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Legalease
Legalease, Lawyer
Category: Real Estate Law
Satisfied Customers: 16288
Experience:  13 years experience in RE Law, including LL/Tenant, contractor disputes, comm'l prop. issues
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What laws or court decisions favor land owners from

Customer Question

What laws or court decisions favor land owners from unreasonable denials for development from the county? What right does the owner have to enjoy and use his property for the best possible use. Property is located in Loudoun County Virginia and currently 13' lower than FEMA's level for a flood zone. The main road is 5' below the level and houses across the street with elevation of 5' higher than the road are not considered to be a flood zone. I have proposed that the elevation be raised above the flood zone threshold in order for FEMA to amend their maps based on the new elevation. The county has been quick to dismiss considering any type of development on the property because it currently falls under FEMA's flood zone and therefore making the parcels absolutely useless and worthless. FEMA has a process for amending the maps if elevation is changed and conditional approvals to change if the elevation is to be changed. But the county has one very busy person in charge of all flood related issues and he has been quick to dismiss any potential for possible development. The property is zoned for residential use and currently just useless land with no use
Submitted: 7 months ago.
Category: Real Estate Law
Expert:  Legalease replied 7 months ago.
Hello there ---I apologize for the delay in answering you but this is the very first time I have seen this question -- I have not been online for a while. If you own the property that you want to raise the elevation on, you should be able to do so with the proper engineering studies and approval from the local building officials and environmental protection department (usually at the state level). My suggestion is that you have the appropriate paperwork prepared and submitted to the local building and zoning officials and submit it and then see what their response to your proposal is. If they deny you unreasonably and the land in question is not protected from development by any environmental or other laws, then you have the right to challenge their decision in court and in such cases if you are willing to pay for the initial work to raise the elevation, unless the county can come up with a very good reason why you cannot do this, then you should be able to get the court to order the county to issue the appropriate permits. -If you do NOT own the property at this time then there really is no way to force the county to take on the costs and the tasks of reviewing and developing a plan to raise the elevation in order to simply improve the economic attractiveness of the land to adjoining home or property owners. While a local, state or federal agency CAN and often does take property by eminent domain from private citizens by using the argument that the land should be used for its "Highest and Best possible Use or Purpose" (that is the actual argument used by the governments of states and the feds to take property over the protest of private citizens and it is part of the eminent domain doctrine that has developed through case law over the years that such cases are considered by the courts) , there is nothing in the law that REQUIRES the local, state or federal authorities to use the same reasoning to develop a piece of land that they already own and nothing that permits the owner of the land (if a private party such as yourself) to use the same argument against them under these circumstances. -I truly wish I could give you better news than this, but I cannot. If you own the property already and it is not protected wetlands or have some other development restrictions on it that you are or are not aware of, then there is a good chance that if you prepare the plans and specifications of what you are proposing to do and why you want to do it, the county may take a closer look at it and approve what you want to do. However, they will most likely not examine the situation closely until you actually submit a request for approval of such a plan. If you do not own the property and you feel that the county official in charge of such development is not paying enough attention to your request, then you might want to speak with your local representative's offices to see if they might be interested in assisting you to get the county to take a closer look at the situation (a little pressure from superiors and politicians might make the county examiner take a closer look to see if what you propose can be done and at what cost). -Please let me know if you have any further questions. If not, can you please press a positive rating at the top of this message section so I will be paid for my time. I am paid nothing unless you press the middle star or the fourth or fifth star to the right of the middle star above. Doing so will NOT cost you any additional money -- it simply acts as the trigger to Just Answer to pay me for my time. THANK YOU VERY MUCH-MARY
Customer: replied 7 months ago.
Thank you. There are no environmental or other restrictions on the land. The zoning as actually single family residential and in favor of building homes and prevents other uses that may not require building. The only obstacle is simply the 5' from street level elevation from FEMA map that FEMA is willing to change if the elevation is raised. But in order to do so it requires a county grading permit. I hired a civil engineer to do the plans for grading and the individual from the county that deals with all of the counties flood related issues simply rejects discussing any possible elevation of the land, thereby making the land completely useless. It's counter intuitive and unreasonable because the county goes off of FEMA's map and FEMA even allows conditional map revision based on plans (to say basically if the house was built with elevation of 5' higher than the road then it would not be in a flood zone). Therefore it leaves the land owner stuck with residential zoned land that can't be built on in the middle of a neighborhood and a loss of value in the property by over 200k.I figured if the "best use" argument is used by the government to take land for a purpose, then perhaps a similar protection would be granted to land owners to prevent government from allowing land owners to get the best use from their property. Of course I'm not attempting to create new case law, but hoping to find some kind of ground or protection for land owners from unreasonable government restrictions.

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