Bertozzi v. Hanover County

Present: Carrico, C.J., Lacy, Hassell, Koontz, Kinser, and
Lemons, JJ., and Compton, S.J.

A. G. BERTOZZI OPINION BY
SENIOR JUSTICE A. CHRISTIAN COMPTON
v. Record No. 001072 April 20, 2001

HANOVER COUNTY

FROM THE CIRCUIT COURT OF HANOVER COUNTY
John R. Alderman, Judge

In this land use dispute, we consider whether the trial

court erred in ruling that a local planning commission's

disapproval of applications and plats for a subdivision properly

was based on the applicable ordinance and was not arbitrary or

capricious.

Before the close of business on October 9, 1996, A. G.

Bertozzi, a subdivider, filed with the Hanover County Planning

Office applications for final approval of five sections, "A"

through "E," of a subdivision known as "Sugar Maple." The

sections comprised approximately 125 acres of real property

located in an A1 agricultural district in the western part of

the County.

During the evening of October 9, the County Board of

Supervisors adopted zoning and subdivision ordinances

significantly changing rural subdivision development

requirements. The new ordinances include a so-called

"grandfather clause," the interpretation of which is at the core
of this controversy. As pertinent, the grandfather clause

provides:

"Complete applications for final subdivision approval
which have been filed before the close of business on
October 9, 1996, which were in compliance with all
substantive zoning and subdivision ordinance
requirements in effect on that date shall be reviewed
in accordance with those requirements."

By letter dated October 29, 1996 from the County's Deputy

Director of Planning, the subdivider was notified that the

applications and plats for Sugar Maple had been disapproved by

the planning staff. The subdivider appealed this ruling to the

circuit court pursuant to former Code § 15.1-475(B)(3) (now Code

§ 15.2-2259(C)). As pertinent, the statute provided:

"If a local commission or other agent disapproves a
plat and the subdivider contends that such disapproval
was not properly based on the ordinance applicable
thereto, or was arbitrary or capricious, he may appeal
to the circuit court having jurisdiction of such land
and the court shall hear and determine the
case. . . ."

In his petition to the circuit court, the subdivider

contended that disapproval of the applications and plats was

erroneous, improper, and "arbitrary and/or capricious." He

asserted that the filings should have been approved because he

fully complied with all applicable requirements.

Following a June 1997 hearing, at which the trial court

considered only the subdivider's petition, the County's

response, memoranda of the parties, and argument of counsel, but

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no evidence, the court ruled in favor of the subdivider. In a

July 1997 final decree, the court ordered that the plats for the

subdivision "shall be accepted" following review by the County

"pursuant to the requirements of ordinances in effect prior to

October 9, 1996." The County appealed that ruling to this

Court.

In Hanover County v. Bertozzi, 256 Va. 350, 504 S.E.2d 618

(1998), we reversed the judgment of the circuit court because we

were presented with "a record devoid of any evidence and factual

findings" on the question whether the County properly had

disapproved the filings for Sections A through E. We remanded

the case "for an evidentiary hearing regarding whether the

County's disapproval . . . was 'not properly based on the

ordinance applicable thereto, or was arbitrary or capricious.' "

Id. at 356, 504 S.E.2d at 621.

Upon remand, the trial court conducted an evidentiary

hearing to consider the foregoing issues. The subdivider

presented the testimony of two persons who were familiar with

the practices and procedures for subdivision development

followed by the County planners in districts zoned A1. Also

testifying for the subdivider was a civil engineer who had

prepared the filings for the Sugar Maple subdivision, as well as

for another proposed County subdivision, Pin Oak Place, which

the subdivider previously developed.

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 This evidence established that for years prior to October

9, 1996 the County planners routinely had employed a "25-acre

Rule," an unwritten administrative interpretation of the zoning

and subdivision ordinances. Under the "Rule," developers were

permitted to subdivide land into more lots than would have been

permitted under a strict interpretation of the ordinances.

According to the testimony, the "Rule" allowed a developer

to divide a large parcel into tracts of approximately 25 acres,

"and then go through the subdivision process on each of those

tracts," yielding "four lots per every 25 acres or 16 lots per

hundred, as opposed to . . . 10 lots per hundred." The four-lot

arrangement was accomplished by dividing the 25-acre tract into

a two-acre "first division," two ten-acre lots, and a three-acre

residual lot. The "first division" lot was not considered a

part of the subdivision subject to review for subdivision

approval; that lot was not to be included on the subdivision

plat.

This procedure, described as "convoluted" by the County's

Director of Planning, affected the application process. Under

the procedure, a developer would file an "Application for Final

Approval" with the County Planning Office together with a

subdivision plat, accompanied by the required fees. The

subdivider was not required to have recorded a "first division"

deed at that time.

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 The application would then be reviewed by the planners, who

would notify the applicant of any revisions to the plat they

required for final approval. Typically, a required revision

specified removal of "the first divisions from these plats by

removing the bold lines from their perimeter, adding their

proper deed book and page number, and half-toning this

information." When the suggested revisions were made, including

recordation of the "first division" deeds, the applications and

the plats received the County's final approval.

The evidence established that this practice and procedure

generally had been followed by the County since 1978; it

specifically had been followed when this subdivider developed

the Pin Oak Place subdivision in 1995.

When the subdivider filed the applications and plats for

Sugar Maple on October 9, 1996, he employed the foregoing

application procedure that existed under the ordinances in

effect immediately prior to that date. Specifically, he did not

include a deed book and page number for the "first division"

lots related to development of Sections A through E, although

such lots were shown on the plats.

In disapproving these applications in the letter of

October 29, the County stated that the "new ordinance eliminated

. . . both 'first divisions' and 'the 25 acre rule' as

interpretations of the zoning and subdivision ordinances."

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 Continuing, the County wrote that the "staff has completed

its review of your application and is notifying you that your

subdivision plat and application, filed on October 9, 1996,

titled 'Sugar Maple', . . . is DISAPPROVED because of failure to

record first division lots (Title I. Art 5. Sec. 2.7-1)."

Section 2.7-1 of the County Code related to lot size

requirements for single family dwellings and provided: "2

acres, after the first conveyance all lots must be 10 acres or

greater."

At the conclusion of the evidentiary hearing, the trial

court ruled in favor of the County. The court rejected the

subdivider's argument that, according to the provisions of the

grandfather clause of the new ordinances, his applications and

plats should have been considered according to the County's

practices and procedures employed under the old ordinances.

The court responded that, after October 9, the "first

division" lots were required to be recorded at the time the

application was filed. Continuing, the court said: "My reading

of the grandfather clause means that everything has to have been

done because of the artificial barrier that was placed on

October 9. After October 9, the Planning Commission, the

County, couldn't do what had been done before, which was a

process of application amendment and, ultimately, approval. The

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County was not empowered to do it after that so the process

became, in effect, a one-day process."

In a February 2000 final decree, the trial court dismissed

the subdivider's petition, finding that the County's

"disapproval was properly based on the applicable ordinances and

was not arbitrary or capricious." The subdivider appeals.

The County, urging affirmance of the trial court's order,

contends in a circular argument that in "applying [the

grandfather clause], the County staff gave applicants the

benefit of the Rule in determining whether applications were

filed 'in compliance with all substantive zoning and subdivision

requirements. . . .' In the case of Sugar Maple, Sections A

through E, the staff determined that there was not compliance

with the requirements of the Rule. The Subdivision did not

comply with substantive provisions of either old or new

ordinances, in that lot sizes were less than the old or new (ten

acre) minimums, and the divisions were not made correctly." We

do not agree that the County's disapproval properly was based on

the applicable ordinances, and the trial court erred in so

ruling.

As demonstrated by the foregoing portion of its argument,

the County in one breath says that, in applying the grandfather

clause, the "staff gave applicants the benefit of the Rule."

But in the next breath, the County says that the Sugar Maple

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filings were "not in compliance with the requirements of the

Rule." This argument disregards the evidence.

There is no conflict in the evidence about the provisions

and administration of the "25-acre Rule." Indeed, the testimony

of John Howard Hodges, the County's Director of Planning in

October 1996, corroborates the testimony of the subdivider's

witnesses about the practice and procedure the County routinely

followed under the old ordinances in allowing "first division"

lots to be recorded under the "Rule" subsequent to filing of the

application. As a matter of fact, reasonably to be inferred

from the evidence is the conclusion that the County Board of

Supervisors recognized and tacitly approved the planning staff's

employment of the "Rule" under the old ordinances. When the

trial court, referring to the "Rule," asked Hodges, "Whose

bright idea was that?", Hodges responded, "The Board of

Supervisors always does the right thing."

The grandfather clause mandates that if "complete"

applications for final subdivision approval have been filed

before the close of business on October 9, 1996, and if such

applications were "in compliance with all substantive zoning and

subdivision ordinance requirements" then effective, those

applications shall be reviewed in accordance with those

requirements. The County does not dispute that the applications

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the subdivider filed for the sections of Sugar Maple at issue

here were "complete."

Rather, the County maintains the applications failed to

comply with old or new substantive ordinance requirements. But

the evidence is clear that, under the County's administrative

interpretation of the substantive requirements of the old

ordinances, "first divisions" were permitted under the "25-acre

Rule," and the first division deed did not have to be recorded

when the applications were filed initially, as long as they were

recorded prior to final approval. For purposes of this

discussion, it is irrelevant that the applications did not

comply with the new substantive ordinance requirements.

Incidentally, the County does not contend that employment

by its planners of the "25-acre Rule" was an impermissible

administrative interpretation or that it was prohibited

legislative action taken by an administrator, as discussed in

cases like Board of Zoning Appeals for the County of York v. 852

L.L.C., 257 Va. 485, 489, 514 S.E.2d 767, 769-70 (1999).

Indeed, the County's October 29 letter of disapproval refers to

the "first divisions" and the "Rule" as its "interpretations" of

the ordinances.

Therefore, we hold that, under the grandfather clause, this

subdivider is entitled to have his "complete" Sugar Maple

(Sections A through E) applications reviewed in accordance with

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the pre-existing substantive ordinance requirements, as

interpreted employing the pre-existing "Rule." Cognizant of the

"Rule," the County Board of Supervisors, in enacting the

grandfather clause, manifestly intended such a result.

This means that the County is prohibited from requiring the

deed book and page number of "first division" lots to be

included in the applications and plats initially, as long as

such information is provided prior to final County approval of

the applications and plats. In other words, the former

standards must be applied to applications and plats filed, as

here, before the close of business on October 9, 1996.

Consequently, the judgment below will be reversed, and the

case will be remanded with direction that the circuit court

order the County to accept the applications and plats in issue

and that they be reviewed by the County in accordance with the

standards existing when they were filed on October 9, 1996.

Reversed and remanded.

JUSTICE KINSER, with whom JUSTICE LACY joins, dissenting.

As the majority correctly notes, the interpretation of the

so-called “grandfather clause” is the central controversy in

this case. Because I believe that the majority fails to

interpret that clause according to its plain, unambiguous terms,

I respectfully dissent.

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 The “grandfather clause” at issue in this appeal provides

that “[c]omplete applications for final subdivision approval

which have been filed before the close of business on October 9,

1996, which were in compliance with all substantive zoning and

subdivision ordinance requirements in effect on that date shall

be reviewed in accordance with those requirements.” Hanover

County, Va., Subdivision Ordinance No. 96-17, § 8(4)(a)(Oct. 9,

1996). I find the terms of that clause to be plain and

unambiguous. Thus, “there is no need for construction by the

court; the plain meaning and intent of the enactment will be

given it.” Brown v. Lukhard, 229 Va. 316, 321, 330 S.E.2d 84,

87 (1985) (citing School Bd. v. School Bd., 219 Va. 244, 250,

247 S.E.2d 380, 384 (1978)); accord Dairyland Ins. Co. v. Sylva,

242 Va. 191, 194, 409 S.E.2d 127, 129 (1991). Thus, to trigger

the right of A.G. Bertozzi to have his application for final

approval of the subdivision known as “Sugar Maple” reviewed

under Hanover County’s prior subdivision ordinances, his

application must have been “in compliance with all substantive

zoning and subdivision ordinance requirements in effect” before

October 9, 1996.

For purposes of this appeal, the relevant substantive

requirement in effect before the October 9th deadline was former

§ 2.7-1 in Title I, Article 5 of the Hanover County Code. That

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section, along with the definition of the term “subdivision,” *

formed the basis for the administrative interpretation known as

the “25-acre Rule.” Section 2.7-1 stated that the minimum lot

size for a single family dwelling was “2 acres, after the first

conveyance all lots must be 10 acres or greater.” The term

“conveyance” means the “transfer of title to land from one

person, or a class of persons, to another by deed.” Black’s Law

Dictionary 333 (6th ed. 1990).

In my view, the provisions of § 2.7-1 required an actual

conveyance of the two-acre “first division” lot before a

subdivider, such as Bertozzi, could submit an application for

final approval of a subdivision utilizing the “25-acre Rule.”

Under the “grandfather clause,” compliance with that substantive

requirement had to occur before the close of business on October

9, 1996. While I recognize that the County had developed a

practice that allowed a subdivider to file an application for

final approval before recording the deed evidencing conveyance

of the “first division” lot, that practice was not part of the

substantive zoning and subdivision ordinance requirements in

effect before October 9, 1996. The “grandfather clause”

requires compliance with substantive subdivision requirements,

not compliance with the County’s prior practice or procedure.

*
A subdivision for tracts of this size was a “division of a tract or
parcel of land into three (3) or more parts, any of which contain an area of

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Yet, the majority allows Bertozzi’s application for final

approval of the subdivision to be reviewed in accordance with

that practice.

Notably, Bertozzi’s application was not the only one denied

after October 9th because the subdivider failed to record a deed

evidencing a “first division” conveyance before submitting an

application for final approval. John Howard Hodges, Deputy

County Administrator for Hanover County, testified that no one

was allowed to record a two-acre “first division” after October

9th. During cross-examination, he reiterated that any

applications received before the deadline that did not have the

“first division” were not approved. The County’s consistent

construction of the “grandfather clause” is entitled to great

weight. See Cook v. Board of Zoning Appeals, 244 Va. 107, 111,

418 S.E.2d 879, 881 (1992) (citing Masterson v. Board of Zoning

Appeals, 233 Va. 37, 44, 353 S.E.2d 727, 733 (1987)).

Thus, I believe that the circuit court correctly determined

that the County’s disapproval of Bertozzi’s application was

based on the applicable ordinances and was not arbitrary or

capricious. Bertozzi did not convey a “first division” lot

prior to the close of business on October 9th. Thus, he did not

comply with the substantive subdivision ordinances in effect

ten(10) or more acres, but less than twenty-five (25) acres . . . .” Hanover
County, Va., Zoning Ordinance Title III, Article 5, § 2-6 (Sep. 27, 1972).

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prior to the October 9th deadline. Additionally, there is no

evidence that the County did not consistently interpret and

apply the provisions of the “grandfather clause.” For these

reasons, I would affirm the judgment of the circuit court.

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