Reservoir Overlay Zone Rendered My Lot Useless

**XCAdam89** · 01-03-2012, 01:21 PM

My question involves real estate located in the State of: Virginia.

Ok, so here's a quick summary of what's been going on....

Currently, we live in a typical house in a smaller subdivision. However, we own 10 acres of land about 15-20 minutes away from our house. This land was purchased by us probably about ten years ago now and is completely paid off. The land is also located in a subdivison type environment and we intended to build a house on it a few years back. However, my parents decided that they wanted to sell the lot and our existing house in order to afford an existing house on a more open lot.

Now, here's a little details about the land. The lot is primarily on a downward slope with the last 5 acres or so flat and level. This flat area backs up a small river that runs through the back of the property. Before we purchased the property, all the necessary tests were done (Perk, Septic, etc) and passed with no problem as long a relative small footprint house was built. No big deal.

However, in the past few weeks, we've had the lot listed for sale and had a few people interested in it. One in particular, placed a contract on the property, conducting soil tests, perks, etc. and intended to purchase it. BUT, when trying to make the deal, the county refuses to let us sell it because there is a current plan to flood part of our land into a resevoir for the river that runs in the back of our property. The plans are 10 years in the future and we cannot sell or build on the property during that time period. Yet, we have been paying property taxes for the last 10 years and the land is COMPLETELY paid off. Essentailly, the lot is useless for us in the time being and we need to sell it in order to afford the downpayment on the new house.

We've written two letters to the county, essentially stating that the land was purchased with the intent to build on, at the time the zoning and drainfield for the property was approved, yet now the land is useless because the county will not let us sell it or build on it.

We got a reply back, which basically said, plans are in motion and there is really nothing we can do at this time. We have to wait it out until the plans are finalized before we can make any purchase actions or remove the boundaries. However, they did say they may issue a variance if a plan was in motion, but we do not want to build on the lot...just sell it and let someone else use it.

Any light on this situation would be more than helpful!

jk · 01-03-2012, 04:16 PM

BUT, when trying to make the deal, the county refuses to let us sell it

Ya lost me. First, how did they even know there was a contract on the property and then second, how have they actually prevented you from selling the property?

I understand their point but I do not see them being able to prevent you from selling the property. You also will have to disclose this to any future prospective buyers.

Whomever owns the land at the time it becomes a reservoir should be the recipient of some money as the action intended is the gov taking your land and as such, must compensate the owner for the taking. In fact, you could argue that they have already effectively taken the land since you cannot do anything with it due to their restrictions so they have in essence already deprived you of your property. They have to compensate you when taking your property.

**XCAdam89** · 01-03-2012, 06:15 PM

Essentially, we had the lot listed for sale, a builder contacted us as he had a couple who wanted to build a house on the property. He put a contingent contract on the land stating that he would purchase the lot if all tests (Septic/Zoning/etc) were met. He conducted soil tests, perk test, etc. and everything checked out, but everything came to a halt when the zoning department refused to issue a building permit due to the reservoir overlay boundaries that are in place. As a result, he backed out of the purchase and it has remained stagnant ever since. This contract was several months ago now and we are now just beginning to try and determine the best way to handle the situation again.

After writing letters to the county recently, they stated that they will not remove the boundaries at this time or compensate us through the purchase of the property. Apparently, these overlay boundaries were in place prior to our purchase of the lot, but the previous owners never mentioned them verbally or contractually to us. Is there a statute of limitations on something like this where we could file suit against the previous owners??

At this point, we would like to sell the property for at least what we have in it at this point. The fact the county still charges personal property tax on the lot makes me wonder if I have a case here.

**LandSurveyor** · 01-09-2012, 01:00 PM

I have been a surveyor for many years, but I don't recall ever hearing the term "overlay boundaries".

It sounds as if the county is trying to tie up property to it's advantage from a monetary standpoint.

I'm curious as to whether the planned reservoir has actually been designed. I mean the final, shovel-ready construction and right of way plan phase, not some conceptual sketch plan. I suspect it is not, and I suspect that there is no funding for it.

Virginia seems to be somewhat loose in protecting property rights in eminent domain cases:

http://www.virginiainstitute.org/pdf...nentDomain.pdf

Your concept of getting it all in writing with the county is a good approach. The constitutional protections you have are possibly being ignored. It appears that you have already suffered damages. Spending a couple of hours with a local attorney will probably be helpful. A letter from the attorney to the zoning department will undoubtedly result in it being forwarded to a county attorney for a reply.

The bottom line from jk:

They have to compensate you when taking your property.

**XCAdam89** · 01-11-2012, 02:03 PM

To my understanding, the boundaries for the proposed reservoir were in place before we bought the property, but the seller failed to mention this to us at that time. Now 10 years later, the statute of limitations against fraudulent contracts is up, so we can't go after those guys.

As far as I know, they originally planned on building this reservoir around 1994 -- boundaries were made, etc, but they built a different reservoir about 30 miles away from our property. Clearly, there is no intention in the near future to turn my property into a flooded area. In fact, the lot directly behind mine (Across the river) has been partially cleared...what gives?

Ideally, I either want compensated (Which the county sent a later saying they are in no position to do) or the boundaries lifted, so that I can sell the lot to a new family with no fear of complications arising during their building process.

**LandSurveyor** · 01-11-2012, 03:32 PM

If the "boundaries" were already in place when you bought the property, there would have been a flowage easement in the title report.

The easement would cover all of your property below a certain elevation, typically the spillway elevation of the dam.

Check to see if there is, in fact, a flowage easement on record. If there is, that would be an indication that compensation has already been paid to a prior owner and you bought it in that condition. If there is no recorded easement, get an attorney as I suggested.