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2009 Virginia Attorney General Reports and Opinions 1 (2009)

handle is hein.sag/sagva0032 and id is 1 raw text is: COMMONWEALTH of VIRGINIA Office of the Attorney General Robert F. McDonnell 900 East Main Street Attorney General Richmond, Virginia 23219 804-786-2071 FAX 804-786-1991 Virginia Relay Services 800-828-1120 7-1-1 January 6, 2009 Elizabeth K. Dillon, Esq. Botetourt County Attorney 415 S. College Avenue Salem, Virginia 24153 Dear Ms. Dillon: I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia. Issue Presented You ask whether § 15.2-101(A) grandfathers the suitability of land provisions contained in §§ 21-64 and 21-122 of the Botetourt County Code. Response It is my opinion that § 15.2-101(A) does not grandfather the suitability of land provisions contained in §§ 21-64 and 21-122 of the Botetourt County Code. Background You advise that the § 21-64 of Botetourt County Code (Ordinance § 21-64) directs that the subdivision agent shall not approve the subdivision of land if, from adequate investigation conducted by all public agencies concerned, it has been determined that in the best interest of the public the site is not suitable for platting and development purposes of the kind proposed.mI You also advise that in 2002 Botetourt County added § 21-122 (Ordinance § 21-122) to the Subdivision Ordinances, which includes a similar suitability of land provision, but specifies the 2 conditions that may be considered by the planning commission. You relate that Botetourt County is considering amendments to eliminate the suitability of land provisions in §§ 21-64 and 21-122 because the provisions exceed the authority delegated by the General Assembly to localities in Article 6, Chapter 22 of Title 15.2, §§ 15.2-2240 through 15.2-2279. You also advise that it has been suggested that Ordinance § 21-64 was authorized by enabling legislation when it was adopted in 1958 and therefore is grandfathered. See BOTETOURT COUNTY, VA., CODE § 21-64 (2002), available at See id., § 21-122 (2002).

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