Present: Carrico, C.J., Lacy, Hassell, Koontz, Kinser, and 

Lemons, JJ., and Compton, S.J. 

A. G. BERTOZZI OPINION BY 

SENIOR JUSTICE A. CHRISTIAN COMPTON 

v. Record No. 001072 April 20, 2001 

HANOVER COUNTY 

FROM THE CIRCUIT COURT OF HANOVER COUNTY 

John R. Alderman, Judge 

 In this land use dispute, we consider whether the trial 

court erred in ruling that a local planning commission's 

disapproval of applications and plats for a subdivision properly 

was based on the applicable ordinance and was not arbitrary or 

capricious. 

 Before the close of business on October 9, 1996, A. G. 

Bertozzi, a subdivider, filed with the Hanover County Planning 

Office applications for final approval of five sections, "A" 

through "E," of a subdivision known as "Sugar Maple." The 

sections comprised approximately 125 acres of real property 

located in an A1 agricultural district in the western part of 

the County. 

 During the evening of October 9, the County Board of 

Supervisors adopted zoning and subdivision ordinances 

significantly changing rural subdivision development 

requirements. The new ordinances include a so-called 

"grandfather clause," the interpretation of which is at the core 
of this controversy. As pertinent, the grandfather clause 

provides: 

"Complete applications for final subdivision approval 

which have been filed before the close of business on 

October 9, 1996, which were in compliance with all 

substantive zoning and subdivision ordinance 

requirements in effect on that date shall be reviewed 

in accordance with those requirements." 

 By letter dated October 29, 1996 from the County's Deputy 

Director of Planning, the subdivider was notified that the 

applications and plats for Sugar Maple had been disapproved by 

the planning staff. The subdivider appealed this ruling to the 

circuit court pursuant to former Code § 15.1-475(B)(3) (now Code 

§ 15.2-2259(C)). As pertinent, the statute provided: 

"If a local commission or other agent disapproves a 

plat and the subdivider contends that such disapproval 

was not properly based on the ordinance applicable 

thereto, or was arbitrary or capricious, he may appeal 

to the circuit court having jurisdiction of such land 

and the court shall hear and determine the 

case. . . ." 

 In his petition to the circuit court, the subdivider 

contended that disapproval of the applications and plats was 

erroneous, improper, and "arbitrary and/or capricious." He 

asserted that the filings should have been approved because he 

fully complied with all applicable requirements. 

 Following a June 1997 hearing, at which the trial court 

considered only the subdivider's petition, the County's 

response, memoranda of the parties, and argument of counsel, but 

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no evidence, the court ruled in favor of the subdivider. In a 

July 1997 final decree, the court ordered that the plats for the 

subdivision "shall be accepted" following review by the County 

"pursuant to the requirements of ordinances in effect prior to 

October 9, 1996." The County appealed that ruling to this 

Court. 

 In Hanover County v. Bertozzi, 256 Va. 350, 504 S.E.2d 618 

(1998), we reversed the judgment of the circuit court because we 

were presented with "a record devoid of any evidence and factual 

findings" on the question whether the County properly had 

disapproved the filings for Sections A through E. We remanded 

the case "for an evidentiary hearing regarding whether the 

County's disapproval . . . was 'not properly based on the 

ordinance applicable thereto, or was arbitrary or capricious.' " 

Id. at 356, 504 S.E.2d at 621. 

 Upon remand, the trial court conducted an evidentiary 

hearing to consider the foregoing issues. The subdivider 

presented the testimony of two persons who were familiar with 

the practices and procedures for subdivision development 

followed by the County planners in districts zoned A1. Also 

testifying for the subdivider was a civil engineer who had 

prepared the filings for the Sugar Maple subdivision, as well as 

for another proposed County subdivision, Pin Oak Place, which 

the subdivider previously developed. 

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 This evidence established that for years prior to October 

9, 1996 the County planners routinely had employed a "25-acre 

Rule," an unwritten administrative interpretation of the zoning 

and subdivision ordinances. Under the "Rule," developers were 

permitted to subdivide land into more lots than would have been 

permitted under a strict interpretation of the ordinances. 

 According to the testimony, the "Rule" allowed a developer 

to divide a large parcel into tracts of approximately 25 acres, 

"and then go through the subdivision process on each of those 

tracts," yielding "four lots per every 25 acres or 16 lots per 

hundred, as opposed to . . . 10 lots per hundred." The four-lot 

arrangement was accomplished by dividing the 25-acre tract into 

a two-acre "first division," two ten-acre lots, and a three-acre 

residual lot. The "first division" lot was not considered a 

part of the subdivision subject to review for subdivision 

approval; that lot was not to be included on the subdivision 

plat. 

 This procedure, described as "convoluted" by the County's 

Director of Planning, affected the application process. Under 

the procedure, a developer would file an "Application for Final 

Approval" with the County Planning Office together with a 

subdivision plat, accompanied by the required fees. The 

subdivider was not required to have recorded a "first division" 

deed at that time. 

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 The application would then be reviewed by the planners, who 

would notify the applicant of any revisions to the plat they 

required for final approval. Typically, a required revision 

specified removal of "the first divisions from these plats by 

removing the bold lines from their perimeter, adding their 

proper deed book and page number, and half-toning this 

information." When the suggested revisions were made, including 

recordation of the "first division" deeds, the applications and 

the plats received the County's final approval. 

 The evidence established that this practice and procedure 

generally had been followed by the County since 1978; it 

specifically had been followed when this subdivider developed 

the Pin Oak Place subdivision in 1995. 

 When the subdivider filed the applications and plats for 

Sugar Maple on October 9, 1996, he employed the foregoing 

application procedure that existed under the ordinances in 

effect immediately prior to that date. Specifically, he did not 

include a deed book and page number for the "first division" 

lots related to development of Sections A through E, although 

such lots were shown on the plats. 

 In disapproving these applications in the letter of 

October 29, the County stated that the "new ordinance eliminated 

. . . both 'first divisions' and 'the 25 acre rule' as 

interpretations of the zoning and subdivision ordinances." 

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 Continuing, the County wrote that the "staff has completed 

its review of your application and is notifying you that your 

subdivision plat and application, filed on October 9, 1996, 

titled 'Sugar Maple', . . . is DISAPPROVED because of failure to 

record first division lots (Title I. Art 5. Sec. 2.7-1)." 

Section 2.7-1 of the County Code related to lot size 

requirements for single family dwellings and provided: "2 

acres, after the first conveyance all lots must be 10 acres or 

greater." 

 At the conclusion of the evidentiary hearing, the trial 

court ruled in favor of the County. The court rejected the 

subdivider's argument that, according to the provisions of the 

grandfather clause of the new ordinances, his applications and 

plats should have been considered according to the County's 

practices and procedures employed under the old ordinances. 

 The court responded that, after October 9, the "first 

division" lots were required to be recorded at the time the 

application was filed. Continuing, the court said: "My reading 

of the grandfather clause means that everything has to have been 

done because of the artificial barrier that was placed on 

October 9. After October 9, the Planning Commission, the 

County, couldn't do what had been done before, which was a 

process of application amendment and, ultimately, approval. The 

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County was not empowered to do it after that so the process 

became, in effect, a one-day process." 

 In a February 2000 final decree, the trial court dismissed 

the subdivider's petition, finding that the County's 

"disapproval was properly based on the applicable ordinances and 

was not arbitrary or capricious." The subdivider appeals. 

 The County, urging affirmance of the trial court's order, 

contends in a circular argument that in "applying [the 

grandfather clause], the County staff gave applicants the 

benefit of the Rule in determining whether applications were 

filed 'in compliance with all substantive zoning and subdivision 

requirements. . . .' In the case of Sugar Maple, Sections A 

through E, the staff determined that there was not compliance 

with the requirements of the Rule. The Subdivision did not 

comply with substantive provisions of either old or new 

ordinances, in that lot sizes were less than the old or new (ten 

acre) minimums, and the divisions were not made correctly." We 

do not agree that the County's disapproval properly was based on 

the applicable ordinances, and the trial court erred in so 

ruling. 

 As demonstrated by the foregoing portion of its argument, 

the County in one breath says that, in applying the grandfather 

clause, the "staff gave applicants the benefit of the Rule." 

But in the next breath, the County says that the Sugar Maple 

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filings were "not in compliance with the requirements of the 

Rule." This argument disregards the evidence. 

 There is no conflict in the evidence about the provisions 

and administration of the "25-acre Rule." Indeed, the testimony 

of John Howard Hodges, the County's Director of Planning in 

October 1996, corroborates the testimony of the subdivider's 

witnesses about the practice and procedure the County routinely 

followed under the old ordinances in allowing "first division" 

lots to be recorded under the "Rule" subsequent to filing of the 

application. As a matter of fact, reasonably to be inferred 

from the evidence is the conclusion that the County Board of 

Supervisors recognized and tacitly approved the planning staff's 

employment of the "Rule" under the old ordinances. When the 

trial court, referring to the "Rule," asked Hodges, "Whose 

bright idea was that?", Hodges responded, "The Board of 

Supervisors always does the right thing." 

 The grandfather clause mandates that if "complete" 

applications for final subdivision approval have been filed 

before the close of business on October 9, 1996, and if such 

applications were "in compliance with all substantive zoning and 

subdivision ordinance requirements" then effective, those 

applications shall be reviewed in accordance with those 

requirements. The County does not dispute that the applications 

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the subdivider filed for the sections of Sugar Maple at issue 

here were "complete." 

 Rather, the County maintains the applications failed to 

comply with old or new substantive ordinance requirements. But 

the evidence is clear that, under the County's administrative 

interpretation of the substantive requirements of the old 

ordinances, "first divisions" were permitted under the "25-acre 

Rule," and the first division deed did not have to be recorded 

when the applications were filed initially, as long as they were 

recorded prior to final approval. For purposes of this 

discussion, it is irrelevant that the applications did not 

comply with the new substantive ordinance requirements. 

 Incidentally, the County does not contend that employment 

by its planners of the "25-acre Rule" was an impermissible 

administrative interpretation or that it was prohibited 

legislative action taken by an administrator, as discussed in 

cases like Board of Zoning Appeals for the County of York v. 852 

L.L.C., 257 Va. 485, 489, 514 S.E.2d 767, 769-70 (1999). 

Indeed, the County's October 29 letter of disapproval refers to 

the "first divisions" and the "Rule" as its "interpretations" of 

the ordinances. 

 Therefore, we hold that, under the grandfather clause, this 

subdivider is entitled to have his "complete" Sugar Maple 

(Sections A through E) applications reviewed in accordance with 

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the pre-existing substantive ordinance requirements, as 

interpreted employing the pre-existing "Rule." Cognizant of the 

"Rule," the County Board of Supervisors, in enacting the 

grandfather clause, manifestly intended such a result. 

 This means that the County is prohibited from requiring the 

deed book and page number of "first division" lots to be 

included in the applications and plats initially, as long as 

such information is provided prior to final County approval of 

the applications and plats. In other words, the former 

standards must be applied to applications and plats filed, as 

here, before the close of business on October 9, 1996. 

 Consequently, the judgment below will be reversed, and the 

case will be remanded with direction that the circuit court 

order the County to accept the applications and plats in issue 

and that they be reviewed by the County in accordance with the 

standards existing when they were filed on October 9, 1996. 

Reversed and remanded.

JUSTICE KINSER, with whom JUSTICE LACY joins, dissenting. 

 As the majority correctly notes, the interpretation of the 

so-called “grandfather clause” is the central controversy in 

this case. Because I believe that the majority fails to 

interpret that clause according to its plain, unambiguous terms, 

I respectfully dissent. 

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 The “grandfather clause” at issue in this appeal provides 

that “[c]omplete applications for final subdivision approval 

which have been filed before the close of business on October 9, 

1996, which were in compliance with all substantive zoning and 

subdivision ordinance requirements in effect on that date shall 

be reviewed in accordance with those requirements.” Hanover 

County, Va., Subdivision Ordinance No. 96-17, § 8(4)(a)(Oct. 9, 

1996). I find the terms of that clause to be plain and 

unambiguous. Thus, “there is no need for construction by the 

court; the plain meaning and intent of the enactment will be 

given it.” Brown v. Lukhard, 229 Va. 316, 321, 330 S.E.2d 84, 

87 (1985) (citing School Bd. v. School Bd., 219 Va. 244, 250, 

247 S.E.2d 380, 384 (1978)); accord Dairyland Ins. Co. v. Sylva, 

242 Va. 191, 194, 409 S.E.2d 127, 129 (1991). Thus, to trigger 

the right of A.G. Bertozzi to have his application for final 

approval of the subdivision known as “Sugar Maple” reviewed 

under Hanover County’s prior subdivision ordinances, his 

application must have been “in compliance with all substantive 

zoning and subdivision ordinance requirements in effect” before 

October 9, 1996. 

 For purposes of this appeal, the relevant substantive 

requirement in effect before the October 9th deadline was former 

§ 2.7-1 in Title I, Article 5 of the Hanover County Code. That 

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section, along with the definition of the term “subdivision,”*

formed the basis for the administrative interpretation known as 

the “25-acre Rule.” Section 2.7-1 stated that the minimum lot 

size for a single family dwelling was “2 acres, after the first 

conveyance all lots must be 10 acres or greater.” The term 

“conveyance” means the “transfer of title to land from one 

person, or a class of persons, to another by deed.” Black’s Law 

Dictionary 333 (6th ed. 1990). 

In my view, the provisions of § 2.7-1 required an actual 

conveyance of the two-acre “first division” lot before a 

subdivider, such as Bertozzi, could submit an application for 

final approval of a subdivision utilizing the “25-acre Rule.” 

Under the “grandfather clause,” compliance with that substantive 

requirement had to occur before the close of business on October 

9, 1996. While I recognize that the County had developed a 

practice that allowed a subdivider to file an application for 

final approval before recording the deed evidencing conveyance 

of the “first division” lot, that practice was not part of the 

substantive zoning and subdivision ordinance requirements in 

effect before October 9, 1996. The “grandfather clause” 

requires compliance with substantive subdivision requirements, 

not compliance with the County’s prior practice or procedure. 

 *

 A subdivision for tracts of this size was a “division of a tract or 

parcel of land into three (3) or more parts, any of which contain an area of 

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Yet, the majority allows Bertozzi’s application for final 

approval of the subdivision to be reviewed in accordance with 

that practice. 

Notably, Bertozzi’s application was not the only one denied 

after October 9th because the subdivider failed to record a deed 

evidencing a “first division” conveyance before submitting an 

application for final approval. John Howard Hodges, Deputy 

County Administrator for Hanover County, testified that no one 

was allowed to record a two-acre “first division” after October 

9th. During cross-examination, he reiterated that any 

applications received before the deadline that did not have the 

“first division” were not approved. The County’s consistent 

construction of the “grandfather clause” is entitled to great 

weight. See Cook v. Board of Zoning Appeals, 244 Va. 107, 111, 

418 S.E.2d 879, 881 (1992) (citing Masterson v. Board of Zoning 

Appeals, 233 Va. 37, 44, 353 S.E.2d 727, 733 (1987)). 

Thus, I believe that the circuit court correctly determined 

that the County’s disapproval of Bertozzi’s application was 

based on the applicable ordinances and was not arbitrary or 

capricious. Bertozzi did not convey a “first division” lot 

prior to the close of business on October 9th. Thus, he did not 

comply with the substantive subdivision ordinances in effect 

 

ten(10) or more acres, but less than twenty-five (25) acres . . . .” Hanover 

County, Va., Zoning Ordinance Title III, Article 5, § 2-6 (Sep. 27, 1972). 

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prior to the October 9th deadline. Additionally, there is no 

evidence that the County did not consistently interpret and 

apply the provisions of the “grandfather clause.” For these 

reasons, I would affirm the judgment of the circuit court. 

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