November 11, 2004

 

Tara Rowan Boyd

LeClair Ryan

Post Office Box 2017

Charlottesville, VA 22902-2017

 

RE: OFFICIAL DETERMINATION OF DEVELOPMENT RIGHTS- Tax Map 43, Parcel 30B (Property of Philips Howard Hamilton, Trustee) Section 10.3.1

 

Dear Ms. Boyd:

 

The County Attorney and I have reviewed the title information for the above noted property.  It is the County Attorney's advisory opinion and my official determination that Tax Map 43, Parcel 30B contains five separate parcels. The location of the parcels is shown on the attached “Roger Ray Parcel Study.” Parcel A contains 4+/- acres and one or two development rights, depending upon its exact acreage. Parcel B contains

1.2 acres and one development right. Parcel C contains 24.5 acres and five development rights. Parcel D contains 37.75 acres five development rights. Parcel E, contains 36.75 acres five development rights. The basis for this determination is provided below.

 

Our records indicate Tax Map 43, Parcel 30B contains 107.200 acres and one dwelling. The property is in Moormans River Agricultural Forestal District. The most recent deed for this property is recorded in Deed Book 2712, page 469.

 

This analysis begins with the deed recorded in Deed Book 233, page 243 and dated October 13, 1936. This deed conveyed 340 acres from S. A. Calhoun to Grover C. Dula. The deed also established a right of way over a 106.5- acre parcel owned by Henry Bing. The property is shown on a plat by Hugh F. Simms, S.A.C. that is dated October, 1936 and recorded after this deed on page 246. The deed states that the tract is composed of numerous smaller tracts acquired by S. A. Calhoun under the following deeds:

 

1.       The residue of about 110 acres conveyed by the deed dated July 17, 1902 and described in Deed Book 124, page 49.

 

2.       A parcel containing 37 ¾ acres and another parcel containing 75 ¼ acres by the deed dated July 7, 1914 and described in Deed Book 157, page 108.

 

3.       A parcel containing 38 acres, a parcel containing 5 ½ acres and a parcel containing about 75 acres described in Deed Book 167, page 441, except 1 acre conveyed in Deed Book 158, page 319.

 

Deed Book 233, page 246 contains a plat by Hugh F. Simms, S.A.C. that is dated October 1936 and is recorded in this book at page 246. It shows 340 acres sold by S.A. Calhoun to Grover C. Dula. It shows 6 tracts and references Deed Book 124, page 55, Deed Book 130, page 42, Deed Book 83, page 22, Deed Book 157, page 108 and Deed Book 128, page 490. It also shows the 1-acre lot that was conveyed by Deed Book 158, page 319 that is now the site of the Hunt Country Store.

 

It is determined that this deed and plat established the six tracts shown on the Simms plat as parcels of record as defined in Section 10.3.

 

Deed Book 263, page 489, dated June 8, 1945, conveyed 173.4 acres from Grover C. Dula and Faith Hope Dula to R. E. Carter III and Barbara Nye Carter. The property is accurately described on a plat by Hugh F. Simms, S.A.C. that is dated May 1945 and attached to this deed. The property is further described as being part of the tract conveyed to said Grover C. Dula by S. A. Calhoun by deed dated October 13, 1936, recorded in Deed Book 233, page 243, to which deed and plat are attached and deeds therein referred to reference is here made for further description of the tract hereby conveyed.

 

The southwestern boundary of the 173.4 acres runs with Jumping Branch. This left a residue of approximately 4 acres from the 74 11/16 acre tract and approximately 1.2 acres from the 44 7/8-acre tract shown on the plat recorded in Deed Book 157, page 110. The 4-acre tract is designated as Parcel A and the 1.2-acre tract is designated as Parcel B on the parcel study made by Roger Ray. The 173.4 acre tract also included approximately 1 acre from the 37.75 acre tract designated as Parcel E on the parcel study. 

 

Although the deed and plat did not separately identify the 4-acre tract or the 1.2-acre tract as separate parcels, when they are examined together it is clear that the deed did not eliminate the parcel lines established by the plat. Therefore, it is determined that the deed established these tracts as lots of record for the purpose of Section 10.3.

 

It has been our consistent practice to find that boundary surveys of tracts of land comprised of multiple parcels do not eliminate the separate legal status of those

parcels simply because the internal property lines are not shown. The separate legal status of parcels can only be eliminated by explicit language in a deed or on a plat that combines the many parcels into one. In this case there is no indication of an intent to combine the original parcels. On the contrary, the property is described by the reference to Deed Book 233, page 243. This reference preserves the boundaries between the six parcels shown on the plat recorded with that deed.  Therefore, the residues that remain after the off-conveyance of the 173.4-acre tract maintain their status as separate lots of record. As a result of this transaction the subject property consisted of five separate parcels containing a total of 166.6 acres.  

 

This determination is not to be used in the future as a basis to find that slivers of land that result from discrepancies between surveys are separate parcels because that is not the case here. The 1936 plat clearly shows the boundary between these parcels did not follow Jumping Branch. The southern boundary of the 1945 plat clearly does run with Jumping Branch. Both plats were made by Hugh Simms. 

 

Deed Book 264, page 191, dated August 13, 1945, conveyed 59.4 acres from Grover C. Dula and Faith Hope Dula to Dr. John Porter and Berta Garth Jones. The property is accurately described on a plat by Hugh F. Simms, S.A.C. that is dated August 1945 and attached to this deed. As a result of this transaction the subject property consisted of  five separate parcels containing a total of 107.2 acres.

 

The most recent deed for this parcel recorded prior to the adoption of the ordinance, December 10, 1980, is recorded in Deed Book 274, page 250 and is dated May 31, 1947. This deed conveyed 107 acres from Faith Hope Dula to C. Ray Phillips and Helen B. Phillips. The property is described as being all of a tract containing 340 acres conveyed by the deed recorded in Deed Book 233, page 243 except two portions that were conveyed off, one being a tract described as containing 173 ¾  acres conveyed by the deed recorded in Deed Book 263, page 489 and the other being a tract incorrectly described as containing 58.4, but actually containing 59.4 acres conveyed by the deed recorded in Deed Book 264, page 191. This transaction has no effect on the status of these parcels or on their development rights. As a result of this transaction the subject parcel consists of five parcels of record. The location of these parcels is shown on the attached parcel study by Roger Ray.  Parcel A has one or two development rights, depending upon its exact acreage. Parcel B has one development right. Parcel C has five development rights. Parcel D has five development rights. Parcel E has five development rights.

 

Deed Book 2712, page 469, dated November 18, 2003, conveyed 107 acres from the Executors of the Estate of Howard Laverne Hamilton to Elizabeth Bentley Hamilton and Phillips Howard Hamilton, Trustees of the Share A Trust. The property is described as being the same as was conveyed by the deed recorded in Deed Book 274, page 250.

 

This transaction has no effect on the status of these parcels or on their development rights.

 

These parcels are entitled to the noted development rights 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, a “parent parcel” may create as many parcels containing a minimum of twenty-one acres as it has land to make.

 

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 $120.00.  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

 

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