ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Friday, June 28, 1996 TAG: 9606280024
SECTION: EDITORIAL PAGE: A-10 EDITION: METRO
SOURCE: LEONARD J. UTTAL
THE MONTGOMERY County Board of Supervisors' June 17 decision to grant permission to the Virginia Department of Transportation to condemn certain land lying within Agricultural/Forestal District-7 for building part of the proposed "smart'' road has already been called treachery by one letter writer. Indeed, it is a travesty of justice.
The decision cannot be allowed to stand because it sets the bad example that if a law is found to be inconvenient, it may be compromised. This should be the last thing a local governing body wants to do, whatever economic consequences some see in such action. The issue is a matter of law, not economics. Much effort was spent by opponents of the smart road's routing to stress that legal consequences of this ill-advised action are all that is of concern here. If not properly handled at this time, the problem will come back time and again.
The applicable state law is Code of Virginia Chapter 36.1, Local Agricultural and Forestal Districts Act, 1982, Sections 15.1, subsections C and D, 15.1-1513, subsection A, and 15.1-1513.2. It's readily available in libraries, public-service attorneys' offices and private attorneys' offices. Copies are made available without charge by most staffs of such offices. The text is brief, clear and nonlegalistic in language. No one should accept anything I say without checking the source.
An agricultural/forestal district is formed from private lands as a mechanism to keep agricultural and forestal land free from nonfarm and nonforestry use under the protection of this state law, which gives local governing bodies the obligation to enforce the concept. Part of the purpose of an agricultural/forestal district is to serve the public health and safety through maintaining open spaces.
Many states have similar laws. I've never heard of a single previous case where an agricultural/forestal district was regarded by some to constitute any inconvenience. The smart-road case will be a landmark decision. It must be made on the basis of law, not nonempirical economic claims. The law strongly urges proponents of nonfarm and nonforestry actions in an agricultural/forestal district to go outside the district.
Summarized particulars of the law follow:
"It shall be the policy of all agencies of the Commonwealth [not excepting VDOT] to encourage the maintenance of farming and forestry in [AF] districts and all administrative regulations and procedures shall be modified to this end.''
How can it be said the Board of Supervisors complied with this section of the law in telling VDOT's to condemn agricultural/forestal district land?
No nonfarm or nonforestal action can take place on AFD land, with four specific exemptions: 1. Construction of dwellings. 2. Commercial and industrial facilities. 3. Water or sewer facilities to serve nonfarm structures. 4. Public utility facilities (under certain circumstances).
Note that the building of roads is excluded. The purpose of these specific listings is to limit as much as possible nonfarm and nonforestal actions on agricultural/forestal district land - it having been decided that these are essential. The ordinance provides no procedure for de novo adding to this list. In this case, the Board of Supervisors' decision to grant permission to VDOT to condemn agricultural/forestal district land for road building is, in effect, modifying a section of a law by fiat to suit a convenience. In this country, we don't modify laws by fiat, but by procedures given in our federal and state constitutions. The supervisors' erroneous action is too egregious to be allowed to stand. I don't believe it can stand under test.
Finally, "any owner of land lying in such (AF) district may file ... written request to withdraw all or part of such land for good and reasonable cause" (subject to official reviews and public hearing). Please note this section doesn't provide for any local governing body to allow any public agency to condemn agricultural/forestal district land for road building.
The statute provides nowhere in its text for any exception to take land from a district by anyone but the landowner, and then not too easily. This law is as serious as any other state law, and it is very important to uphold it since in many places it's the only means to maintain necessary open spaces in the face of on-rushing avidity to overdevelop and urbanize. There are almost always other ways to obtain desired ends than violating the law. They simply haven't been pursued enough in this case.
Leonard J. Uttal of Blacksburg has retired as a technician in the biology department at Virginia Tech.
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