December 16, 2004
813 E. Jefferson Street
Charlottesville, VA 22902
RE: OFFICIAL DETERMINATION OF PARCELS & DEVELOPMENT RIGHTS - Tax Map 58, Parcel 8A (Property of Kevin and Coleen O’Rourke) Section 10.3.1
Dear Mr. Brannock:
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 58, Parcel 8A contains at least two (2) and as many as four (4) development rights. The basis for this determination is provided below.
Our records indicate Tax Map 58, Parcel 8A contains 8.405 acres and two dwellings. The property is not in an Agricultural Forestal District. The most recent deed for this property is recorded in Deed Book 2837, page 33.
This analysis begins with the deed recorded in Deed Book 298, page 542 and dated January 30, 1952. This deed conveyed five tracts of land from Arthur L. Dorsey and Hazel M. Dorsey to Stillman F. Kelley, 2nd and Katharyn N. Kelley.
These two parcels were among those conveyed with this deed:
(1) 17.5 acres shown on a plat recorded in Deed Book 117, page 29 less a strip containing 0.23 acres conveyed to the Commonwealth of Virginia. (17.5 – 0.23 = 17.27) Parcel 8A is a portion of this parcel.
(2) 15.5 acres shown on a plat recorded in Deed Book 255, page 276.
Together, these two parcels comprised Parcel 8 as shown on the 1980 tax map. Copies of these two plats are attached.
This deed established these two parcels as lots of record as defined in Section 3 of the Zoning Ordinance.
The most recent deed for this parcel recorded prior to the adoption of the ordinance, December 10, 1980, is recorded in Deed Book 489, page 73 and is dated June 14, 1971. This deed conveyed two pieces of land from Stillman F. Kelley,II and Katharyn N. Kelley to the Commonwealth of Virginia. Dettor, Edwards & Morris, Inc. is also a party to this transaction. Parcel A, a portion of T.M. 58 – 8 containing 0.296 acres was added to the right-of-way of Route 738. Parcel B, a portion of T.M. 58 – 8A containing 0.458 acres was added to the right-of-way of Route 676.
On the basis of this deed, Parcel 8 as shown on the 1979 tax map was comprised of two separate lots of record.
One contained an estimated 16.894 acres (17.27 – 0.458 – 0.148 = 16.664) and was located on both sides of Route 738. There are five development rights associated with this parcel. This is identified as Parcel A on the attached sketch.
The other contained an estimated 15.352 acres (15.5 – 0.148 = 15.352) and was located on the southeast side of Route 738. There are five development rights associated with this parcel. This is identified as Parcel B on the attached sketch.
Deed Book 754, page 384, dated December 6, 1982, conveyed 8.46 acres from Stillman F. Kelley, II and Priscilla Kelley to Thomas E. Hutchinson and Colleen R. Hutchinson. The property is further described as lying on the north side of Route 738 and as being a portion of a larger tract conveyed by the deed recorded in Deed Book 298, page 542. Specifically, this lot is derived from the 17.5 acre parcel. The property is shown on a plat by Frank A. Gregg dated December 1982. The plat shows a 2.7-acre residue that is added to Tax Map 57, Parcel 81B. The remainder of the parcel contains 8.46 acres on the northwest side of Route 738 and an estimated 5.734 acres on the southeast side of Route 738. (16.664 – 8.46 – 2.7 = 5.504) Section 18-52 (p) of the Subdivision Ordinance, in effect at the time of this division, required a note on the plat stating: “The number of lots, as assigned by the subdivider into which each such parcel may be further divided by right pursuant to Section 10.3.1 of the zoning ordinance, if applicable.” However, in this case the plat did not assign the development rights. Therefore, the development rights associated with the 17.5-acre lot of record are determined to be allocated as follows:
I find that the 2.7 acre piece that was added to Parcel 81B was allocated no development rights because it was added to an existing parcel. (T.M. 57 – 81B)
I find that the 8.46 acre portion located on the northwest side of Route 738 (T.M. 58 – 8A) was allocated at least two development rights because each of the two dwellings on the property required one development right.
I find that the 5.504-acre portion located on the southeast side of Route 738 (Portion of T.M. 56 – 8) was allocated at least one development right because any parcel containing less than 21 acres requires a development right.
The two remaining development rights have not been assigned. These development rights are available to either Parcel 8 or Parcel 8A. Parcel 8A has sufficient area to utilize up to four development rights. The 5.504-acre portion of Parcel 8 has sufficient area to utilize up to two development rights. These two unclaimed development rights may be assigned on a plat or plats signed by the owners of the portions of the original 16.664-acre parcel, as provided by the Subdivision Ordinance. Otherwise, these development rights are available to these parcels on a first come, first served basis.
Deed Book 2837, page 33, dated July 19, 2004, conveyed 8.46 acres from Thomas E. Hutchinson and Colleen R. Hutchinson to Kevin S. O’Rourke and Coleen M. O’Rourke. The property is described as being the same property that was conveyed by the deed recorded in Deed Book 754, page 384. This transaction had no effect on the legal status of the parcel or on its development rights.
This parcel is 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.
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.
Manager of Zoning Administration
Attached: Deed Book 117, page 29 Plat
Deed Book 255, page 276 Plat
Sketch showing (A) 7.5-acre parcel and (B) the 15.5-acre parcel on T.M. 58
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