Agenda - Planning Commission - 06/03/2010

Home

Zoning Bulletin .April 10, 2010 ~ Volume 4 ~ No. 7 r.. !j ~ Tetra disagreed. Tetra pointed to § 19-123(a) of the counry's zon- ing ordinance. Section 19-123(a) permitted "residential use" "by right" in the Agricultural District. Moreover, § 19-128(f) "permitted one acre lots in the Agricultural District:" Tetra filed an action in circuit court. It asked the court to de- clare that § 17-36 was void. Tetra also asked the court to declare that § 17-2 of the county's zoning ordinance was void. Section 17-2 defined "Subdivision, residential parcel" as: the "division ... of any parcel of land for residential use, into two or more parcels all of which are more than five acres." Section 17-2 defined "Subdivi- sion, lot" as: "the division of any parcel of land for residential ... use, into two or more lots, any of which is less than five acres....." Tetra argued that §§ 17-2 and 17-36, "by prohibiting a lot subdi- vision in the Agricultural District and requiring a residential parcel subdivision with a requisite five acre minimum lot size," "effectively rezone[d] Tetra's property by imposing restrictions on uses that [we] re otherwise allowed in the Agricultural District.". Tetra also asked the court to declare that the county's disapproval of its subdivision application was therefore "improper and void." Finding there were no material issues of fact in dispute, and decid- ~,` ing the matter on the law alone, the court issued summary judgment in favor of Tetra. The court found that state statutes authorizing = the county to establish subdivision ordinances (Code §§ 15.2-2240 through -2279) did not allow the county to demand rezoning as a condition to subdivision approval. Accordingly, the court held that §§ 17-2 and 17-36 were void. The court also ruled that the county's disapproval of Tetra's subdivision application was therefore void. The county appealed. The Court's Decision: Judgment of the circuit court affirmed as to invalidity of ordinance. The Supreme Court of Virginia held that the relevant sections of $§ 17-2 and 17-36 were void. This was because the county was not permitted to use the subdivision ordinance to prohibit a use of Tetra's property that was permitted by the property's zoning classification (under the zoning ordinance). The court explained that while state statutes authorized localities to enact their own definition of "subdivision," the localities power to do so was "limited." Under the authorizing state statutes, coun- ties were "not permitted to use a subdivision ordinance to prohibit a use of property that was permitted by the property's zoning classifica- tion." Because subdivision ordinance §§ 17-36 and 17-2 prohibited l ~ Tetra's use of property that was permitted in the Agricultural District, - § §. 17-36 arid 17-2 were void as an exercise of power not authorized by state statute. © 2010 Thomson Reuters 47