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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
FAX 804-786-1991
Virginia Relay Services
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.
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.
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
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
See     BOTETOURT     COUNTY,     VA.,    CODE      § 21-64    (2002),    available   at
See id., § 21-122 (2002).

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