As Chesapeake farmland is harvested for developments, the city grapples with legal loopholes

CHESAPEAKE — In the city’s official seal, a farmer with a plow and a worker holding a wrench shake hands in front of a backdrop that includes open fields but also factories and shipping facilities.

The image is symbolic of a city that’s championed its rural and agricultural heritage since its establishment in the 1960s while looking toward a future of growth. To that end, major residential development in Chesapeake’s agriculturally zoned land has been prohibited since the 1980s to help preserve the rural character and protect a historic green belt. Today, the city estimates about 960,000 acres of the city’s land is zoned for agriculture.

But a loophole is allowing developers to skirt the typical level of city scrutiny and build in historically rural areas with greater density than would otherwise be allowed. The development tactic creates a quandary for Chesapeake as the city’s population grows: continue to let landowners subdivide agricultural land with minimal say in the matter or curtail the practice to preserve the city’s agricultural heritage.

City leaders have discussed addressing this zoning loophole since at least the 1990s, but the issue became a glaring one in recent years due to the sprouting of 100 new homes along Sanderson and Cedarville roads in southern Chesapeake. It spurred a meeting last year among city leaders, who anticipated it would ultimately cost the city nearly $1.28 million in the long run because no proffers were offered to offset the impact to city services.

The loophole developments are allowed by-right, meaning they are permitted under zoning laws and handled administratively with no public hearing or legislative action required by the Planning Commission or City Council. They allow landowners to “string together” provisions for agricultural subdivisions and minor subdivisions to create higher density development akin to major subdivisions.

“It’s when you’re linking them together that we’re getting the issue,” said Chesapeake Planning Director James McNamara. “It leads to a major subdivision when you look at all the parts of the whole.”

Cities with land to offer, like Chesapeake, can count on growth. It became the second most populous city in the commonwealth in 2020 after its population increased by more than 10% in the previous decade. As the population grows, the influx of by-right developments is putting pressure on city leaders to consider rethinking their long-term vision for land use across the city, especially as more and more farmland is plucked.

“Long gone are the days where we can just develop wherever we want to,” said City Council member Don Carey. “We’re getting to the point where the urban, the suburban and the rural areas are starting to butt up against each other.”

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How by-right works

Developing by-right means no rezoning request is needed because the use is allowed under the land’s current zoning designation, which allows landowners to subdivide their land into more parcels over time without the same level of scrutiny as other large development projects.

For example, a landowner may approach the city with a desire to subdivide property into three parcels to create an agricultural subdivision, which has to be used for “bona fide agricultural” purposes for one year, such as the production and harvesting of animals or crops.

Then the landowner can subdivide each of those parcels into five lots, leading to 15 total lots — effectively creating a “major” subdivision in an area primarily dedicated to agricultural use.

Since 2015, the city has received 22 applications for agricultural subdivisions, with nearly 70 parcels created as a result. But those nearly 70 parcels grew to 130 following additional subdivisions. Another handful of agriculture subdivisions are pending.

The city’s rural overlay district, which prohibits major subdivisions and calls for low intensity development in southern Chesapeake, contains a little more than 153,000 acres. In 1995, approximately 66,000 acres were used for active or inactive farming operations. Today, almost 30,000 acres have transitioned to primarily residential uses, according to data presented by the city last year.

“I think that as folks continue to look towards the future, people are aging out and they’re looking at what options they have with their land,” McNamara said. “And it’s options like, do you continue to farm? Do you, perhaps, engage with a solar farm? Because that’s a popular option these days. Do you look to develop the property, and essentially cash out? Do you look to grow houses at that point in time?”

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The development problem

By-right developments have cropped up along major roadways in Chesapeake’s southern corridor and the Highway 17 corridor, with Ballahack, Sanderson, Indian Creek and Cedarville roads harboring some of the most prominent. They can be seen during a drive along the curvy, country roads primarily intended to support light traffic and some farming equipment.

Now those roads, some unmarked, leave some drivers hugging a nearly nonexistent shoulder as they pass other vehicles or struggle to turn around. Some minor improvements to road shoulders and drainage connections are required in creating agriculture subdivisions since they still involve basic inspections and regulations required by law. But more homes created this way means an increase in school enrollment, traffic and city services, like trash pickup, and fire and emergency response — all without any requirement that the developer contribute resources to mitigate the impact as a condition of approval.

It’s an issue Heather Barlow was especially passionate about during her single term on the Chesapeake Planning Commission, with a chief concern that the rural overlay is “increasingly becoming suburban without rezoning.” Barlow said the rest of the city, as a result, ends up covering the cost of the needed infrastructure improvements, funneling resources out of urban and suburban areas to support by-right residential development in the rural overlay.

It ends up costing the city millions in the long run, though it’s challenging for the city to estimate how much since no analyses are conducted to determine the impact on local schools, roads, infrastructure and public safety services.

In rezoning requests, developers often make proffers, which are voluntary conditions that lay out expectations for how the site will be developed, with proposals from the developer intended to minimize impact. They could include the installation of new traffic signals to mitigate congestion, street widening and improved sidewalks, or even financial contributions.

One 885-unit housing project narrowly approved this year by the City Council included more than a million dollars to help mitigate anticipated school capacity issues.

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Resistance to a new process

Past attempts to remedy the loophole have been unsuccessful so far, primarily because they’ve been met with a perceived infringement of property rights.

“If you want to control something, you have to buy it,” said Lina Mercer.

Mercer has spent almost her whole life on John Etheridge Road near family land in southern Chesapeake. A fifth-generation farmer, she and her husband have been raising, processing and selling chickens for five years now with Big House Farm, which sits on 100 acres near where Mercer, her siblings and her father played as children.

Mercer believes in preserving family farmland. But she also recognizes a city that isn’t seeing development isn’t seeing growth.

Mercer’s grandfather died in the 1960s, years after the land had been sold due to trouble with crops and removed from the family for decades. In 2018, Mercer and her brothers were able to buy 165 acres of it back.

But in order to afford the land, Mercer, who also has a background in real estate, said some of it had to be subdivided, developed and sold off. The siblings eventually sold 9 acres after investing upwards of $300,000 to subdivide and develop the land, creating three new houses to be sold.

“I sat in the middle of winter holding a stick, digging the ditches out because it’s hundreds of thousands to have someone come in and develop the lot, just to get them ready to sell,” she said. “It’s super expensive. It’s only set out for big developers to do this kind of work.”

Mercer plans to pass the land to her daughter, whom she hopes will keep it in the family. But for farmers, their land is their retirement, savings account and way of life.

“At the end of the day, I do have to look out for my daughter because if something was to happen to her, or God forbid I needed money, 100% I would develop that land out, in a heartbeat,” Mercer said. “And I wouldn’t think twice about it. And that’s where it comes to … I think that’s my right. Because I feel like I have purchased it, I have sacrificed, I have done the hard work. I’ve put everything into it.”

Chesapeake resident Rodney Foster farmed for more than 40 years before retiring in 2006 at the age of 65. He still owns roughly 650 acres of land but now leases it out. He also sold off most of his farming equipment.

“I decided I just didn’t want to keep on putting up the farm labor that I did. And at some point you need to slow down,” Foster said.

But in the years since, Foster has served as a sort of consultant to help other landowners subdivide land that can be sold. In one case, an heir needed medical help. In another, a farmer needed to pay off some debt. Sometimes, a family member wants to build a house in the country.

Foster said the ability to subdivide land into agriculture subdivisions is necessary for such circumstances, adding that it also allows heirs to settle estates without things getting too complicated.

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Desire to address the issue

Dozens of residents have called on City Council members in recent months to do more to preserve the city’s agricultural heritage, partly fueled by backlash to a recent rezoning of 1,420 acres of farmland near the North Carolina border for a proposed industrial mega-site.

City Council members have examined ways to address the by-right development loophole in the past, though no consensus has yet been reached. After lengthy discussions with various stakeholders last year, city staff drafted a handful of amendments that were ultimately never heard by City Council.

Among the most contentious amendments was a proposal to increase the minimum lot size for subdivisions from 3 acres to 5, a move that some landowners believe affects how much bang they can get for their buck in selling off their land. As a compromise, a grandfather clause was proposed — and then voted against — that would have allowed existing parcels to green light one additional minor subdivision under the current zoning standards, allowing those who have done initial estate planning to continue.

Barlow, who lives on an agriculture subdivision with chickens and horses in southern Chesapeake, said part of the problem is lack of a clear vision.

“Having a vision, having a clear idea of the identity, matters so that you can make good choices with your limited resources and with your land uses,” Barlow said. “And then you can put the infrastructure in place to create that vision, to realize that vision. You can let residents know that this is where you intend to go and they can choose whether they want to participate in that community or not.”

Solidifying the city’s long range development plan is something city planners have been working on in recent months through a series of rural area listening sessions, along with a two-year-long process to update the city’s comprehensive plan, a framework for future growth.

“Having a strategic plan in place really helps us to know what to do when we get in those gray areas of what is urban versus suburban, or what is rural,” Carey said.

Staff is slated to bring that feedback and other suggestions back to the City Council for more in-depth discussions in the coming months.

One way to rein in development is by requiring conditional use permits for certain land uses, or discretionary approval from city and planning officials. Cities can also implement and expand a public utilities franchise area, limiting where sewage is provided. However, by-right residential developments can also connect to their own septic systems and water wells.

In neighboring Virginia Beach, a “transition area” that calls for residential development with significant open space straddles the city’s green belt to the north and the rural area to the south. In the 1970s, Virginia Beach implemented the “green line” to curb higher density developments south of Princess Anne and Sandbridge roads.

Another possible solution: investing more of the city’s money into open space preservation. Chesapeake currently offers a program in which the city can purchase development rights and place an easement on properties. The landowner receives fair market value but still retains ownership, meaning they can place a house on their land and continue using their land for agricultural purposes.

Council member Debbie Ritter, who’s served since 1998, said General Assembly authorization to make further provisions in the city’s ordinances could be needed to tackle this “exceedingly complex issue.” She recently proposed a ballot referendum that would have asked about using half a cent of real estate tax, or about $1.7 million annually, to buy and preserve more land. Council members deferred the referendum to get more information first.

Ritter said budget constraints over the years have limited the program, adding that many more applications are typically received than can be approved.

“It really is the question of priorities,” Ritter said. “And if it is important to preserve agriculture as an industry, we need to look at how we can better fund these programs so that people who own working farms or open space can participate.”

Mercer said she believes more incentives and support for bona fide farming could afford more farmers the ability to keep working and preserve farmland.

“The problem is fixing the rules,” Mercer said. “But don’t change the rules on people who purchased and invested (with) this rule book.”

Foster said some tweaks in the city’s zoning code are needed to protect land, but finding a delicate balance that doesn’t infringe on landowners’ plans is the challenge.

“They’re not making any more land,” Foster said. “So you need to take care of what you’ve got.”

Natalie Anderson, 757-732-1133, natalie.anderson@virginiamedia.com