Present: All the Justices 

JAMES B. LOVELACE, ET AL. 

v. Record No. 071338 OPINION BY JUSTICE DONALD W. LEMONS 

 June 6, 2008 

ORANGE COUNTY BOARD OF 

ZONING APPEALS 

FROM THE CIRCUIT COURT OF ORANGE COUNTY 

F. Ward Harkrader, Judge Designate 

 In this appeal, we consider whether the Circuit Court of 

Orange County erred by affirming the Orange County Board of 

Zoning Appeals’ decision that upheld a zoning administrator’s 

decision to deny a permit for the construction of a 

residential dwelling with a garage and shed. 

I. FACTS AND PROCEEDINGS BELOW 

In October 2001, the Board of Supervisors of Orange 

County granted Virginia Timberline, LLC (“Timberline”) a 

special use permit to develop a cluster subdivision along the 

shore of Lake Anna. The permit, in letter form, stated: 

“Final approval of the subdivision plan is subject to the 

approval of a specific open space/recreation plan for the 

reserve area of development.” 

 In March 2002, Timberline filed a plat of the subdivision 

with the Clerk’s Office of the Circuit Court of Orange County. 

The plat depicts thirty lots of approximately one acre each 

lining the north shore of Lake Anna. A 106.36 acre parcel 
described on the map as “REMAINING LAND” is located 

immediately to the north of the subdivided lots. 

Next to the map on the plat is a column of notes. The 

sixth of the eleven typed notes states: “Current zoning of all 

parcels: Agricultural (A). This property is subject to a 

special use permit that allows cluster developments granted by 

the Orange County Board of Supervisors.” Below those notes, 

the following statement appears on the plat: “Reserved area as 

shown hereon is intended as open space as part of Daniel’s 

Point subdivision and is not to be further developed or 

subdivided.” The plat also states that “[t]he subdivision 

shown on this plat has been reviewed and approved by [Orange 

County] in accordance with existing regulations, and may be 

committed to record.” No additional declaration of covenant 

was filed with the clerk of court to restrict the parcel 

pursuant to § 70-736(c) of the Orange County Code. 

In August 2003, James and Barbara Lovelace (“Lovelace”) 

purchased the 106 acre parcel identified on the map as 

“REMAINING LAND.” Lovelace purchased the parcel from the 

principals of Timberline and their spouses who had obtained 

the parcel from the developer. Lovelace applied for a zoning 

permit to build a residence with a garage and shed in March 

2006. The permit was initially approved. However, the zoning 

administrator (“administrator”) later declared that the permit 

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was “null and void and was issued in error.” The 

administrator contended that the “reserved area” referred to 

on the plat is the “REMAINING LAND” shown on the map. Because 

Orange County Code § 70-736(a) states that “[t]he zoning 

administrator shall issue no zoning permit and the subdivision 

agent shall approve no plat that would violate the terms or 

the intent of [the preservation of the reserved areas],” the 

administrator concluded that Lovelace’s 106 acres could not be 

developed in any manner because it is reserved as open space. 

Lovelace appealed the administrator’s decision to the 

Orange County Board of Zoning Appeals (“BZA”). After a 

hearing, the BZA unanimously voted to uphold the 

administrator’s decision. Lovelace appealed the BZA decision 

to the Circuit Court of Orange County, pursuant to Code 

§ 15.2-2314. The trial court held that in spite of the 

careless procedures followed, the plat and the use 

restrictions listed on it were in the chain of title and were 

therefore binding on Lovelace. The circuit court held that 

the “reserved area” mentioned on the plat refers to the area 

on the map described as “REMAINING LAND” and that the 

“property was intended to be considered a part of the Daniel’s 

Point cluster subdivision and was to be an open-space preserve 

for the benefit of the smaller lots in the Subdivision.” The 

trial court affirmed the BZA’s decision that the restriction 

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applied to the Lovelace parcel and that as a result, no 

structures could be built on the parcel. 

We granted Lovelace this appeal upon seven assignments of 

error in which Lovelace argues that the plat notation 

restricting a “reserved area” does not apply to the Lovelace 

parcel and that even if the parcel is bound by the notation, 

it does not prevent Lovelace from building a single-family 

dwelling. 

II. ANALYSIS 

On appeal before a circuit court, the BZA’s findings and 

conclusions on questions of fact are presumed correct, however 

the circuit court reviews the BZA’s conclusions of law de 

novo. Code § 15.2-2314. Likewise, on appeal to this Court, 

the circuit court’s findings of fact are presumed correct, but 

its conclusions of law are reviewed de novo. See Trustees of 

the Christ and St. Luke’s Episcopal Church v. Board of Zoning 

Appeals, 273 Va. 375, 381, 641 S.E.2d 104, 107 (2007). 

On appeal, Lovelace asserts that in order for the special 

use permit restrictions to apply to Lovelace’s property, the 

Orange County Code required the developer to file a 

declaration of covenant with the clerk of court. Lovelace 

argues that because the developer never filed a declaration of 

covenant, there are no restrictions on the Lovelace parcel. 

Moreover, Lovelace maintains that the ambiguous plat notation 

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does not serve as a substitute for a recorded declaration of 

covenant. We agree with Lovelace. 

On this record, we hold that the failure to record a 

declaration of covenant combined with the use of ambiguous 

language on the plat results in an ineffective attempt to 

restrict the use of Lovelace’s parcel. Orange County Code 

§ 70-736(c) provides, in pertinent part: 

The reserved area may be held by the original 

owner. The owner shall file with the clerk of 

the court a declaration of covenant stating 

that, in consideration of the county’s approval 

of the subdivision as a cluster development, the 

owner agrees not to further subdivide or develop 

the reserved area, but to use it only for 

agriculture, forestry, recreation and open 

space. Such declaration of covenant shall run 

with the land and shall be approved by the 

county attorney and the zoning administrator. 

Orange County Code § 70-736(c) (emphasis added).* Such a 

declaration of covenant properly filed in the land records 

pursuant to the requirements of the ordinance would have 

placed Lovelace on notice of restrictions upon development. 

 Absent a recorded declaration of covenant, the only 

possible notice Lovelace received concerning the subject 

property was an ambiguous restriction listed in notes on the 

plat. Restrictions on “the free use of land, although widely 

 *

 As of November 15, 2006, Orange County Code §§ 70-731 to 

70-737 were repealed. References in this opinion to those 

Orange County Code sections pertain to the version in effect 

before the 2006 amendments. 

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used, are not favored and must be strictly construed and the 

burden is on the party seeking to enforce them to demonstrate 

that they are applicable to the acts of which he complains.” 

Waynesboro Village, L.L.C. v. BMC Properties, 255 Va. 75, 80, 

496 S.E.2d 64, 67 (1998) (quoting Friedberg v. Riverpoint 

Bldg. Comm., 218 Va. 659, 665, 239 S.E.2d 106, 110 (1977)); 

see also Scott v. Walker, 274 Va. 209, 212-13, 645 S.E.2d 278, 

280 (2007) (same) and Riordan v. Hale, 215 Va. 638, 641, 212 

S.E.2d 65, 67 (1975) (same). Substantial doubt or ambiguity 

is to be resolved against the restrictions and in favor of the 

free use of property. Scott, 274 Va. at 213, 645 S.E.2d at 

280; Schwarzschild v. Welborne, 186 Va. 1052, 1058, 45 S.E.2d 

152, 155 (1947). We have defined “ambiguity” as “the 

condition of admitting of two or more meanings, of being 

understood in more than one way, or of referring to two or 

more things at the same time.” Berry v. Klinger, 225 Va. 201, 

207, 300 S.E.2d 792, 796 (1983) (quoting Webster’s Third New 

Int’l Dictionary 66 (3d ed. 1976)). These principles guide our 

resolution of this case. 

We hold that the language on the plat is ambiguous as a 

matter of law. Although the plat states that the “reserved 

area” is intended as open space for the benefit of Daniel’s 

Point subdivision, there is no area on the map designated as 

“reserved area.” The 106 acres that Lovelace purchased is 

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described on the map as “REMAINING LAND” and there is no 

notation on the plat restricting the “REMAINING LAND.” If the 

“reserved area” restriction was intended to refer to 

Lovelace’s property, it would have been easy to say so and its 

application would not be left to the uncertainty of inference. 

See Scott, 274 Va. at 218, 645 S.E.2d at 283; Schwarzschild, 

186 Va. at 1058, 45 S.E.2d at 155. 

The trial court correctly observed that “the chain of 

title to the subject property is so lacking with respect to 

the use restrictions . . . that it amounts to sloppy 

procedures that wind up harming innocent parties.” However, 

the trial court erred in holding that the plat notes, 

nonetheless, prohibited the Lovelace’s ability to build a 

residence with garage and shed. Because we hold that the plat 

in question imposes no restrictions on the 106 acre parcel 

that Lovelace purchased and no declaration of covenant was 

recorded in the land records, we need not address Lovelace’s 

second argument that even if the Lovelace parcel is bound by 

the plat notion, the language cannot prevent Lovelace from 

building a single-family dwelling. 

III. CONCLUSION 

 For the reasons stated, the judgment of the circuit court 

will be reversed and the case will be remanded for entry of an 

order stating that the notations on the March 2002 plat 

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restricting a “reserved area” do not prohibit Lovelace from 

building the proposed residence with garage and shed, to be 

recorded among the land records. 

Reversed and remanded.