Open-Space Use Agreements



Adopt a Resolution authorizing the County Executive to accept Open-Space Use Agreements



Messrs. Tucker, Foley, Davis, Herrick, Wiggans, and Willingham





September 2, 2009


ACTION:                INFORMATION: 



ACTION:         X        INFORMATION:   









On October 1, 2008, the Board adopted an ordinance to require biennial revalidation of properties in the Use Value Tax Program.  On May 29, 2009, revalidation forms were mailed to the 4,927 owners of property currently in the County’s Use Value Tax Program.    While working with these property owners, staff has learned that a number of property owners are interested in changing the qualifying use of their property from Agriculture or Forestry to Open-Space.


To qualify for the Open-Space category, the property must:

1)                   meet one of the seven uses under the “open-space” definition in Virginia Code § 58.1-3230;

2)                   meet the minimum acreage (20 acres) required by County Code § 15-804(2); and

3)                   be subject to one of the three mechanisms outlined in Virginia Code § 58.1-3233(3):

a)                   a permanent conservation easement held by a public body;

b)                   an Agricultural/Forestal District of statewide significance; or

c)                   an Open-Space Use Agreement with the County.


Open-Space Use Agreements place substantial restrictions on the property. (Attachment B)  These restrictions preclude any subdivision of the property and prohibit the building of any structure not related to the open-space use during the term of the Agreement.  The term of the Agreement can be from four to ten years.


To date, the County has entered into only one Open-Space Use Agreement and currently there is no formal procedure for the consideration of these Agreements.  The County has significant discretion whether to enter into these Agreements. However, other than the length of the term of the Agreements, the substantive requirements are mandated by State law and cannot be negotiated.  Due to the increase in public awareness and the pending revalidation deadlines, staff anticipates an increase in the number of these Agreements proposed by property owners desiring to qualify their property for open-space land use taxation.  For tax year 2010, an Open-Space Use Agreement must be in place by December 31, 2009 for a property owner to use it for a basis to qualify for open-space land use tax valuation. 


The minimum amount of land that must be in open-space use to qualify for open-space land use taxation is twenty acres as required by the County Code.  State law allows for the minimum to be as little as five acres unless a greater acreage is required by local ordinance.



Objective 4.2:  By June 30, 2010, increase the protection of the County’s rural areas by implementing the key strategies of the Rural Area Plan.



Staff recommends that the Board establish a process to efficiently consider and accept Open-Space Use Agreements. In order to efficiently process requests for these Agreements and to meet the timelines for the Land Use Tax Program, it is recommended that:


1.                   The Board authorize the County Executive to enter into Open-Space Use Agreements on its behalf.  Given the number of proposed Agreements expected in coming months, staff would propose a process by which the County Executive would be authorized to execute such Agreements after reviews by the County Assessor, Department of Community Development, and the County Attorney.  (See Attachment C)


2.                   The Board fix a term for Open-Space Use Agreements.  Though the contents of Agreements are largely fixed by state law, Agreements may have a term of four to ten years.  The Board has similar discretion in setting the length of Agricultural and Forestal Districts (AFD’s), but generally has chosen to give all AFD’s a uniform duration of ten years.  The Board could set a similar policy by accepting Open-Space Use Agreements only for a term of ten years, or could instead choose to accept any Agreement of four to ten years. 


3.                   Give guidance on whether the Board wishes to accept Agreements on partial properties.  Owners may wish to offer Agreements on only a portion of certain parcels.  While legally allowable, the dividing of parcels poses administrative and enforcement challenges.  Community Development, in particular, will have to determine what property is restricted by the Agreement to be able to enforce the subdivision and development restrictions.  This would likely require a survey plat to depict the boundaries of the property subject to the Agreement.  Notwithstanding the administrative difficulties, staff does not want to rule out entering into an Agreement over a sizable parcel where only a very small portion is proposed to be excluded.  Staff recommends that the Board authorize the County Executive to execute Agreements for only whole parcels, but that proposed Agreements for only partial parcels be considered on a case-by-case basis by the Board.



Authorizing the County Executive to enter into Open-Space Use Agreements would streamline the process and minimize the administrative burden that would otherwise be required to schedule the authorization for a Board meeting, prepare an executive summary, and then have the Board act on the authorization.



Staff recommends that the Board adopt the attached Resolution to authorize the County Executive to enter into Open-Space Use Agreements on behalf of the County, provided that the Agreements are approved as to form and content by the County Attorney and apply to the whole parcel.  Staff also requests the Board to provide direction regarding the period of time it wishes to require to be the term of Open-Space Use Agreements.




A – Proposed Resolution

B -- Open-Space Use Agreement

C – Suggested Procedure for Accepting Agreements

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