By Right Subdivision

Informational Meeting on By-right Subdivision
5 September and 6 September 2007

The county planning staff held an informational meeting at the Luray Elementary School on 5 September and the Shenandoah Elementary School on September 6.
The intent of the meeting was actually twofold:

1. First, to provide information to the citizens of the county on what a By-right Subdivision is and to identify potential problems associated with them under current county ordinance. A By-Right Subdivision provides that a land owner may subdivide a parcel of land by cutting out a portion of his property and sell it once every 2 years. There are virtually no guidelines in the current ordinance on how this may occur so there is a tendency for development of the property to be somewhat random.

2. Second, to solicit input from county citizens on how the county planning staff and planning commission might best address issues surrounding apparent shortcomings in the county ordinance that create problematic situations.

Also, there were refreshments offered for the masses! How good is that! For those who need to know – there were Oreo cookies! And fig newtons! And cheese and crackers! And other stuff, plus soda. So if you weren’t there, you missed a good time!

Mr. Henry, ably assisted by Michelle Somers, did a fine job of laying out the essence of By-Right Subdivision means and the issues the county should consider while it is being revised. They are:

1. Public Health.

Under current code, septic drainfields can be placed virtually anywhere during the subdivision process. This can result in a drainfields being located on an adjacent lot or across several lots via easements. This seems to be a big time problem. I would tend to agree that something really needs to be done.

2. Lack of a Definition of a Parent Tract.

The implications associated with not better defining a Parent Tract is difficult to explain in words. The following is but a brief outline of what has occurred under the current ordinance in a non-family By-Right Subdivision:

If Mr. X owns 100 acres, that acreage is nominally a Parent Tract. If Mr. X decides to sell a part (20 acres) of that Parent Track to Mr. Y, a new Parent Tract is created within the original Parent Track. Under the current ordinance there is a restriction on how often a tract of land can be subdivided (i.e. once every two years). That restriction would now apply to the newly created 20 acre tract. Mr. X would not be able to subdivide for two years but Mr. Y could subdivide immediately, creating yet a third Parent Tract. The two year clock is restarted for each newly created Parent Tract. This could continue to happen until subdivision is no longer possible due to the 1.75 acre minimum lot size restriction. All of this can happen without consideration of the impact on county infrastructure (i.e. roads, schools, emergency services, etc.) Since a By-Right Subdivision doesn’t require the subdivider to provide financial support for the expanded needs of the infrastructure, who will bear the cost? The property taxes of the By-Right Subdivision property owners would not be sufficient to cover associated costs to the county leaving the additional burden to be borne by the taxpayers of the county as a whole.

The second category of By-Right Subdivision is family subdivision. A land owner can give or sell portions of his property to each of his family members one time. However, once the property is subdivided, the family member can turn around and subdivide their portion again. The multiplier effect of the cycle presented above would then take over potentially creating the problems associated with non-family subdivision.

3. Poor Planning.

Having done a poor job of planning in the past, the county wants to improve how it deals with By-Right Subdivisions. The two biggies here are:

• Current development requirements do not track with the county’s Comprehensive Plan.

A lack of planning can often lead to problematic situations associated with property subdivision when a buyer really doesn’t know what they are getting when they acquire a property.

Inadequate property descriptions on permit applications describing adjacent property can lead to problems for property buyers. At present there is no requirement to show land use for property adjacent to a property that has been subdivided and offered for sale. Once someone buys the property, they may find restrictions on what they can do with the property based on the land use of adjacent properties. For example, the presence of a chicken house on an adjacent property would require a 300-foot offset that may affect a property buyer’s ability to build where they choose or to build at all.
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The identification of property totally or partially within a floodplain should be included in subdivision permit requirements so buyers know before they buy what restrictions they might be subjected to when they do decide to build. Currently, buyers often only find out after the fact there are restrictions on what they can do with the property.

If a bank loan is involved in the building a house in a floodplain, the bank will want insurance. The construction requirements on building in a floodplain levied by FEMA come into play. The cost of flood insurance is not cheap nor is cost of building a structure in a floodplain. Again the new landowner may not discover this until after the property is purchased. Most people are not so unaware as to buy a property within eye shot of running water that they would not ask themselves “Does this area flood?” I guess it does happen, so having floodplain areas identified during the subdivision process seems to be a good idea. I might also note that under State requirements, you can’t put a septic field in an annual floodplain under any circumstance. Identification of a 100 year floodplain is one thing but most certainly annual floodplain areas should be identified as well. Due to the nature of the soil, particularly on the west side of the South Fork, if the only location for a septic field is in a floodplain, a buyer might find himself out of luck if the only place to locate a drainfield is in an annual floodplain.


• Impact Mitigation.

This refers to the need to address the impact on the county’s infrastructure (schools, roads, services, etc) that are generally encountered as the result of By-Right Subdivision. While a conventional development is required to provide consideration for the impact on the county’s infrastructure, By-Right Subdivision does not. The county assumes the cost of any impact on roads, schools and other services. Ultimately, the taxpayers are left holding the bag.


4. Private Right-of -Ways.

By-Right Subdivision often requires the creation of private right-of-ways (rights-of-way?) to access lots. However, there potentially problems associated with doing so:

• Emergency Services.

Often the access road built on private right-of-ways is not very good since it isn’t built to VDOT or county standards. In emergency situations, emergency vehicles could have a difficult time responding because access roads are poor.

• Snow Removal.

Often people who live on private access roads have the expectation that the county or VDOT will perform snow removal on private access roads. Such is not the case.

• Homeowner’s Associations.

Homeowner’s Associations tend to have a life expectancy of about 10 years. At first, everything is wonderful. They have a new road (maybe a bridge) to access their property. As time goes on the new road (or bridge) deteriorates and requires significant maintenance. Perhaps property also changes hands and the band of once happy campers are not so compatible. Property owners may stop paying association dues. Little or no money is available to pay for repairs to the road (or bridge). The cycle continues and the road is a mess. More importantly (Here comes the bridge!) the bridge collapses. The property owners in one instance would have to come up with…$7,000,000 to replace their bridge. It would not be the county or states responsibility so what do they have…no bridge and no access to their homes. Ouch!

That is pretty much the essence of what was presented at the two sessions. The citizens who attended asked a number of questions, mostly to obtain clarification on a particular point.

My general impression is that the county planning staff is really looking for assistance from the citizens to help shape the outcome of this action. Unfortunately, a relative few showed up. Without broader citizen participation there may be some people who will later say they didn’t have a say in what might ultimately fall out of all of this. If they don’t make their opinions known, others will decide for them what is to be done. At that point, I can’t say I would be particularly sympathetic.

There are also zoning ordinance implications underlying the subdivision ordinance that may follow. Of particular note is the notion that larger lot sizes might be the answer. Only for those who can afford them and pay taxes on them! The average person in this county could end up being driven out due to ever increasing taxes on property. If you want to know what can happen, check out what is currently going on in Rappahannock.

All in all, it was a good start to what will be a long process. Since there is nothing predetermined on the table at this point, now is the time for people to pay attention. People should be aware that there are significant tax implications for the county if there are not some reasonable solutions forthcoming on By-Right subdivision.

If I have misrepresented or missed anything, corrections and comments are welcomed.


Alice’s addition: There was a citizen comment about breaking up a ranch, and needing to be sure you can still put houses for the workers on the tracts that are broken up to give to family members. It is important that everything that is necessary for encouraging farming be offered and provided in any changes to the zoning ordinances. Nothing being done, I believe, is intended to harm the farmers, and care should be taken that those who want to continue farming are not inadvertently harmed by our zoning laws.