Present: All the Justices 

HANOVER COUNTY 

 OPINION BY JUSTICE CYNTHIA D. KINSER 

v. Record No. 972283 September 18, 1998 

A.G. BERTOZZI 

FROM THE CIRCUIT COURT OF HANOVER COUNTY 

Richard H.C. Taylor, Judge 

Hanover County (the County) seeks reversal of the circuit 

court’s judgment ordering the County to review A.G. Bertozzi’s 

(Bertozzi) plats for Sections A through G of his proposed 

subdivision titled Sugar Maple under the terms of zoning and 

subdivision ordinances in effect prior to October 9, 1996. 

Because Bertozzi failed to submit complete applications and plats 

for Sections F and G before an October 9, 1996 deadline, we will 

reverse the circuit court’s judgment with respect to those two 

sections. As to Sections A through E, we will reverse the trial 

court’s judgment and remand the case because the record is devoid 

of any evidence concerning whether the County’s disapproval of 

Bertozzi’s applications and plats for those sections was based on 

the applicable ordinance, or was arbitrary or capricious. 

I. 

On October 9, 1996, the Hanover County Board of Supervisors 

(the Board) adopted zoning and subdivision Ordinance Nos. 96-17 

and 96-18, which significantly changed the rural subdivision 

requirements for the County. However, the revised ordinances 
contained a “grandfather clause” that permitted “[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 [to] be reviewed in accordance 

with those requirements.” 

 In a letter dated May 7, 1996, Bertozzi’s agent informed the 

Hanover County Planning Office (the Planning Office) that Bertozzi 

was interested in developing a subdivision on 181 acres of real 

estate that he owned in the County. Bertozzi sent the Planning 

Office three drawings that showed the existing division of the 

land for tax purposes and two tentative subdivision layouts. 

Subsequently, on October 9, 1996, Bertozzi recorded a plat 

subdividing his property into seven tracts labeled Sections A 

through G. Each section contained slightly more than 25 acres. 

That same day, Bertozzi filed applications with the Planning 

Office for final approval of “SECTION ‘A’ through SECTION ‘E’” of 

Sugar Maple subdivision. Along with the application for each 23-

acre section of the subdivision, Bertozzi submitted a plat showing 

the division of the section into four lots. On each plat one lot 

was labeled the “First Division” and contained approximately two 

acres. The remaining 23 acres were subdivided into three lots, 

one consisting of approximately two acres and the remaining two 

containing approximately ten acres each. However, the letter to 

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the Planning Office that accompanied the applications stated that 

the “[f]iling for review of Sections ‘F’ and ‘G’ will be 

forthcoming.” Thus, Bertozzi did not file applications or plats 

for final approval of Sections F and G before the close of 

business on October 9, 1996.1

The Board, by a letter dated October 29, 1996, notified 

Bertozzi that it disapproved his subdivision applications for 

Sections A through E of Sugar Maple “because of failure to record 

first division lots (Title I. Art. 5. Sect. 2.7-1).” The noted 

defect in Bertozzi’s applications was based on an alleged 

administrative interpretation of the previous zoning and 

subdivision ordinances. This interpretation, referred to as the 

“twenty-five acre Rule” (the “Rule"), permitted developers to 

subdivide their land into more lots than would have been allowed 

under a strict interpretation of the previous ordinances. 

Allegedly, under the “Rule,” a landowner, who recorded a plat 

subdividing a large parcel of land into 25-acre tracts, must next 

record, by deed or plat, a two-acre “First Division” lot in each 

of the 25-acre parcels. The landowner could then subdivide the 

remaining 23 acres into two ten-acre tracts and one three-acre 

____________________ 1

 The applications and plats for Sections A through E bear a 

stamp showing receipt by the Planning Office on October 9, 1996. 

The applications and plats for Sections F and G contain no such 

receipt stamps. Bertozzi acknowledged in his brief to this Court 

that the plats for Sections F and G were not submitted to the 

Planning Office until October 10, 1996. 

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tract.2 According to the Board, Bertozzi did not comply with the 

“Rule” because he submitted his subdivision plats for Sections A 

through E before he recorded a deed or plat for the “First 

Division” lot in each of the 25-acre sections. 

 Bertozzi appealed the Board’s disapproval to the circuit 

court and asserted that his applications and plats fully complied 

with all the requirements of the County’s zoning and subdivision 

ordinances in effect before the October 9, 1996 revisions and that 

the Board’s disapproval was, therefore, both “improper” and 

“arbitrary and/or capricious.” After considering memoranda and 

argument by both parties, but without receiving any evidence, the 

court ruled in favor of Bertozzi. In its decree dated July 30, 

1997, the court directed that the “subdivision plats titled Sugar 

Maple, Sections A-G . . . be accepted and reviewed by the County 

pursuant to the requirements of ordinances in effect prior to 

October 9, 1996 . . . .” The County appeals. 

II. 

__________________ 

 

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 The “Rule” was purportedly based on two provisions of the 

prior ordinances, specifically the definition of the term 

“subdivision” and the minimum lot size for a single-family 

dwelling. “Subdivision” was defined as “[t]he division of a tract 

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

contain an area of ten (10) or more acres, but less than twentyfive (25) acres . . . .” Hanover County, Va., Code tit. III, § 2-

6 (1972). The minimum lot size for a single-family dwelling in 

the A-1 Agricultural District was “2 acres, after the first 

conveyance all lots must be 10 acres or greater.” Id. at tit. I, 

art. 5, § 2.7-1. 

4
 We will first address whether the circuit court erred in 

giving Bertozzi the benefit of the “grandfather clause” with 

regard to Sections F and G. Although Bertozzi did not submit the 

final plats for Sections F and G to the Planning Office before the 

close of business on October 9, 1996, he argues that his 

applications were, nevertheless, complete by that deadline. 

According to Bertozzi, he advised the County on October 9, 1996, 

that the plats for Sections F and G would be forthcoming and that 

they were, in fact, submitted the next day. He also argues that 

the County had notice of Sections F and G because he gave the 

County tentative drawings of the entire subdivision on May 7, 

1996. We disagree. 

“Where the language in an ordinance . . . is plain and 

unambiguous, it must be given that plain meaning or intent.” 

Board of Supervisors of Fauquier County v. Machnick, 242 Va. 452, 

456, 410 S.E.2d 607, 609 (1991). In order to have a subdivision 

plat reviewed under the terms of the County’s prior ordinances, 

the plain and unambiguous language of the "grandfather clause" 

requires a landowner to have filed an application for final 

subdivision approval before the close of business on October 9, 

1996. The application had to be complete and in compliance with 

all substantive zoning and subdivision ordinance requirements. 

Bertozzi did not file applications and plats for Sections F and G 

before the October 9, 1996 deadline. Neither his cursory 

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statement in his October 9, 1996 letter to the Planning Office 

that final plats for Sections F and G would be “forthcoming” nor 

his tentative May 1996 drawings showing Sections F and G 

constitute a complete application. Thus, Bertozzi did not comply 

with the requirements necessary to receive the benefit of the 

“grandfather clause.” We hold, therefore, that the circuit court 

erred in ordering the County to review Sections F and G under the 

terms of the zoning and subdivision ordinances in effect prior to 

October 9, 1996. 

 We next address the circuit court’s decision regarding 

Sections A through E of the subdivision. In doing so, we must 

“examine the record to determine whether the evidence sustains the 

court’s findings of fact . . . and those of the [County].” West 

v. Mills, 238 Va. 162, 168, 380 S.E.2d 917, 921 (1989). 

The circuit court reviewed the County’s disapproval of 

Bertozzi’s application pursuant to Code § 15.1-475(B)(3) (now Code 

§ 15.2-2259(C)) which provides, in pertinent part: 

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 . . . . 

Thus, Code § 15.1-475 limits the circuit court’s review to a 

determination regarding whether the County’s disapproval was “not 

properly based on the ordinance applicable thereto, or was 

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arbitrary or capricious.” West, 238 Va. at 168, 380 S.E.2d at 

920.3

 Despite this specific statutory directive regarding the scope 

of its review, the circuit court never enunciated any finding that 

the County’s disapproval was either not based on the applicable 

ordinance, or was arbitrary or capricious. In fact, the court 

could not have made any such finding because it did not receive 

sufficient evidence from either party upon which to base a 

decision. 

 For example, the County applied the requirements of the socalled “Rule” to disapprove Bertozzi’s applications; however, this 

“Rule” was an unwritten, administrative interpretation of the 

County’s prior zoning and subdivision ordinances that is not 

readily apparent from reading the ordinances. Therefore, evidence 

regarding the existence of the “Rule,” its purpose, and its prior 

application was crucial. Without such evidence, the circuit court 

could not have determined whether the County’s disapproval “was 

not properly based on the ordinance applicable thereto, or was 

arbitrary or capricious.” 

____________________ 3

 This limitation on the scope of the circuit court’s review 

does not mean that the court cannot approve a plat after finding 

that a disapproval was not based on the applicable ordinance, or 

was arbitrary or capricious. See Hylton Enter., Inc. v. Board of 

Supervisors of Prince William County, 220 Va. 435, 442, 258 S.E.2d 

577, 582 (1979) (finding statutory language authorizes circuit 

court to approve plat). 

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Nevertheless, Bertozzi contends that on March 14, 1997, the 

circuit court held a hearing during which the court heard evidence 

and reviewed exhibits. However, correspondence between counsel 

reflects that the March 14, 1997 meeting with the circuit court 

was a “pre-trial conference” to “review the status” of the case 

and was not an evidentiary hearing. In addition, no transcript or 

written statement of facts of that conference exists. See Rule 

5:11. 

Furthermore, during oral argument on June 24, 1997, for the 

purported purpose of presenting a final decree to the court, the 

County noted the lack of evidence and questioned the basis for a 

final order. The County also included the lack of evidence in its 

objections to the final decree. Moreover, the circuit court 

stated in its decree that it had reached its decision after 

considering Bertozzi’s petition, the County's response, memoranda, 

and argument of counsel. Thus, the court itself acknowledged that 

it did not receive or consider any evidence on the issue. 

Therefore, having a record devoid of any evidence and factual 

findings, we cannot “examine the record to determine whether the 

evidence sustains the court’s findings of fact.” West, 238 Va. at 

168, 380 S.E.2d at 921. 

Accordingly, we will reverse the circuit court’s judgment 

with respect to Sections F and G and enter final judgment in favor 

of the County. We will also reverse the circuit court’s judgment 

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as to Sections A through E, but remand the case for an evidentiary 

hearing regarding whether the County’s disapproval of Sections A 

through E of the subdivision was “not properly based on the 

ordinance applicable thereto, or was arbitrary or capricious.” 

Reversed and remanded. 

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