The Orange County Circuit Court ruled that the County does not have the authority to enact a subdivision ordinance with time-phased divisions of land. This invalidates the current ordinance and allows for the immediate division of all agricultural lands into 2 acre lots unless the Board takes action immediately to establish protections of the rural area. Please speak at the Oct. 4th public comment period on proposed changes and send your concerns to the Planning Commission and your representative on the Board of Supervisors.

As Orange County continues to discuss major changes to the Zoning and Subdivision Ordinances and the Comprehensive Plan, it has lost a court case (James A. and Diane Strong v. Orange County BOS) on its authority to enact a subdivision ordinance with time-phased divisions of land. Orange County’s current subdivision ordinance uses time-phased zoning which limits the number of divisions allowed over a specified time period.

Elimination of the time-phased component of the subdivision ordinance is an elimination of the single most important growth management tool the County currently has in controlling the rate of rural land division. Adopted in 2008, this time-phasing allowed for one division of a parcel every four years. The judge determined that localities have not been granted this authority by the state (required under the Dillon Rule). This decision will almost assuredly change the current conversation on the Subdivision Ordinance.

1. Appeal the decision to the VA Supreme Court. This would consist of filing an appeal with the Court. The court would have to grant the appeal before trial could commence. There are no guarantees that the court would agree to the appeal or that they would overturn the lower court’s ruling. 
    
2. Request time to develop a temporary ordinance. Request the judge grant a reasonable period of time to adopt a temporary legal ordinance. If the judge grants the request, it could prevent widespread divisions for a brief period. This would allow the county the time to develop an ordinance that allows for orderly development and is protective of the rural landscape.  
    
3. Do nothing. This option seems inconceivable as it would allow for the immediate division of all agricultural lands into 2 acre lots under our current zoning ordinance. But we have reason to believe this may be the desired option for a majority of the Board of Supervisors (3 of the 5). The Board may still continue its conversation on a new subdivision ordinance. But there would be no rules in place for the duration of this discussion – one that has already lasted two years.

Changes Currently Under Consideration:

1. Comprehensive Plan - Two new categories, Rural and Neighborhood Residential, are being adopted in place of the current Agricultural Conservation and Agricultural land use designations. A new draft Future Land Use Map would be adopted, representing the two districts (see draft map below).
   
   
   Note that Rural Overlay = Rural designation and Agricultural (A) zoned land 
   not under Rural Overlay = Neighborhood Residential.
   
   Concerns: Removing the word agriculture and replacing with rural gives an indication that agriculture is no longer the primary use, or becomes just another use that may occur in the area. Creation of a Neighborhood Residential designation from those lands is evidence of a desire to see more rural land converted to housing. This category would also allow commercial uses that are in crossroads communities. The location and total amount of land identified for Neighborhood Residential (land not under the Rural Overlay District that can be subdivided down to 2 acre lots) is excessive.
    
2. Subdivision Ordinance – The minimum lot size of two acres is maintained but the time-phased component of our ordinance will be eliminated. In Neighborhood Residential areas, lots of ten acres or less can be divided into as many two acre lots as possible (five). Parcels over ten-acres are granted the five lots for the first ten acres and an additional lot for every five acres of additional land. In Rural areas, the minimum lot size would be ten acres – see next point.
   
   Concerns: The Neighborhood Residential designation is a major shift in how we view our agricultural and rural lands. This designation has been created for the sole purpose of rural land conversion to suburban development. For example, a 100 acre tract could be divided into 23 lots immediately under this proposal.
    
3. Creation of Agricultural Overlay – This overlay would apply to a specific area (currently discussed for the Rural category only). The overlay would create a ten acre minimum lot size for the category. However, a majority of the Board has indicated they do not support certain elements within the draft regulations. It is unclear at this time if this element is supported or would move forward with the current proposal.
   
   Concerns: We support this provision. However, the district is too small, leaving the majority of county land subject to the rules under the new Neighborhood Residential classification. This proposal will be challenged by certain members of the Board of Supervisors and may not ultimately move forward with the rest of the proposed changes.

Next Steps:

At this time, no public hearings or timeline has been proposed however a “public comment period” has been scheduled. Having received no further direction from the Board of Supervisors, the Planning Commission is still pursuing the current proposal and has scheduled a public comment period (not a public hearing) for this Thursday night (October 4th) from 6 p.m. to 7 p.m. in the Gordon Building on 112 West Main Street. 

We will continue to update this story as hearings and changes in the proposal occur. Contact Dan Holmes, the Orange County Field Officer at This email address is being protected from spambots. You need JavaScript enabled to view it., for more information.