Present: All the Justices
JAMES B. LOVELACE, ET AL.
v. Record No. 071338 OPINION BY JUSTICE DONALD W. LEMONS
June 6, 2008
ORANGE COUNTY BOARD OF
ZONING APPEALS
FROM THE CIRCUIT COURT OF ORANGE COUNTY
F. Ward Harkrader, Judge Designate
In this appeal, we consider whether the Circuit Court of
Orange County erred by affirming the Orange County Board of
Zoning Appeals’ decision that upheld a zoning administrator’s
decision to deny a permit for the construction of a
residential dwelling with a garage and shed.
I. FACTS AND PROCEEDINGS BELOW
In October 2001, the Board of Supervisors of Orange
County granted Virginia Timberline, LLC (“Timberline”) a
special use permit to develop a cluster subdivision along the
shore of Lake Anna. The permit, in letter form, stated:
“Final approval of the subdivision plan is subject to the
approval of a specific open space/recreation plan for the
reserve area of development.”
In March 2002, Timberline filed a plat of the subdivision
with the Clerk’s Office of the Circuit Court of Orange County.
The plat depicts thirty lots of approximately one acre each
lining the north shore of Lake Anna. A 106.36 acre parcel
described on the map as “REMAINING LAND” is located
immediately to the north of the subdivided lots.
Next to the map on the plat is a column of notes. The
sixth of the eleven typed notes states: “Current zoning of all
parcels: Agricultural (A). This property is subject to a
special use permit that allows cluster developments granted by
the Orange County Board of Supervisors.” Below those notes,
the following statement appears on the plat: “Reserved area as
shown hereon is intended as open space as part of Daniel’s
Point subdivision and is not to be further developed or
subdivided.” The plat also states that “[t]he subdivision
shown on this plat has been reviewed and approved by [Orange
County] in accordance with existing regulations, and may be
committed to record.” No additional declaration of covenant
was filed with the clerk of court to restrict the parcel
pursuant to § 70-736(c) of the Orange County Code.
In August 2003, James and Barbara Lovelace (“Lovelace”)
purchased the 106 acre parcel identified on the map as
“REMAINING LAND.” Lovelace purchased the parcel from the
principals of Timberline and their spouses who had obtained
the parcel from the developer. Lovelace applied for a zoning
permit to build a residence with a garage and shed in March
2006. The permit was initially approved. However, the zoning
administrator (“administrator”) later declared that the permit
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was “null and void and was issued in error.” The
administrator contended that the “reserved area” referred to
on the plat is the “REMAINING LAND” shown on the map. Because
Orange County Code § 70-736(a) states that “[t]he zoning
administrator shall issue no zoning permit and the subdivision
agent shall approve no plat that would violate the terms or
the intent of [the preservation of the reserved areas],” the
administrator concluded that Lovelace’s 106 acres could not be
developed in any manner because it is reserved as open space.
Lovelace appealed the administrator’s decision to the
Orange County Board of Zoning Appeals (“BZA”). After a
hearing, the BZA unanimously voted to uphold the
administrator’s decision. Lovelace appealed the BZA decision
to the Circuit Court of Orange County, pursuant to Code
§ 15.2-2314. The trial court held that in spite of the
careless procedures followed, the plat and the use
restrictions listed on it were in the chain of title and were
therefore binding on Lovelace. The circuit court held that
the “reserved area” mentioned on the plat refers to the area
on the map described as “REMAINING LAND” and that the
“property was intended to be considered a part of the Daniel’s
Point cluster subdivision and was to be an open-space preserve
for the benefit of the smaller lots in the Subdivision.” The
trial court affirmed the BZA’s decision that the restriction
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applied to the Lovelace parcel and that as a result, no
structures could be built on the parcel.
We granted Lovelace this appeal upon seven assignments of
error in which Lovelace argues that the plat notation
restricting a “reserved area” does not apply to the Lovelace
parcel and that even if the parcel is bound by the notation,
it does not prevent Lovelace from building a single-family
dwelling.
II. ANALYSIS
On appeal before a circuit court, the BZA’s findings and
conclusions on questions of fact are presumed correct, however
the circuit court reviews the BZA’s conclusions of law de
novo. Code § 15.2-2314. Likewise, on appeal to this Court,
the circuit court’s findings of fact are presumed correct, but
its conclusions of law are reviewed de novo. See Trustees of
the Christ and St. Luke’s Episcopal Church v. Board of Zoning
Appeals, 273 Va. 375, 381, 641 S.E.2d 104, 107 (2007).
On appeal, Lovelace asserts that in order for the special
use permit restrictions to apply to Lovelace’s property, the
Orange County Code required the developer to file a
declaration of covenant with the clerk of court. Lovelace
argues that because the developer never filed a declaration of
covenant, there are no restrictions on the Lovelace parcel.
Moreover, Lovelace maintains that the ambiguous plat notation
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does not serve as a substitute for a recorded declaration of
covenant. We agree with Lovelace.
On this record, we hold that the failure to record a
declaration of covenant combined with the use of ambiguous
language on the plat results in an ineffective attempt to
restrict the use of Lovelace’s parcel. Orange County Code
§ 70-736(c) provides, in pertinent part:
The reserved area may be held by the original
owner. The owner shall file with the clerk of
the court a declaration of covenant stating
that, in consideration of the county’s approval
of the subdivision as a cluster development, the
owner agrees not to further subdivide or develop
the reserved area, but to use it only for
agriculture, forestry, recreation and open
space. Such declaration of covenant shall run
with the land and shall be approved by the
county attorney and the zoning administrator.
Orange County Code § 70-736(c) (emphasis added). * Such a
declaration of covenant properly filed in the land records
pursuant to the requirements of the ordinance would have
placed Lovelace on notice of restrictions upon development.
Absent a recorded declaration of covenant, the only
possible notice Lovelace received concerning the subject
property was an ambiguous restriction listed in notes on the
plat. Restrictions on “the free use of land, although widely
*
As of November 15, 2006, Orange County Code §§ 70-731 to
70-737 were repealed. References in this opinion to those
Orange County Code sections pertain to the version in effect
before the 2006 amendments.
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used, are not favored and must be strictly construed and the
burden is on the party seeking to enforce them to demonstrate
that they are applicable to the acts of which he complains.”
Waynesboro Village, L.L.C. v. BMC Properties, 255 Va. 75, 80,
496 S.E.2d 64, 67 (1998) (quoting Friedberg v. Riverpoint
Bldg. Comm., 218 Va. 659, 665, 239 S.E.2d 106, 110 (1977));
see also Scott v. Walker, 274 Va. 209, 212-13, 645 S.E.2d 278,
280 (2007) (same) and Riordan v. Hale, 215 Va. 638, 641, 212
S.E.2d 65, 67 (1975) (same). Substantial doubt or ambiguity
is to be resolved against the restrictions and in favor of the
free use of property. Scott, 274 Va. at 213, 645 S.E.2d at
280; Schwarzschild v. Welborne, 186 Va. 1052, 1058, 45 S.E.2d
152, 155 (1947). We have defined “ambiguity” as “the
condition of admitting of two or more meanings, of being
understood in more than one way, or of referring to two or
more things at the same time.” Berry v. Klinger, 225 Va. 201,
207, 300 S.E.2d 792, 796 (1983) (quoting Webster’s Third New
Int’l Dictionary 66 (3d ed. 1976)). These principles guide our
resolution of this case.
We hold that the language on the plat is ambiguous as a
matter of law. Although the plat states that the “reserved
area” is intended as open space for the benefit of Daniel’s
Point subdivision, there is no area on the map designated as
“reserved area.” The 106 acres that Lovelace purchased is
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described on the map as “REMAINING LAND” and there is no
notation on the plat restricting the “REMAINING LAND.” If the
“reserved area” restriction was intended to refer to
Lovelace’s property, it would have been easy to say so and its
application would not be left to the uncertainty of inference.
See Scott, 274 Va. at 218, 645 S.E.2d at 283; Schwarzschild,
186 Va. at 1058, 45 S.E.2d at 155.
The trial court correctly observed that “the chain of
title to the subject property is so lacking with respect to
the use restrictions . . . that it amounts to sloppy
procedures that wind up harming innocent parties.” However,
the trial court erred in holding that the plat notes,
nonetheless, prohibited the Lovelace’s ability to build a
residence with garage and shed. Because we hold that the plat
in question imposes no restrictions on the 106 acre parcel
that Lovelace purchased and no declaration of covenant was
recorded in the land records, we need not address Lovelace’s
second argument that even if the Lovelace parcel is bound by
the plat notion, the language cannot prevent Lovelace from
building a single-family dwelling.
III. CONCLUSION
For the reasons stated, the judgment of the circuit court
will be reversed and the case will be remanded for entry of an
order stating that the notations on the March 2002 plat
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restricting a “reserved area” do not prohibit Lovelace from
building the proposed residence with garage and shed, to be
recorded among the land records.
Reversed and remanded.
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