to be created by site plan.  However, it is possible that condominiums also could be approved under the Subdivision Ordinance. 


2.              COMMENT:  The time periods for review, approval and duration throughout the draft are generally consistent with the State Code unless otherwise specifically noted in these comments.


  RESPONSE:  No response needed.


3.              COMMENT:  Section 14-211 – Family Subdivisions.  Family subdivisions are clearly permitted by State law, but I do not find any support in the State Code for the limitations set forth under Section B, nor the specific factors listed under Subsection D. 1, 2, 3 and 4 which deal with circumvention.  These seem way too subjective.


     RESPONSE:  Because Albemarle County is a high growth locality, its enabling authority for family divisions is found in Virginia Code § 15.2-2244(C), which provides that the County “may include reasonable provisions permitting divisions of lots” to family members.  Unlike the more restrictive enabling authority applicable to other localities found in Virginia Code § 15.2-2244(A), Albemarle and other high growth localities are not even required to allow family divisions. 


The regulations in section 14-211(B) and (D) complained of are designed to prevent abuse of the family division process and were originally derived from Attorney General opinions from the past twenty years or so to assure that the purposes of the family division are fulfilled.  These regulations have been in the Subdivision Ordinance for several years.


4.              COMMENT:  The most glaring legal issue is found in Section 14-213B.  The words “health safety or welfare” are not an appropriate standard for review of matters pertaining to subdivisions.  Those terms are only related to legislative acts, rather than the ministerial determinations that are fundamental to subdivision consideration.  The agent is only there to determine whether or not the subdivision plan complies with the stated (and legal) standards applicable to subdivisions.


RESPONSE:  Staff agrees with this comment because relevant health, safety and welfare issues are addressed through all of the other regulations.  Section 14-213(B) should     be deleted.  We note that this section has existed in the County’s Subdivision Ordinances      since at least 1974.  It has been interpreted to relate to express requirements within the ordinance.


5.              COMMENT:  Section 14-215.  A small point, but I do not believe that the County has the ability to require you to have a pre-app conference, although these are usually helpful.


RESPONSE:  Virginia Code § 15.2-2241(9) enables a subdivision ordinance to include regulations providing for the administration of the ordinance.  Staff believes that the pre-application conference is part of the administration of the ordinance to assure that the      subdivision process begins in a productive manner.


6.              COMMENT:  Section 14-216.  A concept arises in subsection A that appears in various places throughout the ordinance.  That is the concept that for purposes of calculating review periods, etc., the application is “deemed” to be submitted on the date of the next application deadline.  This obviously gives the County more time within which to act.  That assumption is not, however, found in the State Code.  The State Code talks about when “submitted”.


     RESPONSE:  The state Subdivision Law and the Subdivision Ordinance require that the County approve preliminary and final plats within prescribed periods between 60 and 90 days.  Section 14-216 pertains to the submittal of a preliminary plat.  In part, section 14-    216 establishes when an application is “deemed” to be officially submitted to start the review time and the minimum requirements for such a plat to be accepted for official submittal.  Without such a requirement, the review time could begin upon the submittal of a patently deficient plat, thereby unfairly and unreasonably burdening staff.  It is our opinion that section 14-216 imposes reasonable administrative requirements that are  enabled under Virginia Code § 15.2-2241(9).  These requirements have been in the   Subdivision Ordinance for several years.


7.              COMMENT:  The second most troubling legal issue has to do with Section 14-225.1 regarding waivers of certain requirements.  Staff has pushed the envelope in terms of the requirements with which a subdivider must comply.  They then attempt to provide relief for many of those through the waiver process.  This has the result of making this ordinance less certain and far more subjective and discretionary.  You no longer know what the “minimum” requirements are, which is up to the Board of Supervisors to establish.  Accordingly while there is no bright line test, this structure could be viewed as an inappropriate delegation of legislative authority to the Commission.  While I realize that the development community often benefits from having a waiver policy, in this case it almost seems that there will be more instances where you cannot comply or do not wish to comply with the standards and as such, end up being subject to a discretionary process rather than a ministerial one as required by the Code.


RESPONSE:  Virginia Code § 15.2-2242(1) provides localities with the option of including “provisions for variations in or exceptions to the general regulations” of the Subdivision Ordinance.  Section 14-237 of the current Subdivision Ordinance provides for “waiver, variation or substitution” of any requirement and proposed section 14-225.1 simplifies the description to “waivers.”  As noted in the comment, waivers are for the benefit of the subdivider to allow them to satisfactorily respond to unusual situations.  When properly used, waivers provide greater flexibility in the ordinance and enable innovative and perhaps even superior solutions to subdivision design and development problems.  Waiver requests are made by the subdivider. 


The proposed ordinance establishes criteria for each form of waiver allowed.  By necessity, the consideration of waivers requires the exercise of a limited amount of discretion that is circumscribed by the applicable criteria.  Staff believes that the waiver criteria are as reasonably precise as the subject matter allows and the decision maker is required to engage in a fact finding inquiry.  Thus, it is our opinion that the waiver provisions are reasonable and meet the requirements of Virginia Code § 15.2-2242(1) and     Virginia case law pertaining to the delegation of discretionary decisions.


8.              COMMENT:  Section 14-231.  Extension of Validity of Plats.  I do not like subsection (iii) under section A which suggests that your ability to extend a plat is in some way related to changes in the comprehensive plan policy, zoning ordinance or other Code requirement.  Clearly the reference to the comprehensive plan is extraneous, and the zoning ordinance or Code requirement has to be viewed in terms of the State vested rights ordinance.


     RESPONSE:  Plat extensions are enabled under Virginia Code § 15.2-2261(B).  We agree that section 14-231(A)(iii)’s reference to changes to the County’s comprehensive plan as a criterion to decide whether to grant a plat extension should be deleted.  Virginia Code § 15.2-2261(B) allows the locality to consider, among other things, the “laws, ordinances and regulations,” and the comprehensive plan is none of those; it is a policy document.  It is unlikely that vested rights would be established for an unrecorded plat that is not timely put to record.


9.              COMMENT:  Section 14-313 – Overlot Grading Plan.  While I applaud the effort to deal with drainage, I am not sure that this overlot grading plan is consistent with how development occurs.  If you are truly a subdivision developer rather than the homebuilder, I am not sure that you could adequately perceive the desires of a homebuilder or homeowner.  Perhaps this would be better done at the time of building permit.


RESPONSE:  Jack Kelsey, Chief of Engineering, acknowledges that the requirement for an overlot grading plan will be a change from the current practice, but that it is necessary because of the growing development activity and the move toward increased density.  In      higher density developments there is little flexibility for house siting and it is more practical to have all lots graded under a comprehensive grading plan rather than on a lot by lot, piecemeal basis.  Grading under a comprehensive grading plan will also assure      that grading and drainage issues are addressed up front, and assure that future grading and drainage problems are minimized when each lot is developed.


10.         COMMENT:  Section 14-411.  While I see it in most local ordinances, I just can’t find State Code authority to require curb and gutter, sidewalks and planting strips.  Curb and gutter may actually be a part of a legitimate drainage concern, but not sidewalks and planting strips. This is usually a subject of negotiation rather than a mandate.


  RESPONSE:  This comment pertains to section 14-410 as well.  Virginia Code § 15.2-2241(4) enables the County to establish the extent to which and the manner in which     streets shall be improved.  “Streets” are defined in Virginia Code § 15.2-2201 to include not only highways, streets, roads and other travelways, but also any “public way” (defined under Virginia case law to be a way open to all of the people).  The Subdivision Ordinance’s definitions of “street” and “street right-of-way” are equally broad and      include curb, gutter, sidewalks and planting strips.  Also, Virginia Code § 15.2-2241(5)   enables the County to accept dedicated curbs, gutters, and sidewalks.


  It is our opinion that the County is enabled to require curbs, gutters and sidewalks as part of the “extent” to which and the manner in which streets shall be improved.  Because nothing in the Virginia Code requires that sidewalks be adjacent to curbs and     gutters, it also is our opinion that a right-of-way may include some space in between the curbs, gutters and sidewalks (a “planting strip”) to protect the pedestrians using the   sidewalks.


11.         COMMENT:  Section 14-413 – Improvement of Existing Public Streets.  I find subsection A odd in that by the time you are seeking subdivision, you have obviously been rezoned and presumably consistent with the comprehensive plan.  Subdivision is not the time to determine whether or not area streets are inadequate, and I really don’t find any support for the requirement that you might have to improve existing off-site streets.


  RESPONSE:  Section 14-413 applies to existing streets that serve a subdivision, i.e., streets that are located on the land being subdivided, will provide immediate vehicular access to a lot within the subdivision, provide the principle means of access to the subdivision, or will serve as an entrance to the subdivision.  Undoubtedly, the County      may require that streets within the subdivision be improved to accommodate traffic.  For      the other existing streets that will serve the subdivision, section 14-413 will require the   subdivider to improve only that portion abutting the subdivision or the street providing access to the subdivision, and only if the need for the improvements is substantially    generated by the subdivision.  The test for whether the need for an improvement is “substantially generated” by the subdivision is based on Virginia Supreme Court precedent.  Staff reports that VDOT applies a similar test.  Often street improvements are necessary for VDOT to issue required entrance permits for access points to VDOT streets.       


12.         COMMENT:  Section 14-426 – Dedication of Land for Public Use.  I do not know any provisions where they can require dedications for parks, schools, etc. unless voluntarily offered or you are compensated as a result of condemnation.


  RESPONSE:  Both sections 14-426 and 14-427 pertain to dedicating and reserving for future dedication certain lands within a subdivision for parks, schools, open space and other public facilities.  Virginia Code § 15.2-2241(4) provides in part that a subdivision   ordinance must provide for the extent to which public facilities or other community facilities are to be installed. Under sections 14-426 and 14-427, if the subdivision substantially generates the need for the facilities or contributes to the need (but does not substantially generate the need) for the facilities, then the land (if the need is substantially generated) or a pro rata amount of land (if the subdivision contributes to the need) must     be dedicated or reserved.  This section does not require that the facilities be installed, but requires only that the land be dedicated or reserved.  Although this provision has been part of the Subdivision Ordinance for many years, it is rare that the criteria for dedication     are met.  If land is reserved, the owner would be compensated for the property when it is taken.  Generally, these needs are addressed during the rezoning of the property.


13.         COMMENT:  Section 14-427.  Same comment as above.


     RESPONSE:  See comment 12 above.


14.         COMMENT:  Section 14-429 – Reservation of Land for Future Right-of-Way. The County cannot require you to reserve highways and streets on your subdivision plan even if shown on a thoroughfare plan.  There is a “put” provision in the State Code that upon notice, they can either acquire and compensate or let you go.


     RESPONSE:  Section 14-429 was deleted in the draft ordinance considered by the Planning Commission.  Coordinating existing and proposed streets is addressed in section   14-409.  Coordination is enabled by Virginia Code § 15.2-2241(2) and (4).  It is our opinion that the reservation of right-of-way for future streets shown approved in an official map can be required.  Compensation by the County may be required if the reservation constitutes a taking of the property.


15.         COMMENT:  Section 14-434. I am not familiar with a structure that requires you to do all on-site improvements before obtaining final plat approval.  Since you can’t sell lots until they are platted, I suppose you are supposed to have confidence in putting in all the infrastructure before you start selling lots.


RESPONSE:  Sections 14-434 and 14-435 must be read together. Section 14-434 states that, except as provided in section 14-435, improvements must be completed before final plat approval.  Section 14-435 allows the subdivider to bond the improvements in lieu of completing them before final plat approval.  This is a basic approach found in probably every subdivision ordinance.


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