Chapter 20. Standards for Classification of Real Estate As Devoted to Open Space Use under the Virginia Land Use Assessment Law
4VAC5-20-10. General standards.
To qualify as an open-space use, real estate must meet the requirements of both this section and the specific standards contained in 4VAC5-30-20 of this chapter. The general standards are as follows:
A. Consistency with land use plan.
1. The open-space use of the property must be consistent with the land use plan of the county, city, or town which has been made and adopted officially in accordance with Article 4, Chapter 11, Title 15.1 of the Code of Virginia.
2. A land use consistent with the land use plan means a use that is consistent with areas or land use zones depicted on a map that is part of the land use plan, or that directly supports or is generally consistent with stated land uses, natural resources conservation or historic preservation objectives, goals or standards of the land use plan.
3. A property that is subject to a recorded perpetual conservation, historic or open-space easement held by any public body, or is part of an agricultural, a forestal or an agricultural and forestal district approved by local government, shall be considered to be consistent with the land use plan.
B. Minimum acreage.
1. Except as provided in subdivision B 2 of this section, real estate devoted to open-space use shall consist of a minimum of five acres.
2. If the governing body of any county, city or town has so prescribed by ordinance, real estate devoted to open space shall consist of a minimum of two acres when the real estate is:
a. Adjacent to a scenic river, a scenic highway, a Virginia byway or public property listed in the approved State Comprehensive Outdoor Recreation Plan, also known as the Virginia Outdoors Plan (the Virginia Outdoors Plan can be obtained from the Department of Conservation and Recreation at 203 Governor Street, Suite 302, Richmond, VA 23219); or
b. Located in a county, city or town having a density of population greater than 5,000 per square mile.
C. Other requirements.
Real estate devoted to open-space use shall be:
1. Within an agricultural, a forestal or an agricultural and forestal district entered into pursuant to Chapter 36 of Title 15.1 of the Code of Virginia;
2. Subject to a recorded perpetual easement that is held by a public body and that promotes the open-space use classification as defined in § 58.1-3230 of the Code of Virginia; or
3. Subject to a recorded commitment entered into by the landowner with the governing body in accordance with 4VAC5-30-30 of this chapter.
D. Opinions.
In determining whether a property meets the general and specific standards for open-space use, the local assessing officer may request an opinion from the Director of the Department of Conservation and Recreation under the provisions of 4VAC5-30-40 of this chapter.
Statutory Authority
§§ 58.1-3230 and 10.1-104 of the Code of Virginia.
Historical Notes
Derived from VR215-01-01 § 1, eff. January 5, 1989.
4VAC5-20-20. Specific standards.
The specific standards for determining whether real estate will qualify for special assessment based on open-space use are as follows. The term "land" includes water, submerged land, wetlands, marshes, and similar properties.
A. Park or recreation uses. Lands that are provided or preserved for:
1. Any public, semi-public or privately-owned park, playground or similar recreational area, for public or community use, except any use operated with intent for profit.
Examples: Parks, play areas, athletic fields, botanical gardens, fishing or skating ponds; golf clubs, country clubs, swimming clubs, beach clubs, yacht clubs, scout camps; fairgrounds.
2. Golf courses operated for profit as a public service and having the park-like characteristics normally associated with a country club.
3. Buildings shall not cover more than 10% of the site.
4. Commercial recreational or amusement places, such as driving ranges, miniature golf courses, pony rides, trap shoots, marinas, motor speedways, drag strips, amusement parks and the like, shall not qualify.
B. Conservation of land or other natural resources. Lands that are provided or preserved for forest preserves, bird or wildlife sanctuaries, watershed preserves, nature preserves, arboretums, marshes, swamps and similar natural areas.
C. Floodways. Lands that are provided or preserved for:
1. The passage or containment of waters, including the floodplains or valleys and side slopes of streams that are or may be subject to periodic or occasional overflow, such as floodplains identified by engineering surveys by the U.S. Corps of Engineers or others, or by soil surveys or topographic maps. Floodways also include adjacent lands that should be reserved as additional channels for future floods due to increased runoffs.
2. Coastal lowlands, such as bays, estuaries or ocean shores, subject to inundation by storms or high tides.
3. Tidal and nontidal wetlands, such as swamps, bogs and marshes.
D. Wetlands as defined in § 58.1-3666 of the Code of Virginia.
E. Riparian buffers as defined in § 58.1-3666 of the Code of Virginia.
F. Historic or scenic areas. Lands that are provided or preserved for historic or scenic purposes are:
1. On the Virginia Landmarks Register or the National Register of Historic Places or contributing properties in an historic district listed in the Virginia Landmarks Register or the National Register of Historic Places. Information concerning properties on these registers maintained by the Department of Historic Resources can be obtained from the Department of Conservation and Recreation.
2. Properties protected by scenic or open-space easements.
3. Places designated or recommended as "Scenic" by the Department of Conservation and Recreation, the Department of Transportation, the General Assembly or other state agency subject in each case to a specific area description provided by the designating agency.
G. Assisting in the shaping of the character, direction and timing of community development, or for the public interest. Lands that are officially planned or approved by the local governing body to be left in a relatively natural and undeveloped state and that are provided or preserved for the purpose of shaping the locality into neighborhoods and communities, identifying their boundaries, insulating incompatible uses from one another, directing growth, controlling the rate or timing of growth or otherwise serving the public interest as determined by the local governing body. Examples:
Greenbelts, parkways and trailways,
Stream valleys,
Forests and farmlands,
Hilltops or hillsides,
Mountaintops and mountainsides,
Scenic vistas.
Statutory Authority
§ 10.1-104 of the Code of Virginia.
Historical Notes
Derived from VR215-01-01 § 2, eff. January 5, 1989; amended, Virginia Register Volume 14, Issue 24, eff. September 18, 1998.
4VAC5-20-30. Standards for written commitments by landowners to preserve open-space land use.
The written commitment entered into by landowners for the local governing body to preserve open-space land use, pursuant to subdivision 3 of § 58.1-3233 of the Code of Virginia, shall conform substantially to the following form of agreement:
OPEN-SPACE USE AGREEMENT
This Agreement, made this..... day of..... 19... between......................., hereafter called the Owner, and the [County, City or Town] of......................, a political subdivision of the Commonwealth of Virginia, hereinafter called the [County, City or Town], recites and provides as follows:
RECITALS
1. The Owner is the owner of certain real estate, described below, hereinafter called the Property; and
2. The [County, City or Town] is the local governing body having real estate tax jurisdiction over the Property; and
3. The [County, City, or Town] has determined:
A. That it is in the public interest that the Property should be provided or preserved for [Insert one or more of the following uses: park or recreational purposes; conservation of land; conservation of (Insert description of other natural resource); an historic area; a scenic area; assisting in the shaping of the character, direction and timing of community development; or other use which serves the public interest by the preservation of open-space land as provided in the land use plan.]; and
B. That the Property meets the applicable criteria for real estate devoted to open-space use as prescribed in Article 4 (§ 58.1-3229 et seq.) of Chapter 32 of Title 58.1 of the Code of Virginia, and the standards for classifying such real estate prescribed by the Director of the Virginia Department of Conservation and Recreation; and
C. That the provisions of this agreement meet the requirements and standards prescribed under § 58.1-3233 of the Code of Virginia for recorded commitments by landowners not to change an open-space use to a nonqualifying use; and
4. The Owner is willing to make a written recorded commitment to preserve and protect the open-space uses of the Property during the term of this agreement in order for the Property to be taxed on the basis of a use assessment and the Owner has submitted an application for such taxation to the assessing officer of the [County, City or Town] pursuant to § 58.1-3234 of the Code of Virginia and [citation of local ordinance]; and
5. The [County, City or Town] is willing to extend the tax for the Property on the basis of a use assessment commencing with the next succeeding tax year and continuing for the term of this agreement, in consideration of the Owner's commitment to preserve and protect the open-space uses of the property, and on the condition that the Owner's application is satisfactory and that all other requirements of Article 4, Chapter 32, Title 58.1 of the Code of Virginia and [citation of local ordinance] are complied with.
NOW THEREFORE, in consideration of the recitals and the mutual benefits, covenants and terms herein contained the parties hereby covenant and agree as follows:
1. This agreement shall apply to all of the following described real estate: [Insert property description]
2. The Owner agrees that during the term of this agreement:
A. There shall be no change in the use or uses of the Property that exist as of the date of this agreement to any use that would not qualify as an open-space use.
B. There shall be no display of billboards, signs or other advertisements on the property, except to (i) state solely the name of the Owner and the address of the Property; (ii) advertise the sale or lease of the Property; (iii) advertise the sale of goods or services produced pursuant to the permitted use of the Property; or (iv) provide warnings. No sign shall exceed four feet by four feet.
C. There shall be no construction, placement or maintenance of any structure on the Property unless such structure is either:
(1) on the Property as of the date of this agreement; or
(2) related to and compatible with the open-space uses of the Property which this agreement is intended to protect or provide for.
D. There shall be no accumulations of trash, garbage, ashes, waste, junk, abandoned property or other unsightly or offensive material on the Property.
E. There shall be no filling, excavating, mining, drilling, removal of topsoil, sand, gravel, rock, minerals or other materials which alters the topography of the Property, except as required in the construction of permissible buildings, structures and features under this agreement.
F. There shall be no construction or placement of fences, screens, hedges, walls or other similar barriers which materially obstruct the public's view of scenic areas of the Property.
G. There shall be no removal or destruction of trees, shrubs, plants and other vegetation, except that the Owner may:
(1) engage in agricultural, horticultural or silvicultural activities, provided that there shall be no cutting of trees, other than selective cutting and salvage of dead or dying trees, within 100 feet of a scenic river, a scenic highway, a Virginia Byway or public property listed in the approved State Comprehensive Outdoor Recreation Plan (Virginia Outdoors Plan); and
(2) remove vegetation which constitutes a safety, a health or an ecological hazard.*
H. There shall be no alteration or manipulation of natural water courses, shores, marshes, swamps, wetlands or other water bodies, nor any activities or uses which adversely affect water quality, level or flow. *
I. On areas of the Property that are being provided or preserved for conservation of land, floodways or other natural resources, or that are to be left in a relatively natural or underdeveloped state, there shall be no operation of dune buggies, all-terrain vehicles, motorcycles, motorbikes, snowmobiles or other motor vehicles, except to the extent necessary to inspect, protect or preserve the area.
J. There shall be no industrial or commercial activities conducted on the Property, except for the continuation of agricultural, horticultural or silvicultural activities; or activities that are conducted in a residence or an associated outbuilding such as a garage, smokehouse, small shop or similar structure which is permitted on the property.
K. There shall be no separation or split-off of lots, pieces or parcels from the Property. The Property may be sold or transferred during the term of this agreement only as the same entire parcel that is the subject of this agreement; provided, however, that the Owner may grant to a public body or bodies open-space, conservation or historic preservation easements which apply to all or part of the Property.
3. This agreement shall be effective upon acceptance by the [County, City or Town]; provided, however, that the real estate tax for the Property shall not be extended on the basis of its use value until the next succeeding tax year following timely application by the Owner for use assessment and taxation in accordance with [citation of applicable local ordinance]. Thereafter, this agreement shall remain in effect for a term of [Insert a period of not less than 4 nor more than 10] consecutive tax years.
4. Nothing contained herein shall be construed as giving to the public a right to enter upon or to use the Property or any portion thereof, except as the Owner may otherwise allow, consistent with the provisions of this agreement.
5. The [County, City or Town] shall have the right at all reasonable times to enter the Property to determine whether the Owner is complying with the provisions of this agreement.
6. Nothing in this agreement shall be construed to create in the public or any member thereof a right to maintain a suit for any damages against the Owner for any violation of this agreement.
7. Nothing in this agreement shall be construed to permit the Owner to conduct any activity or to build or maintain any improvement which is otherwise prohibited by law.
8. If any provision of this agreement is determined to be invalid by a court of competent jurisdiction, the remainder of the agreement shall not be affected thereby.
9. The provisions of this agreement shall run with the land and be binding upon the parties, their successors, assigns, personal representatives, and heirs.
10. Words of one gender used herein shall include the other gender, and words in the singular shall include words in the plural, whenever the sense requires.
11. This agreement may be terminated in the manner provided in § 15.1-1513 of the Code of Virginia for withdrawal of land from an agricultural, a forestal or an agricultural and forestal district.
12. Upon termination of this agreement, the Property shall thereafter be assessed and taxed at its fair market value, regardless of its actual use, unless the [County, City or Town] determines otherwise in accordance with applicable law.
13. Upon execution of this agreement, it shall be recorded with the record of land titles in the Clerk's Office of the Circuit Court of....................., Virginia, at the Owner's expense.
14. NOTICE: WHEN THE OPEN-SPACE USE OR USES BY WHICH THE PROPERTY QUALIFIED FOR ASSESSMENT AND TAXATION ON THE BASIS OF USE CHANGES TO A NONQUALIFYING USE OR USES, OR WHEN THE ZONING FOR THE PROPERTY CHANGES TO A MORE INTENSIVE USE AT THE REQUEST OF THE OWNER, THE PROPERTY, OR SUCH PORTION OF THE PROPERTY WHICH NO LONGER QUALIFIES, SHALL BE SUBJECT TO ROLL-BACK TAXES IN ACCORDANCE WITH § 58.1-3237 OF THE CODE OF VIRGINIA. THE OWNER SHALL BE SUBJECT TO ALL OF THE OBLIGATIONS AND LIABILITIES OF SAID CODE SECTION.
....................... (SEAL)
Owner
[Name of City, County, Town]
by........................
(Acknowledgments)
*Paragraphs H and I must be included in agreements for properties which are to be provided or preserved for natural areas left in undeveloped states, including floodways. These paragraphs are unnecessary for agreements for other types of land uses, such as for a park or a farm use.
Statutory Authority
§§ 58.1-3230 and 10.1-104 of the Code of Virginia.
Historical Notes
Derived from VR215-01-01 § 3, eff. January 5, 1989.
4VAC5-20-40. Opinions.
In cases of uncertainty, the local assessing officer may request an opinion from the Director of the Department of Conservation and Recreation as to whether a particular property meets the criteria for open-space classification. The procedure for obtaining such an opinion is as follows:
A. The local assessing officer shall address a letter to the Director, Department of Conservation and Recreation, 203 Governor St., Suite 302, Richmond, VA 23219, describing the particular use and situation and requesting an opinion as to whether it qualifies as an open space for the purpose of use value taxation. Such letter should be accompanied by exhibits such as land use maps, subdivision plats, open-space deeds or easements, applicable agricultural, forestal, historic district or other ordinances, if any, topographic maps and photographs, sufficient to explain the situation adequately. The director may request additional information if needed.
B. The director may hold a hearing at which the applicant and others may present additional information.
C. The director will issue an opinion as quickly as possible after all necessary information has been received and any hearing completed. An appeal from any opinion which does not comport with the standards set forth herein may be taken as provided by § 58.1-3240 of the Code of Virginia.
Statutory Authority
§§ 58.1-3230 and 10.1-104 of the Code of Virginia.
Historical Notes
Derived from VR215-01-01 § 4, eff. January 5, 1989.