Zoning Laws Are Looser for Some Family Ties
Suburbs to Scrutinize Loopholes That Allow Dense Building

By Nikita Stewart and Nancy Trejos
Washington Post Staff Writers
Monday, March 13, 2006

On the outskirts of the Washington region, where local officials have tried to protect farms and rural vistas from encroaching suburbia, more and more landowners are turning to a loophole that allows them to carve up their land for new houses.

The measure -- often referred to as a family subdivision -- allows property owners to skirt zoning laws in rural areas and subdivide land for the use of their relatives. In Prince William and Montgomery counties, it has become a common practice, and officials in both localities are beginning to scrutinize it.

Critics say that as the area's real estate market continues to thrive, family subdivisions are easily abused. Homes meant for property owners' relatives can easily end up on the open market.

But many families say the allowance -- created decades ago to encourage family farming -- is the only way many relatives stand a chance of owning a home in this expensive area.

"In my mind, it was a great blessing while I was still alive to give my children a leg up," said Shari Jacobs, who along with her husband, Jerry, turned their eight-acre lot in western Prince William into lots for themselves and each of their three children.

"The original purpose was to allow farming families to provide homes for the next generation of farmers," said Derick P. Berlage, chairman of the Montgomery Planning Board. "It was not intended as an avenue to create new market lots or an avenue to increase the investment value of farmland."

In 1981, Montgomery set aside about 145 square miles, one-third of the county, for farmland and open space and limited housing to one unit per 25 acres. Prince William created its Rural Crescent of 120 square miles in 1998 and set the minimum lot size at 10 acres.

But under a 55-year-old Virginia law, Rural Crescent landowners can subdivide property into lots as small as one acre and distribute them to offspring. In 2001, the county extended the exemption -- over the objections of its Planning Commission -- to nephews, nieces, uncles and aunts.

Since 1998, the pace of family subdivisions in the Rural Crescent has quickened. The law often is used by owners of 10-acre lots created within the past decade, and real estate ads tout property as having "potential for family subdivision."

In the past eight years, owners have turned 56 lots into 162 lots. All but 11 of the properties have been divided since 2001, and last year there were 39 applications.

With its efforts to create a protected rural area on hold, the number of applications for family subdivisions in Loudoun County also has grown -- 41 since July, officials said.

Montgomery planners say they worry their family subdivision laws allow the new lots to be resold too easily.

Virginia law requires that an individual own property five years before making a family subdivision, and then family members must hold their property for another five years before selling to an outsider. There is no such requirement in Montgomery.

"By the time the house gets built 18 months later, the intent has changed," Berlage said.

Family subdivisions have become an issue nearly everywhere that the state of Maryland has established agricultural easements. In an effort to limit the subdivisions, the state tightened restrictions three years ago, setting a minimum size of 20 acres for the first subdivision. Additional lots must be larger.

Bill Roberts, a Poolesville land-use lawyer, questioned the equity of a program that ties the number of lots to the number of offspring. "What you're doing is just providing a financial reward for the procreative proclivity of the property owner," he said. "If you have 10 kids, you can make more than if you have five kids."

Prince William Supervisor W.S. Covington III (R), whose Brentsville district is in the Rural Crescent, said the rush to make family subdivisions is being driven by farmers who believe the 10-acre minimum lot size has reduced the value of their land.

Without the option of selling to large developers, they instead create family subdivisions that they might sell eventually, he said. Some people are subdividing, just in case, giving land to children with ages in the single digits, Covington said.

If more and more people follow suit, Covington and other officials say Prince William could be stuck with a hodgepodge of small subdivisions that have no connecting roads and that often depend on unreliable, alternative septic systems, since public sewer does not extend into the Rural Crescent.

"It's the Wild West," Covington said.

County concerns have translated into new scrutiny, said Prince William's planning director Steve Griffin. "What we're concerned about is to make sure it's done for genuine family purposes," he said.

In Montgomery critics say officials have been lax, allowing owners to get marketable lots and lots for their children out of the same property. That constitutes abuse, Roberts said.

"If I have 100 acres and I want to create 10 lots for 10 children, I can do that. There's no question in the law that I can do that," he said. "But should I still be able to create another four marketable lots to sell on the open market? It just doesn't make sense."

Many residents of western Prince William say they're turning to family subdivisions as the only affordable way their relatives can become homeowners. The area is facetiously called the "Royal Crescent" for its sudden crop of $1 million homes on large lots with views of farmland in the distance.

"I deal with a lot of farmers, good ol' boys. Why should they be punished . . . so someone in a million-dollar home can look out at a farm?" asked septic system designer Tom Basham of Nokesville, who consults for landowners who want to make family subdivisions.

Many of those subdivisions are clustered around Nokesville, where real estate agent Patrick Cowne grew up on property that his parents inherited through a family land transfer. "I don't know what my parents would have done," he said, noting that he has cousins benefiting from the loophole. "Do you know what it costs to get a decent home here?"

Cowne subscribes to the notion that the 10-acre rule has made farmland less valuable and unmanageable. "Ten acres is too much for a yard and too little for a farm," he said.

Jerry and Shari Jacobs, who raised their children on a small horse farm near Nokesville, said they decided years ago that family land transfers were the best way to help their children become homeowners. Plus, eight acres was too much for the couple to handle. "It took forever to mow it," Shari Jacobs said.

The new houses and their lots were all occupied by Thanksgiving. But the moves were 11 years in the making as the family tussled with the county over sewer and other issues, said Jerry Jacobs, a developer and financial consultant.

Jessica, 17, has a vacant lot awaiting her once she graduates from college and once the family can win another victory to get sewer to that lot, as they did for the others.

"You should be able to do what you want with your own property," said Shari Jacobs, 55.

Family subdivisions are a way of life that can take some getting used to, people who live in them said. It's easy to borrow a cup of sugar and trick-or-treating is a breeze, but privacy is an issue.

"If there are three cars in the driveway, there are questions, questions, questions," said Nick Jacobs, 29, a son of Shari and Jerry. "Sometimes, you don't always want them to know you're home."

But the financial advantage, the footing that Nick and brother Scott have received, balances the drawbacks of living so close to relatives, they said.

"When the idea came up, I didn't realize the financial benefit it would be to me," said Scott Jacobs, 27.

Jerry Jacobs said he told his sons not to go too crazy with personal touches. Although they have created a family subdivision, they also have to think about the future, he said.

"Everybody was smart enough to think about resale," Jacobs said. "What's the next person going to want when they buy?"