1992 Montgomery County
Open-Space Plan

CHAPTER THREE (Part B)

TECHNIQUES AND TOOLS

I. INTRODUCTION (Part A)

II. GOVERNMENT-INITIATED TOOLS CURRENTLY USED BY THE TOWN OR THE COUNTY (Part B)

1. Agricultural Zoning

2. Capital Improvements Program (CIP)

3. Comprehensive Plan

4. Erosion- and Sediment-Control Ordinance

5. Conservation Development

6. Planned Unit Development (PUD)

7. Resource Overlay Zones

8. State Scenic-Byway Designation

9. Subdivision Ordinance

III. LANDOWNER-INITIATED TOOLS CURRENTLY USED BY THE TOWN OR THE COUNTY (Part B)

1. Agricultural and Forestal Districts

2. Conditional Zoning

3. Conservation Easements

4. Fee-Simple Acquisition

5. Land Donations

6. Land-Use Assessment

IV. GOVERNMENT-INITIATED TOOLS NOT CURRENTLY USED BY THE TOWN OR THE COUNTY (Part C)

V. LANDOWNER-INITIATED TOOLS NOT CURRENTLY USED BY THE TOWN OR THE COUNTY (Part C)

Changing the Shape of Tomorrow's Development

II. GOVERNMENT-INITIATED TOOLS CURRENTLY USED BY THE TOWN OR COUNTY

AGRICULTURAL ZONING

Agricultural zoning is intended to preserve agriculture as a permanent land use. The most important characteristics of an agricultural-zoning ordinance is the extent to which it limits the intrusion of new, nonagricultural uses (usually nonfarm dwellings) and requires a large minimum lot size (50-160 acres). The minimum lot size is based on the minimum acreage necessary for a productive commercial full-time farm, on prime soil, to be viable. Agricultural zoning differs greatly from large-lot zoning in that agricultural uses are favored and encouraged while land-consumptive, large-lot developments are discouraged.

Implementation of an agricultural-zoning ordinance depends upon farmers and other rural residents to be open, agreeable, and supportive of a regulation that limits the amount of nonfarming development permitted in the agricultural areas of the community. The quantity and density of nonfarming development that is permitted under agricultural zoning depends upon the community, but the overriding premise of agricultural zoning is that a consensus be reached emphasizing farming as the primary land use. Agricultural zoning aims to protect a critical mass of farms and farmland, without which the infrastructure that supports the farming industry (tractor dealers, seed companies, chemical dealers) will be forced to close, leaving the farmers who remain without the support necessary to their profession.

Montgomery County has an Agriculture and Conservation Zoning District (A-2) that is essentially agricultural zoning. The A-2 district only permits farm uses and residential homes required by the farmer and operators. The A-2 district is designed to protect farmers from conflicting land uses and to preserve agricultural land in the County. No farmers in the County have applied to place their property in the A-2 district, and, consequently, no land within the County has been placed in this district. Blacksburg has an agricultural-zoning district in name only. The district allows the subdivision of property into small parcels and does not attempt to preserve parcels at the minimum viable acreage necessary for farming.

Fauquier County, Virginia, has 85-15% agricultural zoning, in which 15% of a parcel can be developed while 85% remains in agricultural or open-space use for a period of 25 years. In this way some development is permitted, but the overriding goal of the ordinance is the preservation of farming as a County institution.

CAPITAL IMPROVEMENTS PROGRAM (CIP)

The location and timing of development are greatly affected by local decisions about capital facilities and other public investments such as roads, sewer, and public water. CIPs identify specific improvements, their priority and timing, and the way they will be financed. CIPs plan and design capital expenditures for five years into the future and are typically revised on a yearly basis. A well-planned CIP can be beneficial to open-space planning efforts by looking at all public investments for the future and projecting how they may affect the County's natural, cultural, and recreational resources. In other words, the CIP could be required to be consistent with a locality's open-space and/or comprehensive plan.

Montgomery County and Blacksburg both utilize CIPs. Although Montgomery County's CIP process is consistent with the Comprehensive Plan, it does not directly consider the County's open-space attributes and resources when proposing capital improvements. Blacksburg's CIP does address open-space issues through a fund designated for acquiring proposed road rights-of-way and property for future Town needs. Money from this fund could be used to purchase property or the development rights to property that has been identified as "critical open space."

COMPREHENSIVE PLAN

The State of Virginia (Code of Virginia Title 15.2-2223) requires comprehensive plans for all cities and counties, and these plans are to be updated every five years. A comprehensive plan is the "blueprint" for the future of a community. Once adopted, the comprehensive plan serves as a guide for making land-use changes, preparing ordinances and CIPs, and controlling the rate, timing, and location of future growth. Typical subjects covered in a comprehensive plan include: housing, environment, economy, transportation, and community facilities. Comprehensive plans may contain an open-space element that recommends methods for protecting open-space resources.

Both Montgomery County and Blacksburg have Comprehensive Plans that call for the preparation of an open-space-plan amendment.

Albemarle County, Fauquier County, and the City of Virginia Beach are all Virginia jurisdictions that have adopted or contain open-space elements in their respective comprehensive plans. Fauquier has had tremendous success implementing open-space- protection strategies. Virginia Beach, on the other hand, has many legal and community problems in implementing their open-space plan. It is too early to judge the progress attained by Albemarle County.

EROSION- AND SEDIMENT-CONTROL ORDINANCE

Erosion- and sediment-control ordinances are intended to reduce erosion from land-disturbing activities and to limit runoff to pre-development levels. Localities in Virginia are required by law (Code of Virginia Title 10.1, Chapter 5, Article 4) to adopt an erosion- and sediment-control program. These programs typically require the preparation and approval of an erosion- and sediment-control plan, including stormwater-management facilities, prior to disturbing an area of land over a certain size. Once approved, the plan must be adhered to during the construction process. Some localities require performance bonds to ensure that developers follow their erosion-control plans.

As required by State statute, both Blacksburg and Montgomery County have erosion- and sediment-control ordinances. Montgomery County does not review erosion- and sediment-control plans, but relies instead on the local Soil and Water Conservation District for thisreview. Because of this situation, the review process can be lengthy, particularly if a plan requires revision. Blacksburg reviews all of its erosion- and sediment-control plans in-house and maintains a strong enforcement program. In addition, Blacksburg requires erosion- and sediment-control-performance bonds before any land disturbance occurs.

CONSERVATION DEVELOPMENT

Conservation development is a development pattern for residential, commercial, industrial, or institutional uses, or a combination of these uses, in which buildings are grouped together rather than evenly spread over the land as in a conventional development. Conservation development is similar to cluster development. It differs from cluster development only in respect to its focus on conserving important natural and cultural resources. The intent of conservation development is to concentrate structures in those areas most suitable for building. The undeveloped property may remain to protect natural or cultural features, or be used for recreation. This remaining land could be owned and maintained in a number of ways. For example, it could be:

• sold or rented to a farmer or other individual who would then maintain it as open space;
• donated, sold, or an easement could be conveyed to the Town or County;
• donated, sold, or an easement could be conveyed to a land trust;
• sold for development but with appropriate restrictive covenants regarding its use and maintenance;
• retained by the owners of one or more of the lots created from the original tract who then own and maintain the land; or
• retained and maintained by a homeowners' association comprised of owners of the lots created from the original tract.

Communities may encourage and allow conservation development through a number of means. The typical method is to have a conservation-development-zoning ordinance, whereby conservation development may be permitted in some or all districts as an overlay zone (in which most of the underlying zoning-districts' provisions must be followed) or as a floating zone (in which the provisions of the underlying zoning district are foregone for those spelled out in the conservation-development ordinance).

Montgomery County currently has a cluster provision in its zoning ordinance. The cluster provision allows cluster development with a special-use permit in the three residential districts contained in the ordinance. Because of the ordinance's lack of incentives for developers to use cluster development, the requirement for a special-use permit, and the unsure market for clustered homes, the County ordinance has seldom been used since 1980. Blacksburg's zoning ordinance had a cluster provision that was repealed in the late 1980s. The repeal was based on citizen opposition to the possibility of multifamily homes being placed adjacent to existing single-family residences. This was, in fact, a misperception, as cluster housing does not have to be multifamily or attached housing.

There are a number of Virginia counties and towns that have cluster provisions within their ordinances. Some examples include: Clarke County, Albemarle County, Fauquier County, Fairfax County, Stafford County, and the town of Leesburg.

PLANNED UNIT DEVELOPMENT (PUD)

A PUD is a type of development pre-planned in its entirety, with the subdivision and zoning controls applied to the whole project, rather than on a lot-by-lot basis as is done with a standard development. Therefore, densities are calculated for the entire development rather than for each lot, but overall densities are typically within the range of a standard subdivision. Calculating the development's density as a whole allows greater flexibility for the developer when determining setbacks and locations for structures and when providing and locating utilities. PUDs are commonly used for residential development across the United States, but are applied also to commercial and industrial development. Very often PUDs contain a mixture of uses (commercial, residential, and industrial) that are able to coexist because of their arrangement to one another. Cluster development patterns are frequently an integral part of a PUD. Although PUDs are associated often with large developments (hundreds to thousands of acres), they also can be used with smaller ones. The PUD process usually involves intense site-plan review in which public officials are considerably involved in determining the nature of the development.

PUDs include aspects of both subdivision and zoning regulation and usually are administered either through a special-use permit or a rezoning process.

Currently, Montgomery County does not have provisions in its subdivision and zoning ordinances for PUDs. Blacksburg has a PUD ordinance (called Planned Development Residential, or PDR), which was enacted in 1980. The PDR ordinance is primarily residential, but permits commercial facilities that are designed to serve the residents' needs. In addition, a minimum of twenty percent of the gross land area must be reserved as common open space and/or for recreation.

Six developments in Blacksburg have used PDR zoning, including Woodbine (no commercial development), Shenandoah (one commercial lot, which is undeveloped), Hethwood (a commercial node and one convenience store), Oakton (no commercial development), the German Club (no commercial development), and Deerfield (no commercial development).

Many of the strengths and limitations of PUDs are shared with conservation development. The list below complements that provided for conservation development.

RESOURCE OVERLAY ZONES

Resource overlay zones often follow the boundaries of important natural or cultural features, such as streams, floodplains, sinkholes, historic sites, and steep slopes. The overlay zones are typically administered through the zoning ordinance, and add an extra layer of regulatory standards for development proposed in these areas (for example, minimum setbacks from streams and sinkholes). Resource overlay zoning requirements should avoid varying interpretations, and should be based on sound technical knowledge. For example, arbitrary, fifty-foot setbacks can be placed along streams, but another method that applies a variable setback based on resource attributes could be used.

The only example of resource overlay zoning in Montgomery County is the Flood Damage Prevention zoning district (Article XVII, Montgomery County Zoning Ordinance). This zoning district is intended to prevent the loss of life and property and the unnecessary expenditure of public funds for flood protection and relief. In addition to the provisions contained in the underlying zoning district, the floodplain overlay zone places various design standards and regulations on development proposed within the one-hundred-year floodplain, as mapped by the Federal Emergency Management Agency (FEMA). The floodplain overlay zone for Montgomery County and Blacksburg provides limited protection to the County's residents by meeting the minimum requirements set by FEMA. Blacksburg is in the process of developing a historic-district overlay.

Resource Overlay Zones are used for a variety of purposes with mixed success throughout Virginia and the United States.

STATE SCENIC-BYWAY DESIGNATION

In 1966 the Virginia General Assembly passed the Scenic Highways and Virginia Byways Act, authorizing the Commonwealth Transportation Board to designate certain outstanding roads as Virginia Byways or Scenic Highways. Virginia Byways are defined as existing roads with relatively significant aesthetic and cultural values, leading to or lying within an area of historical, natural, or recreational significance. A Virginia Byway designation does not place any restrictions or regulations upon land within a Byway corridor. The primary purpose is to give preference ". . . to corridors controlled by zoning or otherwise, so as to reasonably protect the aesthetic or cultural value of the highway."

The State obtains no land-use controls, implied or otherwise, through the process of designating State roads as Virginia Byways. Maintenance and operating procedures of the Department of Transportation remain unchanged.

Catawba Road (VA 785) is Montgomery County's only road designated as a State Scenic Byway. Childress Road (VA 693) and Riner Road (VA 8), from Christiansburg to the Floyd-County line, are two other roads in the County that have been identified in the 1989 Virginia Outdoors Plan as having potential for designation in the State Scenic-Byway Program.

SUBDIVISION ORDINANCE

While zoning governs the use of land in the community, including the intensity of use, subdivision regulations control the conversion of undivided land into building lots for residential or other purposes. Subdivision regulations establish requirements for streets, drainage, utilities, site design, procedures for plan review, and procedures for dedicating land for open space or other public purposes. Used in association with the zoning ordinance, subdivision regulations can be an important open-space-conservation technique. Good design and engineering standards mandated by subdivision regulations can lessen the negative impacts of development on the resources of an area. Subdivision regulations can require a number of facilities or standards that subdivisions must meet, such as mandatory sidewalks and trails, setbacks and buffers, tree protection, and runoff facilities.

As State law dictates, both Montgomery County and Blacksburg have subdivision ordinances. Montgomery County's current subdivision ordinance meets the State's minimum requirements but does not have any provisions for open-space and resource protection. Blacksburg's subdivision ordinance is similar to the County ordinance but does include some open-space provisions. Blacksburg's ordinance addresses the protection of vegetation and the dedication of sidewalks. It has a provision that mandates subdivisions to set aside park land for the Town (payments can be made in lieu of dedication in certain circumstances).

III. LANDOWNER-INITIATED TOOLS CURRENTLY USED BY THE TOWN OR COUNTY

AGRICULTURAL AND FORESTAL DISTRICTS

Agricultural and Forestal Districts (AFDs) are established under the Code of Virginia (Title 15, Chapter 36), "to conserve and protect and to encourage the development and improvement of the Commonwealth's agricultural and forestal lands for the production of food and other agricultural and forestal products . . . [and to] conserve and protect agricultural and forestal lands as valued natural and ecological resources which provide essential open space for clean air sheds, watershed protection, wildlife habitat, as well as for aesthetic purposes."

AFDs provide the landowner with certain benefits as well as place restrictions on local public utilities and local government action in order to protect the agricultural or forest-resource use of the land. Some of the limits on government action include: requirements that the locality consider the existence of an AFD whenever administrative and planning decisions are made on parcels adjacent to an AFD; restrictions on the ability of local governments to enforce a nuisance ordinance within a district; and restraints on public investment (state and local) within a district for the construction of dwellings, commercial or industrial facilities, or water and sewer facilities designed for non-farm uses. In exchange, the landowner voluntarily agrees to limit development of the property during the life of the district (usually four to ten years). Districts may only be initiated by landowners, but must be approved by the locality.

Currently, Montgomery County has 12 Agricultural and Forestal Districts encompassing 40,000 acres. Blacksburg has 2,250 acres in its Agricultural and Forestal District.

Agriculture in Montgomery County

Agricultural and Forestal Districts in the Town and County, 1992

CONDITIONAL ZONING

Conditional zoning allows the property owner to offer voluntary conditions not specifically required by the zoning ordinance, such as limiting the types of uses on the property or the hours of operation for a facility to be located on the property. Conditional zoning can be used only when a landowner applies to have the property rezoned. At such a time the landowner may offer conditions to the community on how the property will be used and developed. Once conditions are accepted by the governing body, they can be enforced by the jurisdiction's zoning administrator. Open-space protection can be a part of conditional zoning if landowners offer to protect open-space resources such as streams, farmland, and scenic areas, by using setbacks, buffers, or other tools. Virginia is one of the few states where conditional zoning is legal (Code of Virginia Title 15.1, Chapter 11, Article 8). There are a number of stipulations that conditional zoning must meet, one of which is that mandatory dedication of real or personal property for open space and parks cannot be part of the conditions (unless the need for such is generated by the rezoning request).

Montgomery County meets the state requirements that allow communities to use conditional zoning for rezoning applications. In almost all cases, the use of conditional zoning in the County relates to how the property is to be used or the requirements for infrastructure. Typical conditions proffered to the County include: restrictions on hours of operation, reduced exterior lighting, increased landscaping to buffer residences, increased stormwater management, and smaller signage area. Open-space and resource protection rarely are addressed. In Blacksburg conditional zoning has become the norm to such an extent that developers will present general and specific details about their proposed use for a property to allay concerns about uses or development techniques. Developers in Blacksburg often address unique site conditions through conditions proffered to the Town.

CONSERVATION EASEMENTS

Among the rights frequently attached to land are the rights to develop, subdivide, mine, cut timber, or otherwise disturb the land. Conservation easements are a voluntarily tool that restricts certain uses or practices that would threaten a valuable resource associated with the land. They separate "development rights" from other land-ownership rights. Conservation easements can be donated or sold by landowners to local governments or conservation organizations. The purchase of conservation easements is sometimes referred to as the "purchase of development rights," or PDR.

Conservation easements apply to current and future owners of the land (they "run with the land") and typically limit activities such as subdivision, earthmoving, dumping, signs, utility lines, construction, and changes to structures. Easements can apply to all or part of a piece of land and are usually perpetual, although "term easements" do exist. Under federal tax regulation, the holder of a conservation easement must be committed to conservation purposes and must have the resources to enforce the restrictions outlined in the easement.

Easements may be held by local, state, and federal government agencies, private conservation groups (land trusts), and landowner associations. The easement holder has the right to inspect the property to ensure compliance and has various options for enforcement, including litigation. In the early 1960s, the IRS declared the gift of an easement to be tax deductible, providing that the chief incentive for property owners is to donate conservation easements. The value of a donated easement is the difference in the fair-market value of the land before and after the easement is placed on it, usually amounting to between 50% and 80% of the land's pre-easement market value. Easements must be made in perpetuity in order to qualify for both federal and state income-tax deductions.

Easements can be used to protect water resources, farmland, scenic resources, historic areas, caves, streambelts, and a wide array of other cultural and natural resources. As stated earlier, conservation easements are sometimes referred to as PDRs. But, a PDR differs slightly from a conservation easement. PDRs involve purchasing just the development rights associated with a property, while conservation easements are used to purchase development rights, mining rights, grazing rights, or a host of other rights tied to the ownership of property. PDRs are typically employed by government bodies, whereas conservation easements are generally used by private, nonprofit organizations. PDRs usually are employed on a willing-seller basis, where the property owner, often a farmer, wishes to retain ownership and control of the property but chooses to "cash in" on the principal value of the property (its development value). PDRs are typically used only on the portions of property that have significant agricultural or natural/cultural-resource value. It is often the case that the property adjacent to the restricted land increases in marketability and value.

In the New River Valley, conservation easements have not been extensively employed except by the National Park Service along the Blue Ridge Parkway for scenic-vista protection. However, two conservation easements have been established in Montgomery County. One is a 30 acre scenic easement acquired by the Town of Blacksburg in 1991 through donation of a portion of the Hoge property adjacent to the municipal golf course. The second conservation easement held by the Town is a 1.5 acre open-space easement in the Deerfield subdivision.

FEE-SIMPLE ACQUISITION

One obvious protection device is the purchase of land containing critical open space. In a fee-simple land purchase, the buyer acquires full title to a parcel, along with the entire bundle of rights that comes with it. This type of purchase may allow permanent open-space protection. Most individuals are familiar with governmental purchases of property for the public good, but this is only one example of fee-simple acquisition. In most cases, fee-simple acquisition for open space does not imply a forced purchase of people's private property by the government. Usually the government does not have the time, resources, desire, or public backing to purchase private land. For this reason, private organizations often work with private landowners, on a willing-seller basis, to obtain property. Under open-space planning, fee-simple acquisition primarily involves a conservation organization, or sometimes the local governing body, working with a willing landowner.

A private organization or public agency may acquire tracts of land, which are then leased to private persons for specific open-space uses that comply with the public plan for the area (be that farming or forestry). Leasing can lead to the usual landlord-management problems, but the land is kept productive. In this way the land generates rent for the landowner as well as products and activities for the public, such as farm produce and recreational opportunities. Examples of nonprofit conservation organizations purchasing land and then leasing it to the original owner or another individual are common. In many cases the conservation group will lease to a local farmer who will use the land for economic benefits, such as grazing and crops, and the conservation group benefits by receiving rent and by having the land managed.

LAND DONATIONS

Where public access and use are desired or complete ownership control is preferred, outright donation of land to a government entity, conservation organization, or public charity is perhaps the best method of permanently protecting lands of conservation importance. Usually the jurisdiction or group receiving a donation will assume the responsibility of maintaining the property. Many parks and public preserves throughout the United States originally were created via donation by conservation-minded donors. The Nature Conservancy preserves at Bottom Gorge and Falls Ridge in Montgomery County, Virginia, were acquired primarily through donation. In both cases, the Conservancy desired complete ownership control to ensure protection of the resident rare and endangered species.

Land donations of real property can be arranged in various ways to suit the needs and desires of the donor. The potential recipients of donated property should encourage donors to disclose their plans for a bequest, in advance, in order to assure that the donation is appropriate, and to discuss financial arrangements for the property's maintenance and operation.

Donations with a reserved life estate, also called a life tenancy, are proposed by individuals who wish to continue owning and living on their property until death or the death of specific heirs. At the time of death, the property is donated to a nonprofit organization or a government agency. The donor or heir is eligible to deduct the value of the gift, called a "remainder interest," at the time it is made, although the recipient will not actually take control until the donor or heir dies.

Selecting Which Individual Action is Appropriate

LAND-USE ASSESSMENT

In 1971, the Virginia General Assembly enacted the Virginia Land Use Assessment Law (Code of Virginia Title 58.1, Chapter 32, Article 4), permitting localities to adopt a program of special tax assessments for agricultural, horticultural, forest, and open-space lands. This preferential-assessment, or use-value taxation, allows a locality to assess or tax real estate on its actual use rather than its highest potential use. For example, land used for agricultural purposes would be assessed and taxed for that specific use rather than its potentially highest fair-market use, such as commercial development. To grant land-use assessment, localities must have adopted a land-use plan and an ordinance providing for use-value assessment and taxation. In addition, for land to qualify for land-use assessment it must meet the technical standards, requirements, and management levels established by the State Land Evaluation Advisory Council. The theory behind land-use assessment is that it will help conserve rural lands by offering an incentive in the form of lower taxes to those landowners who use their lands for agriculture, forestry, horticulture, or open space.

Agricultural, horticultural, and forest lands all contribute to open space as defined in this document. Land-use assessment goes a step further by offering incentives to protect open space, as defined by the State. To qualify as open space under land-use assessment, the property in question must be at least five acres (two acres if adjacent to a scenic river, scenic highway, Virginia byway, or a property listed in the Virginia Outdoors Plan). Additional requirements call for the property to be within an Agricultural and Forestal District, or to have a perpetual conservation easement, or to be subject to a written commitment between the local governing body and the landowner to preserve the open-space qualities of the property. Open-space uses that qualify under open-space land-use assessment include: park or recreational land; conservation lands; floodways; historic or scenic areas; land that assists in shaping the character, direction, and timing of community development; and land preserved for the public interest. Each of these uses is defined in the State Land Evaluation Advisory Council's manual, Standards for Classification.

Montgomery County and the Town of Blacksburg have adopted land-use assessment for agricultural and horticultural uses only. The Town and County have not adopted land-use assessment for forest and open-space uses.

Property Receiving Land-Use Assessment in the Town and County, 1992

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Last Updated 19 September 2001
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