Attachment B

 

COUNTY OF ALBEMARLE

 

 

 

 

 

MEMORANDUM

 

 

TO:                  Albemarle County Board of Supervisors

                       

FROM:            Larry W. Davis, County Attorney

                        Greg Kamptner, Assistant County Attorney

 

DATE:             June 29, 2004

 

RE:                  Subdivision text amendment; supplemental response to Comment No. 14 in

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

 

            At your June 2, 2004 meeting, we provided responses to Mr. Theobald’s written comments to the draft Subdivision Ordinance, which were submitted by Neil Williamson on behalf of the Free Enterprise Forum.  At your June 9, 2004 meeting, Mr. Williamson expressed concerns about our response to Comment No. 14 and, in particular, our acknowledgement that the reservation of land for public right-of-way might require compensation if it is determined to be a taking. 

 

            Below we have restated Mr. Theobold’s comment and our initial response, followed by a supplemental response and suggestions for the draft Subdivision Ordinance.      

 

INITIAL COMMENT AND RESPONSE

 

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.

 

SUPPLEMENTAL RESPONSE AND SUGGESTIONS 

 

            The essence of former Section 14-429 was that it enabled the County to require that lands

within a subdivision be reserved for future dedication of right-of-way for major highways and interstate highways.  Section 14-429 exists in the current Subdivision Ordinance as Section 14-407.  Section 14-429 was deleted from the draft ordinance and replaced by Section 14-409, which requires in part that a developer either dedicate or reserve for future dedication public right-of-way that is adequate to accommodate the continuation of subdivision streets into adjoining areas. 

 

            The following discussion pertains to requiring the dedication or reservation of land for a subdivision’s internal transportation network, and requiring the dedication or reservation of land for major highways and interstate highways. 

 

            Internal transportation network

 

            The County is enabled by Virginia Code §§ 15.2-2241(2) and (4) to require that a subdivision’s internal street network be coordinated with existing and planned streets in the general area, and to require that streets be extended to the subdivision’s boundaries.  The County is enabled by Virginia Code § 15.2-2241(5) to require that rights-of-way, including those for streets to be constructed in the future, be dedicated to public use.  It is our opinion that the power of the County to require that land be reserved for future dedication is within the enabling authority to require dedication of right-of-way. 

 

            The dedication or reservation of land for future subdivision streets is an alternative to requiring the developer to construct the subdivision’s entire internal transportation network, to the abutting property lines, as part of the subdivision approval process.  This alternative is attractive when the need for such interconnectivity does not yet exist.  It is our opinion that requiring that land to be dedicated or reserved to provide for the complete build-out of the subdivision’s internal transportation network, and necessitated by the subdivision itself, is not a taking of land requiring compensation. 

 

            The reservation clause is not essential to Section 14-409, and we recommend that it be deleted and that the relevant portion of Section 14-409 simply authorize the County to require dedication.  The effect of this change would be that, instead of requiring a reservation that may never be dedicated if the right-of-way is later determined to be unnecessary, the County would require that the land be dedicated, and if the right-of-way is not needed in the future it could be vacated under applicable law. 

 

            Major highways and interstate highways

 

            As noted above, former Section 14-429 would have enabled the County to require that lands within a subdivision be reserved for right-of-way for major highways and interstate highways. 

 

            This section rarely has been used, if ever, though it serves an important public purpose.  As part of the planning process, it is prudent to assure that subdivision lots and improvements are not placed in the path of approved alignments.  At the lot development stage, it is desirable to not issue building permits for structures within future or proposed rights-of-way. 

           

            Mr. Theobald referred to a “put” provision in the Virginia Code that provides that, “upon notice, they can either acquire and compensate or let you go.”  Mr. Theobald was probably referring to Virginia Code § 15.2-2233, which pertains to official maps.  Official maps show, among other things, future or proposed streets, and once shown on the map, the County may acquire in any way permitted by law the land needed for the street.  However, when an application for a building permit is made within an area shown on the map as a future or proposed right-of-way, the County has 60 days to grant or deny the permit.  If the permit is denied solely because the County wants to acquire the land, the County has 120 days from the date of the denial to acquire the land either through negotiation or by filing condemnation proceedings.  If the County does not act within the 120 day period, the building permit must be issued provided all other applicable requirements are met.

 

            The authority in Virginia Code § 15.2-2241(5) to require dedication and the language of Virginia Code § 15.2-2233 enable the County to require the dedication or reservation of land for highways.  Accordingly, for the reasons stated above, we recommend that Section 14-429 be retained in a revised form to enable the County to require that land be reserved for highways in appropriate circumstances.  In most instances, any reservation could be required only if the highway was shown on an adopted official map, clearly identified in the comprehensive plan, or was part of a road project that had approved road plans.  If the need for dedication or reservation is not substantially generated by the subdivision, then compensation by the County or the State may be required.    

 

            Please feel free to contact us if you have any questions.

 

Return to executive summary