Tax Type
Local Taxes
Localities Taxing Powers
Description
Land Use Program,
Topic
Agricultural
Assessment
Local Power to Tax
Local Taxes Discussion
Date Issued
03-08-2013
March 8, 2013
The Honorable Priscilla J. Davenport
Middlesex County
Commissioner of the Revenue
Post Office Box 148
Saluda, Virginia 23149
Dear Ms. Davenport:
I am responding to your request for an official advisory opinion in accordance the Code of Virginia.
Issue Presented
You ask whether a parcel of real property consisting of 8.6 acres of woodland and 3.2 acres of marsh/swamp land, in addition to one acre used for a home site, qualifies for your county's Land Use Program, which implements the use taxation and assessment authorized by § 58.1-3230.
Response
It is my opinion that, should a commissioner of the revenue make the factual determination that a parcel of land meets the criteria set forth in § 58.1-3230, but fails to meet the acreage requirements of § 58.1-3233(2), such parcel may not qualify for use taxation and assessment.
Background
You present a scenario in which a taxpayer owns 12.80 acres of real property in Middlesex County. You state that the land comprises one acre dedicated to a home site including a dwelling, 8.6 acres of woodland, and 3.2 acres of marsh/swamp land. Nonetheless, you indicate the taxpayer claims the land is divided as follows: 3.1 acres is tidal marsh, 1.6 acres constitute vegetated riparian buffer, 1.15 acres is swamp, 0.82 acres of RPA, and the remaining 6.10 acres encompass woodland. You relate that the taxpayer has applied for your county's Land Use Program.
Applicable Law and Discussion
Pursuant to § 58.1-3231 of the Code of Virginia, any locality that has "adopted a land-use plan may adopt an ordinance to provide for the use value assessment and taxation . . . of real estate classified in § 58.1-3230." Section 58.1-3230 establishes and defines the special classifications for which land use assessments are permitted: real estate that is devoted to either agricultural use, horticultural use, forest, or to open space use may be eligible for such assessment.'
In addition to meeting the criteria set forth in the classifications provided in § 58.1-3230, the Code requires land devoted to a qualifying use to meet certain acreage requirements. Generally, land devoted to agricultural or horticultural use must consist of a minimum of five acres; forest property must consist of a minimum of twenty acres; and open-space property must consist "of a minimum of five acres or such greater minimum acreage as may be prescribed" by the locality. 2 As a previous Opinion of this Office has stated, "[t]o qualify for the special assessment, the land must be devoted to agricultural, horticultural, forest, or open-space uses, and must satisfy the minimum acreage requirement ."3
Section 58.1-3233 directs and authorizes commissioners of the revenue to determine whether a particular parcel falls within the definition of a qualifying classification.4 To assist with this determination, the commissioner is authorized to request an opinion from the Director of the Department of Conservation and Recreation, the State Forester, or the Commissioner of Agriculture and Consumer Services, as necessary.5 Once the commissioner has classified the property, he further is directed to determine whether the applicable minimum acreage requirement is satisfied.6
Whether a particular parcel meets the requirements to qualify for a special assessment is a factual determination to be made by the local assessing official. Thus, should a commissioner of the revenue determine the land both is devoted to a qualifying use and satisfies the applicable acreage requirement, it is my opinion that such parcel may be eligible for special assessment, but that if the commissioner concludes that the land fails either criterion, such land may not be afforded a special assessment under § 58.1-3231.7
Conclusion
Accordingly, it is my opinion that, should a commissioner of the revenue make the factual determination that a parcel of land meets the criteria set forth in § 58.1-3230, but fails to meet the acreage requirements of § 58.1-3233(2), such parcel may not qualify for use taxation and assessment.
With kindest regards, I am
Very truly yours,
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- Kenneth T. Cuccinelli, II
Attorney General
- Kenneth T. Cuccinelli, II
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1.VA. CODE ANN. § 58.1-3230 (Supp. 2012).
2 Section 58.1-3233(2) (Supp. 2012). You do not indicate that Middlesex County has adopted an ordinance establishing an acreage minimum for open-space land greater than the 5-acre requirement provided in § 58.1-3233(2).
3 2009 Op. Va. Att'y Gen. 168, 169 (emphasis added). This Opinion further concludes that for mixed-used properties, each qualifying use separately must meet the acreage requirement. Id.
4 Section 58.1-3233(1).
5 Id.
6 Section 58.1-3233(2).
7 I note your inquiry appears to involve the forest and open-space classifications. Under the facts you present, it is evident that, based on the 20-acre minimum requirement for forest land, the taxpayer is ineligible for special assessment on those grounds. In addition, although "real estate devoted to open-space" can include certain wetlands and riparian buffers, § 58.1-3230, whether the land in your scenario constitutes such real estate and whether it meets the applicable acreage minimum are factual determinations to be made by you and are beyond the scope of this Opinion. See, e.g. 2009 Op. Va. Att'y Gen. 168, 169; 2008 Op. Va. Att'y Gen. 141, 143 and n.14.
Attorney General's Opinion