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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