Owners Divided Land Ahead of Tighter Rules

In the months leading up to last week's vote to impose strict new development rules in western Loudoun County, landowners rushing to subdivide their land increased by 1,300 the number of houses that can be built, county records show.

More than 900 of those lots would not have made it through the county's regulatory gantlet had the Board of Supervisors not repeatedly delayed voting, beginning in July, to replace home-building restrictions thrown out by the Virginia Supreme Court in March 2005.

"That's that much more traffic and that much more taxes," said Malcolm Baldwin, a retired environmental consultant who raises sheep and llamas on his 28-acre farm near Lovettsville. "It's not a surprise, but it's just a crying shame that the board didn't act properly in July, when everyone thought that it should."

An additional 1,000 potential lots in the pipeline didn't make it through the subdivision application process in time -- a sign of just how big a gamble some property owners were willing to take to create more lots to build on or sell. Some landowners waited until last month to begin an application process that usually takes months to complete. Others applied more than a year ago but still didn't make it through.

All were hoping that the supervisors would enact a "grandfathering" clause that would have allowed anyone with a pending application at the time of the board's vote to qualify for the less-restrictive rules. The board did not create such a provision.

At issue is the rural character of Loudoun's vast western region, a 300-square-mile expanse of farmland and country lanes where supervisors are trying to limit residential development even as a building boom to the east, mostly around Dulles International Airport, has made Loudoun among the nation's fastest-growing counties.

Last week, supervisors approved rules that limit parcels in most cases to average sizes of five and 15 acres. The rules replace an even more restrictive set tossed out last year by the state's high court on a technicality; in the intervening time, hundreds of property owners have tried to subdivide their land during the narrow window between restrictions when the old rules prevailed, allowing three-acre lots.

All year, antisprawl activists have worried that thousands of lots would squeak past before the door closed on three-acre parcels. And all year, property owners, decrying what they described as a taking of their land value, have submitted applications to take advantage of the old, less-restrictive rules.

The process was made all the more dramatic by the uncertainty of the deadline. Supervisors were first scheduled to vote on the rules in July, then in September. They finally voted last week on a compromise that preservationists objected to as too weak but that property-rights advocates said was a fair deal.

In the subdivision gambit, who won and who lost was in some cases a matter of luck; in others, a matter of smart strategy.

R.T. Legard, whose 253-acre farm south of Lovettsville has been in his family for 90 years, began the process of subdividing 69 lots just after the Supreme Court decision. His application was approved Dec. 5, hours before the supervisors enacted the new rules.

Legard, who spent more than $500,000 digging wells, testing soil and completing the other work necessary to subdivide, said one supervisor put pressure on county staff members to ensure that his application was approved. He would not name the supervisor.

"I'm just thankful that we got through," he said.

Mark W. Petro submitted an application about the same time to create just one new lot from his mother's 16-acre property near Waterford. After spending $25,000 to hire a surveyor, test wells and take soil samples, Petro missed the deadline -- and he's not happy about it.

"All the way through the whole process, there was this obstructionist attitude," Petro said. "I was held to a higher standard than developers. I know people who were cutting up large parcels. If they're trying to achieve fewer households, we weren't even going to affect that equation."

County data, however, suggest that the planners were approving applications steadily. An analysis by the office of Supervisor James Burton (I-Blue Ridge), who opposed the voting delays, shows that approvals spiked just before each of the votes, in July, September and December.

Burton is looking into whether county staff members expedited applications. Terrance Wharton, director of building and development, said that his staff neither stalled nor sped up applications this year -- despite recurring accusations that both occurred.

"We used the same policy we've always used," Wharton said. "You turn in a good plan, and we'll turn it around."

Some landowners benefited from hiring professional engineers or development lawyers who specialize in ushering subdivision applications through the system. The KDL Group of Purcellville took on about a half-dozen clients and got all of their applications approved, KDL engineer John H. Davis said.

Part of the trick, he said, was encouraging the clients to keep pressure on county employees, streamlining applications to avoid multiple, time-consuming hydrogeologic studies and just plain getting lucky.

"We had clients standing over them literally every day at the health department and the building and development department to make sure things got through," Davis said.

According to Burton's analysis, the 1,300 parcels, once developed, will cost the county more than $57 million in capital expenses such as those related to schools, fire stations and libraries. That figure does not include operating costs for county services nor the costs of roads needed to accommodate more traffic.

The final version of the new regulations reduces the total number of houses allowed in the rural west from about 37,000 to 18,000 -- but that figure does not include the 1,300 lots approved in the past 21 months.

The plan favored by antisprawl activists would have allowed about 14,000 houses; the tougher rules thrown out by the Supreme Court would have allowed 10,000.