What happened to Virginia land-use tax status when an owner requested more intensive zoning, and could intensively zoned farmland qualify later?

Plain-English summary

Virginia Attorney General Robert F. McDonnell concluded in 2008 that property enrolled in a land-use taxation program had to be removed and assessed roll-back taxes when the owner requested rezoning to a more intensive use. Liability attached when the rezoning or nonqualifying use occurred, so an owner's failure to report the change did not avoid the tax, penalties, or interest.

For property removed after owner-requested intensive rezoning, returning the land to farming for three years was not enough by itself to restore eligibility. The opinion read § 58.1-3237(E) to require rezoning to agricultural, horticultural, or open-space use, followed by the statutory three-year period after that subsequent rezoning.

The AG reached a different conclusion for intensively zoned property that had never received land-use taxation. That parcel could qualify if the local assessing officer made the factual determination that its commercial farming or forest use met the criteria in § 58.1-3230.

Currency note

This opinion was issued in 2008. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

The request involved a Spotsylvania County commercial farm whose owner had sought industrial zoning, entered a sand-and-gravel mining contract, and was mining most of the parcel. The owner had not reported the rezoning or use change to the commissioner of the revenue.

Section 58.1-3237(A) made qualifying property subject to roll-back taxes when its use changed to a nonqualifying use or its zoning changed to a more intensive use at the owner's request. Section 58.1-3238 said failure to report did not relieve the owner of roll-back-tax liability and could add penalties and interest.

Section 58.1-3237(E) governed future eligibility after owner-requested intensive rezoning. Sections 58.1-3230, 58.1-3233, and 58.1-3234 addressed qualifying uses, the local assessing officer's determination, and continued participation.

What the AG concluded

Owner-requested intensive rezoning triggered roll-back taxes. The property had to leave the land-use program when the qualifying use changed or the owner obtained more intensive zoning.

Failure to report did not postpone or erase liability. The AG said liability attached at the change and remained despite the owner's omission.

Previously removed property needed qualifying rezoning before reentry. The opinion required rezoning to agricultural, horticultural, or open-space use and the passage of three years after that rezoning.

Intensively zoned land never enrolled could still qualify. Eligibility turned on the local assessing officer's factual determination that the parcel satisfied § 58.1-3230's use criteria.

Common questions

Did continued farming prevent roll-back taxes after owner-requested industrial rezoning?
No. The opinion treated the owner-requested change to more intensive zoning as an independent trigger for removal and roll-back taxes.

What if the owner never told the commissioner of the revenue?
The AG said nonreporting did not relieve the owner of liability. Section 58.1-3238 also contemplated penalties and interest.

Could land removed from the program return after three years of farm use?
Not on farm use alone under this opinion. It first had to be rezoned to agricultural, horticultural, or open-space use, with three years passing after that subsequent rezoning.

Could already-industrial-zoned land enter the program for the first time?
Yes, if the local assessing officer found that the actual use met § 58.1-3230. The AG declined to make that parcel-specific factual determination.

Citations

• Va. Code Ann. §§ 58.1-3230, 58.1-3231, 58.1-3233, 58.1-3234
• Va. Code Ann. §§ 58.1-3237(A), (D), (E), 58.1-3238
• Moreno v. Moreno, 24 Va. App. 190, 480 S.E.2d 792 (1997)
• Prillaman v. Commonwealth, 199 Va. 401, 100 S.E.2d 4 (1957)
• Chesterfield County v. Stigall, 262 Va. 697, 554 S.E.2d 59 (2001)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2008/08-045-Williams.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Robert F. McDonnell

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

Attorney General

August 5, 2008

The Honorable Deborah F. Williams
Commissioner of the Revenue for Spotsylvania County
P.O. Box 178
Spotsylvania, Virginia 22553
Dear Commissioner Williams:
I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of
the Code of Virginia.
Issues Presented
You ask whether a parcel must be removed from the land use taxation program and assessed rollback taxes when the parcel is rezoned at the owner’s request to industrial use, and the owner fails to
report a change in the actual use to the commissioner of the revenue. You also ask whether agricultural
real property that was rezoned to a more intensive use, but which has been returned to use as a
commercial farm for a period of three years, must be rezoned to a less intensive use before it is eligible
for use taxation and assessment. Finally, you ask whether real property with intensive zoning may qualify
for land use taxation and assessment if its zoning has not changed, but is being commercially farmed or
used as forest and has never received land use taxation.
Response
It is my opinion that real property must be removed from the land use program and roll-back
taxes assessed when such property is rezoned to a more intensive use at the owner’s request. I also am of
the opinion that agricultural real property, which has been (1) rezoned at the owner’s request to a more
intensive use, (2) removed from the land use program, and (3) assessed roll-back taxes subsequently must
be rezoned to a less intensive use before it can be eligible to receive land use taxation again. Finally, it is
my opinion that real property with intensive zoning may qualify for land use assessment and taxation if
the local assessing official determines that it meets the criteria set forth in § 58.1-3230.
Background
You advise that an owner has requested that his commercial farm in Spotsylvania County be
rezoned to permit industrial use. You advise further that the property owner has a mining contract and
currently is mining the majority of the property for sand and gravel. You note that the owner eventually
intends to mine the entire parcel. Finally, you state that the owner has not reported the rezoning or the
change in use to the Spotsylvania County Commissioner of the Revenue.

The Honorable Deborah F. Williams
August 5, 2008
Page 2
Applicable Law and Discussion
1

In accord with the rule of statutory construction, in pari materia, statutory provisions are not to
2
be considered as isolated fragments of law. Such provisions are to be considered as a whole, or as parts
3
of a greater connected, homogeneous system of laws, or a single and complete statutory compilation.
Statutes in pari materia are considered as if they constituted but one act, so that sections of one act may
4
be considered as though they were parts of the other act.
“[A]s a general rule, where legislation dealing with a particular subject consists of a
system of related general provisions indicative of a settled policy, new enactments of a
fragmentary nature on that subject are to be taken as intended to fit into the existing
system and to be carried into effect conformably to it, and they should be so construed as
to harmonize the general tenor or purport of the system and make the scheme consistent
in all its parts and uniform in its operation, unless a different purpose is shown plainly or
with irresistible clearness. It will be assumed or presumed, in the absence of words
specifically indicating the contrary, that the legislature did not intend to innovate on,
unsettle, disregard, alter or violate a general statute or system of statutory provisions the
[5]
entire subject matter of which is not directly or necessarily involved in the act.”
Section 58.1-3237(A) provides that real property qualifying for land use assessment and taxation
becomes subject to roll-back taxes when the use qualifying the property “changes to a nonqualifying use”
or the zoning changes “to a more intensive use at the request of the owner or his agent.” Liability for roll6
back taxes attaches either at the time such change in use or rezoning occurs. Because liability for the
roll-back tax attaches at the time of a change to a nonqualifying use or a change in zoning, the failure by
an owner to report such change does not impact his liability for the roll-back tax. Section 58.1-3238
clearly and unambiguously provides that failure to report a change in use relating to property for which an
application for use value taxation was filed does not relieve such person from the liability for the rollback taxes. In fact, such person is liable for the roll-back taxes and any penalties and interest that may be
7
due. Section 58.1-3237(D) imposes a notice requirement that serves to facilitate the assessment of roll8
back taxes. Therefore, a property owner becomes liable for roll-back taxes when the property is rezoned
1

“In pari materia” is the Latin phrase meaning “[o]n the same subject; relating to the same matter.” BLACK’S
LAW DICTIONARY 807 (8th ed. 2004).
2
See Moreno v. Moreno, 24 Va. App. 190, 198, 480 S.E.2d 792, 796 (1997).
3
Id.
4
Id. at 197-98, 480 S.E.2d at 796.
5
Prillaman v. Commonwealth, 199 Va. 401, 405-06, 100 S.E.2d 4, 7 (1957) (quoting 50 AM. JUR., Statutes, § 349,
at 345-47, quoted in Washington v. Commonwealth, 46 Va. App. 276, 298, 616 S.E.2d 774, 785 (2005) (Benton, J.
& Fitzpatrick, C.J., dissenting)); see also Smith v. Kelley, 162 Va. 645, 651, 174 S.E. 842, 845 (1934) (noting that in
absence of words to contrary, legislature did not intend to alter or repeal general statute or system).
6
See VA. CODE ANN. § 58.1-3237(D) (2004); Chesterfield County v. Stigall, 262 Va. 697, 702-03, 554 S.E.2d 59,
52 (2001).
7
Section 58.1-3238 (2004). Section 58.1-3238 imposes a further penalty when a material misstatement regarding
taxes is made with the intent to defraud a locality.
8
See 1980-1981 Op. Va. Att’y Gen. 355, 357 (interpreting § 58-769.10, predecessor to § 58.1-3237).

The Honorable Deborah F. Williams
August 5, 2008
Page 3
to a more intensive use at his or his agent’s request, or the use of the property changes from a qualifying
9
to a nonqualifying use.
Section 58.1-3237(E) addresses the future eligibility for land use taxation and assessment of real
property and provides that property rezoned to a more intensive use at the request of an owner or his
agent is not eligible for land use taxation and assessment. An exception occurs when the rezoning to a
10
more intensive use is required to establish, continue, or expand a qualifying use. Real property does not
become eligible for reconsideration for land use taxation and assessment unless and until the property is
rezoned to agricultural, horticultural, or open space use and three years have passed since the subsequent
11
rezoning was effective.
Participation in the land use taxation and assessment program begins when a property owner
12
submits an application to the local assessing officer. Before the local assessing officer assesses real
property under a land use taxation and assessment program adopted pursuant to § 58.1-3231, he must first
13
determine whether such property satisfies the criteria specified in § 58.1-3230.
Furthermore,
§ 58.1-3233(1) authorizes the local assessing officer to seek an opinion regarding such determination
from the Director of the Department of Conservation and Recreation, the State Forester, or the
Commissioner of Agriculture and Consumer Services. Whether the parcel in question meets § 58.1-3230
14
criteria is a factual determination to be made by the local assessing officer. Should a commissioner of
the revenue make a factual determination that the parcel in question meets the criteria set forth in
§ 58.1-3230, it is my opinion that such parcel may qualify for use taxation and assessment.
Conclusion
Accordingly, it is my opinion that real property must be removed from the land use program and
roll-back taxes assessed when such property is rezoned to a more intensive use at the owner’s request. I
also am of the opinion that agricultural real property, which has been (1) rezoned at the owner’s request to
a more intensive use, (2) removed from the land use program, and (3) assessed roll-back taxes
subsequently must be rezoned to a less intensive use before it can be eligible to receive land use taxation
again. Finally, it is my opinion that real property with intensive zoning may qualify for land use
assessment and taxation if the local assessing official determines that it meets the criteria set forth in
§ 58.1-3230.

9

Continued participation in the land use taxation and assessment program depends “on continuance of the real
estate in a qualifying use, continued payment of taxes as referred to in § 58.1-3235, and compliance with the other
requirements of [Article 4, Chapter 32 of Title 58.1] and the ordinance.” Section 58.1-3234 (2004).
10
See § 58.1-3237(E).
11
Id.
12
See § 58.1-3234.
13
See § 58.1-3233(1) (2004).
14
Attorneys General historically have declined to render official opinions when the request involves a question of
fact rather than one of law. See, e.g., Op. Va. Att’y Gen.: 1997 at 195, 196; 1996 at 207, 208.

The Honorable Deborah F. Williams
August 5, 2008
Page 4

Thank you for letting me be of service to you.
Sincerely,

Robert F. McDonnell
1:1160; 1:941/08-045