TITLE 4. CONSERVATION AND NATURAL RESOURCES

DEPARTMENT OF CONSERVATION AND RECREATION

Fast-Track Regulation

Title of Regulation: 4VAC5-20. Standards for Classification of Real Estate As Devoted to Open Space Use under the Virginia Land Use Assessment Law (amending 4VAC5-20-10, 4VAC5-20-30, 4VAC5-20-40).

Statutory Authority: §§ 10.1-104 and 58.1-3230 of the Code of Virginia.

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: November 20, 2024.

Effective Date: December 5, 2024.

Agency Contact: Lisa McGee, Policy and Planning Director, Department of Conservation and Recreation, 600 East Main Street, 24th Floor, Richmond, VA 23219, telephone (804) 786-4378, FAX (804) 786-6141, or email lisa.mcgee@dcr.virginia.gov.

Basis: Section 10.1-104 of the Code of Virginia authorizes the Department of Conservation and Recreation to prescribe rules and regulations necessary or incidental to the performance of duties or execution of powers conferred by law. The Director of the department is required to prescribe uniform standards for "real estate devoted to open-space use" pursuant to the authority set out in § 58.3240 of the Code of Virginia.

Purpose: The proposed amendments correct references to the Code of Virginia and sections of the regulation, bringing the standard for minimum acreage into compliance with the changes made to statute. This regulatory action does not impact public health or safety; however, general public welfare is protected when regulations are promulgated in compliance with statutory requirements. Additionally, commissioners of the revenue, local assessing officers, and individual landowners will all benefit from standards that are clear and consistent.

Rationale for Using Fast-Track Rulemaking Process: This action is expected to be noncontroversial and, therefore, appropriate for the fast-track rulemaking process because it brings the chapter into conformance with current statutory language, amends incorrect references, and corrects outdated information.

Substance: Pursuant to a periodic review, the amendments change the minimum two-acre requirement to reflect current statutory language allowing for a minimum of one-quarter of an acre, update incorrect references, and correct outdated information.

Issues: The primary advantage to the public and the Commonwealth is that the regulation will be consistent with the current statutory language and provide accurate information and references. There are no disadvantages to the public or Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Code of Virginia and Executive Order 19. The analysis presented represents DPB's best estimate of the potential economic impacts as of the date of this analysis.¹

Summary of the Proposed Amendments to Regulation. Pursuant to a 2023 periodic review of this regulation,² the Department of Conservation and Recreation (DCR) proposes to update (i) references to the Code of Virginia and sections of the regulation and (ii) the minimum acreage required to be considered as open space.

Background. This regulation establishes standards to classify real estate as devoted to open space use under the Virginia Land Use Assessment Law. Following a periodic review of this regulation, DCR identified incorrect references to the Code of Virginia and sections of the regulation. DCR also identified that the standard for minimum acreage was outdated as it did not reflect amendments made by Chapter 475 of the 2002 Acts of the General Assembly; accordingly, the minimum acreage for open space would be reduced from two acres to one-quarter of an acre.³ The proposed action would correct the incorrect references and the outdated minimum acreage standard to comport with the law.

Estimated Benefits and Costs. The proposed changes to this regulation would correct erroneous and outdated text and as such is expected to eliminate potential confusion that may be created by the current text. No other economic effect is expected.

Businesses and Other Entities Affected. This regulation applies to property owners that wish to designate land as open use in localities that adopted an ordinance for the Land-Use Assessment Program with the Open-Space Category. DCR does not have data on the number of applications as this is addressed by each locality individually. No landowner appears to be disproportionately affected. The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.⁴ An adverse impact is indicated if there is any increase in net cost or reduction in net benefit for any entity, even if the benefits exceed the costs for all entities combined.⁵ As noted, the proposal would correct text and as such does not indicate an adverse impact on any entity.

Small Businesses⁶ Affected.⁷ The proposed repeal of the regulation would not adversely affect small businesses.

Localities⁸ Affected.⁹ This regulation does not apply to all localities. It only applies to localities that adopted an ordinance for a Land-Use Assessment Program with the Open-Space Category. Currently, there are 46 counties and 10 cities that adopted such an ordinance: the cities of Alexandria, Buena Vista, Chesapeake, Fredericksburg, Harrisonburg, Lynchburg, Petersburg, Portsmouth, Radford, Virginia Beach; and the counties of Albemarle, Alleghany, Amelia, Amherst, Augusta, Botetourt, Campbell, Caroline, Chesterfield, Clarke, Cumberland, Essex, Fauquier, Fluvanna, Franklin, Frederick, Giles, Greene, Hanover, Henrico, King George, King William, Loudoun, Louisa, Madison, Middlesex, New Kent, Northumberland, Nottoway, Page, Pittsylvania, Powhatan, Prince George, Prince William, Richmond, Roanoke, Rockbridge, Rockingham, Shenandoah, Smyth, Southampton, Spotsylvania, Tazewell, Warren, Washington, and Westmoreland. No adverse impact on these participating localities is indicated.

Projected Impact on Employment. No impact on employment is expected.

Effects on the Use and Value of Private Property. No impact on the use and value of private property nor on real estate development costs is expected.

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¹ Section 2.2-4007.04 of the Code of Virginia requires that such economic impact analyses determine the public benefits and costs of the proposed amendments. Further the analysis should include but not be limited to: (1) the projected number of businesses or other entities to whom the proposed regulatory action would apply, (2) the identity of any localities and types of businesses or other entities particularly affected, (3) the projected number of persons and employment positions to be affected, (4) the projected costs to affected businesses or entities to implement or comply with the regulation, and (5) the impact on the use and value of private property.

² https://townhall.virginia.gov/L/ViewPReview.cfm?PRid=2366.

³ https://lis.virginia.gov/cgi-bin/legp604.exe?021+ful+CHAP0475&021+ful+CHAP0475.

⁴ Pursuant to § 2.2-4007.04 D: In the event this economic impact analysis reveals that the proposed regulation would have an adverse economic impact on businesses or would impose a significant adverse economic impact on a locality, business, or entity particularly affected, the Department of Planning and Budget shall advise the Joint Commission on Administrative Rules, the House Committee on Appropriations, and the Senate Committee on Finance. Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation.

⁵ Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation. As a result, DPB has adopted a definition of adverse impact that assesses changes in net costs and benefits for each affected Virginia entity that directly results from discretionary changes to the regulation.

⁶ Pursuant to § 2.2-4007.04, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

⁷ If the proposed regulatory action may have an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include: (1) an identification and estimate of the number of small businesses subject to the proposed regulation, (2) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the proposed regulation, including the type of professional skills necessary for preparing required reports and other documents, (3) a statement of the probable effect of the proposed regulation on affected small businesses, and (4) a description of any less intrusive or less costly alternative methods of achieving the purpose of the proposed regulation. Additionally, pursuant to § 2.2-4007.1 of the Code of Virginia, if there is a finding that a proposed regulation may have an adverse impact on small business, the Joint Commission on Administrative Rules shall be notified.

⁸ "Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

⁹ Section 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Agency Response to Economic Impact Analysis: The Virginia Department of Conservation and Recreation generally concurs with the economic impact analysis prepared by the Department of Planning and Budget.

Summary:

Pursuant to a periodic review, the amendments bring the regulation into conformance with current statutory language, update incorrect references, and correct outdated information.

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 4VAC5-20-20. 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 that has been made and adopted officially in accordance with Article 4, Chapter 11, 22 (§ 15.2-2200 et seq.) of Title 15.1 15.2 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 subsection, 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 one quarter of an acre 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 302 600 East Main Street, 24th Floor, 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 43 (§ 15.2-4300 et seq.) of Title 15.1 15.2 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 4VAC5-20-30.

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 4VAC5-20-40.

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 20... 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 that 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 58.1-3230 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 On the Property as of the date of this agreement; or

(2) related 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 that 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 that 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 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 Remove vegetation which that 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 that 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 that 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 that 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 four 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 that 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 and any successors, assigns, personal representatives, and heirs of the parties.

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 § 15.2-4314 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 THAT 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, or Town)

by........................

(Acknowledgments)

*Paragraphs H and I must be included in agreements for properties which that 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.

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. 1. The local assessing officer shall address a letter to the Director, Department of Conservation and Recreation, 203 Governor St., Suite 302 600 East Main Street, 24th Floor, 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. 2. The director may hold a hearing at which the applicant and others may present additional information.

C. 3. 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 that does not comport with the standards set forth herein may be taken as provided by § 58.1-3240 of the Code of Virginia.