Developers chummy with family land law

Suffolk's allowance for “family transfers” of land — and, yes, that’s what they’re called — is unique among cities in the state of Virginia, which is probably just as well.

Such deals can be confusing, even for land-use wonks, the consequences are often at odds with good planning, and the byzantine nature of the rules themselves (which depend in part on intention and self-reporting) invite mischief if not worse.

The law is supposed to allow a family patriarch or matriarch to subdivide holdings to allow children and assorted relatives to build homes nearby, thereby preserving the nuclear family.

In practice, though, some argue it allows a developer to build more houses on property where they wouldn’t otherwise be permitted and build them without those pesky requirements for water, sewer or basic infrastructure generally considered a necessity for civilization.

Absolutists argue that any limitation on what an owner does with his land is an unacceptable diminution of property rights. Smart-growth advocates argue that without reasonable restrictions on land use, it is otherwise impossible for a municipality to plan where it should put roads, sewers, water lines, schools, fire and police stations.

Neither property rights absolutists nor smart-growth advocates particularly like rules like Suffolk’s. About the only folks who do are the landowners who take advantage of it, to the tune of 600 applications in the past 20 years.

The subject came up often when the city was debating the Unified Development Ordinance a decade ago, and it emerges from time to time when a homeowner in extremis seeks an exemption from a requirement that they live on the property for 10 years.

It also came up last week, in a story by The Pilot’s Dave Forster, when Jesse Johnson was named as having handled the legal work on two transfers that appeared intended to “circumvent the City’s Subdivision regulations,” according to city officials. Johnson is the husband of Mayor Linda Johnson and the law partner of City Council member Jeff Gardy.

Forster’s story said city officials are now investigating. It also would be wise for the city to investigate changes to the city’s code. “Family transfers” have long been considered a particularly fertile ground for manipulation, especially as Suffolk began to tighten the rules for what people could build and where. Such deals can complicate title to a piece of land to the point that it may not be clear who owns what.

The mistake the city made was not in permitting exemptions to its land-use guidelines. Or in allowing a farmer to carve off a piece of property for a daughter’s house.

The mistake the city made was in refusing to make such deals an exception rather than a rule.

By making “family transfers” a provision in code, and by approving almost everyone’s application, officials essentially invited land­owners to game the city’s own land-use guidelines. By setting a top penalty of $500 for any violation, the city invited landowners to consider a fine the cost of doing business.

The city could prevent further manipulation of the family transfer provision by significantly tightening the requirements, by casting a more skeptical eye on applications and by making the penalty for breaking the rules far more painful.