Supremely satisifed

By Hannah Wever
Review Staff Writer

Published: June 26, 2008

James and Barbara Lovelace never thought building their new home would require five years of paperwork and headaches, and ultimately, a decision by the Supreme Court of Virginia. Earlier this month, the commonwealth’s highest court made the final decision in an ongoing county zoning debate over the Lovelace’s right to build a house, a garage and a shed.
The saga started back in October 2001, when Virginia Timberline, LLC, received a special use permit from the Orange County Board of Supervisors to develop a cluster subdivision along Lake Anna’s north shore. In the permit issued to Timberline, final approval of the subdivision plan hinged on approval of a specific open space “for the reserve area of the development.”
Timberline filed its subdivision plat in March 2002. In that plat, there were 30 lots, each about one acre, and a 106.36-acre parcel to the north of the subdivided lots, described on the plat as “remaining land.”
Also on Timberline’s plat was a notation stating the reserved area was “intended as open space as part of Daniel’s Point subdivision.” That area, the plat specified, “was not to be further developed or subdivided.”
“(The developer) knew that was intended to be common open space for that subdivision,” Orange County Director of Community Development David Grover said.
But while the plat was filed with the Orange County Circuit Court clerk, no additional steps were taken to restrict the parcel, something required by Orange County Code.
“The county didn’t make sure the covenants and restrictions were recorded at the time the plat was recorded,” Grover explained. “If that would have happened, there would have been a clear and official record that the 106 acres were restricted.”
The Lovelaces, relying on professionals to research the parcel, were never made aware that there were any potential restrictions on the land, they said.
In August 2003, that 106-acre parcel of Daniel’s Point “remaining land” was purchased by the Lovelaces. The couple, nearing retirement, envisioned a country home with room for the grandchildren to visit and a few cattle grazing in the fields.
“Our goal was to build a home with some outbuildings so we could live there and maybe do a little farming,” James Lovelace explained.
In March 2006, as part of the process for obtaining approval for new construction, James Lovelace applied for a zoning permit for a house, a garage and a shed.
Initially, the permit was approved. But shortly after, then-zoning administrator Debbie Kendall said the permit had been issued in error and was now null and void. According to Virginia Supreme Court record, the zoning administrator’s conclusion that the Lovelace’s property could not be developed was based on a section of Orange County Code which states zoning permits can not be issued, or plats approved, if they violate the terms of the intent to preserve reserved areas.
Since the Lovelaces 106 acres had formerly been designated “open space,” the land could never be developed, according to the Kendall back in 2006, and no permits should have been issued.
Lovelace said the news of the revoked permit was a big shock. Essentially what they had been told was that they owned a large parcel of land on which they could never live.
“Originally, (the permit) went right through. Then, a month later, they told us there had been a mistake,” he said. “Without the building permit, the property is virtually worthless.”
The Lovelaces appealed Kendall’s decision with the Orange County Board of Zoning Appeals (BZA). The BZA, following a hearing, unanimously upheld Kendall’s decision.
So Lovelace appealed the BZA’s decision in Orange County Circuit Court.
“In view of the county’s unwavering stance, we knew we would have to protect ourselves legally,” Lovelace explained.
In circuit court, Judge Designate F. Ward Harkrader decided that the Daniel’s Point cluster subdivision plat, and the restrictions it stipulated on what was now the Lovelaces’ property were binding.  What was described on the plat as “reserved area,” the court record said, refers to the area described on the map as “remaining land.”
“The property was intended to be considered a part of the Daniel’s Point cluster subdivision and was to be an open-space preserve for the benefit of the smaller lots in the subdivision,” the circuit court record explained.
The circuit court concluded that because of the 106-acre parcel’s original designation as an open space area, Lovelace was not permitted to build structures on it.
“Our attorney decided, ‘I’m not happy with this,’ and I said ‘I’m not either,’ “ Lovelace said. And so Lovelace appealed his case to the Supreme Court of Virginia.
In his appeal Lovelace’s attorney, Russell H. Roberts, claimed that because Timberline never filed that official declaration of covenant with the clerk of the court, the land could not be subject to restrictions. Furthermore, Timberline’s ambiguous plat and map notations of “remaining land” and “reserved land” are not the same as a recorded declaration of covenant.
For more than two years, the Lovelaces had negotiated a drawn-out series of frustrating appeals, miles of red tape, and amassed unimaginable attorney’s fees. But earlier this month, the couple finally learned the Supreme Court had overturned the decisions of the zoning administrator, the BZA, and the Orange County Circuit Court.
“We said ‘Finally!’” Barbara Lovelace said. “We had achieved our goal of getting the building permit-even though it had been more than two years,” James Lovelace added.
According to court record, the “failure to record a declaration of covenant combined with the use of ambiguous language on the plat results in an ineffective attempt to restrict the use of Lovelace’s parcel.”
The decision by the Supreme Court of Virginia noted that despite language on the Daniel’s Point subdivision referring to “reserved area” intended as open space, there is no area on the map marked “reserved area.” Instead, the Lovelaces’ 106 acres were marked “remaining land.”
Finally, the Supreme Court reversed the judgment of the Circuit Court because, the court record said, “the language cannot prevent Lovelace from building a single-family dwelling. The plat in question imposes no restrictions on the 106-acre parcel Lovelace purchased, and no declaration of covenant was recorded in the land records.”
Kendall said the responsibility to record any covenant or restrictions was that of Timberline, but conceded that the county should have followed up to make sure paperwork was filed correctly.
“The onus to do that was on them, and they did not do that. The county relied on the developer to follow through with their responsibilities and that didn’t happen,” she said. “Now, we have a landowner that had to go through the angst of this process.”
But, Kendall added, county officials have learned a valuable lesson from the experience.
“This (case) makes it clear for the county how important it is to be sure our procedures are watertight,” she said. “Our procedures now are more formalized so something like this won’t happen again.”
Meanwhile, the Lovelaces are seeking retribution from the title company they used at the time they purchased the land.
According to Grover, the Lovelace v. Orange County Board of Zoning Appeals is highly unusual.
“It’s the first time in my career that I’ve seen something from a jurisdiction I’ve worked in go all the way to the Supreme Court,” he said.
With the long, expensive and frustrating experience behind them, the Lovelaces said they now look forward to building their new house.
“We’ll just go from here, get the building permit and put the past behind us,” James Lovelace said.