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Courtesy of The Washington Post, Thursday, March 20, 2003
© 2003 The Washington Post Company
Fairfax Crackdown Means Many Lots Now Illegal
By Sandra Fleishman
Washington Post Staff Writer
Fairfax County resident Peter Berk is dumbfounded by the "bureaucratic nightmare" that has stopped him from building a new house on a lot he bought three years ago in Great Falls.
Even though there had been a house on the 4.2-acre tract for more than 50 years, and even though Berk had gotten the requisite county permits to raze the three-bedroom bungalow and install a new septic system, everything stopped in November when he applied for a building permit.
That's when he learned, to his amazement, that his lot is considered "illegal" because it doesn't meet the county subdivision ordinance that was in effect in 1953, when his land was split off a bigger parcel. Now he can't build on the lot. He can't move out of his existing home in Vienna because there is no place to move into. And he can't sell it because no one else can get a building permit either.
About two dozen families or developers are in similar fights, brought on when they applied for building permits in the past year. That is when the county decided to start enforcing its subdivision ordinance through its various incarnations, dating to 1929. Thousands of other people are affected but may not know it.
"It just defies logic," said Berk, who says he has paid thousands of dollars in county permit fees and engineering and legal fees. He estimates that the unexpected crackdown has also cost him $60,000 to $70,000 in construction-related delays, including charges to extend his loans and extra legal bills to fight the decision.
A Planning Commission hearing is scheduled for tonight on county staff proposals to amend current subdivision law to respond to complaints, though a vote is not expected until next month. But some residents and builders say the proposals don't go far enough.
The problem came about because the law on subdividing property has changed over the years. For centuries, people registered their land in descriptive documents that showed boundaries via "metes and bounds," that is, marked off by such things as trees and creeks. The documents were filed with the clerk of the court in recording the deed. Beginning in 1929, the county required that a different kind of map, a "plat," be submitted for specific signatures before the deed was recorded.
Over the years, as details of the law changed, it was often ignored, but properties continued to be bought and sold anyway. County builders and zoning lawyers say the new crackdown has the potential to ensnare thousands of owners who don't realize that once upon a time their lots didn't have the right paperwork.
County officials acknowledge that the problem is bigger than they expected when they decided to strictly enforce the subdivision ordinance process last year in an effort to weed out illegal lots. They estimate that 2,000 to 5,000 lots are now illegal.
Officials say they noticed a problem with such lots during the past five to 10 years. That's when more developers started filing permits to build on "infill lots," pieces of land skipped over by earlier developers.
The Northern Virginia Building Industry Association believes 16,000 lots or more could be affected by the increased enforcement. Most of the parcels were created and recorded by the clerk of the court from 1929 to the 1960s, though a few may have trickled in later.
The situation has prompted the Board of Supervisors to look for ways to relieve builders and homeowners, especially those threatening to sue.
The proposed amendments that the Planning Commission is scheduled to discuss tonight would automatically validate lots created before 1947 if they met zoning law at the time. The proposal also would make legal all lots that went through the subdivision ordinance process and had a plat approved by the county even if the original parent parcel wasn't legal.
But for lots created after 1947, it's not as simple. Not only would the lot have to meet zoning ordinance requirements in effect at the time the lot was recorded, but the landowner would have to pay for a new survey. That, according to Berk and others, could cost $5,000 to $6,000, including new county fees of at least $300.
The commission intends to send a proposal to the Board of Supervisors for action next month.
Builders association president Louis Genuario Jr. said the proposal doesn't go far enough. Correcting the problems would cost those who did nothing wrong thousands of dollars, he said, and many lots would become unavailable for building.Genuario's group and others who have been working with the county on the problem want Fairfax to grandfather in lots from 1978 or earlier as long as they meet zoning, and to let the Board of Zoning Appeals and the head of public works hear appeals.
"No one knows how many lots are affected," Genuario said, because of the mind-boggling amount of time it would take to check each lot.
Homeowners and developers find out only when they apply for building permits -- to build on vacant lots, to replace buildings or to add on to existing houses, even additions as simple as a deck.
County staff members have not been able to find a solution under current laws, said Steve Edwards, a staff member for Supervisor Elaine N. McConnell (R-Springfield), in whose district a number of owners are disputing the illegality of their lots.
Edwards said the county wants to provide help for those caught unintentionally while not grandfathering in those who were trying to skirt the laws.
"It is an unfortunate situation" that homeowners such as Berk will have to pay for properties to be resurveyed, said Edwards, but "we didn't want to create a situation where people would knowingly go out and create illegal lots."
It is not clear how other jurisdictions with old lots divided under outdated processes handle similar situations. Stuart Meck, a senior researcher at the American Planning Association in Chicago, said he was not aware of a problem "of this scale" elsewhere.
Joy McFarland, a McLean resident for 51 years, said she is "pretty angry" that her property is now considered illegal.
McFarland, 78, thought she had sold her one-acre property and 1940 bungalow in the Old Langley Farm development in October for $1.295 million. But the developer won't go to settlement because the lot has been declared illegal. The old Mackall Farm, which included the parcel, was subdivided in 1938 by metes and bounds.
McFarland doesn't blame the buyer but also doesn't understand how the county can make its ruling after acting for years as if everything was fine.
"We've been paying taxes on our nonexistent land since 1951," she said. "If I didn't have any land all that time, I want the money back with interest."