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.

The County now has three options before it:

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:

At the request of the Board of Supervisors, the Orange County Planning Commission will be considering revisions to the Comprehensive Plan and its Future Land Use Map (map that guides future land use decisions) and an overhaul to the Zoning and Subdivision Ordinances to allow for increased rate of subdivision and commercial businesses to occur on agriculturally zoned lands. The staff report on the issue presents the changes as a downzoning of agricultural lands (ultimately reducing the total number of lots that can be created and raising the minimum lot size in specific areas).

While better than operating under no rules, the changes are substantial and if adopted would be difficult to scale back. It would have an immediate impact on the rate of division and new lots created for large parts of the county. This is an ongoing proposal that has morphed many times over the last year and will likely change again given the recent court ruling.

The changes currently under consideration are as follows:

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).

   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. 

Notice of meeting – appeared in the Orange Review:

The Orange County Planning Commission has scheduled a “public comment period” to gather input on the proposed changes to the county’s Comprehensive Plan and other ordinances.  The changes concern the Land Use categories, Future Land Use map and subdivision of property zoned Agricultural. Drafts of these changes can be found on the County’s website (http://orangecountyva.gov) under Board of Directors Agenda – September 11, 2012 – Item 7g (Proposed Text and Map Amendments for the Comprehensive Plan and Zoning and Sub-division Ordinances)

The comment period will be held from 6 p.m. to 7 p.m. on Thursday October 4th in the Gordon Building, 112 West Main Street, Orange, VA 22960.  We welcome your attendance and input; we regret we will not be able to address questions about individual lots, parcels or boundaries.

Sincerely,

Nigel Goodwin,

Chairman, Orange County Planning Commission

Given the current ruling of the Circuit Court, we find it imperative that the citizenry take this opportunity to push the Board into action. We can ill-afford to operate absent conditions for divisions. Irreversible damage could be done in a relatively short period of time if the Board fails to work immediately on developing a new ordinance that is protective of the county’s rural resources and economy. Failure to do so would demonstrate an utter disregard of reasonable limitations, leaving the County and its taxpayers to bear the brunt of any impacts from this free-for-all condition created through inaction.

We will continue to update this story as hearings and changes in the proposal occur. Contact Dan Holmes, the Orange County Field Officer at dholmes@pecva.org, for more information.