February 8, 2005
813 E. Jefferson Street
Charlottesville, VA 22902
RE: CORRECTED OFFICIAL DETERMINATION OF PARCELS & DEVELOPMENT RIGHTS - Tax Map 58, Parcel 8A (Property of Kevin and Coleen O’Rourke) Section 10.3.1
Dear Mr. Brannock:
This official determination supercedes the official determination to you dated December 16, 2004, as explained below. The reason for this new official determination is to correct the December 16, 2004 determination that the 2.7-acre residue of Tax Map 58, Parcel 8A that was added to Tax Map 57, Parcel 81B was not eligible to claim a development right. This letter also accounts for the off-conveyance of the 2.592-acre parcel from Tax Map 58, Parcel 8A. The County’s determination that development rights are allocated on a “first come, first served” basis is not changed in this determination. Accordingly, not all issues raised in the appeal of the December 16, 2004 determination have been addressed. Therefore, the stay remains in effect.
The County Attorney and I have reviewed the title information for the above-noted property. It is the County Attorney's advisory opinion and my official determination that Tax Map 58, Parcel 8A, contains two (2) development rights. The basis for this determination is provided below.
Our records indicate that Tax Map 58, Parcel 8A contains 5.813 acres and no dwellings. The property is not in an Agricultural Forestal District. The most recent deed for this property is recorded in Deed Book 2900, page 333.
1980: Tax Map 58, Parcel 8
This analysis begins with the deed recorded in Deed Book 298, page 542 and dated January 30, 1952. This deed conveyed five tracts of land from Arthur L. Dorsey and Hazel M. Dorsey to Stillman F. Kelley, 2nd and Katharyn N. Kelley.
Three of the tracts conveyed with this deed were:
(1) 17.5 acres shown on a plat recorded in Deed Book 117, page 29 less a strip containing 0.23 acres conveyed to the Commonwealth of Virginia. [17.5 – 0.23 = 17.27] (Parcel 8A is a portion of this parcel.)
(2) 15.5 acres shown on a plat recorded in Deed Book 255, page 276. (This is designated as Tax Map 58, Parcel 8B.)
(3 & 4) 5.35 acres shown on a plat recorded in Deed Book 252, page 86. That plat
shows the property is actually comprised of two separate parcels; one
containing 1.3 acres and the other containing 4.2 acres. (These two lots
comprise a portion of Tax Map 58, Parcel 8)
Together, these four parcels comprised Parcel 8 as shown on the 1979 Tax Map. Copies of three plats depicting these four tracts are attached.
This deed established these four parcels as lots of record as defined in Section 3.1 of the Zoning Ordinance.
The most recent deed for this parcel recorded prior to the adoption of the Zoning Ordinance, December 10, 1980, is recorded in Deed Book 489, page 73 and is dated June 14, 1971. This deed conveyed two pieces of land from Stillman F. Kelley, II and Katharyn N. Kelley to the Commonwealth of Virginia. Dettor, Edwards & Morris, Inc. is also a party to this transaction. Parcel A, a portion of Tax Map 58, Parcel 8 containing 0.296 acres was added to the right-of-way of Route 738. Parcel B, a portion of Tax Map 58, Parcel 8A containing 0.458 acres was added to the right-of-way of Route 676.
On the basis of this deed, Parcel 8 as shown on the 1979 Tax Map was comprised of four separate lots of record designated as Parcels A through D on the enclosed sketch.
Parcel A contained 17.27 acres minus .458 acres and a portion of .296 acres and was located on both sides of Route 738. This is the parent parcel of what is now Parcel 8A. There are five development rights associated with this parcel.
Parcel B contained 15.5- acres minus a portion of .296 acres and was located on the southeast side of Route 738.
Parcel C contained 1.3 acres minus a portion of .296 acres.
Parcel D contained 4.2 acres minus a portion of .296 acres.
The remainder of this determination focuses on Parcel A, the 17.27-acre parcel that is the parent parcel of what is now Parcel 8A.
Deed Book 754, page 384, dated December 6, 1982, conveyed 8.46 acres from Stillman F. Kelley, II and Priscilla Kelley to Thomas E. Hutchinson and Colleen R. Hutchinson. The property is further described as lying on the north side of Route 738 and as being a portion of a larger tract conveyed by the deed recorded in Deed Book 298, page 542. Specifically, this lot is derived from Parcel A on the attached sketch showing the approximate location of lots of record. The property is also shown on a plat by Frank A. Gregg dated December 1982. The plat shows parcel A that is now comprised of three separate lots of record: (1) a 2.7-acre lot that was added to Tax Map 57, Parcel 81B; (2) an 8.46- acre on the northwest side of Route 738 (Tax Map 58, Parcel 8A; and (3) a lot containing between 5.652 and 5.356 acres on the southeast side of Route 738, a portion of Tax Map 58, Parcel 8. [ 17.27 - .458 – 8.46 – 2.7 = 5.652 - .296 = 5.356] The five theoretical development rights associated with Parcel A were available to these three lots.
Section 18-52 (p) of the Subdivision Ordinance, in effect at the time of this division, required a note on the plat stating: “The number of lots, as assigned by the subdivider into which each such parcel may be further divided by right pursuant to Section 10.3.1 of the zoning ordinance, if applicable.” However, in this case the plat did not assign the development rights. Therefore, the development rights associated with Parcel A are determined to be allocated as follows:
The 8.46 acre portion of Parcel A located on the northwest side of Route 738 (Tax Map 58, Parcel 8A) used at least two development rights because each of the two dwellings on the property required one development right.
The portion of Parcel A located on the southeast side of Route 738 (Portion of Tax Map 58, Parcel 8) used at least one development right because any parcel containing less than 21 acres requires a development right.
The 2.7-acre residue was not required to use a development right because it was added to Tax Map 57, Parcel 81B rather than created as a separate parcel. The residue is not determined to have used a development right because the plat did not assign a development right to it. However, this residue is eligible to receive a development right from Parcel A.
Deed Book 2837, page 33, dated July 19, 2004, conveyed 8.46 acres from Thomas E. Hutchinson and Colleen R. Hutchinson to Kevin S. O’Rourke and Coleen M. O’Rourke. The property is described as being the same property that was conveyed by the deed recorded in Deed Book 754, page 384. This transaction had no effect on the legal status of the parcel or on its development rights.
Deed Book 2892, page 270 contains a certificate of plat that was recorded on December 20, 2004. The plat by Trueline II Surveying shows the creation of Parcel X, a 2.592-acre parcel divided from Parcel 8A. The plat was approved by the County on December 17, 2004. The plat notes that Parcel X uses one development right and the residue of Parcel 8A retains two development rights. As a result of this transaction, Parcel X used one development right from the original Parcel A. Parcel 8A containing 5.813 acres has two development rights.
Deed Book 2900, page 333, dated December 27, 2004, conveyed 2.592 acres from Kevin S. O’Rourke and Coleen R. O’Rourke to Barry Meade Homes LLC. The parcel is described as Parcel X as shown on the plat which is recorded in Deed Book 2892, page 270. This transaction had no effect on the legal status of the parcel or on its development rights.
The one unassigned development right is available to these parcels on a first come, first served basis. It can be claimed on a plat that is approved by the County and recorded. Be assured that no plat or building permit will be approved for the affected parcels until the appeal period for these determinations have run their course. County regulations do not allow the Zoning Administrator to allocate a development right to a lot when more than one lot is eligible to receive that development right. Therefore, it is suggested that the owners of the affected parcels agree to the allocation of the remaining development right.
If you are aggrieved by this determination, you have a right to appeal it within thirty days of the date notice of this determination is given, in accordance with Section 15.2-2311 of the Code of Virginia. If you do not file a timely appeal, this determination shall be final and unappealable. An appeal shall be taken only by filing with the Zoning Administrator and the Board of Zoning Appeals a notice of appeal which specifies the grounds for the appeal. An appeal application must be completed and filed with the fee of $120.00. The date notice of this determination was given is the same as the date of this letter.
If you have any questions, please contact me.
Manager of Zoning Administration
Attached: Deed Book 117, page 29 Plat
Deed Book 255, page 276 Plat
Deed Book 252, page 88
Deed Book 2892, page 272
Sketch showing location of Parcels A through D
Tax Map 58
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