Petition for Writ of Certiorari — Tull v. Virginia

Supreme Court brief1992

Ask Donna

What actually matters in this document.

Text

IN THE

Supreme Court of the United States

OCTOBER TERM, 1992

EDWARD L. TULL and LOUISE A. TRL, his wife,

Petitioners,

COMMONWEALTH OF VIRGINIA

and

BOARD OF SUPERVISORS OF ACCOMACK COUNTY, VIRGINIA,

Re spondents.

Petition for a Writ of Certiorari to the

Supreme Court of Virginia

PETITION FOR A WRIT OF CERTIORARI

RICHARD R. NAGEOTTE *

JAMES SCOTT KREIN

NAGEOTTE & KREIN

385 Garrisonville Road, Suite 201

Stafford, Virginia 22554

(703) 659-5050

Attorneys for Petitioners

* Counsel of Record

WILSON - EPes PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

QUESTION PRESENTED

Whether the Fifth Amendment applicable to the States

through the Fourteenth Amendment allows denial of just

compensation by including non-regulated upland prop-

erty into the “relevant calculus”, when just compensa-

tion would be required if the “parcel as a whole” were

limited to the regulated wetlands and permit denial pro-

hibited all economic viable use of the wetland property

which must remain forever in its natural state.

(i)

PARTIES

The plaintiff-appellants below were individuals, Ed-

ward L. Tull and Louis A. Tull, his wife. The defendant-

appellees below were the Commonwealth of Virginia and

the Board of Supervisors of Accomeck County, Virginia.

TABLE OF CONTENTS

QUESTION PRESENTED ........................ =i Sia Ret

a in ia ictaneshbrinck Crssdnnshtcinigs\wwnnsnshaconnceeansencateahanns

eo ee ES ie tp yt. nn

IME MRMEILITT sasiecccanscnsscccuccsercessssansonsscnnanancsssonsnncese

Pidy 30.) 0) yy 0), err sei ee ysis sani taadataneanticdiiesincneniie

STATUTE AND REGULATIONS INVOLVED ..........

oe yy i | ie et ey) oy | - err

REASONS FOR GRANTING THE WRIT

1. Petitioners Were Entitled To Just Compensa-

D6 TEE ST RRR aa a OO Re

re ccatieehbernsaneebistewanuiniauinh

APPENDIX A

Decision of the Supreme Court of Virginia ...........

APPENDIX B

Final Decree of the Circuit Court of Accomack

County ice SON EO ORT Ee) ot TOL reer EET ;

Circuit Court of Accomack County’s Findings and

Legal Conclusions from the Bench .........................

APPENDIX C

Denial of Petition for Rehearing April 17, 1992...

Petition for Rehearing ..............................-... Danas Ee

APPENDIX D

Bill of Complaint Filed in the Circuit Court of

i os edit in Shbobpemneecetenninaesan aos

APPENDIX E

Constitutional Provisions, Statutes and Regula-

IEE ee nO a a

12a

TABLE OF AUTHORITIES

Cases:

Allingham v. City of Seattle, 749 P.2d 160 (Wash.

PI isckcovees Search A ane A eer INA

Aim. Dredging Vv. State, Dept. of Environ. Pro.,

ee EE) EN node eae ee Sa

American Sav. & Loan Assn V. County of Marin,

653 F.2d 364 (9th Cir. 1981) BE Pe een ED

Aptos Seascape Corp. V. County of Santa Cruz,

188 Cal. Rptr. 191 (App. 1982) ...... Scacuiatickeke aan

Bevan V. Brandon TP, 475 N.W.2d 37 (Mich.

i nna OO PERE ORS Le BAOIR: TRAN Re ENR

Burrows v. City of Keene, 432 A.2d 15 (N.H.

EE ise oiececinc ais lpsnasicnighasaMivar hibictndens duane sactaasaucaen aes

Carter Vv. South Carolina Coastal Council, 314

5.5.20 S27 (S.C. 1064)......................

Chase Manhattan Bank, N.A. V. State of Mow

York, 479 N.Y.S. 2d 983 (A.D. 2 Dept. 1984) _~

Ciampetti v. United States, 22 Cl.Ct. 310 (199t)

Claridge V. New Hampshire Wetlands Bd., 485

A.2d 287 (N.H. 1984) ...... SP dbl ETS OT re

Corn v. City of Lauderdale Lakes, 771 F. Supp.

Se | Gs, EE sxc ie ccccasceccecsse eens

de St. Aubin v. Flacke, 492 N.Y.S. 2d 766 (A.D.

Dept. 1985) .. "

Deltona Corporation Vv. United States, 657 F.2d

RE Ci cp Soeiconcs ocala betdetenttiasnn venieerioas

Florida Rock Industries, Inc. v. United States, 8

Cl1.Ct. 160 (1985) .. a

Gannett v. Lowell, 450 N.E.2d 1121 (Mass. App.

1983) .

Georgia Outdoor Advertising \ Vv. . City of ‘Waynes-

ville, 900 F.2d 783 (4th Cir. 1990) 000002...

Grand Forks-Trail Water Users v. Hjelle, 413

N.W.2d 344 (N.D. 1987)

Hudson Vv. Palmer, 468 U.S. 517 (1984) .

Jentgen Vv. United ‘States. 657 F.2d 1210 (1981)...

Jones V. Zoning Hearing Bd., 578 A.2d 1369 (Pa.

Comwlth. 1990) lt ORR AERA ET EP Pe AES, OE PBT

Kaiser Aetna v. United States, 444 U.S. 164

PIII sid atec pe rissapt cieteokicspinngs odie ce lntants cieaadone sa cascaee rani

Page

. 21, 24

. 22, 23

29, 30

. 26, 27

. 25, 26

18, 19

TABLE OF AUTHORITIES—Continued

Page

Kaiser Dev. Co. Vv. County of Honolulu, 649 F.

SI, TH IID aiivsncespancssacpsassassacpclccioetaees 21

Keystone Bituminous Coal Assn. V. DeBenedictis,

480 U.S. 470 (1987) . . passim

Lewis Vv. New Castle County Ba. of Adj. 601 A. 2d

RO CI vis dievecnsesscccdetincons tenn odesaanae 24

Loveladies Harbor Inc. v. United States, 15 Cl.Ct.

ek OD yvekentticncec eee 27, 28

Lucas V. South Carolina Coastal Council, USS.

(1992) No. 91-453, slip op. (June 29,

|) | ee eee eM FOL ASU aren ea passim

MacGibbon Vv. Board of Appeals of Duxbury, 255

Nee BET CREROS. TOTO) «.....cccccic-cecvcncecscasndedectemes 25

MacLeod v. Santa Clara County, 749 F.2d 541

4 Be A | Re ee ee ont ee aes 20

Moshow Vv. Com’r of Dept. of Env. Management,

427 N.B.2a TO (Binew. WOB1) .........-ceccscicecececceccuss 25

Naegele Outdoor Advertising, Inc. v. City of

Durham, 844 F.2d 172 (4th Cir. 1988) .. .......... 19, 20

Penn Central Transp. Co. v. City of New York,

te Ae Oe .: | en mm oC ws passim

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393

RII D axceckkcpsercscbctacsssenassceeee 10, 11

Presbytery of Seattle v. King County, 787 P.2d

OOF Craik See) oo eee ae 21, 24

Seawall Associates v. City of New York, 542

RA Bi eS A eee arena. ee 23

Spears V. Berle, 397 N.E.2d 1304 (1979) .........000......... 24

United States v. Riverside Bayview Homes, 474

Utes: Be CRD sake de ceceiecseccaeee eee 9

Western Energy Co. Vv. Genie Land Co., 737 P.2d

GTO CHR, TOES vaio. lee 22

Williamson Planning Comm’n V. Hamilton Bank,

S76 US. Fee fie cscs ee 3

Zilber Vv. Town of Moraga, 692 F.Supp. 1195 (N.D.

ee | SR ee an ane eee rt mPa Ne mC 20

Constitution, Statutes and Regulations:

Accomack County Wetlands Zoning Ordinances.... 5

Accomack County Subdivision Ordinances ... .........

TABLE OF AUTHORITIES—Continued

Page

Code of Virginia, 1950 as amended, § 15.1-550..___. 3

Code of Virginia, 1950 asamended, § 15.1-430(1).. 3

Code of Virginia, 1950 as amended, § 8.01-192...__. 3

Code of Virginia, 1950 as amended, § 2.1-2231 et

DD. cccriciniiccvcnnatessittiasdescicccnustae ae 3

Code of Virginia, 1950 as amended, § 62.1-13.1 __.... 6

FETe I biscotti sical passim

PDR RAR re ease BE ES passim

Virginia Wetlands Statute, Code of Vi irginia 1950

as amended, § 61.1-18, ef seq. ..........2....cccccccecceusss 6

Virginia Land Subdivision and Development Stat-

ute, Code of Virginia, 1950 as amended, §§ 15.1-

GER, 06 QO. sncriiistssnmteeee 5

Miscellaneous:

Rose, Mahon Reconstructed: Why the Takings

Issue is Still a Muddle, 57 S.Cal. L.Rev. 561

(1984)

IN THE

Siupreuw Court of the Wuited States

OCTOBER TERM, 1992

No, ————

EDWARD L. TULL and LOUISE A. TULL, his wife,

¥ Petitioners,

COMMONWEALTH OF VIRGINIA

and

BOARD OF SUPERVISORS OF ACCOMACK COUNTY, VIRGINIA,

Respondents.

Petition for a Writ of Certiorari to the

Supreme Court of Virginia

PETITION FOR A WRIT OF CERTIORARI

Petitioners Edward L. Tull and Louis A. Tull, his wife

respectfully pray that a Writ of Certiorari issue to re-

view the judgment and opinion of the Supreme Court of

Virginia entered in this case.

OPINIONS BELOW

The opinion of the Supreme Court of Virginia finding

no error and refusing the Petition for Appeal is unre-

ported and appears at Appendix (“App.”) la. The Final

Decree of the Circuit Court of Accomack County, Vir-

ginia is unreported and appears at App. 2a. The

findings of fact and conclusions of law of the Circuit

Court of Accomack County, Virginia appear at App.

4a.

JURISDICTION

The judgment of the Supreme Court of Virginia was

entered on March 3, 1992. App. la. A timely-filed peti-

tion for rehearing (App. 7a! was denied on April 17,

1992. App. 6a. The jurisdiction of this Court is invoked

under 28 U.S.C. § 1257.

‘ STATUTES AND REGULATIONS INVOLVED

The Fifth Amendment, Fourteenth Amendment and

relevant provisions of the Virginia Wetlands Statute,

Code of Virginia § 62.1-13.1 et seqg., Aeccomack County

Wetlands Zoning Ordinance, Virginia Land Subdivision

and Development Statute, Code of Virginia § 15.1-465

et seq. and the Accomack County Subdivision Ordinance

are reprinted at App. 25a.

STATEMENT OF THE CASE

The Supreme Court of Virignia has refused a Peti-

tion for Appeal finding no error, notwithstanding that

the denial of a permit necessary to use seven residential

lots and a commercial parcel, resulted in a loss of all

viable economic use of that private property and it must

forever remain in its natural state, to further the policy

of the State of Virginia and Accomack County to pre-

seyve wetlands for the public’s use and benefit.

Ocean Breeze Mobil Home Sites Subdivision Section

“D” (“Ocean Breeze Subdivision”) was approved by Ac-

comack County and recorded in compliance with the Ac-

comack County Zoning and Subdivision Ordinances on

January 4, 1985. Stipulations No. 9 and No. 11. Over

two and a half years later, the Accomack County Wet-

lands Board (‘Wetlands Board”) on September 10, 1987

denied Petitioners, Edward L. Tull and Louise A. Tull

(“Tulls’”) a permit that was needed to fill wetlands to

use 7 mobile home lots, a commercial parcel and adja-

cent roads in Ocean Breeze Subdivision. The stated pur-

pose of the permit denial was the need to protect and

preserve wetlands as a valuable public resource. Tr. 72-

73' The Tulls appealed to the Virginia Marine Resources

Commission (“VMRC”) which on November 5, 1987 af-

firmed the permit denial of the Wetlands Board. Stipu-

lations No. 12 and No. 13.

Having exhausted their administrative remedies by

appealing the Wetlands Board’s decision to the VMRC,

the Tulls Nled their Claim for Compensation for the tak-

ing of their property with the VMRC and Comptroller

of the Commonwealth pursuant to the requirements of

Va. Code § 8.01-192 and § 2.1-2231 et seq. Stipulation

No. 15. On June 24, 1988 the Tulls’ claim was denied

by the State of Virginia. Stipulation No. 16. The Tulls

also petitioned the Accomack County, Board of Super-

visors for compensation for the taking of their property

pursuant to the requirements of Va. Code § 15.1-550.

Stipulation No. 17. The Tulls’ claim for compensation

was denied at the Board of Supervisors’ meeting on

July 20, 1988 and the Tulls were notified of the denial

on July 21, 1988." Stipulation No. 18.

After denial of their claim for compensation by both

the State of Virginia and Accomack County, the Tulls

appealed the denial to the Circuit Court of Accomack

County (“trial court”). After overruling Demurrers,

Motions for Summary Judgment and Cross Motions for

1 The Transcript of Proceedings, in the trial court on June 27 and

28, 1991 are referred to herein as Tr. followed by the page number.

2 The Tulls have complied with this Court’s prerequisite for the

Constitutional Claim made here. The Tulls have been denied just

compensation for the taking of their property by Accomack County

pursuant to Va. Code § 15.1-550 and by the Staite of Virginia pur-

suant to Va. Code § 8.01-192 and Va. Code § 2.1-2231 ef seq. See,

Hudson v. Palmer, 468 U.S. 517, 532 n.12 (1984) and Williamson

Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 195 (1985)

(Fifth Amendment claim is mature when state compensatory proce-

dures are pursued and just compensation has been denied). See also,

Lucas v. South Carolina Coastal Council, —— U.S. —— (1992) No.

91-453, June 29, 1992 (Blackmun, J. dissenting) slip op. at 8.

Summary Judgment, a trial was held on June 27 and 28,

1991. After hearing evidence and arguments of counsel

the trial court stated its findings from the bench on June

28, 1991:

“The question is did their depriving Mr. Tull of this

permit deprive the landowners of all economic viable

use of the property, and I think that’s the whole ques-

tion of the case. As I say, to determine that, I think

you've got to decide what is the property in question,

or the parcel as a whole...’ App. 4a.

The trial court rejected the State of Virginia and Acco-

mack County’s argument that the “parcel as a whole”

was the 43 acres originally conveyed to the Tulls and

rejected the Tulls’ argument that the individual mobile

home lots and commercial parcel, totaling approximately

2 acres, which was the only property subject to the juris-

diction of the Wetlands Board and the requirement of a

permit, was the “parcel as a whole’. The trial court

stated that it is “. . . certainly reasonable to use the

Ocean Breeze Section D, the approximately 12 acres that

was platted as the parcel as a whole...” App. 5a. The

trial court held, “I do not find that there has been any

loss of economic viable use of the property because the

permit was denied as to two acres. For that reason I do

not think there has been a taking.” App. 5a. The Tulls

appealed to the Supreme Court of Virginia which found

no error in the trial court’s decision. App. la.

The facts are straightforward and undisputed. On

January 4, 1985 the Subdivision Agent of Accomack

County approved the subdivision of 12 acres of an orig-

inal 43 acres purchased by the Tulls on May 7, 1980 and

August 2, 1985 for the price of $5,000 per acre. The

approved Final Plat of Ocean Breeze Subdivision was

recorded in the land records of Accomack County in Plat

Book 28, Page 24. Stipulation No. 9. The Accomack

County Subdivision Agent confirmed that the Subdivision

Plat met all the requirements of the State Subdivision

Statute and Accomack County Subdivision Ordinance.

See App. 3la and 46a. The lots in the subdivision are

platted for mobile home lots and do not qualify for any

other use under the Accomack Zoning and Subdivision

Ordinances. Tr. 66-67. When the Tulls recorded the

Subdivision Plat they were required to, and did, bond the

completion of sewage facilities, water facilities, and

roads pursuant to the requirements of Accomack County.

Tr. 87. In reliance upon the Subdivision Plat and Bond

the Tulls expended, in addition to the $60,000.00 in land

costs, $10,598.50 for surveying and_ engineering,

$42,169.73 to install central water, $64,234.65 to install

central sewer, $26,085.00 to install electric service, and

$102,210.00 to install roads. Exhibit “12”. See, App. 38a

and 5la.

Accomack County does not require that a permit to fill

wetlands be obtained before subdivision approval. When

the Subdivision Plat is recorded the individual lots are

removed from the larger parcel and assessed individually.*

Tr. 93-94. Individual lot assessment cards for the lots

located in the wetlands, Lots 39D, 46D, 47D, 51D, 52D, 53D,

54D and the commercial parcel were prepared by the

County Assessor. Tr. 94-97. The mobile home lots at

issue here were initially assessed after recordation of the

Subdivision Plat at $10,000 per lot and at time of trial

were assessed at $12,000 per lot. Tr. 99. Wetlands in

Accomack County are assessed between $60 to $100 per

3 The Virginia statute which controls the zoning and subdivision

of land defines a subdivision at Va. Code § 15.1-430(1) as:

“(1) ‘Subdivision’ unless otherwise defined in a local ordinance

adopted pursuant to § 15.1-465, means the division of a parcel of

land into three or more lots or parcels of less than five acres each

for the purpose of transfer of ownership or building development,

or, if a new street is involved in such division, any division of a

parcel of land. The term includes resubdivision and, when appro-

priate to the context, shall relate to the process of subdividing or

to the land subdivided and solely for the purpose of recordation of

any single division of and into two lots or parcels, a plat of such

division shall be submitted for approval in accordance with § 15.1-

475.” See, App. 3la and 49a (emphasis added).

acre. Tr. 99-100. The Tulls have been taxed for the

seven mobile home lots and commercial parcel that are

the subject of the wetland permit denial, based upon the

reassessment after recordation of the Subdivision Plat

and have paid the taxes each year on this land. Tr.

112-114.

Over two and half years later the Tulls applied to the

Wetlands Board, to fill Lots 39D, 46D, 47D, 51D, 52D,

53D and 54D, the adjacent roads and commercial parcel.

Tr. 67. The Tulls permit application was denied on

September 10, 1987. Stipulation No. 11. The permit

was denied to protect and preserve the wetlands on the

Tulls’ private property as a valuable public resource in

accordance with the explicit policy of the Virginia Wet-

lands Act.* The permit denial was appealed to the

4 Va. Code § 62.1-13.1. Declaration of policy. The Commonwealth

of Virginia hereby recognizes the unique character of the wetlands,

an trreplaceable natural resource which, in its natural state, is

essential to the ecological systems of the tidal rivers, bays and

estuaries of the Commonwealth. This resource is essential for the

production of marine and inland wildlife, waterfowl, finfish, shellfish

and flora; is valuable as a protective barrier against floods, tidal

storms and erosion of the shores and soil within the Commonwealth ;

is important for the absorption of silt and of pollutants; and is

important for recreational and aesthetic enjoyment of the people

for the promotion of tourism, navigation and commerce. Continued

destruction of Virginia’s coastal wetlands will greatly contribute to

the pollution of the Commonwealth’s rivers, bays and estuaries; will

diminish the abundance of Virginia’s marine and inland animals

and waterfowl, finfish, shellfish and flora as sources of food, employ-

ment and recreation for the people of Virginia; will increase costs

and hazards associated with floods and tidal storms; and will ac-

celerate erosion and the loss of lands productive to the economy and

the well-being of our citizens.

Therefore, in order to protect the public interest, promote the

public health, safety and the economic and general welfare of the

Commonwealth, and to protect public and private property, wildlife,

marine fisheries and the natural environment, it is declared to be

the public policy of this Commonwealth to preserve the wetlands and

to prevent their despoliation and destruction and to accommodate

VMRC, pursuant to the appeal rights granted by the

Ordinance and Statute. The VMRC on November 5, 1987

voted to uphold the decision of the Wetlands Board.

Stipulations No. 12 and 18. It was conceded that with-

out the permit to fill the seven mobile home lots, com-

mercial parcel and adjacent roads, they could not be used.

Commonwealth’s Motion and Memorandum for Summary

Judgment, at 11.

Mr. Eugene Mason was accepted by the trial court as

an expert in the field of real estate appraisals. Tr. 34.

Mr. Mason’s real estate appraisal for the seven mobile

home lots and commercial property demonstrated that

the property for which the permit was denied had a

value of between $150,000 to $179,500 with the permit

and a value of only $150 after the permit denial. Tr.

36 and Exhibit “14”. Based on this appraisal the prop-

erty subject to jurisdiction of the Wetlands Board and

VMRC was worth only .001 percent of its value, as a

result of the denial of the permit to fill the property.

After entry of the Final Decree by the trial court,

(App. 2a) denying compensation the Tills timely filed ,

their Petition for Appeal to the Supreme Court of Vir-

ginia. The Petition for Appeal asserted as error in the

Final Decree both the State Constitutional Claims (Count

I) (App. 18a) and the Federal Constitutional Claims

(Count II). App. 22a. On March 3, 1992 the Virginia

Supreme Court refused the Tulls’ Petition for Appeal

being of the “. . . opinion there is no reversible error in

the judgment complained of.” App. la. The Tulls timely

filed Petition for Rehearing (App. 7a) was denied by the

Supreme Court of Virginia on April 17, 1992. App.

6a. The Tulls’ Petition for Writ of Certiorari is based

solely upon their Federal Constitutional Claims.

necessary economic development in a manner consistent with wet-

lands preservation. See, App. 25a and 28a (emphasis added).

REASONS FOR GRANTING THE WRIT

This Court should grant certiorari to resolve the con-

fusion in “takings” jurisprudence that has resulted since

the Court pronounced the term “parcel as a whole” in

Penn. Central Transp. Co. v. City of New York, 438 U.S.

104 (1978). This important question of federal law

should be settled by this Court, not erroneously by the

Supreme Court of Virginia. The Supreme Court of Vir-

ginia has decided this important federal question in con-

flict with some of the decisions of other State Courts of

last resort and some of the decisions of the United States

Court’s of Appeal. This case also offers the opportunity to

settle the question which could not be answered in Lucas

v. South Carolina Coastal Council, Ut (1992)

No. 91-453, slip op. (June 29, 1992). (“Lucas”) which

z has produced inconsistent pronouncements by the

Court” and resulted in inconsistent pronouncements in

other courts which have been called upon to determine

What property should be included in the “relevant calcu-

99 5

lus’’ to constitute the “parcel as a whole’.

5 See, Lucas slip op. at 11 n.7. “Regrettably, the rhetorical

force of our “deprivation of all economically feasible use” rule is

greater than its precision, since the rule does not make clear the

“property interest” against which the loss of value is to be meas-

ured. When, for example, a regulation requires a developer to leave

90° of a rural tract in its natural state, it is unclear whether we

would analyze the situation as one in which the owner has been

deprived of all economically beneficial use of the burdened portion

of the tract, or as one in which the owner has suffered a mers

diminution in value of the tract as a whole. (For an extreme-and,,

we think unsupportable-view of the relevant calculus, see Penn

Central Transportation Co. Vv. New York City, 42 N.Y. 2d 324, 335-

334, 366 N.E. 2d 1271, 1276-1277 (1977) aff'd. 438 U.S. 104 (1978),

where the state court examined the diminution in a particular

parcel’s value produced by a municipal ordinance in light of total

value of the taking claimant’s other holdings in the vicinity.)

Unsurprisingly, this uncertainty regarding the composition of the

denominator in our “deprivation” fraction has produced inconsistent

pronouncements by the Court. Compare, Pennsylvania Coal Co. v.

1. Petitioners Were Entitled To Just Compensation.

The Supreme Court of Virginia has denied the Tulls

the promise of this Court that “.. . when a permit is

denied and the effect of denial is to prevent ‘economically

viable’ use of the land in question, ... a taking has oc-

curred.” United States v. Riverside Bayview Homes, 474

U.S. 121. 127 (1985) (“Riverside Bayview”) (empha-

sis added). There is no dispute that the Tulls’ permit

request was denied, that they cannot use the property sub-

ject to that permit denial for any economically viable use

and that this “private property” is, because of the permit

denial, required to remain forever as vacant and unim-

proved property to further the State’s policy of protection

and preservation of wetlands as a “public resource”. See,

Va. Code § 62.1-13.1, supra at n.4. The permit denial has

converted the Tulls’ “private property” into “public

property”.

The question presented to this Court is whether “the

land in question” referred to in Riverside Bayview, and

referred to in other cases of this Court as the “parcel

as a whole’, may constitutionally include both regulated

and non-reculated property in the “relevant calculus”.

See, supra at n.5. But for the inclusion of the Tulls’

non-reculated property into the “relevant calculus’, the

Tulls fall squarely within this Court’s requirement of just

compensation, stated by this Court as the “. . . second

situation in which we have found categorical treatment

appropriate is where regulation denies all economically

beneficial or productive use of land.” Lucas, supra, slip

op. at 10 (citations omitted).

Mahon, 260 U.S. 393, 414 (1922) (law restricting subsurface extrac-

tion of coal held to affect a taking), with Keystone Bituminous Coal

Assn. V. DeBenedictis, 480 U.S. 470, 497-502 (1987) (nearly

identica} law held not to effect a taking); see also id., at 515-520

(Rehnquist, C.J., dissenting) ; Rose, Mahon Reconstructed: Why

the Takings Issue is Still a Muddle, 57 S.Cal. L.Rev. 561, 566-569

(1984). . .” (emphasis added).

The decision below is in error because the “relevant

calculus” must be restricted to the seven mobile home

lots and commercial parcel located upon the approximately

two acres which was subject to the jurisdiction of the

Wetlands Board and the requirement of a permit to fill,

not, as the trial court held and the Supreme Court of

Virginia affirmed, the entire 12 acres of the Ocean Breeze

Subdivision. Because the 10 acres of upland property was

not subject to the jurisdiction of the Wetland Statute and

requirement of a permit, it could not be taken for public

use without just compensation by the permit denial and is

therefore excluded from the Fifth Amendments prohibi-

tion and also from the “relevant calculus”. Any other

result would make the just compensation requirement of

the Fifth Amendment, applicable to the States by the

Fourteenth Amendment, dependent upon the extent of

a private property owner’s holdings. The posture of this

case and the total deprivation of the use and value of the

regulatcd property suffered by the Tulls present, we be-

lieve, an opportunity for the Court to address this im-

portant constitutional issue unfettered by the procedural

concerns expressed in Lucas.®

In the landmark case of Pennsylvania Coal Co. Vv.

Mahon, 260 U.S. 98, 413 (1992), (“Pennsylvania Coal”),

Justice Holmes observed that “. .. the statute is admitted

to destroy previously existing rights of property and con-

tract.” (emphasis added) The property right was the

existing right to mine coal when the owner of the right

® See, Lucas, senra (Souter, J. abstaining), slip op. at 3. “While

the issue of what constitutes total deprivation deserves the Court’s

attention, as doés the relationship between nuisance abatement and

such total deprivation, the Court should confront these matters

directly. Because it can neither do so in this case, nor skip over

those preliminary issues and deal independently with defenses to

the Court’s categorical compensation rule, the Court should dismiss

the instant writ and await an opportunity to face the total depriva-

tion question squarely. Under these circumstances, I believe it

proper for me to vote to dismiss the writ, despite the Court’s con-

trary preference.” (citations omitted).

did not own the “surface estate” which had been con-

veyed with a reservation of the right to mine the under-

lving coal. As the Court stated, “It purports to abolish

what is recognized in Pennsylvania as an estate in land,

a very valuable estate, ...”. Id. at 414. While terms

such as “relevant calculus”, “takings calculus”, “the land

in question” and “parcel as a whole” are not found in

Pennsylvania Coal the Court clearly was limiting its

focus on only the regulated coal. See, Id. at 414,

Acknowledging the accepted rule that “Government

hardly could go on if, to some extent, values incident to

property could not be diminished without paying for every

such change in the general law” (Id. at 413), Justice

Holmes correctly predicted the end result when that gen-

eral rule is unrestricted.? Under Justice Holmes’ analy-

sis. the Tulls’ case clearly requires an exercise of emi-

nent domain and compensation. The Commonwealth of

Virginia and Accomack County have completely denied

the Tulls all use of all the property subject to their juris-

diction. It cannot be seriously argued that without the ~

inclusion of nonregulated property into the “relevant cal-

culus” for the trial court’s determination of the “parcel

as a whole’, compensation would be required. The re-

quirement of compensation was again affirmed by this

Court in Lucas, but of course that case did not involve

the combination of non-regulated property with regulated

property, in the “relevant ealeulus’, to deny just com-

pensation. However, this Court did in Lucas leave little

doubt that when the State requires private property to

be left in its natural state, for public benefit, compensa-

tion is required.*

7“Obviously the implied limitation must have its limits or the

contract and due process clauses are gone. One fact for considera-

tion in determining such limits is the extent of the diminution.

When it reaches a certain magnitude, in most if not in all cases

there must be an exercise of eminent domain and compensation to

sustain the act. So the question depends on the particular facts.”

Id. at 413.

8 Lucas, slip op. at 12-13. “On the other side of the balance,

affirmatively supporting a compensation requirement, is the fact

Confusion as to what constitutes the ‘‘relevant calculus”

was introduced in 1987, however, when the Court dis-

cussed New York City’s Landmarks Preservation Law and

held that a regulatory taking which required compensa-

tion did not exist, when viewed in the context of the

“narcel as a whole’. The Court rejected as untenable the

Appellants’ submission that they “tay establish a ‘tak-

ing’ simply by showing that they have been denied the

ability to exploit a property interest that they heretofore

had believed was available for development’. The “par-

eel as a whole” in “taking” jurisprudence, was born in

that regulations that leave the owner of land without economically

beneficial or productive options for its use-typically, as here, by

requiring land to be left substantially in its natural state-carry

with them a heightened risk that private property is being pressed

into some form of public service under the guise of mitigating seri-

ous public harm. See, e.g., Annicelli v. South Kingstown, 463 A.2d

133, 140-141 (R.I. 1983) (prohibition on construction adjacent to

beach justified on twin grounds of safety and “conservation of open

space”); Morris County Land Improvement Co. v. Parsippany-Troy

Hills Township, 40 N.J. 539, 552-553, 193 A.2d 232, 240 (1963)

(prohibition on filling marshlands imposed in order to preserve

region as water detention basin and create wildlife refuge). As

Justice Brennan explained: “From the government’s point of view,

the benefits flowing to the public from preservation of open space

through regulation may be equally great as from creating a wildlife

refuge through forma! condemnation or increasing electricity pro-

duction through a dam project that floods private property.’’ San

Diego Gas & Elec. Co., supra, at 652 (Brennan, J., dissenting). The

many statutes on the books, both state and federal, that provide for

the use of eminent domain to impose servitudes on private scenic

lands preventing developmental uses, or to acquire such lands alto-

gether, suggest the practical equivalence in this setting of negative

regulation and appropriation.”

°“On this record, we conclude that the application of New York

City’s Landmarks Law has not effected a “taking” of appellants’

property. The restrictions imposed are substantially related to the

promotion of the general welfare and not only permit reasonable

heneficial use of the landmark site but also afford annellants op-

portunities further to enhance not only the Terminal site proper

but also other properties.” Id. at 138 (emphasis added).

os eeemeneineeniaaaaima timate

Penn Central Transp. Co. v. City of New York, 438 U.S.

104, 130-131 (1978) (“Penn Central’”).”

In Pen» Central, the “landmark site” was defined by

statute. It was, “An improvement parcel or part thereof

on which is situated a landmark and any abutting im-

provement parcel or part thereof used as and constitutin«

part of the premises on which the landmark is situated

” Td. at 111, n.10. (emphasis added). While the

Court’s use of the term “parcel as a whole” in Penn Cen-

tral was clearly limited to the city tax block designated

as the landmark site and the individual sticks to the

bundle of property rights which related solely to the land-

mark site, numerous State and Federal courts have since

this decision construed the Court’s pronouncement of the

“parcel as a whole” to require the inclusion of non-regu-

lated property with regulated property in the “relevant

calculus”. Apparently overlooking the statutory defini-

tion in Penn Central that only “any abutting improve-

ment parcel or part thereof” that “is used as and consti-

tuting part of the premises on which the landmark is

situated”, many courts have felt compelled to include

abutting, adjacent and contiguous non-regulated prop-

erty into the “relevant calculus”. Notwithstanding that

this Court never held or implied that other non-regulated

property owned by Penn Cent ‘al could be included in the

“narcel as a whole’’ to determine the “relevant calculus”,

other courts have failed to appreciate either the limiting

factors or the factual setting in which the “parcel as a

whole” statement was made in Penn Central. The Court

in Penn Central, did not include within the “parcel as a

10“ ‘Taking’ jurisprudence does not divide a single parcel into

discreet segments and attempt to determine whether rights in a

particular segment have been entirely abrogated. In deciding

whether a particular governmental action has affected a taking, this

Court focuses rather both on the character of the actions and on

the nature and extent of the interference with rights in the parcel

as a whole—here, the city tax block designated as the ‘landmark

site’. Id. at 130-131.

Whole” the other eight properties owned by Penn Central

in this area of midtown Manhattan,"

Confusion may have resulted in the Supreme Court

of Virginia and other courts faced with determining

the “relevant ecaleulis” because of the Court of Appeals

conclusion in Penn Central “that the Landmark Law had

not affected a denial of due process because: , . .(3)

even if the Terminal proper could never operate at a rea-

sonable profit, some of the income from Penn Central's ex-

tensive real estate holdings in the area, which include

hotels and office buildings, must realistically be imputed

to the Terminal...” /d. at 121. This confusion also

appears in the writing of the academie community as

well.’ That issue, however, was never addressed by the

"The Court only noted that Penn Central by reason of landmark

designation had “. . . been denied the right to build above the

Terminal, it is not literally accurate to say that they have been

denied all use of even those pre-existing air rights. Their ability

to use these rights has not been abrogated; they are made tran

ferable to at least eight parcels in the vicinity of the Terminal. . .”

Td. at 137.

'-"“Even more troubling is the antecedent question of what prop

erty is relevant in a takings discussion: how much of what? In

Mahon, Holmes considered the relevant property to be the entire

third estate retained by the Company in its deed, but lost to thi

Company by operation of the Act. The resulting one hundred per-

cent diminution no leftover use at all—is the epitome of a taking

under a diminution in value test.

* * x ¥

As Brandeis commented, the issue of relevant property is “rela-

tive’. Indeed, in principle, nothing limits the relevant property to

that described in the deed; the Court could have mea ured the

diminution in value against all of the Company’s property. This

erpansive reading of relevant property appeared recent'y in the

New York Court of Appeals’ disposition of Penn Central Transpor-

tation Co. v. City of New York. The court apparently calewlated

the diminution in value caused by New York City’s landmark pro-

tection ordinance not only against the total value of the restricted

Grand Central Terminal Building, but also against the value of the

Court. The Court stated, “We need only address the

question whether a ‘taking’ has occurred.” /d. at 122.

The Court held there was not a taking because Penn

Central continued to have economically viable use of its

regulated property notwithstanding the air rights restric-

tion.'’ On those facts, totally distinguishable from the

Tulls’ case, the Court in Penn Central held that the case

presented only a situation of diminution of fair market

value of the terminal site, the regulated property which

was the ‘parcel as a whole”.

In the Tulls’ case, it must be assumed, because neither

court provided any legal support for its decision, that the

trial court and Supreme Court of Virginia misconstrued

this Court’s “parcel as a whole” statement in Penn

Central, The statement that, “ ‘Taking’ jurisprudence

does not divide a single parcel into discrete segments and

attempt to determine whether rights in a particular seq-

ment have been entirely abrogated” (Id. at 130) (em-

phasis added), was directed toward the single stick of

Penn Central’s bundle of property rights, in the regu-

lated property, the air rights. The Court’s statement does

not support the inclusion of non-regulated property with

regulated property to form the “parcel as a whole”. The

Court in Penn Central explicitly did not include other non-

regulated properties owned by Penn Centra! into the

“relevant calculus” to determine the “parcel as a whole’’."

ouner's other properties in the vicinity.” tose, Mahon Recon-

structed: Why the Takings Issue is Still a Muddle, 57 S.Cal. L.Rev.

561, 566-568 (1984), (emphasis udded)

13 Penn Central conceded that “... the parcel of land occupied by

Grand Central Terminal must, in its present state, be regarded as

capable of earning a reasonable return, and that the transferable

development rights afforded Appellants by virtue of the Terminal’s

designation as a landmark are valuable, even if not as valuable as

the rights to construct above the Terminal. In Appellants view

none of these factors derogate from their claim that New York

City’s law has effected a ‘taking’.” Jd. at 129.

4“The Terminal is one of a number of properties owned hy

appellant Penn Central in this area of midtown Manhattan. The

Unlike Penn Central, the denial of the fill permit to

the Tulls denied them all economic viable use of seven

platted mobile home lots and commercial parcel on two

acres of their land. The Tulls were not denied the use of

a discrete segment of these properties or only one stick

of thei: bundle of rights. Unlike Penn Central no income

producing improvements exist on the Tulls’ regulated

property and the Tulls are provided no valuable trans-

ferable development rights. Without the required fill

permit all of the Tulls’ regulated property must remain in

its natural state, forever encumbered by the total pro-

hibition of use that resulted from permit denial. A total

“servitude” was imposed upon the Tulls’ property by the

permit denial. The Tulls are not denied the most bene-

ficial use of the land with only a diminution in value as

the Court found to exist as a result of the restriction of

the development of the air rights in Penn Central. The

Penn Central Court emphasized that it and similar cases

of this Court were limited to facts presenting less than

the total destruction of the value of the land subject to

regulation.” The permit denial complained of by the

Tulls is the total destruction of two acres of their land

others include the Barclay, Biltmore, Commodore, Roosevelt, and

Waldorf-Astoria Hotels, the Pan-American Building, and other

office buildings along Park Avenue, and the Yale Club. At least

cight of these are eligible to be recipients of developmental rights

afforded the Terminal by virtue of landmark designation.” Jd. at

115 (emphasis added).

15 “These cases dispose of any contention that might be based on

Pennsylvania Coal Co. v. Mahon, 260 US 393, 67 L Ed 322, 43

S. Ct. 158, 28 ALR 1321 (1922), that full use of air rights is so

bound up with the investment-backed expectations of appellants

that governmental deprivation of these rights invariably—i.e., ir-

respective of the impact of the restriction on the value of the parcel

as a whole-—constitutes a “taking”. Similarly, Welch, Goldblatt, and

Gorieb illustrate the fallacy of appellants’ related contention that a

“taking”? must be found to have occurred whenever the land-use

restriction may be characterized as imposing a ‘servitude’ on the

claimant’s parcel.” Jd. at 130 n.27.

having a value of more than $150,000, a result which this

Court holds in Lucas requires compensation."®

While the Tulls believe that they have suffered a

compensable taking even under the majority holding in

Penn Central, they have clearly suffered such a taking in

the view of the dissent. The Tulls have over their ob-

jection been denied all right to use their regulated prop-

erty and are required to preserve this property in its

natural condition, in perpetuity, at their own expense.

See, Penn Central, 438 U.S. at 140. The Tulls’ property

has been singled out for preservation without compensa-

tion, just as were the buildings of New York City singled

out for landmark preservation. See, Penn Central, 438

U.S. at 140. The Tulls, because they own wetlands are

compelled by the State to dedicate these wetlands, to the

public benefit without just compensation and therefore

share disproportionately with their neighbors the bur-

dens of Virginia’s wetland preservation policy. See, Penn

Central, 488 U.S. at 140. The Tulls are required to pre-

serve their private property for public benefit without

just compensation disproportionately from other citizens

of Virginia who filled their wetland property before en-

actment of the Virginia Wetland Statute. The Fifth and

Fourteenth Amendments have not changed, only Vir-

ginia’s policy to preserve wetlands at the expense of the

private property owner has changed. As the dissent noted

in Penn Central, it is not relevant that the denial of the

permit destroyed property rights not yet used by the

Tulls,."7

16 Lucas, slip op. at 13. “We think, in short, that there are good

reasons for our frequently expressed belief that when the owner of

real property has been called upon to sacrifice all economically bene-

ficial uses in the name of the common good, that is, to leave his

property economically idle, he has suffered a taking.”

7“Tt is, of course, irrelevant that appellees interfered with or

destroyed property rights that Penn Central had not yet physically

used. The Fifth Amendment must be applied with “reference to the

uses for which the property is suitable, having regard to the exist-

ing business or wants of the community, or such as may be reason-

The very evil predicted by the dissent in Penn Central,

has been visited upon the Tulls. The Supreme Court of

Virginia has sanctioned the denial of just compensation

for the taking of all “economic viable use” of the Tulls’

regulated property because the Tulls can use and develop

their non-regulated property ana thus receive what the

trial court believed to be a reasonable return. In the

view of the Supreme Court of Virginia the State may

deny all economic viable use of any amount of regulated

private property so long as the property owner can re-

ceive a “reasonable return” from non-regulated property.

The potential for abuse in such a distorted view of the

just compensation requirement of the Fifth Amendment

is readily apparent. As the dissent correctly predicted in

Penn Central the conceptual and legal problems _pre-

sented by a rule in which a court must define “reasonable

return” and “the particular property unit that should be

examined” allows easy expansion of the “relevant cal-

culus” to avoid an otherwise compensable taking.'

In Kaiser Aetna v. United States, 444 U.S. 164 (1979),

decided after Penn Central, the Court did not include the

adjacent development “of a marina style community of

over 20,000 persons around the pond” into the “parcel as

a whole” or as a factor in the “relevant calculus” to de-

termine if the Corps of Engineers’ requirement of a

publie right of access to the pond and the Hawaii Kai

ably expected in the immediate future.” Jd. at 143 n.6 (citations

omitted)

‘8 “Difficult conceptual and legal problems are posed by a rule

that a taking only occurs where the property owner is denied all

reasonable return on his property. Not only must the Court define

“reasonable return” for a variety of types of property (farmlands,

residential properties, commercial and industrial areas), but the

Court must define the particular property unit that should be ex-

amined. For example, in this case, if appellees are viewed as having

restricted Penn Central’s use of its “air rights”, all return has been

denied. See Pennsylvania Coal Co. v. Mahon, 260 US 393, 67 L Ed

322, 43 S Ct 158, 28 ALR 1321 (1922). The Court does little to

resolve these questions in its opinion.” Jd. at 149 n.13.

SE ail ve @

"19

Marina constituted a compensable taking. Jd. at 167.

The Court focused on the regulated property, the pond

and marina. Jd. at 168.

The same concerns that were expressed in the Penn

Central dissent were again expressed by the dissent in

Keystone Coal Association v. DeBenedictis, 480 U.S. 470,

(1987) (“Keystone Coal’). As the dissent pointed out,

“Similarly, there is no need for further analysis where

the government by regulation extinguishes the whole

bundle of rights in the identifiable segment of property,

for the effect of this action on the holder is indistin-

guishable from the effect of a physical taking.” Jd. at

517. Nevertheless even in Keystone Coal, the inquiry was

again limited to the regulated property, the 27 million

tons of regulated coal that was required by, DER’s 50%

rule, to remain in place. Jd. at 498-499. The majority in

Keystone Coal Court did not incorporate into the “rele-

vant calculus” non-regulated property to determine if a

compensable taking resulted. The majority specifically

stated in Keystone Coal that the “relevant calculus” does

not go beyond the regulated property.’ As predicted by

the dissent in Penn Central and Keystone Coal, confusion

in the lower courts was inevitable.

The Fourth Circuit Court of Appeals does not agree

with the Supreme Court of Virginia’s view that non-

regulated property is part of the “relevant calculus”.

In Naegele Outdoor Advertising, Inc. v. City of Durham,

844 F.2d 172 (4th Cir. 1988), the Fourth Circuit care-

fully analyzed this Court’s decisions in Penn Central and

Keystone Coal and remanded for an evidentiary hearing

on the taking issue to determine the “. . . appropriate

unit of Naegele’s property. . .” Jd. at 176. The Fourth

19 “We do not suggest that the State may physically, appropriate

relatively small amounts of private property for its own use without

paying just compensation. The question here is whether there has

been any taking at all when no coal has been physically appro-

priated, and the regulatory program places a burden on the use of

only a small fraction of the property that is subjected to regulation.

Id. at 499 n.27 (emphasis added).

Circuit’s instructions to the district court were to formu-

late the takings analysis based solely upon the regu-

lated property.””

The Ninth Circuit Court of Appeals distinguishes Penn

Central and similar cases because “the entire subject

property was covered by a uniform restriction” and holds

that it is important to determine if the regulations will be

applied uniformly to two separate parcels of property.

If not, the parcels should be treated as two separate par-

cels rather than combined into a single “parcel as a

whole”. American Sav. & Loan Assn v. County of Marin,

653 F.2d 364, 369-370 (9th Cir. 1981) However, the

United States District Court for the Northern District

of California believes that because of this Court’s holding

in Keystone Coal, “it is doubtful that American Savings

is still good law” because this Court “essentially rejected

the American Savings court’s notion that segments of

property may be analyzed separately if a ‘non-uniform

regulation’ affects various segments differently”. Zilber

Vv. Town of Moraga, 692 F.Supp. 1195, 1204 (N.D. Calif.

1988).

In MacLeod v. Santa Clara County, 749 F.2d 541, 548-

549 (9th Cir. 1984}, cert. denied, 472 U.S. 1009 (1985),

the court found no taking from the denial of a permit

to timber a portion of the property, sought by the owner

because he could not carry the expenses of the property

with ranching which was permitted. The court used

Penn Central to support its position that the owner

20". . on remand the district court can proceed directly to the

taking claim determining first if it is premature. If mature, the

legitimacy of the taking depends on whether the ordinance denies

Naegele “economic viable use” of an appropriate unit of its prop-

erty. See, Keystone, 107 S.Ct. at 1248-49. The appropriate unit is

that one which is substantially affected by the ordinance. Its iden-

tification depends largely upon the scope of Naegele’s sharing con-

tracts. Jd. at 178. (emphasis added) See, also; Georgia Outdoor

Advertising v. City of Waynesville, 900 F.2d 783, 789 (4th Cir.

1990).

could continue “its original intended uses’? without re-

gard for the factual distinction that Penn Central was able

to continue to use its property with a positive financial

return.

The Federal District Courts also have a different opin-

ion from the Supreme Court of Virginia as to what

property should be included in the “relevant calculus”.

In Corn v. City of Lauderdale Lakes, 771 F.Supp. 1557,

1572 (S.D. Fla. 1991),- the district court refused to

permit a property owner to combine a shopping center

site and mini warehouse site on a 261 acre parcel be-

cause, “The Penn Central Court, however, was discuss-

ing laws limiting subsurface excavation and development

of air rights, not adjacent, distinct portions of a 261-acre

parcel.” (emphasis added). In Kaiser Dev. Co. V.

County of Honolulu, 649 F.Supp. 926, 947-948 (D.

Hawaii, 1986), the district court rejected an argument

that the land owner “has already received enough money

from the development” and refused to include other prop-

erty owned and developed into the “parcel as a whole”.

Confusion, and inconsistent application of the “parcel

as a whole” doctrine to include or not include non-regu-

lated property in the “relevant calculus” since Penn Cen-

tral, has also resulted in the state courts. Some state

court decisions are directly at odds with the Supreme

Court of Virginia. In Burrows v. City of Keene, 482

A.2d 15 (N.H. 1981), the Supreme Court of New Hamp-

shire after careful analysis of the leading takings cases

including Penn Central held that a compensable taking

resulted when the City placed 109 acres of the plaintiffs

124 acres into a “conservation zone’. In Allingham V.

City of Seattle, 749 P.2d 160, 163-164 (Wash. 1988), later

overruled in Presbytery of Seattle v. King County, 787

P.2d 907 (Wash. 1990) because of Penn Central and

Keystone Coal, the Supreme Court of Washington, sitting

en banc held a Greenbelt Ordinance which required 50%

to 70% of certain lots to be preserved in or returned to

their natural state to be invalid as “an unconstitutional

taking of private property without compensation” not-

withstanding the City’s argument that “the remaining

30°% may be put to profitable use”. In Western Energy

Co. v. Genie Land Co., 737 P.2d 478 (Mont. 1987), the

Supreme Court of Montana considered the Court’s “par-

cel as a whole” statement in Penn Central and acknowl-

edged that, “The critical question then became how to

define a segment of property for takings purposes.” /d.

at 483. The Supreme Court of Montana limited its -

inquiry to the regulated mineral rights “. . . at issue in

this case, is destruction of Western’s entire bundle of

rights in the minerals beneath the surface owned by

Genie.” Jd. at 483. The Supreme Court of Montana re-

jected the suggestion that the takings analysis should ex-

tend beyond the land which was the subject of the statute

or that the mineral rights were only one stick in the

bundle of rights.”

In Aptos Seascape Corp. v. County of Santa Cruz, 188

Cal. Rptr. 191 (App. 1982), the court refused to include

all of Seascape’s property into the “parcel as a whole’.

The 110 acres subject to regulation was only a part of

the original 500 acres purchased and Seascape still owns

approximately 200 acres of uplands and has developed

and soid about 190 acres. 7d. at 198. The court noted

that Penn Central was factually distinguishable because

it “did not involve contiguous property for which differ-

ent zoning designations were adopted’. Jd. at 198. The

21“Under Montana law, however, Western’s entire bundle of

rights consists of its rights to all the minerals beneath certain sec-

tions of land. These rights are not defined in terms of its various

holdings in eastern Montana, but rather in terms of its rights to

mine coal in the specific sections in question. Consequently, the

Court’s determination in Keystone, that merely one strand of Peti-

tioner’s rights had been taken is inapplicable here.” Jd. at 483.

court acknowledged the confusion that exists in the de-

cisional law under the Fifth Amendment.

In Seawall Associates v. City of New York, 542

N.E.2d 1059 (N.Y. 1989), the Court of Appeals of New

York also distinguished Penn Central and Keystone Coal

in striking down a municipal law establishing a five year

moratorium on conversion, alteration and demolition of

single-room occupancy housing and requiring the owners

to restore all units to habitable condition and lease them

at controlled rents for an indefinite time as a require-

ment that the owners dedicate their property to a public

purpose.**

In de St. Aubin v. Flacke, 492 N.Y.S. 2d 766 (A.D.

Dept 1985), the court held that a taking resulted from

denial of permits to fill a tract of land divided into four

22 “Decisional law under the takings clause of the federal Con-

stitution has been described as “hopelessly confused”, with lower

courts differing widely in their analytical frameworks for resolving

takings challenges. (Note, Developments-Zoning (1978) 91 Harv.

L.Rev. 1427, 1464.) That confusion is particularly apparent in cases

with facts similar to those at issue, where a property owner alleges

that governmental action restricting the use- of a portion of his

property constitutes a taking. Some courts consider the only ques-

tion to be the effect of the regulations on the whole of the owner’s

contiguous property. (See, e.g., Am. Dredging V. State, Dept. of

Environ. Pro. (1979) 169 N.J.Super. 18, 404 A.2d 42; Multnomah

County V. Howell (1972) 9 Or.App. 374, 496 P.2d 235, 238.) Other

courts focus on the restricted acreage, but also consider whether

developmental rights have been denied outright, or transferred else-

where. (See, e.g., American Sav. & Loan Ass’n v. County of Marin

(1981) 653 F.2d 364; Fifth Avenue Corp. v. Washington County,

ete. (1978) 282 Or. 591, 581 P.2d 50.)” Zd. at 197.

23 “Finally, defendants’ efforts to uphold Local Law No. 9 miss a

key feature of the law here and the one that distinguishes it from

the Landmarks Law in Penn Central, the Subsidence Act in Key-

stone. and the Eagle Protection Act in Andrus. Unlike the regula-

tory actions in those cases, which simply limited the owners’ conduct,

Local Law No. 9 not only prohibits conduct but affirmatively re-

quires that the owners dedicate their properties to a public pur-

pose.” ZJd. at 1070. :

paree!s which contained 22.2 acres of uplands and that

the purchase of property with knowledge of restrictions

such as zoning and wetland laws does not preclude a

challenge to their validity. In Spears v. Perle, 397

N.E.2d 1304 (1979), the Court of Appeals of New York

remanded for a hearing on the takings issue when the

owner's two parcels of land contained regulated and non-

regulated property. In that case a 51 acre parcel with

38 acres of wetlands and a 43 acre parcel with & acres

of wetlands. In Lewis v. New Castle County Bd. of

Adj., 601 A.2d 1048 (1989), the Superior Court of Dela-

ware refused to treat two parcels which were “split

zoned’ as a single parcel to deny the petitioners right to

a variance.

In some states, the Court’s Penn Central and Keystone

Coal decisions are used as support for denial of just

compensation and in the Supreme Court of Washington

they were relied upon to support a complete reversal of

the court’s prior position. In Presbytery of Seattle v.

King County, 787 P.2d 907, 914-915 (Wash. 1990), the

Supreme Court of Washington, sitting en bane held that

no taking resulted when a portion of the 4.5 acres of

property contained wetlands which could not be used. The

court relied upon the decisions in Penn-Central and Key-

stone Coal to overrule its prior decision in Allingham v.

Seattle, 109 Wash. 2d 947, 749 P.2d 160 (1988). The

court does not discuss the fact that only part, not all of

the property, was regulated property.”

“4“Witbh the exception of this court’s recent decision in Allingham

Vv. Seattle, 109 Wash.2d 947, 749 P.2d 160 (1988), neither state no:

federal law has divided property into smaller segments of a

undivided parcel of regulated property to inquire whether a piece

of it has been taken or whether a due process violation has occurred

with regard to a piece of regulated property. Rather, we have

consistently viewed a parcel of regulated property in its entirety.

Federal case law has also specifically refused to focus its inquiry

upon a given portion of a regulated property.” Jd. at 914-915.

(emphasis added)

In Am. Dredging v. State, Dept. of Environ. Pro., 404

A.2d 42 (1979), the court relying on Penn Central re-

fused to void an order denying use of an 80 acre section

of property because it “comprises only 3% of plaintiffs

entire tract” of 2,500 acres. In Carter v. South Carolina

Coastal Council, 314 S.E.2d 327 (S.C. 1984), the court

held that denial of a permit to fill 5.8 acres of marshland

was not a taking because “[a]n owner of land has no

absolute and unlimited right to change the essential nat-

ural character of his land so as to use it for a purpose

for which it was unsuited in its natural state and which

injures the rights of others”. Jd. at 329. In Moshow v

Com’r of Dept. of Env. Management, 427 N.E.2d 750

(Mass. 1981), the court relying upon Penn Central re-

versed a finding by the lower court that a taking re-

sulted when 55% of the property was a wetland which

could not be used. Eleven years before that court in

MacGibbon v. Board of Appeals of Duxbury, 255 N.E.2d

347 (Mass. 1970) held that “The preservation of pri-

vately owned land in its natural, unspoiled state for the

enjoyment and benefit of the public by preventing the

owner from using it for any practical purpose” was not

authorized. In Claridge v. New Hampshire Wetlands Ed.,

485 A.2d 287 (N.H. 1984), the court in reliance on

Penn Central held there was no compensable taking for

denial of a fill permit necessary to use the property for

a residence because, “a person who purchases land with

notice of statutory impediments to the right to develop

that land can justify few, if any, legitimate investment-

backed expectations of development rights which rise to

the level of constitutionally protected property rights. /d.

at 291.

Other state decisions hold that “separate parcels”

should be combined to form the “parcel as a whole’. In

Bevan v. Brandon TP, 475 N.W.2d 37, 42-43 (Mich.

1991), two separate but contiguous lots, each with its

own tax description and purchased at different times.

were held to be the “parcel as a whole” in reliance upon

Penn Central. In Gannett v. Lowell, 450 N.E. 2d 1121,

1122 (Mass. App. 1983), the court combined two contig-

uous parcels in different towns into the “parcel as a

whole”. Because the remaining lands uses had value, the

court denied compensation. In Grand Forks-Trail Water

Users v. Hjelle, 418 N.W.2d 344, 347 (N.D. 1987), the

court relied upon Penn Central to hold no taking oc-

curred under a statute that prohibited construction of

utility lines on private property within 100’ of the center

line of a state highway. In Jones v. Zoning Hearing

Bd., 578 A.2d 1369 (Pa. Comwlth. 1990), the court relied

upon Penn Central to uphold the validity of a zoning

ordinance that limited density to provide open space.

Nowhere is the “parcel as a whole” and “relevant cal-

culus confusion more apparent than in the Court of

Claims. Citing to this Court’s “parcel as a whole” ref-

erence in Penn Central the claims court in Deltona

Corporation Vv. United States, 657 F.2d 1184 (1981) cert.

denied, 455 U.S. 1017 (1982) (“Deltona’’) denied com-

pensation to the property owner, sought after denial of a

permit by the Corps of Engineers. Noting that the per-

mits had been granted for two prior phases of the project

and one of the three applied for, and that the two phases

for which the permit was denied contained 111 acres of

non-regulated upland property which had a substantial

value the court denied compensation. The court held that

‘“.. this case merely presents an instance of some diminu-

tion in value.” Jd. at 1192. At the same time, in Jentqen

v. United States, 657 F.2d 1210 (1981), cert. denied 455

U.S. 1017 (1982) (“Jentgen’’) the claims court denied

compensation to the property owner, sought after denial

of a permit by the Corps of Engineers based upon the

“parcel as a whole” reference in Penn Central. Id. at

1213. While the permit denial in Jentgen would have

allowed use of 20 of 80 acres subject to the permit re-

quirement and 20 additional acres did not require a per-

mit, compensation was denied because, the market value

of the property, “. . . post denial is still between $80,000

and $150,000: the latter figure being the amount plain-

tiffs paid for the property in 1971.” /d. at 1213. The

denial of just compensation in Deltona and Jentgen was

predicated upon the fact that both regulated wetlands

and non-requlated uplands were combined in the permit

applications which were denied. See, infra at n.25. That

is not the situation in the Tulls’ case. The Tulls permit

application was limited to the two acres of regulated wei-

land property and did not include the 10 acres of upland

property not subject to the Wetland Board’s jurisdiction.

In 1985 Chief Judge Kozinski in Florida Rock Indus-

tries, Inc. Vv. United States, 8 Cl.Ct. 160 (1985) held that

a compensable taking resulted from the refusa! of the

Corps of Engineers to grant a permit needed to mine 98

acres of Florida Rock’s property even though Florida

Rock owned an additional 1,462 acres of property for

which no permit had yet been requested or denied. The

Federal Circuit reversed on other grounds, but refused

to include in the “parcel as a whole” the 1,462 acres of

property not yet subject to regulation or permit denial.”

More to the point in Loveladies Harbor, Inc. v. United

States, 15 Cl.Ct. 381, 391-393 (1988) appeal pending, No.

91-5050 (Fed.Cir., February 138, 1991) (“Loveladies

Harbor’) Chief Judge Smith carefully analyzed this

Court’s decision in Penn Central and determined that

the “parcel as a whole’ did not include the 250 acres of

the original purchase, only 57.4 acres of which was still

owned by the plaintiff. /d. at 392. Next Judge Smith

eliminated from the 57.4 acres, 38.5 acres from the “par-

cel as a whole’ because the State of New Jersey had al-

ready denied the permits necessary to fill this portion of

25 “Defendant says there was no taking because the 98 acres held

taken are only a small part of a single tract of 1,560 acres, the rest

not taken, and no restriction arising from the denial of the permit

applies to them. Such a contention had dignity and was of decisive

importance in the cases of Deltona, supra and Jentgen, supra, but

there the Army engineers considered the entire tracts and deter-

mined that portions thereof could be developed as proposed. Here

the Army engineers considered only the 98 acres.” United States

Vv. Florida Rock Industries, Inc., 791 F.2d 893, 904-905, cert. denied,

479 U.S. 1053 (1957).

the property. Judge Smith next eliminated from the re-

maining 18.9 acres 6.4 acres which were “. . . not effected

by the Army Corps of Engineers’ permit denial...” and

are no longer contiguous to the 12.5 acres at issue. /d.

at 393. Finally, Judge Smith held that the, “. . . ultimate

amount of property to be considered part of the parcel as

a whole in this case is, accordingly, the 12.5 acres at is-

sue,” the property subject to regulation by the Corps of

ngineers and for which the permit was denied, Jd. at

384. However, even Judge Smith’s careful analysis in

Loveladics Harbor demonstrates uncertainty over whether

or not to include non-regulated “adjacent properties” in

the “relevant ecaleulus” even though in Penn Central non-

regulated adjacent properties were not included in the

“parcel as a whole.” See, Jd. at 393.

Even after Judge Smith’s carefully reasoned analysis

of the “parcel as a whole” in Loveladies Harbor and the

Federal Circuit’s refusal to include the remaining 1,462

acres owned by Florida Rock Industries, but not subject

to regulation, the claims court in Ciampetti v. United

States, 22 Cl.Ct. 310 (1991) included non-regulated prop-

erty in the “parcel as a whole”. While recognizing that

this Court in Penn Central and Keystone Coal did not

include non-regulated land in the “relevant calculus’, the

court held that because Ciampetti treated both the regu-

lated and non-regulated property as the “parcel as a

whole” the court should also. The court conceded that

“Admittedly in those cases [Penn Central and Keystone

Coal] the Court was not directly dealing with a govern-

mental contention that additional land ought to be in-

cluded in the calculus.” Jd. at 318. In the Court of

Claims the “parcel as a whole’ continues to be a ship

without a rudder.

The implications of the Supreme Court of Virginia’s

decision below are enormous. We have found that in the

fourteen years before Penn Central the term “parcel as

a whole” was used 16 times and not all of these cases

related to “takings”. In the fourteen years since Penn

Central the term “parcel as a whole” has been used 85

times. This represents more than a five fold increase in

the number of decisions that have required a determina-

tion of the “relevant calevlus” after this Court’s pro-

nouncement of the term “parcel as a whole” in Penn

Central. This dramatie increase in the number of cases

and the differing results demonstrate that defining the

“relevant calculus” in takings cases will be a constantly

recurring one and that the decision below will only add

support to the argument that just compensation is not

required when the state denies all economic viable use of

private property so long as the owner can receive what

the court determines to be a reasonable rate of return on

the non-regulated property. That the issue is likely to

recur is ampl:’ illustrated by the many different results

reached in the state and federal cases since Penn Central

which have been cited in this Petition.

The Virginia Supreme Court has now joined ranks

with those courts who would allow the confusion created

by the Court’s Penn Central and Keystone Coal decisions

to expand the “relevant calculus” to capture in the state’s

“regulatory web” all property, regulated or not, to deny

just compensation which would otherwise clearly be re-

quired by this Court’s decision in Lucas. The Fifth

Amendment will continue to be construed to reach dif-

ferent results in different states. Had the Tulls’ property

been located in the State of Néw York they would have

been compensated.*"

98 QE

Since wetlands restrictions are far more stringent than zoning

regulations—restricting development per se as opposed to restricting

types of uses—the Legislature has provided the property owner with

a remedy against an unconstitutional taking within the context of

the regulatory scheme itself. Thus, if a permit is denied or the

permit offered is more limited in scope than that sought, the owner

may seek juidicial review of the administrative denial (ECL 25-

0404). This review proceeding is unique in that a determination

sustaining the permit denial, as supported by substantial evidence,

will then trigger a second determination in the same proceeding as

to whether this developmental restriction constitutes an unconstitu-

We know that we need not argue to this Court the

importance of the Fifth Amendment’s admonition that

“. . nor shall private property be taken for public use,

without just compensation” because the Court itself has

emphasized this consistently through the years in cases too

numerous to cite. We only add here that the instant case

represents a perversion of justice that this Court should

not allow to stand. States, including Virginia, should not

be permitted to avoid the requirement of the Fifth

Amendment that just compensation be paid when the

state regulates out of existence all right to reasonably use

private property with the expediency of diluting that

right by including non-regulated property into the “rele-

vant calculus’, under an erroneous claim that this Court

has sanctioned such a result by its decisions in Penn

Central and Keystone Coal.

CONCLUSION

For the reasons outlined above, certiorari should be

granted and the judgment below reversed.

Respectfully submitted,

RICHARD R. NAGEOTTE *

JAMES SCOTT KREIN

NAGEOTTE & KREIN

385 Garrisonville Road, Suite 201

Stafford, Virginia 22554

(703) 659-5050

Attorneys for Petitioners

* Counsel of Record

tional taking without compensation (RCL 25-0404). This second

determination will be made on the basis of a full evidentiary hear-

ing and, if a taking is found, the commissioner will be directed, ot

his option, to either grant the requested permit or institute cou-

demnation proceedings (ECL 25-0404; ef. Spears vy. Berle, supra,

p. 261, 422 N.Y.S.2d 636, 397 N.E.2d 1304).” Chase Manhattan

Bank, N.A. Vv. State of New York, 479 N.Y.S.2d 983, 986-987 (A.D.

2 Dept. 1984).

EAE FS Bee Gre tes. sein et OO ‘

Beret ab ial Alla 2

APPENDICES

APPENDIX A

VIRGINIA:

| Mar. 05, 1992]

In the Supreme Court of Virginia held at the Supreme

Court Building in the City of Richmond on Tuesday the

3rd day of March, 1992.

Record No. 911891

Circuit Court No. 88CH128

EpWARD L. TULL, e¢ al.,

Appellants,

against

COMMONWEALTH OF VIRGINIA, et al.,

Appellees.

From the Circuit Court of Accomack County

Upon review of the record in this case and considera-

tion of the argument submitted in support of and in

opposition to the granting of an appeal, the Court is of

opinion there is no reversible error in the judgment

complained of. Accordingly, the Court refuses the peti-

tion for appeal.

A Copy,

Teste:

DAvip B. BEACH

Clerk

By: /s. |Illegible]

Deputy Clerk

APPENDIX B

VIRGINIA:

IN THE CIRCUIT COURT

OF ACCOMACK, COUNTY

In Chancery No. 88-CH-128

EDWARD L. TULL and LOUISE A, TULL,

Complainants,

Vv.

COMMONWEALTH OF VIRGINIA and

COUNTY OF ACCOMACK,

Defendants.

FINAL DECREE

This case was tried before the Court on June 27 and-

28, 1991. The Complainants were represented by their

counsel, Richard R. Nageotte. Defendant Commonwealth

of Virginia was represented by Pamela M. Reed and

Frederick S. Fisher, Assistant Attorneys General, and

Defendant Accomack County Board of Supervisors was

represented by Bruce D. Jones, Jr., Accomack County

Attorney. Evidence was presented and the case was

argued.

Upon consideration of all the evidence, arguments of

counsel, the memoranda previously filed and for the rea-

sons stated from the bench, the Court finds that the Wet-

lands Act passed in 1972 advances-a legitimate state

interest and that denial of the Tulls’ permit application by

the Accomack County Wetlands Board which was affirmed

by the Virginia Marine Resources Commission to fill ap-

proximately 2 acres of wetlands in Ocean Breeze Mobile

Home Sites Subdivision, Section “D” did not deprive the

Tulls of all economically viable use of their property, and

that therefore there has been no taking by inverse con-

demnation of the Tulls’ property. It is therefore

ORDERED, ADJUDGED AND DECREED that this

Court finds in favor of the Commonwealth of Virginia

and the County of Accomack and grants final judgment

to the Commonwealth of Virginia and the County of Ac-

comack and this case should be and therefore is dis-

missed. And it is

FURTHER ORDERED, ADJUDGED AND _ DE-

CREED that the Complainants having expressed their

intention to appeal this Final Decree to the Virginia Su-

preme Court and having requested this Court to fix the

bond on appeal, the Court does in accordance with Code of

Virginia 1950 as amended, § 8.01-676.1, fix the bond for

costs on appeal in the amount of $500.00 in the form of

an irrevocable letter of credit from the Farmers and Mer-

chants Bank, Chincoteague, Virginia. And it is

FURTHER ORDERED, ADJUDGED AND DE-

CREED that this Decree being final, the Clerk shall place

this file with the ended cases.

Enter this 4th day of November, 1991.

/s/ N. Wescott Jacob

N. WESCOTT JACOB

Judge

Circuit Court of Accomack County

[342]

VIRGINIA:

IN THE CIRCUIT COURT

OF ACCOMACK COUNTY

In Chancery No. 88-CH-128

EDWARD L. TULL and LouIsg A. TULL,

™ Complainants,

COMMONWEALTH OF VIRGINIA and

COUNTY OF ACCOMACK,

Defendants.

TRANSCRIPT OF PROCEEDINGS

June 28, 1991

RULING OF THE COURT

THE COURT: Well, of course, there can be no ques-

tion that the General Assembly passed this wetlands leg-

islation in 1972 and it was passed to advance a legitimate

state interest. There is no question that in this case the

Accomack County Wetlands Board denied Mr. Tull’s ap-

plication for a permit.

The question is did their depriving Mr. Tull of this

permit deprive the landowner of all economic viable use

of the property, and I think that’s the whole question if

[sic] the case. As I say, to determine that, I think you’ve

got to decide what is the property in question, or the

parcel as a whole as you [sic] Supreme Court phrased it

and you phrased it here.

To me, it is just absolutely [343] ridiculous to say that

the two acres of wetlands as shown on a piat and the

County used that plat in assessing the property and the

assessed each lot individually, so each lot becomes a par-

cel as a whole. That to me is absolutely ridiculous.

The County and Commonwealth argue that the parcel

as a whole IS the 438 acres that Mr. Tull purchased. Mr.

Nageotte argues, and I think there is certainly some

merit to that argument. There’s been no evidence here

to show what wetlands there were on this 43 acres, but

I think it is certainly reasonable to use the Ocean Breeze

Section D, the approximately 12 acres that was platted

. as the parcel as a whole, and certainly Mr. Tull’s sold for

a very considerable price. I think one was $16,000 and

one was two at $20,000 after the permit was denied—

lots from this parcel. It certainly cannot be argued that

he was denied all economic viable use of the property.

I never have thought probably made too much differ-

ence whether he made a profit or a loss on this entire

property, but I again think it is rather ridiculous to use

all of the litigation [844] expenses that were involved

by Mr. Tull in the federal district court as expenses on

this property for the purpose of showing whether it was

a profit or loss. If you don’t use those figure, of course,

there is no question Mr. Tull made a substantial recov-

ery from his investment, a substantial profit from the sale

of the lots in Ocean Breeze Section D.

I do not find that there has been any loss of economic

viable use of the property because the permit was denied

as to two acres. For that reason I do not think there has

been a taking.

I would ask Mr. Jones and the Attorney General to pre-

pare a decree in accordance with that ruling and have

Mr. Nageotte endorse same and present it to me for

signature.

MR. JONES: Ail right, Your Honor.

MS. REED: Thank you, Your Honor.

(Trial concluded at 12:48 p.m.)

APPENDIX C

VIRGINIA:

In the Supreme Court of Virginia held at the Supreme

Court Building in the City of Richmond, on Friday the

17th day of April, 1992.

Record No. 911891

Circuit Court No. 88CH128

EDWARD L. TULL, et al.,

Appeliants,

against

COMMONWEALTH OF VIRGINIA, et al.,

Appellees.

Upon a Petition for Rehearing

On consideration of the petition of the appellants to set

aside the judgment rendered herein on the 8rd day of

March, 1992 and grant a rehearing thereof, the prayer

of the said petition is denied.

A Copy,

Teste:

/s/ [Illegible]

Clerk

ee i

VIRGINIA:

IN THE SUPREME COURT OF RICHMOND

CITY OF RICHMOND

Record No. 911891

Circuit Court No. 88CH128

EDWARD L. TULL, et al.,

Appellants

Vv.

COMMONWEALTH OF VIRGINIA, et al.,

Appellees

PETITION FOR REHEARING

COME NOW your Appellants, Edward L. Tull and

Louise A. Tull, by Counsel, pursuant to Rule 5:20 of the

Rules of the Supreme Court of Virginia and Petition this

Court for Rehearing upon the following grounds:

1. This Court entered its Order on March 3, 1992 re-

fusing Appellants’ Petition for Appeal. This Petition

for Rehearing is timely filed and served as required by

Rule 5:20.

2. Appellants’ Bill of Complaint filed in the Circuit

Court of Accomack County appealed the refusal of the

Commonwealth of Virginia and Accomack County to pay

just compensation for seven mobile home lots and a com-

mercial parcel the Tull’s asserted was taken by_ the

Commonwealth of Virginia and Accomack County as a

result of refusal to grant a permit to fill wetlands. De-

nial of the necessary permit left Appellants with seven

mobile home lots and a commercial parcel of land, which

the Commonwealth of Virginia and Accomack County

conceded had no use and must remain as vacant lots

because of the denial of the permit to fill wetlands. Ap-

pellants’ state constitutional claims pursuant to Article

I, Section 11 of the Virginia Constitution were contained

in Count I of the Bill of Complaint and Appellants’ fed-

eral constitutional claims pursuant to the Fifth Amend-

ment of the Constitution of the United States applicable

to the states through the Fourteenth Amendment were

contained in Count II of the Bill of Complaint.

3. The Circuit Court of Accomack County denied Ap-

pellants’ claims for compensation under both Article I,

Section 11 of the Virginia Constitution (Count I of the

Bill of Complaint) and the Fifth Amendment of the Con-

stitution of the United States applicable to the states

through the Fourteenth Amendment of the Constitution

of the United States (Count II of the Bill of Complaint)

upon the grounds that the relevant “parcel as a whole”

for purposes of the takings analysis was the entire

twelve acres subdivided into Ocean Breeze Mobile Home

Sites, Section “D” and not the seven mobile home lots

and commercial parcel located in the wetlands portion of

the subdivision for which the permit was denied, which

is conceded to be the only property subject to the re-

quirement of a county or state wetlands permit.

4. On pages 23-27 of the Appellants’ Petition for

Appeal, Appellants set out in detail the United States

Claims Court’s analysis of the “parcel as a whole” in

Loveladies Harbor, Inc. v. United States, 21 Cl.Ct. 153

(1990) which held that the parcel as a whole was the

area which was subject to the jurisdiction of the per-

mitting authority and the requirement of a permit, in

that case the U.S. Army Corps of Engineers. The Cir-

cuit Court of Accomack County has reached a different

result in the instant case.

5. As pointed out in footnote 4, page 23 of Appellants’

Petition for Appeal, Loveladies Harbor, Inc. v. United

States, 21 Cl.Ct. 153 (1990) is on appeal to the United

States Court of Appeals for the Federal Circuit No.

91-5050 (Fed.Cir., February 13, 1991).

6. Counsel for Appellants has learned that oral argu-

ment has been completed in Loveladies Harbor, Inc. V.

United States, Federal Circuit No. 91-5050 (Fed.Cir. Feb-

ruary 13, 1991) and accordingly a decision by the Fed-

eral’Circuit is imminent.

7. While the decision of the Federal Circuit in Love-

ladies Harbor, Inc. v. United States, Federal Circuit No.

91-5050 (Fed.Cir. February 18, 1991) may or may not,

in this Court’s view, be relevant to this Court’s determi-

nation of the Appellants state constitutional claims con-

tained in Count I of the Bill of Complaint, the decision

is highly relevent to the Appellants federal constitutional

claims contained in Count II of the Bill of Complaint

which are both on appeal in this case. This Court held

in its Order entered on Tuesday the third day of March,

1992, “. .. no reversible error in the judgment complained

of. Accordingly, the Court refuses the Petition for Ap-

peal.” As a result this Court has found no reversible

| error and refused the Appellants’ Petition for Appeal on

both. the state constitutional claims and the federal con-

stitutional claims.

8 The United States Claims Court is the trial court

with jurisdiction over all suits alleging a taking of prop-

erty without just compensation in violation of the Fifth

Amendment by the United States when the amount in

controversy exceeds $10,000, pursuant to jurisdiction un-

der the Tucker Act. The Federal Circuit is the Appellate

Court that reviews decisions of the United States Claims

Court. Accordingly, the decision of the Federal Circuit

in Loveladies Harbor, Inc. v. United States, United States

Court of Appeals for the Federa! Circuit, No. 91-5050

(Fed.Cir. February 13, 1991) relating to the specific

issue raised by the Petition for Appeal in the instant

case, i.e., whether the “parcel as a whole” for purposes

of the takings analysis should be limited to the area

10a

which is subject to the permit requirement or some larger

parcel is cirect'y relevant to the Appellants’ federal con-

stitutional claim ana could result in this Court finding

reversible error in the instant case, at least with respect

to Appellants’ federal constitutional claim.

9. Appellants respectfully submit that this Court

should grant their Petition for Rehearing and stay fur-

ther proceedings in this case, at least with respect to the

federal constitutional claims raised on appeal until the

Federal Circuit has published its decision in Loveladies

Harbor, Inc. v. United States, U.S. Court of Appeals for

the Federal Circuit No. 91-5050 (Fed.Cir. February 13,

1991).

WHEREFORE, pursuant to Rule 5:20 of the Rules

of the Supreme Court of Virginia, Appellants, by Coun-

sel, Petition for Rehearing and a stay of any further

decision in this case until the Federal Circuit issues its

decision in Loveladics Harbor, Inc. v. United States, U.S.

Court of Appeals for the Federal Circuit No. 91-5050

(Fed.Cir. February 18, 1991) and that decision is re-

viewed by this Court.

Epwarp L. TULL and

Louise A. TULL

/s/ Richard R. Nageotte

By Counsel

/s/ Richard R. Nageotte

RICHARD R. NAGEOTTE

NAGEOTTE & KREIN

385 Garrisonville Road, Suite 201

Stafford, VA 22554

(703) 659-5050

Counsel for Appellants,

Edward L. Tull and Louise A. Tull

lla

CERTIFICATE OF SERVICE

I hereby certify that I have this 9th day of March,

1992, filed eight copies of this Petition for Rehearing

with the Clerk of the Supreme Court of Virginia and

have served a true copy of this Petition for Rehearing

by hand-delivery on the 9th day of March, 1992 to Fred-

erick S. Fisher, Esquire and Pamela M. Reed, Esquire,

Office of the Attorney General, Commonwealth of Vir-

ginia, 101 N. Eighth Street, Richmond, VA 23219, Coun-

sel for Commonwealth of Virginia and have on this 9th

day of March, 1992, mailed, postage pre-paid by first

class mail, a true copy of this Petition for Rehearing to

Bruce D. Jones, Jr., Esquire, Accomack County Attorney,

One Front Street, Accomac, VA 23301, Counsel for Ac-

comack County Board of Supervisors.

/s/ Richard R. Nageotte

RICHARD R. NAGEOTTE

Counsel for Appellants

l2a

APPENDIX D

VINGINIA:

IN THE CIRCUIT COURT OF ACCOMACK COUNTY

Chancery No. 88-CH-128

Epwarp LUNN TULL and Louise A. TULL,

Complainants

Vv,

COMMONWEALTH OF VIRGINIA

and

BoARD OF COUNTY SUPERVISORS

ACCOMACK COUNTY, VIRGINIA

P.O. Box 388

Route 764

Accomac, Virginia 23301

and

EpWARD J. MAZUR

COMPTROLLER, COMMONWEALTH OF VIRGINIA

Department of Accounts

James Monroe Building, 2nd Floor

101 N. 14th Street

Richmond Virginia 23219

and

MARINE RESOURCES COMMISSION OF

THE COMMONWEALTH OF VIRGINIA

and

ACCOMACK COUNTY WETLANDS BOARD,

Defendants

13a

BILL OF COMPLAINT

TO THE HONORABLE N. WESCOTT JACOB,

JUDGE OF THIS COURT:

Your Complainants respectfully allege as follows:

| COUNT ONE

1. This Count One is a Declaratory Judgment action

pursuant to Section 8.01-184 and Section 8.01-187 Code

of Virginia, to determine whether Complainants’ real

property within Accomack County, Virginia, has been

taken without just compensation (inverse condemnation)

in Violation of Article I, Section 11 of the Constitution

of the Commonwealth of Virginia and to appoint Com-

missioners to establish the value of the taking pursuant

to Section 8.01-187 of the Code of Virginia.

2. In prosecuting their claim of taking against the

Board of County Supervisors, County of Accomack, Vir-

ginia, your Complainants have exhausted all adminis-

trative remedies available to them pursuant to Section

15.1-550, Code of Virginia as evidenced by the denial of

claim issued by the County of Accomack, Virginia, on

Tuly 21, 1988, which denial of claim together with the

Petition of Claim is marked as Exhibit “A” attached

hereto and incorporated herein and which denial is ap-

pealed by this Bill of Complaint. Your Complainants have

caused a written notice of appeal to be served on the

Clerk of the Board of Accomack County and have posted

a bond pursuant to Section 15.1-552, Code of Virginia.

3. The Board of County Supervisors, Accomack County,

Virginia is named as Defendant in this action pursuant to

Section 15.1-552, Code of Virginia.

4. In prosecuting their claim of taking against the

Marine Resources Commission of the Commonwealth of

Virginia, your Complainants have exhausted all admin-

istrative remedies available to them pursuant to Section

l4a

2.1-223.1, Code of Virginia, as evidenced by the denial

of claim issued by the Marine Resources Commission on

June 24, 1988, which denial of claim together with the

Petition of Claim is marked as Exhibit “B” attached

hereto and incorporated herein and which denial is ap-

pealed by this Bill of Complaint.

5. The Marine Resources Commission of the Com-

monwealth of Virginia is named as Defendant in this

action pursuant to Section 8.01-192, Code of Virginia.

6. The Commonwealth of Virginia is a named Defend-

ant in this action pursuant to Section 8.01-192, Code of

Virginia.

7. Edward J. Mazur, Comptroller of the Common-

wealth of Virginia is named as Defendant in this action

pursuant to Section 8.01-193, Code of Virginia.

8. The Defendants named in this action are sued

jointly and severally to pay compensation to vour Com-

plainants which resulted from the taking of Complain-

ants’ real property without compensation as alleged

herein and attorneys’ fees and costs.

9. Your Complainants Edward Lunn Tull and Louise

A. Tull are the owners of Ocean Breeze Mobile Home

Sites Subdivision, Section “D’, located within Accomack

County upon the Island of Chincoteague, Virginia.

10. By reason of the recordation of the Subdivision

Plat for Ocean Breeze Mobile Home Sites, Section “D”, a

copy of which Plat is marked as Exhibit “C” attached

hereto and incorporated herein, each mobile home lot

shown on the Subdivision Plat is an individual and dis-

tinct parcel of real property, as is the parcel of property

shown as Future Commercial Development.

11. In reliance upon the vested rights granted by the

laws of the Commonwealth of Virginia and the Ordinances

of Accomack County, Complainants are entitled to develop

l5a

each and every individual mobile home lot and the area

shown as Future Commercial Development shown on the

Subdivision Plat of Ocean Breeze Mobile Home Sites,

Section “D”,

12. Pursuant to the statutes of the Commonwealth of

Virginia and the Ordinances of Accomack County, Vir-

ginia relating to the platting and subdivision of land, each

of the individually platted mobile home lots located in

Ocean Breeze Mobile Home Sites Subdivision, Section “D”,

can be used only for the placement of mobile homes and

for no other purposes. Complainants have been in the

process of completion of development and sale of the indi-

vidually platted mobile home lots and the Future Com-

mercial Area in accordance with their vested rights as

aforesaid.

15. In reliance upon the rights granted to them by the

Statutes of the Commonweaith of Virginia and the Ordi-

nances of Accomack County, Virginia, relating to the

platting and subdivision of land and the approval and

platting of the Subdivision Plat for Ocean Breeze Mobile

Home Sites Subdivision, Section “D”, your Complainants

expended approximately $11,400.00 for engineering and

survey work, $5,700.00 for excavating and grading of

roads, $102,600.00 for installation of central sewage drain-

fields, pumps, and lines. $47,250.00 for installation of

water service and $40,937.00 for the installation of elec-

trical service to Ocean Breeze Mobile Home Sites Subdi-

vision, Section “D”, for the purpose of serving all of the

lots located therein. These expenditures by your Com-

plainants result by operation of law in a vested right to

Complainants’ development of each and every lot desig-

nated on the plat of Ocean Breeze Mobile Home Sites

Subdivision, Section “D”, and the property designated as

Future Commercial Development as shown on said plat.

14, The only outstanding requirement necessary to

complete and sell certain lots located in Ocean Breeze

Mobile Home Sites Subdivision, Section “D’”, and the

16a

Future Commercial Area, is the filling of said lots and

parcels and the grading of roads adjacent to the said

lots.

15. The Accomack County Wetlands Board determined

that the real property in question and subject to this

claim of taking was located within 1.5 times the mean

high tide and contained wetlands vegetation listed in the

statute and thus asserted its jurisdiction over the prop-

erty and required the Complainants to submit an applica-

tion for a permit to fill the lots, roads and future com-

mercial property more specifically identified in para-

graph 23 of this Bill of Complaint.

16. In order to lawfully fill the lots and future com-

mercial area in Ocean Breeze Mobile Home Sites Sub-

division, Section “D’”’, real property owned solely by the

Complainants, which are located in areas subject to juris-

diction of the Accomack County Wetlands Board and the

Virginia Marine Resources Commission, your Complain-

ants filed a permit application with the Accomack County

Wetlands Board as required by law and regulations. The

purpose of the permit application was to fill the lots

within the jurisdiction of the Accomack County Wet-

lands Board pursuant to the Wetlands Zoning Ordinance

For Accomack County § 28.1 et. seq. and § 62.1-13.1 et.

seq., Code of Virginia, 1950 as amended.

17. Jurisdiction of the Accomack County Wetlands

Board to require a permit for Complainants to fill their

real property subject to this action is contained in the

Wetlands Zoning Ordinance for Accomack County, § 4.

18. Jurisdiction of the Virginia Marine Resources

Commission over the Accomack County Wetlands Board is

contained in Code of Virginia, § 62.1-13.10, § 62.1-13.11,

§ 62.1-13.12 and § 62.1-13.13.

19. On September 10, 1987, the Accomack County Wet-

lands Board denied your Complainants’ Application for a

permit to fill the lots, adjacent roads and commercial

17a

area upon the grounds that denial was necessary to pre-

serve wetlands on the Island of Chincoteague, Virginia,

as a valuable public resource notwithstanding that the

land subject to the permit application was the private

property of the Complainants. A copy of the denial is

marked Exhibit “D” attached hereto and incorporated

herein. The permit denial did not provide for compensa-

tion to your Complainants.

20. The Virginia Wetlands Statute, Section 62.1-13.1,

Code of Virginia, and Accomack Wetlands Zoning Ordi-

nance, Section 9 recognize wetlands as a valuable public

resource even if located upon private property and en-

courage the preservation of these wetlands by denial of

permits to fill them. (Accomack County Wetlands Zon-

ing Ordinance, Section $ and Sections 62.1-13.9, 62.1-13.3,

| 62.1-13.4, Code of Virginia).

21. Neither the Virginia Wetlands Statute nor the

Accomack County Wetlands Zoning Ordinance provide

| for the payment of compensation when the private prop-

erty of a permit applicant is taken for public purposes

without compensation by the denial of a permit request.

22. The Commonwealth of Virginia and the Board of

Supervisors of Accomack County have the power of emi-

nent domain and may take private property for a public

purpose but are required by the Constitution of the Com-

monwealth of Virginia to pay just compensation.

23. The Accomack County Wetlands Board, by deny-

ing Complainants a permit, has denied to your Com-

plainants the right to fill and as a direct and proximate

result, the right to use and sell the lots, roads, and future

commercial development area highlighted in yellow on

the plat of Ocean Breeze Mobile Home Sites Subdivision,

Section “D”, which is marked Exhibit “C”. This permit

denial, marked as Exhibit “D”, denies to Complainants

all reasonable viable economic use of Lots 39D, 46D, 47D,

51D, 52D, 53D and 54D of Ocean Breeze Mobile Home

18a

Sites, Section “D”, the adjacent roads and the entire

Future Commercial Development area.

24. In accordance with the applicable provisions of

law, your Complainants appealed the decision of the Ac-

comack County Wetlands Board to the Virginia Marine

Resources Commission.

25. On November 5, 1987, the Virginia Marine Re-

sources Commission upheld and affirmed the decision of

the Accomack County Wetlands Board denying the per-

mit application of the Complainants. A copy of the ac-

tion of the Virginia Marine Resources Commission is

marked Exhibit “E”, attached hereto and incorporated

herein.

26. By reason of the actions taken, as set out in Para-

graphs 23, 24, and 25 above, your Complainants have

been denied a permit to fiil the lots, roads, and future

commercial area as herein described, and as a direct

and proximate result of the denial of their permit ap-

plication, cannot use, develop or sell the lots, roads, and

future commercial area herein described.

27. Because your Complainants cannot fill and there-

fore cannot develop, use or sell the lots, roads and future

commercial area hereinafter set out, they have lost all

reasonable viable economic use of the lots, roads and fu-

ture commercial development area herein described. By

reason of the denial of a permit to fill said lots, roads

and future commercial development area and by reason

of the failure and refusal of the Accomack County Wet-

lands Board to grant the permit necessary and the sub-

sequent affirmation of permit denial by the Virginia Ma-

rine Resources Commission, the lots, roads and future

commercial areas herein described have been taken with-

out compensation by Accomack County and the Common-

wealth of Virginia for public purposes, i.e. preservation

of the wetlands area for the use and benefit of the public

in general. As a result, your Complainants have been

eee

19a

denied all reasonable economic viable use of the property,

the property has no reasonable value to your Complain-

ants, and your Complainants have been required by the

permit denial to bear a disproportionate burden of the

public benefits which result from the permit denial.

28. The action of the Accomack County Wetlands

Board, which has been affirmed by the Virginia Marine

Resources Commission, has resulted in a taking of pri-

vate property for public use and benefit without just

compensation, in violation of the Constitution of the Com-

monwealth of Virginia and constitutes an inverse con-

demnation of the private property of the Complainants

for public use.

29. The Accomack County Wetlands Board acts both

as an agency of and as the authorized agent of the Ac-

comack County Board of Supervisors and the Common-

wealth of Virginia for purposes of Wetlands Zoning De-

cisions. The Accomack County Board of Supervisors and

Accomack County are jointly and severally responsible

for any claims for taking of private property for the

publie’s use and benefit without compensation which re-

sults from the Accomack County Wetlands Board’s denial

of permit applications to fill wetlands located within Ac-

comack County, Virginia.

30. The Virginia Marine Resources Commission is an

agency of the Commonwealth of Virginia and operates

in a supervisory capacity over the Accomack County Wet-

lands Board pursuant to the provision of the Code of

Virginia, 1950, as amended, § 28.1 et. seg. and § 62.1 et.

seq. Accordingly, Accomack County, the Accomack County

Board of Supervisors, Accomack County Wetlands Board,

Virginia Marine Resources Commission and Common-

wealth of Virginia are jointly and severally liable for all

claims relating to the taking of private property for the

publie’s use and benefit without compensation which re-

sult from failure or refusal to grant permits for filling

of wetlands within Accomack County, Virginia.

20a

31. Based upon recent comparable sales, the fair mar-

ket value of each of the mobile home lots shown on Ex-

hibit “C”, for which a permit to fill was denied by the

Accomack County Wetlands Board, was $17,000.00 per

mobile home lot at the time the taking occurred.

32. Based upon recent comparable sales, the fair mar-

ket value of the Future Commercial Development area

shown on Exhibit “C’’, was $75,000.00 at the time the

taking occurred.

33. Because a permit to fill the land shown on Exhibit

“C” has been denied, the Complainants have lost all rea-

sonable economic use and value of lots 39D, 46D, 47D,

51D, 52D, 53D, and 54D and the roads necessary to ob-

tain access to these lots and the area shown as Future

Commercial Development. The fair market value at the

time of the taking for which compensation is claimed is

$194,000.00, which is calculated as follows:

LOT NO. FAIR MARKET VALUE

39D $ 17,000.00

46D $ 17,000.00

47D $ 17,000.00

51D $ 17,000.00

52D $ 17,000.00

53D $ 17,000.00

54D $ 17,000.00

Future Commercial Area $ 75,000.00

Total: $194,000.00

34. For the reasons hereinabove set out, your Com-

plainants make this claim against the Board of Super-

visors of Accomack County, Virginia and the Accomack

County Wetlands Board, and the Commonwealth of Vir-

ginia and the Marine Resources Commission of the Com-

monwealth of Virginia jointly and severally, in the total

sum of $194,000.00 for the taking of their private prop-

erty for public use and benefit without just compensation

in violation of the Constitution of the Commonwealth of

Virginia.

2la

WHEREFORE, your Complainants pray that this

Court grant the following relief:

a. Entry of a Decree which declares that the denial

of your Complainants application for a permit to fill the

lots, adjacent roads and future commercial development

area as set out on Exhibit “C” and listed in paragraph

33, by the Accomack County Wetlands Board and the

subsequent affirmation of permit denial by the Virginia

Marine Resources Commission constitute a taking of

Complainants’ real property by both the County of Ac-

comack, Virginia through the Accomack County Wetlands

Board and by the Commonwealth of Virginia through

the Virginia Marine Resources Commission.

b. Entry of a Decree which declares that such per-

mit denial and taking of Complainants’ real property by

the County of Accomack, Virginia and the Commonwealth

of Virginia was a taking without just compensation and

that such permit denial and taking without compensation

is in violation of Article I, Section 11 of the Constitu-

tion of the Commonwealth of Virginia.

c. For a Decree appointing Commissioners in accord-

ance with § 8.01-187, Code of Virginia, to set the value

of the take and enter Judgment in favor of your Com-

plainants against the County of Accomack, Virginia and

the Commonwealth of Virginia, jointly and severally, in

the amount of $194,000.00 as just compensation for the

taking of your Complainants’ real property at the time of

the taking together with interest at the judgment rate

from the time of the taking until paid.

d. For a Decree awarding judgment for reasonable

costs to your Complainants incurred in the prosecution of

this action including attorney, appraisal, and engineer-

ing fees actually incurred pursuant to Section 25-251,

Code of Virginia, 1950, as Amended.

e. For such other and further relief as may be neces-

sary and appropriate.

22a

COUNT TWO

35. This Count Two is an action pursuant to the Fifth

Amendment to the Constitution of the United States

made applicable to the Commonwealth of Virginia and

its political subdivisions through the Fourteenth Amend-

ment to the Constitution of the United States which pro-

hibits the Commonwealth of Virginia, through the Vir-

ginia Marine Resources Commission and the County of

Accomack, Virginia through the Accomack County Wet-

lands Board, from taking private property for public use

without just compensation.

36. The allegations contained in paragraphs 1 through

34 as set out in Count One are hereby incorporated into

this Count Two by reference as if the same were fully

set out and realleged in this Count Two.

37. In reliance upon an approved Subdivision Plat,

your Complainants committed substantial financial re-

sources in developing their property for its intended pur-

pose i.e., mobile home and commercial lots.

38. The denial of a permit by the Accomack County

Wetlands Board to fill the lots, adjacent roads and com-

mercial area as set out on Exhibit “C” and the subse-

quent affirmation of permit denial by the Virginia Ma-

rine Resources Commission renders your Complainants’

property unusable for its intended purposes, i.e., mobile

home and commercial lots pursuant to a previously ap-

proved Plat.

39. Because of the denial of the permit by the Ac-

comack County Wetlands Board and the subsequent af-

firmation of permit denial by the Virginia Marine Re-

sources Commission, your Complainants’ property has no

reasonable viable economic worth and your Complainants

are unable to either use or sell their property. Denial of

the permit constitutes a taking of Complainants’ prop-

erty without compensation.

40. The main purpose of the denial of the fill permit

by the Accomack County Wetlands Board and the subse-

a eae

23a

quent affirmation of permit denial by the Virginia Re-

sources Commission is to preserve wetlands for public

use, benefit, and enjoyment. Permit denial to fill the

property in question imposes a preservation easement,

for the benefit of the public, upon your Complainants’

property by denying the fill permit which is necessary

and essential for any economic use of the property by

your Complainants.

41. The Board of County Supervisors, Accomack

County, Virginia and the Commonwealth of Virginia

have refused to compensate your Complainants for the

taking of their property.

42. The imposition of the preservation easement wholly

frustrates Complainants’ reasonable investment backed

expectations, denies Complainants all practical, beneficial

and economic use of the property, and so wholly destroys

the economic value of the property as to constitute a

taking of the property without just compensation in vio-

lation of the Fifth Amendment to the Constitution of the

United States made applicable to the Commonwealth of

Virginia and the County of Accomack, Virginia through

the Fourteenth Amendment to the Constitution of the

United States.

WHEREFORE, your Complainants pray that this Court

grant the following relief:

a. Entry of a Decree which declares that the denial

to your Complainants of a permit to fill the lots, adjacent

roads and commercial area as set out on Exhibit “C”

and listed in paragraph 33, by the Accomack County

Wetlands Board and the subsequent affirmation of per-

mit denial by the Virginia Marine Resources Commis-

sion constitute a taking of Complainants’ real property

by both the County of Accomack, Virginia through the

Accomack County Wetlands Board and by the Common-

wealth of Virginia through the Virginia Marine Re-

sources Commission.

24a

b. Entry of a Decree which declares that such permit

denial and taking of Complainants’ real property by the

County of Accomack, Virginia and the Commonwealth

of Virginia was a taking without just compensation and

that such permit denial and taking is in violation of the

Fifth Amendment to the Constitution of the United States

made applicable to the Commonwealth of Virginia and Ac-

comack County, Virginia through the Fourteenth Amend-

ment to the Constitution of the United States.

ce. Judgment in favor of your Complainants against

the County of Accomack, Virginia, and the Accomack

County Wetlands Board, and the Commonwealth of Vir-

ginia, and the Virginia Marine Resources Commission

jointly and severally, in the amount of $194,000.00 as

just compensation for the taking of your Complainants’

real property at the time of the taking together with in-

terest at the judgment rate from the time of the taking

until paid.

d. For a judgment awarding reasonable costs to your

Complainants incurred in the prosecution of this action

including attorney, appraisal, and engineering fees ac-

tually incurred.

e. For such other and further relief as may be neces-

sary and appropriate.

‘EDWARD LUNN TULL and

Louise A. TULL

/s/ Edward Lunn Tull

/s/ Louise A. Tull

By Counsel

‘'s/ Richard R. Nageotte

RICHARD R. NAGEOTTE

DouGLas R. HANSEN

Nageotte & Borinsky, P.C.

14908 Jefferson Davis Highway

Woodbridge, Virginia 22191

Counsel for Complainants

25a

APPENDIX E

AMENDMENT V

CONSTITUTION OF THE UNITED STATES

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or in-

dictment of a grand jury, except in cases arising in the

land or naval forces, or in the militia, when in actual

service in time of war or public danger; nor shall any

person be subject for the same offense to be twice put in

jeopardy of life or limb, nor shall be compelled in any

criminal case to be a witness against himself, nor be de-

prived of life, liberty, or property, without due process

of law; nor shall private property be taken for public

use, Without just compensation.

AMENDMENT XIV

SECTION 1.

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of the

United States and of the state wherein they reside. No

state shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life,

liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal pro-

tection of the laws.

The Virginia Wetlands Statute, Code of Virginia 1950

as amended, $$ 62.1-13.1 et seg., provides in relevant part:

§ 62.1-13.1. Declaration of policy —The Commonwealth

of Virginia hereby recognizes the unique character of the

wetlands, an irreplaceable natural resource which, in its

natural state, is essential to the ecological systems of the

tidal rivers, bays and estuaries of the Commonwealth.

26a

This resource is essential for the production of marine

and inland wildlife, waterfowl, finfish, shellfish and flora;

is valuable as a protective barrier against floods, tidal

storms and erosion of the shores and soil within the Com-

monwealth; is important for the absorption of silt and of

pollutants; and is important for recreational and aes-

thetic enjoy:nent of the people for the promotion of tour-

ism, navigation and commerce.

Continued destruction of Virginia’s coastal wetlands

will greatly contribute to the pollution of the Common-

wealth’s rivers, bays and estuaries; will diminish the

abundance of Virginia’s marine and inland animals and

waterfewl, finfish, shellfish and flora as sources of food,

employment and recreation for the people of Virginia;

will increase costs and hazards associated with floods and

tidal storms; and will accelerate erosion and the loss of

lands productive to the economy and the well-being of our

citizens.

Therefore, in order to protect the public interest, pro-

mote the public health, safety and the ecoriomic and gen-

eral welfare of the Commonwealth, and to protect public

and private property, wildlife, marine fisheries and the

natural environment, it is declared to be the public policy

of this Commonwealth to preserve the wetlands and to

prevent their despoliation and destruction and to accom-

modate necessary economic development in a manner con-

sistent with wetlands preservation. (1972, ¢. 711.)

§ 62.1-13.3. Standards for use and development of

wetlands; utilization of guidelines—The following stand-

ards shall apply to the use and development of wetlands

and shall be considered in the determination of whether

applications required by this chapter should be granted

or denied:

(1) Wetlands of primary ecological significance shall

not be altered so that the ecological systems in the wet-

lands are unreasonably disturbed;

27a

(2) Development in Tidewater Virginia, to the maxi-

mum extent practical, shall be concentrated in wetlands

of lesser ecological significance, in vegetated wetlands

which have been irreversibly disturbed before July 1,

1972, in nonvegetated wetlands as describec' zerein which

have been irreversibly disturbed prior to January 1, 1983,

and in areas of Tidewater Virginia apart from the wet-

lands.

(3) The provisions of the guidelines promulgated by

the Commission pursuant to § 62.1-13.4 of this Code shall

be considered in applying the foregoing standards. (1972,

ce. 711; 1982, ce. 300.)

§ 62.1-13.11. When Commission to review decision of

wetlands board—The Commission shall review a decision

of a wetlands board made under a wetlands zoning ordi-

nance when:

(1) An appeal is taken from such decision by the ap-

plicant for a permit or by the county, city or town where

the wetlands are located; or

§ §2.1-13.18:1. Injunctions.—In addition to and _ not-

withstanding the provisions of § 62.1-13.18, upon petition

of the Commission or a wetlands board to the court of

record having jurisdiction in the city or county wherein

any act is done or is threatened to be done which is un-

lawful under the provisions of this chapter, the court may

enjoin such unlawful act and may order the person so

acting unlawfully to take such steps as are necessary to

restore, protect and preserve the wetlands involved. (1973,

ce. 65.)

§ §62.1-13.18:2. Penalties —A. Without limiting the rem-

edies which may be obtained in this chapter, any person

who violates any provision of this chapter or who violates

or fails, neglects or refuses to obey any Commission or

wetlands board notice, order, rule, regulation or permit

condition authorized by this chapter shall, upon such

finding by an appropriate circuit court, be assessed a

28a

civil penalty not to exceed $25,000 for each day of viola-

tion. Such civil penalties may, at the discretion of the

court assessing them, be directed to be paid into the

treasury of the county, city, or town in which the viola-

tion occurred for the purpose of abating environmental

damage to, or the restoration of wetlands therein, in such

a manner as the court may, by order, direct, except that

where the violator is the county, city, or town itself, or

its agent, the court shall direct the penalty to be paid into

the state treasury.

B. Without limiting the remedies which may be ob-

tained in this chapter, and with the consent of any person

who has violated any provision of this chapter or who

has violated or failed, neglected or refused to obey any

Commission or wetlands board order, rule, regulation,

or permit condition authorized by this chapter, the Com-

mission or wetlands board may provide, in an order

issued by the Commission or wetlands board against

such person, for the one-time payment of civil charges

for each violation in specific sums, not to exceed $10,000

for each violation. Civil charges shall be in lieu of any

appropriate civil penalty which could be imposed under

subsection A of this section. Civil charges may be in

addition to the cost of any restoration ordered by the

Commission or a wetlands board. (1990, c. 811.)

The Wetlands Zoning Ordinance For Accomack County,

§§ 28.2 et seq., provides in relevant part:

SECTION 1. The governing body of Accomack County,

acting pursuant to Chapter 2.1 of Title 62.1 of the Code

of Virginia, for purposes of fulfilling the policy standards

set forth in such chapter, adopts this ordinance regulat-

ing the use and development of wetlands.

SECTION 4

(a) Any person who desires to use or develop any wet-

land within this County, other than for those activi-

ties specified in Section 3 above, shall first file an

29a

application for a permit with the wetlands board

directly or through the Commission.

(b) An application shall include the following: the

name and address of the applicant; a detailed de-

scription of the proposed activity and a map, drawn

to an appropriate and uniform scale, showing the

area of wetland directly affected, with the location of

the proposed work thereon, indicating the area of

existing and proposed fill and excavation, especially

the location, width, depth and length of any proposed

channel and the disposal area, all existing and pro-

posed structures; sewage collection and treatment

facilities, utility installations, roadways, and other

related appurtenances or facilities, including those on

adjacent uplands, and the type of equipment ot be

used and the means of equipment access to the ac-

tivity site; the names and addresses of owners of

record of adjacent land and known claimants of

water rights in or adjacent to the wetland of whom

the applicant has notice; an estimate of cost; the

primary purpose of the project; any secondary pur-

poses of the project, including further projects: the

public benefit to be derived from the proposed proj-

ect; a complete description of measures to be taken _ -

during and after the alteration to reduce detrimental

offsite effects: the completion date of the proposed

work, project, or structure and such additional ma-

terials and documentation as the wetlands board may

deem necessary.

processing the application, set by the applicable gov-

erninge body with due regard for services to be ren-

dered, including the time, skill and administrator’s

expense involved, shall accompany each application.

SECTION 5. All applications and maps and documents

relating thereto shall be open for public inspection at the

office of the recording officer of this County.

30a

SECTION 6. Not later than Sixty (60) days after

receipt of such application, the wetlands board shall hold

a public hearing on such application. The applicant, the

local governing body, the Commissioner, the owner of

record of any land adjacent to the wetlands in question,

known claimants of water rights in or adjacent to the

wetlands in question, the Virginia Institute of Marine

Science, the Department of Game and Inland Fisheries,

Water Control Board, the Department of Highways and

governmental agencies expressing an interest therein

shall be notified of the hearing by mail not less than

twenty (20) days prior to the date set for the hearing.

The wetlands board shall also cause notice of such hear-

ing to be published at least once a week for two (2) weeks

prior to such hearing in the newspaper having a general

circulation in this County. The costs of such publication

shall be paid by the applicant.

SECTION 9.

(a) In making its decision whether to grant, to grant in

modified form, or to deny an application for a per-

mit the Board shall base its decision on these factors:

1. Such matters raised through the testimony of any

person in support of or in rebuttal to the permit

application.

;

Impact of the development on the public health

and welfare as expressed by the policy and stand-

ards of Chapter 2.1 of Title 62.1 of the Code of

Virginia and any guidelines which may have been

promulgated thereunder by the Commission.

ib) If the Board, in applying the standards above, finds

that the anticipated public and private benefit of the

Proposed activity exceeds the anticipated public and

private detriment and that the proposed activity

would not violate or tend to violate the purposes and

intent of Chapter 2.1 of Title 62.1 of the Code of

3la

Virginia and of this ordinance, the Board shall grant

the permit, subject to any reasonable condition or

modification designed to minimize the impact of the

activity on the ability of this County, to provide gov-

ernmental services and on the rights of any other

person and to carry out the publie policy set forth in

Chapter 2.1 of Title 62.1 of the Code of Virginia and

in this ordinance. Nothing in this section shall be

construed as affecting the right of any person to

seek compensation for any injury in fact incurred

by him because of the proposed activity. If the

Board finds that the anticipated public and private

benefit from the proposed activity is exceeded by the

anticipated public and private detriment or that the

proposed activity would violate the purposes and in-

tent of Chapter 2.1 of Title 62.1 of the Code of Vir-

ginia and of this ordinance, the Board shall deny the

permit application with leave to the applicant to re-

submit the application in modified form.

SECTION 12. No permit granted by a wetlands board

shall affect in any way the applicable zoning and land

use ordinance of this County.

SECTION 13. The effective date of this ordinance

shall be January 1, 1983.

The Virginia Land Subdivision and Development Stat-

ute, Code of Virginia 1950 as amended §§ 15.1-465 et

seq., provides in relevant part:

$ 15.1-465. Counties and municipalities to adopt ordi-

nances reguluting subdivision and development of land.—

The governing body of anv county or municipality shall

adopt an ordinance to assure the orderly subdivision of

land and its development. Such ordinance shall be adopted

by July 1, 1977. The word “subdivision” as used in any

such ordinance shall have the meaning set forth in § 15.1-

48011) of this Code. (Code 1950, § 15-781; Code 1950,

§ 15-967; 1950, p. 183; 1962, ¢. 407; 1975, ¢. 641.)

32a

$ 15.1-466. Provisions of subdivision ordinance.—A. A

subdivision ordinance shall include reasonable regulations

and provisions that apply to or provide:

1. For plat details which shall meet the standard for

plats as adopted under § 42.1-82 of the Virginia Public

Records Act (§ 42.1-76 et seq.) ;

2. For the coordination of streets within and contigu-

ous to the subdivision with other existing or planned

streets within the general area as to location, widths,

grades and drainage, including, for ordinances and

amendments thereto adopted on or after January 1, 1990,

for the coordination of such streets with existing or

planned streets in existing or future adjacent or contigu-

ous to adjacent subdivisions;

3. For adequate provisions for drainage and flood con-

trol and other public purposes, and for light and air;

4. For the extent to which and the manner in which

streets shall be graded, graveled or otherwise improved

and water and storm and sanitary sewer and other public

utilities or other community facilities are to be installed;

5. For the acceptance of dedication for public use of

any right-of-way located within any subdivision or sec-

tion thereof, which has constructed or proposed to be

constructed within the subdivision or section thereof, any

street, curb, gutter, sidewalk, bicycle trail, drainage or

sewerage system, waterline as part of a public system

or other improvement dedicated for public use, and main-

tained by the locality, the Commonwealth, or other public

agency, and for the provision of other site-related im-

provements required by local ordinances for vehicular in-

gress and egress, for public access streets, for structures

necessary to ensure stability of critical slopes, and for

storm water management facilities, financed or to be

financed in whole or in part by private funds only if the

owner or developer (i) certifies to the governing body

that the construction costs have been paid to the person

33a

constructing such facilities; or (ii) furnishes to the gov-

erning body a certified check or cash escrow in the amount

of the estimated costs of construction or a personal, cor-

porate or property bond, with surety satisfactory to the

governing body, in an amount sufficient for and condi-

tioned upon the construction of such facilities, or a con-

tract for the construction of such facilities and the con-

tractor’s bond, with like surety, in like amount and so

conditioned; or (iii) furnishes to the governing body a

bank or savings and loan association’s letter of credit on

certain designated funds satisfactory to the governing

body as to the bank or savings and loan association, the

amount and the form. The amount of such certified

check, cash escrow, bond, or letter of credit shall not

exceed the total cf the estimated cost of construction

based on unit prices for new public or private sector

construction in the locality and a reasonable allowance

for estimated administrative costs, inflation, and poten-

tial damage to existing roads or utilities.

If a developer records a final plat which may be a

section of a subdivision as shown on an approved pre-

liminary plat and furnishes to the governing body a

certified check, cash escrow, bond, or letter of credit in

the amount of the estimated cost of construction of the

facilities to be dedicated within said section for public

use and maintained by the locality, the Commonwealth,

or other public agency, the developer shall have the right

to record the remaining sections shown on the preliminary

plat for a period of five years from the recordation date

of the first section, subject to the terms and conditions

of this subsection and subject to engineering and con-

struction standards and zoning requirements in effect at

the time that each remaining section is recorded. In the

event a governing body of a county, wherein the highway

system is maintained by the Department of Transporta-

tion, has accepted the dedication of a road for public use

and such road due to factors other than its quality of

construction is not acceptable into the secondary system

34a

of state highways, then such governing body may, if so

provided by its subdivision ordinance, require the sub-

divider or developer to furnish the county with a main-

tenance and indemnifying bond, with surety satisfactory

to the governing body, in an amount suflicient for and

conditioned upon the maintenance of such road until

such time as it is accepted into the secondary system of

state highways. In lieu of such bond, the governing body

may accept a bank or savings and loan association’s letter

of credit on certain designated funds satisfactory to the

governing body as to the bank or savings anc loan associ-

ation, the amount and the form, or accept payment of a

negotiated sum of money sufficient for and conditioned

upon the maintenance of such road until such time as it

is accepted into the secondary system of state highways

and assume the subdivider’s or developer’s liability for

maintenance of such road. “Maintenance of such road”

shall be deemed to mean maintenance of the streets, curb,

gutter, drainage facilities, utilities or other street im-

provements, including the correction of defects or dam-

ages and the removal of snow, water or debris, so as to

keep such road reasonably open for public usage ;

6. For conveyance, in appropriate cases, of common or

shared easements to franchised cable television operators

furnishing cable television and public service corporations

furnishing cable television, gas, telephone and electric

service to the proposed subdivision. Such easements, the

location of which shall be adequate for use by public

service corporations which may be expected to occupy

them, may be conveyed by reference on the final plat to

a declaration of the terms and conditions of such com-

mon easements agreed to franchised cable television op-

erators furnishing cable television and by such public

service corporations and recorded in the land records of

the county or city. The failure of any such franchised

cable television operator to agree to the terms and con-

ditions set out in such declaration shall not defeat or im-

pair any such common easement conveyance;

35a

7. For monuments of specific types to be installed es-

tablishing street and property lines;

8. That unless a plat is filed for recordation within six

months after final approval thereof or such longer period

as may be approved by the governing body, such approval

shall be withdrawn and the plat marked void and _ re-

turned to the approving official:

9. For the administration and enforcement of such

ordinance, not inconsistent with provisions contained in

this chapter, and specifically for the imposition of reason-

able fees and charges for the review of plats and plans,

and for the inspection of facilities required by any such

ordinance to be installed; such fees and charges shall in

no instance exceed an amount commensurate with the

services rendered taking into conside ‘ation the time, skill

and administrator’s expense involved. Al} such charges

heretofore made are hereby validated;

10. For payment by a subdivider or developer of land

of the pro rata share of the cost of providing reasonable

and necessary sewerage, water, and drainage facilities,

located outside the property limits of the land owned or

controlled by the subdivider or developer but necessitated

or required, at least in part, by the construction or im-

provement of the subdivision or development; however,

no such payment shall be required until such time as the

governing body or a designated department or agency

thereof shall have established a general sewer, water, and

drainage improvement program for an area having re-

lated and common sewer, water, and drainage conditions

and within which the land owned or controlled by the

subdivider or developer is located. Such regulations shall

set forth and establish reasonable standards to determine

the proportionate share of total estimated cost of ulti-

mate sewerage, water, and drainage facilities required

adequately to serve a related and common area, when and

if fully developed in accord with the adopted comprehen-

sive plan, that shall be borne by each subdivider or de-

86a

veloper within the area. Such share shall be limited to

the proportion of such total estimated cost which the

increased sewage flow, water flow, and or increased vol-

ume and velocity of storm water runoff to be actually

caused by the subdivision or development bears to total

estimated volume and velocity of such sewage, water,

and/or runoff from such area in its fully developed state.

Each such payment received shall be expended only for

the construction of those facilities identified in the es-

tablished sewer, water, and drainage program; however,

in lieu of such payment the governing body may provide

for the posting of a personal, corporate or property bond,

cash escrow or other method of performance guarantee

satisfactory to it conditioned on payment at commence-

ment of such construction. The payments received shall

be kept in a separate account for each of the individual

improvement programs until such time as they are ex-

pended for the improvement program ;

11. Any funds collected for pro rata programs under

subdivision 10 of this subsection prior to July 1, 1990,

shall continue to be held in separate, interest bearing

accounts for the project or projects for which the funds

were collected and any interest from such accounts shall

continue to accrue to the benefit of the subdivider or de-

veloper until such time as the project or projects are

completed or until such time as a general sewer and

drainage improvement program is established to replace

a prior sewer and drainage improvement program. If

such a general improvement program is established, the

governing body of any county or municipality may abolish

any remaining separate accounts and require the trans-

fer of the assets therein into a separate fund for the

support of each of the established sewer, water, and

drainage programs. Upon the transfer of such assets

subdividers and developers who had met the terms of any

existing agreements made under a previous pro rata pro-

gram shall receive any outstanding interest which has

accrued up to the date of transfer, and such subdividers

37a

and developers shall be released from any further ob-

ligation under those existing agreements. The trans-

ferred assets shall be the sole property of the county or

municipality which established the general improvement

program;

12. For reasonable provisions permitting a single di-

vision of a lot or parcel for the purpose of sale or gift

to a member of the immediate family of the property

owner, subject only to any express requirement contained

in the Code of Virginia and to any requirement imposed

by the local governing body that all lots of less than

five acres have reasonable right-of-way of not less than

egress to a dedicated recorded public street or thorough-

fare. Only one such division shall be allowed per family

member, and shall not be for the purpose of circumvent-

ing this subdivision. For the purpose of this subdivision,

a member of the immediate family is defined as any

person who is a natural or legally defined offspring,

spouse, grandchild, grandparent, or parent of the owner.

The provisions of this subdivision shall apply only to sub-

division ordinances adopted by counties and the City of

Suffolk ;

13. For reasonable provisions, notwithstanding sub-

division A 12, in a county having the urban county ex-

ecutive form of government permitting a single division

of a lot or parcel for the purpose of sale or gift to a

member of the immediate family of the property owner,

subject only to any express requirement contained in the

Code of Virginia and to any requirement imposed by the

local governing body that all lots of less than five acres

have frontage of not less than ten feet or more than

twenty feet on a dedicated recorded public street or

thoroughfare. Only one such division shall be allowed per

family member, and the division shall not be for the pur-

pose of circumventing a local subdivision ordinance. For

the purpose of this subsection, a member of the immedi-

ate family is defined as any person who is a natural or

legally defined offspring or parent of the owner;

38a

14. For the periodic partial and final complete release

of any bond, escrow, letter of credit, or other perform-

ance guarantee required by the governing body under

this section within thirty days after receipt of written

notice by the subdivider or developer of completion of

part or all of any facilities required to be constructed

hereunder unless the governing body or its designated

administrative agency notifies said subdivider or devel-

oper in writing of nonreceipt of approval by applicable

state agency, or of any specified defects or deficiencies

in construction and suggested corrective measures prior

to the expiration of the thirty-day period.

If no such action is taken by the governing body or

administrative agency within the time specified above,

the request shall be deemed approved, and a partial re-

lease granted to the subdivider or developer. No final

release shall be granted until after expiration of such

thirty-day period and there is an additional request in

writing sent by certified mail return receipt to the chief

administrative officer of such governing body. The gov-

erning body or its designated administrative agency shall

act within ten working days of receipt of the request;

then if no action is taken the request shall be deemed

approved and final release granted to the subdivider or

developer.

No governing body or administrative agency shall re-

fuse to make a periodic partial or final release of a bond,

escrow, letter of credit, or other performance guarantee

for any reason not directly related to the specified defects

or deficiencies in construction of the facilities covered by

said bond, escrow, letter of credit or other performance

guarantee.

Upon written request by the subdivider or developer,

the governing body or its designated administrative

agency shall be required to make periodie partial re-

leases of such bond, escrow, letter of credit, or other

performance guarantee in a cumulative amount equal to

39a

no less than eighty percent of the original amount for

Which the bond, escrow, letter of credit, or other per-

formance guarantee was taken, and may make partial

releases to such lower amounts as may be authorized by

the governing body or its designated administrative

agency based upon the percentage of facilities completed

and approved by the governing body, local administrative

agency, or state agency having jurisdiction. Periodic

partial releases may not occur before the completion of

at least thirty percent of the facilities covered by any

bond, escrow, letter of credit, or other performance guar-

antee. The governing body or administrative agency

shall not be required to execute more than three periodic

partial releases in any twelve-month period. Upon final

completion and acceptance of said facilities, the govern-

ing body or administrative agency shall release any re-

maining bond, escrow, letter of credit, or other perform-

ance guarantee to the subdivider or developer. For the

purpose of final release the term “acceptance” is deemed

to mean: when said publie facility is accepted by and

taken over for operation and maintenance by the state

agency, local government or agency, or other public au-

thority which is responsible for maintaining and for op-

erating such facility upon acceptance.

For the purposes of this subsection, a certificate of

partial or final completion of such facilities from either

a duly licensed professional engineer or land surveyor,

as defined in and limited to § 54.1-400, or from a de-

partment or agency designated by the local government

may be accepted without requiring further inspection

of such facilities.

B. A subdivision ordinance may include provisions for

variations in or exceptions to the general regulations of

the subdivision ordinance in cases of unusual situations

or when strict adherence to the general regulations would

result in substantial injustice or hardship.

C. A subdivision ordinance may require the furnish-

ing of a preliminary opinion from the applicable ! 2alth

40a

official regarding the suitaility of a subdivision for in-

stallation of subsurface sewage disposal systems where

such method of sewage disposal is to be utilized in the

development of a subdivision.

D. A subdivision ordinance may require that, in the

event streets in a subdivision will not be constructed to

meet the standards necessary for inclusion in the second-

ary system of state highways or for state street main-

tenance moneys paid to municipalities, the subdivision

plat and all approved deeds of subdivision, or similar

instruments, must contain a statement advising that the

streets in the subdivision do not meet state standards

and will not be maintained by the Department of Trans-

portation or the county or the municipalities enacting the

ordinance. Grantors of any subdivision lots to which such

statement applies must include the statement on each deed

of conveyance thereof. However, counties and municipali-

ties in their ordinance may establish minimum standards

for construction of streets that will not be built to state

standards.

For streets constructed or to be constructed, as pro-

vided for in this subsection, a subdivision ordinance may

require that the same procedure be followed as that set

forth in subdivision A 5 of this section. Further, the

subdivision ordinance may provide that the developer’s

financial commitment shall continue until such time as

the local government releases such financial commitment

in accordance with the provisions of subdivision A 14 of

this section.

E. A subdivision ordinance may include reasonable .

provision for the voluntary funding of off-site road im-

provements and reimbursements of advances by the gov-

erning body. If a subdivider or developer makes an ad-

vance of payments for or construction of reasonable and

necessary road improvements located outside the property

limits of the land owned or controlled by him, the need

for which is substantially generated and reasonably re-

4la

quired by the construction or improvement of his sub-

division or development, and such advance is accepted,

the governing body may agree to reimburse the subdi-

vider or developer from such funds as the governing body

may make available for such purpose from time to time

for the cost of such advance together with interest, which

shall be excludable from gross income for federal income

tax purposes, at a rate equal to the rate of interest on

bonds most recently issued by the governing body on the

following terms and conditions:

1. The governing body shall determine or confirm that

the road improvements were substantially generated and

reasonably required by the construction or improvement

of the subdivision or development and shall determine or

confirm the cost thereof, on the basis of a study or studies

conducted by qualified traffic engineers and approved and

accepted by the subdivider or developer.

2. The governing body shall prepare, or cause to be

prepared, a report accepted and approved by the sub-

divider or developer, indicating the governmental serv-

ices required to be furnished to the subdivision or de-

velopment and an estimate of the annua! cost thereof for

the period during which the reimbursement is to be made

to the subdivider or developer.

3. The governing: body may make annual reimburse-

ments to the subdivider or developer from funds made

available for such purpose from time to time, including

but not limited to real estate taxes assessed and collected

against the land and improvements on the property in-

cluded in the subdivision or developments in amounts

equal to the amount by which such real estate taxes ex-

ceed the annual cost of providing reasonable and neces-

sary governmental services to such subdivision or de-

velopment.

F. Site plan or plans of development which are ro-

quired to be submitted and approved in accordance with

42a

§ 15.1-491(h) shall be subject to the provisions of this

section, mutatis mutandis.

G. Notwithstanding subdivisions A 12 and A 18 of

this section, a subdivision ordinance may include reason-

able provisions permitting divisions of lots or parcels for

the purpose of sale or gift to a member of the immediate

family of the property owner in (i) any county or city

Which has had population growth of ten percent gr mere

from the next-to-latest to latest decennial census year,

based on population reported by the United States Bu-

reau of the Census, provided that until the 1990 census

is reported, any county or city instead may qualify only

if it has had an estimated population growth of ten per-

cent or more from 1980 to the most recent year for which

population estimates are available from the Center for

Public Service of the University of Virginia; (ii) any

city or county adjoining such city or county; (iii) any

towns located within such county; and (iv) any county-

contiguous with at least three such counties, and any

town located in that county. Such divisions shall be

subject to all requirements of the Code of Virginia and

to any requirements imposed by the local governing body.

(Code 1950, $$ 15-781, 15-967.1; 1950, p. 183; 1962, ¢.

407; 1970, ce. 436; 1973, ec. 169, 480; 1975, c. 641; 1976,

c. 270; 1978, ec. 429, 489, 440; 1979, ee. 183, 188, 395;

1980, ce. 379, 381; 1981, ce. 348; 1983, ce. 167, 609; 1984,

c. 111; 1985, ec. 422, 455; 1986, c. 54; 1987, ¢. 717; 1988,

ee. 279, 735; 1989, ee. 332, 393, 403, 495; 1990, cc. 170,

176, 287, 708, 973; 1991, ec. 30, 47, 288, 538.)

$ 15.1-475. Plat of propesed subdivision and site plans

to be submitted for approval— Whenever the owner or

proprietor of any tract of land located within any terri-

tory to which a subdivision ordinance applies desires to

subdivide the same, he shall submit a plat of the proposed

subdiyision to the local commission of the county or mu-

nicipality, or an agent designated by the governing body

thereof for such purpose. When any part of the land

proposed for subdivision lies in a drainage district such

43a

fact shall be set forth on the plat of the proposed sub-

division. When any grave, object or structure marking

a place of burial is located on the land proposed for sub-

division, such grave, object or structure shall be identi-

fied on any plans or site plans required by this article.

When the land involved lies wholly or partly within an

area subject to the joint control of more than one political

subdivision, the plat shall be submitted to the local com-

mission or other designated agent of the political sub-

division in which the tract of land is located. Site plan

or plans of development required by $ 15.1-491(h) shall

also be subject to the provisions of this section, mutatis

mutandis.

The local commission or other agent shall act on any

proposed plat within sixty days after it has been officially

submitted for approval by either approving or disapprov-

ing such plat in writing, and giving with the latter spe-

cific reasons therefor. Specific reasons for disapproval

may be contained in a separate document or may be

written on the plat itself. The reasons for disapproval

shall identify deficiencies in the plat which cause the dis-

approval by reference to specific duly adopted ordinances,

regulations, or policies and shall generally identify such

modifications or corrections as will permit approval of

the plat.

If the local commission or other agent fails to approve

or disapprove the plat within sixty days after it has been

officially submitted for approval the subdivider, after ten

days’ written notice to the commission, or agent, may

petition the circuit court of the county or municipality

in which the land involved, or the major part thereof, is

located, to decide whether the plat should or should not

_ be approved. The court shall hear the matter and make

and enter such order with respect thereto as it deems

nroper, which may include directing approval of the plat.

If a local commission or other agent disapproves a plat

and the subdivider contends that such disapproval was

44a

not properly based on the ordinance applicable thereto,

or was arbitrary or capricious, he may appeal to the cir-

cuit court having jurisdiction of such land and the court

shall hear and determine the case as soon as may be,

previded that his appeal is filed with the circuit court

within sixty days of the written disapproval by such local

commission or other agent.

Nothing in this article shall be deemed to prohibit the

local governing body from providing in its ordinance for

the submission of preliminary subdivision plats for tenta-

tive approval. The local agent designated by the local

commission or the agent designated by the governing body

to review preliminary subdivision plats or the local com-

mission shall complete action on such preliminary plats

within sixty days of submission to such agent. However,

if approval of a feature or features of the preliminary

plat by a state agency is necessary, the local agent shall

forthwith forward the preliminary plat to the appro-

priate state agency or agencies for review.

Any state agency making such a review of a plat for-

warded to it under this section, including, without limita-

tion, the Virginia Department of Transportation, shall

complete its review within forty-five days of receipt of

such preliminary plat. If the state agency does not ap-

prove the plat, it shall comply with the requirements, and

be subject to the restrictions, set forth in the second

paragraph of this section (except for the time period

therein specified). Upon receipt of the approvals from

all state agencies, the local agent shall act upon a pre-

liminary plat within thirty-five days.

If a planning commission has the responsibility of re-

view of preliminary plats and conducts a public hearing,

it shal! act on such plat within forty-five days after re-

ceiving approval from all state agencies. If the local

agent or commission does not approve the preliminary

plat, the local agent or commission shall set forth in writ-

ing the reasons for such denial and shall state what cor-

45a

rections or modifications will permit approval by such

agent or commission; provided, however, that no local

commission or agent shall be required to approve a pre-

liminary subdivision plat in less than sixty days from

the date of its original submission to the local commis-

sion or agent, and that all actions on preliminary sub-

division plats shall be completed by the local agent or

commission and, if necessary, state agencies, within a

total of ninety days of submission to the local agent or

commission.

If the local commission or other agent fails to approve

or disapprove the preliminary plat within ninety days

after it has been officially submitted for approval, the

" subdivider after ten days’ written notice to the commis-

sion, or agent, may petition the circuit court of the county

or municipality in which the land involved, or the major

part thereof, is located to enter such order with respect

thereto as it deems proper, which may include directing

approval of the plat.

If a local commission or other agent disapproves a

preliminary plat and the subdivider contends that such

disapproval was not properly based on the ordinance ap-

plicable thereto, or was arbitrary or capricious, he may

appeal to the circuit court having jurisdiction of such

land and the court ‘shall hear and determine the case as

Soon as may be, provided that his appeal is filed with

the circuit court ‘within sixty days of the written dis-

approval by such local commission or other agent. (Code

1950, §§ 15-789, 15-967.10: 1952, ¢. 333; 1962, c. 407;

1964, c. 498; 1975, c. 641; 1977, ¢. 10: 1978, «. 283; 1979,

c. 111; 1980, c. 73; 1986, c. 483 1989, ee. 471, 495; 1990,

ec. 171.)

§ 15.1-476. Requisites of plat.—Every subdivision plat

which is intended for recording shall be prepared bv a

certified professional engineer or land surveyor, who

shall endorse upon each such plat a certificate signed by

him setting forth the source of fitle of the owner of the

46a

land subdivided and the place of record of the last instru-

ment in the chain of title; when the plat is of land ac-

quired from more than one source of title, the outlines

of the several tracts shall be indicated upon such plat.

Provided, however, that nothing herein shall be deemed

to prohibit the preparation of preliminary studies, plans,

or plats of a proposed subdivision by the owner of the

land, city planners, land planners, architects, landscape

architects, or others having training or experience in

subdivision planning or design. (Code 1950, § 15-790;

Code 1950, § 15-967.11; 1962, c. 407.)

§ 15.1-477. Statement of consent to subdivision; execu-

tion; acknowledgment and recordation.—Every such plat,

or deed of dedication to which the plat is attached, shall

contain in addition to the professional engineer’s or land

surveyor’s certificate a statement as follows: The platting

or dedication of the following described land (here in-

sert a correct description of the land subdivided) is with

the free consent and in accordance with the desire of the

undersigned owners, proprietors, and trustees, if any.

The statement shall be signed by such persons and duly

acknowledged before some officer authorized to take ac-

knowledgment of deeds. When thus executed and acknowl-

edged, the plat, subject to the provisions herein, shall be

filed and recorded in the office of the clerk of court where

deeds are admitted to record for the lands contained in

the plat, and indexed in the general index to deeds under

the names of the owners of lands signing such statement,

and under the name of the subdivision. (Code 1950,

§ 15-791; Code 1950, § 15-967.12; 1954, ¢, 421; 1962,

c. 407.)

The Subdivision Ordinance For Accomack er Vir-

ginia provides in relevant part:

An ordinance to regulate the subdivision of property

into lots, streets and other public areas, to provide for

the making and recording of plats of such subdivision

47a

and the certification of same and provide for the approval

of plats.

In accordance with Article 7 of the Virginia Planning

Act as found in the Code of Virginia, 1950, as amended,

Section 15.1-465, et seq., the Board of Supervisors of

Accomack County, Virginia, hereby adopts the following

regulations for the subdivision of all land except the ter-

ritory of the incorporated towns within the jurisdiction

of Accomack County. These regulations shall not apply

to either de facto or de jure subdivisions recorded prior

to the effective date of this ordinance.

1-1. PURPOSE

The purpose of this ordinance is to establish certain

subdivision standards and procedures for Accomack

County, Virginia, and such of its environs as come under

the jurisdiction of the governing body as provided for by

the 1950 Code of Virginia, as amended, in order to guide

and facilitate the orderly beneficial growth of the com-

munity and to promote the public health, safety, con-

venience, comfort, prosperity and general welfare.

1-2. This ordinance is known and may be cited as the

“Subdivision Ordinance for Accomack County, Virginia.”

WORDS AND TERMS

For the purpose of this ordinance, certain words and

terms used herein shall be interpreted or defined as fol-

lows: Words used in the present tense include the fu-

ture, words in the singular number include the plural and

the singular, unless the natural construction of the work

indicates otherwise; the word “lot”? includes the word

“parcel”; the word “shall” is mandatory and not discre-

tionary; the word “approve” shall be considered to be

followed by the words “or disapprove”; any reference to

this ordinance includes all ordinances amending or sup-

plementing the same; all distances and areas refer to

measurements in a horizontal plane.

48a

2-1. AGENT: The representative of the governing body

who has been appointed to serve as the agent of the Board

in approving the subdivision plats.

2-1-1. BUILDING: Any structure having a proof sup-

ported by columns or walls, for housing or enclosure of

persons, animals or chattels.

Added June 18, 1980.

2-2. DEVELOPER: An owner of property being sub-

divided, whether or not represented by his agent.

2-3. EASEMENT: A grant by a property owner of the

use of land for specific purpose or purposes.

2-4. ENGINEER: An engineer licensed by the Common-

wealth of Virginia.

Amended June 18, 1980.

2-5. GOVERNING BODY: The Board of Supervisors of

Accomack County, Virginia.

2-6. HEALTH OFFICIAL: The Health Director or sani-

tarian for Accomack County, Virginia.

2-7. HIGHWAY ENGINEER: The Resident Engineer

employed by the Virginia Department of Highways.

2-8. JUREISDIGTION: The area or territory subject to

the legislative control of the governing body.

2-9. LOT: A numbered and recorded portion of a sub-

division intended for transfer of ownership, lease, rental

or for building development.

Amended June 18, 1980.

2-10. LOT, CORNER: A lot abutting upon two (2) or

more streets at their intersection; the shorter side front-

ing upon a street shall be considered the front of the lot,

and the longest side fronting upon a street shall be con=

sidered the side of the lot.

2-11. LOT, WIDTH OF: the mean horizontal distance

between the side lot lines.

49a

2-12. PLAT: Includes the terms; map, plan, plot, replat,

or replot; a map or plan of a tract or parcel of land

which is to be, or which has been subdivided. When used

as a verb “plat” is synonymous with “subdivide”.

2-13. PROPERTY: Any tract, lot, parcel or several of

the same collected tegether for the purpose of subdivid-

ing. -

2-14. STREET: The principal means of access to abut-

ting properties.

2-14.1. PRIVATE STREET: A street owned by one or

more persons, restricted in use, and not maintained by

the State Highway Department, or one not intended by

the subdivider for acceptance into the State Highway

System. ;

2-14-2. PUBLIC STREET: A street maintained by the

State Highway Department or one intended by the sub-

divider for acceptance into the State Highway System

and approved by highway engineer as meeting State

Highway Department specifications.

2-15. STREET, PUBLIC USE OF: The unrestricted

use of specified area or right-of-way for ingress and

egress to two or moré abutting properties.

2-16. STREET WIDTH: The total width of the strip

of land dedicated or reserved for travel, including road-

way, curbs, gutters, sidewalks and planting strips.

2-17. SUBDIVISION: The division of any tract, lot or

parcel or land into more than four (4) parts, regardless

of whether the individual lots or tracts are sold, leased

or rented, except that the following divisions of land

shall not be considered subdivisions:

(a) divisions ordered by a court of competent juris-

diction,

(b) divisions made solely for agricultural or timber

purposes,

50a

(d) divisions whereby a parcel is separated in order

to become a permanent part of an adjoining

tract, and

(e) divisions creating building sites for family mem-

bers of the owner of the property, provided the

lots satisfy the minimum lot size requirement

of this ordinance.

(f) divisions in which each single parcel contains

three (8) or more acres, (subject to Section

5-8.1). Added June 18, 1980 Amended Septem-

ber 19, 1984.

2-17.1 Repealed April 12, 1978.

2-17.2 The word “subdivision” and any derivative thereof

shall have reference to the term “subdivider’’ as defined

in Section 2-18.

2-18. SUBDIVIDER: An individual, corporation or reg-

istered partnership, owning any tract, lot or parcel of

land to be subdivided, or a group of two or more persons

owning any tract, lot or parcel of land to be subdivided,

who have given their power of attorney to one of their

group or to another individual to act on their behalf in

planning, negotiating for, in representing or executing

the legal requirements of the subdivision.

2-19. SURVEYOR: A surveyor licensed by the Com-

monwealth of Virginia.

Amended June 18, 1980.

4-1. PLATTING REQUIRED

Any owner or developer of any tract of land situated

within the County who subdivides the same shall cause

a plat of such subdivision, with reference to known or

permanent monuments, to be made and recorded in the

office of the clerk of the appropriate court. No such plat

of subdivision shall be recorded unless and until it shall

5la

have been submitted, approved, and certified by the agent

in accordance with the regulations set forth in this ordi-

nance. No lot shall be sold, leased or rented in any such

subdivision before the plat of the whole subdivision shall

have been recorded.

Amended June 18, 1980.

4-2. NOONE EXEMPT

No person shall subdivide any tract of land that is lo-

cated within the County except in conformity with the

provisions of this ordinance.

5-1. SUBDIVIDER’S RESPONSIBILITY

All physical improvements in a subdivision shall be in-

Stalled by the subdivider at his cost, except that the sub-

divider shall not be required to install individual septic

tanks and individual wells where private water and sewer

systems are intended for each lot. In cases where speci-

fications for improvements have been established either

by the State Health Department for central water and

central sewer systems, or by the State Nighway Depart-

ment or this ordinance for streets and drainage facilities,

Such specifications shall be followed in the design and

construction of these improvements with the following

being the only exception.

6-1. Before the agent will give final approval to any

subdivision plat, the subdivider or developer shall be re-

quired to insure his performance in accordance with spe-

cifications and construction schedules established on cer-

tain planned improvements, Performance Security in an

amount determined by the agent to be sufficient to pay the

total cost of the improvements being secured shall be re-

quired in all subdivisions for public streets and accom-

panying drainage construction and for central water and/

or sewer. In deter

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.