The preemption language adopted in a 2009 amendment to Virginia Code 15.2-2157 as subsections (C) and (D), states as follows:

C. When sewers or sewerage disposal facilities are not available, a locality shall not prohibit the use of alternative onsite sewage systems that have been approved by the Virginia Department of Health for use in the particular circumstances and conditions in which the proposed system is to be operating.

D. A locality shall not require maintenance standards and requirements for alternative onsite sewage systems that exceed those allowed under or established by the State Board of Health pursuant to § 32.1-164.

Enactment clause # 2, contained in the final legislation, 2009 Acts of Assembly ch. 846 (SB 1276), stated as follows:

That the provisions contained in subsections C and D of § 15.2-2157 of the Code of Virginia shall become effective 30 days following final promulgation by the Board of Health of regulations governing the operation and maintenance of alternative onsite sewage systems pursuant to Chapters 892 and 924 of the Acts of Assembly of 2007.

Reading those two portions of the enacted bill together, Attorney General Mims opined that any regulations, even emergency regulations, meet the test in Enactment Clause # 2 of a “final promulgation … of regulations.”

This comes as a surprise to many, especially local governments whose citizens have been concerned with the public safety of these systems, which require more maintenance and are therefore more susceptible to failure than traditional septic systems. Many had expected the local ordinances to remain effective until the adoption of final regulations, not emergency regulations. Emergency regulations may or may not be a “final promulgation.” The Attorney General says they are. Others aren’t so sure. What do you think?

In 2006, such statutes were adopted. 2006 Acts of Assembly ch. 573. However, the authority was little utilized in part because of the requirement that the severence of the development rights and the attachment of the development rights occur simultaneously. In 2009, this was addressed and other changes made to the statutes with an intent to make them more attractive to local governments and landowners. 2009 Acts of Assembly ch. 413. That statutory amendment took effect July 1, 2009.

For the last few months, a workgroup made up of representatives from local governments, realtors, homebuilders, agriculture and environmental groups has met at the Virginia Association of Counties Office on Richmond’s Main Street with one goal: To make it easier to implement Transfer of Development Rights (TDRs) in Virginia.

With special kudos to Chairman John G. ” Chip” Dicks, who facilitated the discussions, and Ted McCormack, who organized the meetings and arranged the details, a group of attorneys, lobbyists, planners, assessors, staff and other real estate professionals from varying perspectives wrangled over the details of the current TDR statutes, found in Virginia Code sections 15.2-2316.1 and 15.2-2316.2. The workgroup is nearly ready to release a model ordinance with extensive commentary, form deeds and transfer documents. I will certainly update this blog with the materials when they are finalized, which should be before the end of 2009.

The end product is one that we reached by consensus, and one that we believe will make the implementation of TDRs easier and more likely in those localities that choose to adopt some version of it. The end product is NOT approved by any locality, organization or employer, but is intended as a resource. Of course, any model will require significant review and revision by local staff and the local government attorney, as well as amendment of existing local ordinances and the comprehensive plan to make it work. But the end result may be another way to make good planning work for growing localities.

Our meetings were all very cordial, and disagreements were seldom and professional. The comments reflect some of the legitimate disagreements that occurred, and are intended to allow local governments and others to consider issues the workgroup discussed. My compliments go to every member of the workgroup for your professional demeanor and positive attitude. All of us truly seemed to want to make TDRs work for the benefit of all.

I agree, to a point. The Attorney General has accurately summarized the statutes from the subdivision article of Chapter 22, Title 15.2. None of those statutes allows a locality to mandate a review and approval if a plat is merely a boundary survey or physical survey, and not a subdivision of any kind.

Of course, the A.G. opinion is completely premised on the assumption that the plat is NOT a subdivision, a new lot or altered boundary in any way. What if the plat says it is a “boundary survey” and it is really the creation of a new lot? What if it says “plat of survey of two lots” but it in fact divides one lot into two? Could not a short review (not approval) process catch these at the front end?

Since the Attorney General’s opinion is premised on the fact that the plat is NOT a subdivision, can the Circuit Court Clerk not require some proof of the fact? The opinion cites a 1987 A.G. Opinion, which states that “generally” a clerk is not required to determine compliance with “any particular provision of law” and unhelpfully suggests that a clerk accept an oral assertion of compliance and make a written notation of that assertion on the plat. 1987-88 Op. Va. Att’y Gen, 208, 210.

As local government attorneys, we have seen the damage that an improperly-recorded plat can cause. Localities typically deny building permits or other approvals for improperly-divided lots, but this is a harsh result. Of ten the people hurt are well-meaning folks who rely on the surveyor, realtor or developer and bought the lot in good faith. I have had seen lot owners cry because they cannot build their dream home and their lot is next-to-worthless. Recordation of inaccurate parcel boundaries can harm the integrity of the land records, to the detriment of all.

On the other side, the surveyors want their plats recorded quickly. They complain that a review and approval process of a mere boundary survey is unnecessary and slows the process. There may well be localities that take a while to review plats. (In Goochland, such reviews would take less than a day, on average.) There must be a middle ground.

While I agree with the Attorney General’s reading of the law, I believe there should still be some room for common sense, either by the Circuit Court Clerk who could still ask for confirmation from the local planning office that the plat in fact is not a subdivision plat, or failing that, by the General Assembly which could amend the statute.

Choosing speed over accuracy cannot be the only way.