If a Virginia land surveyor brings a boundary or physical survey plat to the courthouse to record (one that doesn't change property lines or create new parcels), can the clerk refuse it because the locality's planners haven't reviewed it first?

Plain-English summary

Land surveyors had been complaining to Delegate Robert Bell that some Virginia localities were running informal policies, not published in any ordinance, that required local planning officials to review and sign off on every boundary survey plat and every physical survey plat before the surveyor could record the plat with the circuit court clerk. The localities apparently treated this review as part of their subdivision-ordinance authority. The plats in question were ones that did not create new parcels or shift property lines; they were retracements of an existing parcel's boundaries (boundary surveys) or surveys showing the location of structures and physical features inside an existing parcel (physical surveys).

Acting Attorney General William Mims looked at the subdivision enabling statutes in Article 6 of Chapter 22 of Title 15.2, applied the Dillon Rule (localities have only those powers expressly granted by the General Assembly or necessarily implied), and concluded that none of the statutes authorize pre-recordation review of plats that do not subdivide land or alter boundaries. Subdivision authority is just that: authority over actual subdivisions. Surveys that document but do not change the existing property pattern are not within the delegated power.

The opinion then turned to circuit court clerks. Clerks are constitutional officers but they have no inherent powers; their authority is set by statute. The AG found no statute authorizing a clerk to refuse a boundary survey or physical survey plat on the ground that local planners had not reviewed it. The clerk's duties are largely ministerial. If the plat actually does subdivide land or change boundaries, the clerk may refuse it absent planning approval (per § 15.2-2258 and related provisions). But where the plat does not, the clerk has no basis to refuse.

Currency note

This opinion was issued in 2009. 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

A boundary survey plat is a retracement of the metes and bounds of an existing parcel, drawn from a prior survey or the deed description. A physical survey plat is a survey of a lot or parcel showing the location of structures, encumbrances, and manmade physical features within the existing boundaries. Neither type of plat creates new parcels, subdivides existing parcels, or shifts boundary lines. Virginia's Board of Architects, Professional Engineers, Land Surveyors, Certified Interior Designers and Landscape Architects sets the technical standards for these surveys at 18 VAC §§ 10-20-370 and 10-20-380.

By contrast, Virginia's subdivision enabling statutes, at §§ 15.2-2240 to 15.2-2279, govern actual subdivisions of land. Section 15.2-2240 requires every county, city, and town to adopt a subdivision ordinance to ensure orderly subdivision. Section 15.2-2258 requires any person who wants to subdivide a tract of land to submit a plat to the local subdivision agent for approval. Sections 15.2-2259, 15.2-2260, and 15.2-2261 govern planning commission action on subdivision plats. Time constraints apply to the approval process. The whole regime is set up to control how land is divided, when new parcels are created, and where boundary lines fall.

The Dillon Rule shapes how to read these statutes. The Supreme Court of Virginia has repeatedly held that a county or city has only the powers expressly conferred by the General Assembly, those necessarily implied, and those essential to the declared purposes. The rule of strict construction applies to delegated land-use authority. As the National Realty case held, the general authority to impose fees for licenses and permits did not authorize a specific fee for review of subdivision plats; specific authority was needed. The same logic applies to a locality's claim of authority over plats that are not subdivision plats.

Circuit court clerks are constitutional officers under Article VII, § 4, but their duties are "prescribed by general law or special act." As a general rule, clerks have no inherent powers, and the scope of their powers is set by statute. Mendez v. Commonwealth held that the authority to administer an oath was purely a creature of statute. Harvey v. Chesapeake & Potomac Telephone Co. characterized the clerk's filing-and-lodging duties as ministerial. A 1987 AG opinion concluded that a clerk is not generally responsible for determining whether an instrument satisfies particular provisions of law, and that a clerk may record a plat of division on the oral assertion of the person presenting the plat that the subdivision ordinance does not apply (though the clerk should note the assertion on the plat).

What the AG concluded

Localities have no express statutory authority for pre-recordation review of boundary and physical survey plats. The AG searched Article 6 of Chapter 22 of Title 15.2 (the subdivision enabling statutes) and found nothing authorizing pre-recordation review of survey plats that do not subdivide land or change boundaries. Article 6 is concerned with subdivision, not with documenting existing property configurations.

The Dillon Rule blocks any implied authority. Localities exercise their police power only as delegated by the General Assembly, and the rule of strict construction applies to land-use authority. Implied authority drawn from "regulating land development" generally does not authorize specific pre-recordation review processes for non-subdivision plats.

Circuit court clerks have no statutory authority to require local planner approval for these plats. Their duties are ministerial and set by statute. No statute conditions their acceptance of boundary or physical survey plats on local planner sign-off. A clerk who refuses such a plat is acting outside statutory authority.

Clerks may, however, refuse plats that actually subdivide land. The opinion does not undo the existing rule that clerks may refuse subdivision plats, boundary-adjustment plats, or any plat that changes a boundary or creates new parcels, absent the required local approval. That authority comes from §§ 15.2-2254, 15.2-2258, 15.2-2265, and 15.2-2275. The distinction is sharp: plats that change boundaries need approval; plats that document existing boundaries do not.

Common questions

What is the difference between a boundary survey and a boundary-adjustment survey?
A boundary survey retraces the existing boundaries of a parcel using the prior survey or the deed description. No boundary lines are changed; the survey just identifies where they are. A boundary-adjustment survey changes the line between two parcels (often by mutual agreement of the neighbors), without creating new parcels. The latter does require local planner approval before recordation; the former does not.

What is a physical survey, and why is it sometimes called a "house location survey" or "improvement location survey"?
A physical survey shows the location of buildings, fences, driveways, and other physical features within an existing parcel's boundaries. Lenders and title insurers often require one before issuing a mortgage or policy. It does not affect the property line itself.

If my locality is requiring planner approval before I can record a boundary survey, what should I do?
Cite this opinion and ask the locality to identify the statute giving them that power. Under the Dillon Rule, the burden is on the locality to point to express statutory authority. If the request is informal and not in any published ordinance, the locality is on weak ground.

What about the clerk who refuses to record?
The clerk has no inherent authority to add filing requirements beyond what statute imposes. A 1987 AG opinion suggested that, where a clerk has any doubt whether a plat is a non-subdivision plat, the clerk may accept the oral assertion of the person presenting it and note the assertion on the plat. The clerk is not required to perform an independent assessment of whether the plat is actually a subdivision.

Does this opinion mean localities can't have any process for boundary and physical surveys?
The opinion focuses on pre-recordation review. Localities may still maintain professional standards through other means, like working with the state Board that licenses surveyors. They may also choose to provide voluntary review services. What they cannot do is condition recordation on their review.

Why does this matter to property owners?
Recordation delays can hold up mortgage closings, refinancings, and title insurance commitments. If a clerk refuses to record a survey plat because a planner has not signed off, the property owner can face thousands of dollars in delay costs. The opinion gives owners and surveyors a clear statement that the demand is not authorized.

Citations

• Va. Code Ann. §§ 15.2-2240 to 15.2-2279 (subdivision enabling statutes)
• Va. Code Ann. § 15.2-2258 (subdivision plat submission)
• Va. Code Ann. §§ 15.2-2254, 15.2-2265, 15.2-2275 (plats and recordation)
• Va. Const. Art. VII, § 4 (circuit court clerks)
• 18 VAC §§ 10-20-370, 10-20-380 (boundary and physical survey standards)
• Nat'l Realty Corp. v. Va. Beach, 209 Va. 172 (1968)
• Ticonderoga Farms, Inc. v. County of Loudoun, 242 Va. 170 (1991)
• Mendez v. Commonwealth, 220 Va. 97 (1979)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2009/08-105-Bell.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

February 25, 2009

The Honorable Robert B. Bell
Member, House of Delegates
P.O. Box 406
Richmond, Virginia 23218

Dear Delegate Bell:

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 the Virginia Code authorizes localities to require the review and approval of boundary survey plats and physical survey plats[1] by local planning officials as a prerequisite to recordation. You further ask whether clerks of the circuit court are authorized to refuse to record boundary survey plats and physical survey plats until after the review and approval of such plats by local planning officials.

Response

It is my opinion that localities are not authorized to require the review and approval of boundary survey plats and physical survey plats as a prerequisite for recordation. It further is my opinion that circuit court clerks may not refuse to record such plats based solely on the lack of such review and approval from the local planning official.

Background

You relate that land surveyors have advised you that several Virginia localities apply an informal policy requiring all boundary and physical survey plats to be reviewed and approved by local planning officials as a prerequisite to recordation. You believe that these localities base their actions upon the delegated authority to regulate land development and the subdivision of land. Further, you state that such policies are not included in those localities' published ordinances governing the development and subdivision of land. You note that these policies effectively prevent surveyors from recording such plats until after local planning officials have reviewed and approved them.

Furthermore, you advise that some circuit court clerks have refused to accept such boundary and physical survey plats for recordation until the plats were reviewed and approved by local planning officials. You state that the circuit court clerks of these localities have related they are without authority to accept such plats for recordation without the approval of the local planning officials.

You note that the standards for boundary and physical surveys, as developed by the Virginia Board of Architects, Professional Engineers, Land Surveyors, Certified Interior Designers and Landscape Architects, are set forth in 18 VAC §§ 10-20-370 and 10-20-380. Finally, it is your understanding that surveys that do require review and approval by local planning officials prior to recordation are: (1) subdivision surveys, where an existing parcel is being subdivided into two or more parcels; (2) boundary or property line adjustment surveys, where the boundary line between parcels is changed from the original survey or deed description, but no new parcels are created; and (3) any survey, by any other name, which changes a property line or creates new parcels or lots.

Applicable Law and Discussion

The overriding goal of statutory interpretation is to discern and give effect to legislative intent.[2] The Commonwealth follows the rule of strict construction of statutory provisions.[3] The power of a county governing body "must be exercised pursuant to an express grant"[4] because the powers of a county "are limited to those conferred expressly or by necessary implication."[5] This rule is corollary to the Dillon Rule that municipal corporations similarly are limited in their powers.[6] Thus, the powers of localities acting through either a local planning commission or a local governing body are fixed by statute and are limited to those powers granted expressly or by necessary implication and those that are essential and indispensable.[7]

Localities enact subdivision ordinances pursuant to delegation by the General Assembly of the police power of the Commonwealth.[8] The rule of strict construction applies in interpreting the statutory authority of local governing bodies to adopt land use regulations.[9] Consequently, authority for imposed requirements must be found in the subdivision enabling statutes and may not be implied from other more general grants of local powers.[10]

Virginia's subdivision enabling statutes are detailed in Article 6, Chapter 22 of Title 15.2, §§ 15.2-2240 through 15.2-2279. Section 15.2-2240 requires that counties, cities, and towns adopt a subdivision ordinance "to assure the orderly subdivision of land and its development." Section 15.2-2258 requires that any person desiring to subdivide a tract of land must submit a plat of the proposed subdivision to the local subdivision agent for approval. Sections 15.2-2259, 15.2-2260, and 15.2-2261 govern the actions of the local planning commission and the locality regarding such plats and the approval and validity thereof. Section 15.2-2260(A) also authorizes a local governing body to enact an ordinance providing for submission of preliminary subdivision plats for tentative approval as a part of the orderly subdivision of land within its jurisdiction.[11] Finally, §§ 15.2-2259 and 15.2-2260 impose time constraints for the approval of subdivision plats.

Article 6 is replete with express grants of powers to local governing bodies and their authorized agents to administer and enforce subdivision regulations as they relate to survey plats.[12] I find no express statutory authority elsewhere in Title 15.2 for a Virginia locality to require a review and approval of boundary survey plats and physical survey plats by local planning officials as a prerequisite for recordation.

The Dillon Rule of strict construction also is applicable to constitutional officers.[13] Article VII, § 4 of the Constitution of Virginia creates the office of circuit court clerk and provides that a clerk's duties "shall be prescribed by general law or special act."[14] As a general rule, circuit court clerks have no inherent powers, and the scope of their powers must be determined by reference to applicable statutes.[15] A 1987 opinion of the Attorney General (the "1987 Opinion") concludes that, "[a]s a general rule, a clerk is not responsible for determining if an instrument to be recorded is sufficient to meet the requirements of any particular provision of law."[16] Further, the 1987 Opinion concludes

that a clerk may record a plat of division without the approval of the subdivision agent of the locality upon the oral assertion of the person presenting the plat for recordation on behalf of the owner that the subdivision ordinance does not apply to the plat of division offered for recordation. I would suggest, however, that the clerk make a notation on the plat of division concerning the oral assertion that the ordinance does not apply to the division of the parcel in question.[17]

I find no statutory provision authorizing a circuit court clerk to refuse to record boundary survey plats and physical survey plats until after the review and approval of such plats by local planning officials. Pursuant to the authority granted in Article 6, a circuit court clerk may refuse to record boundary survey plats and physical survey plats that are: (1) subdivision surveys, where an existing parcel is being subdivided into two or more parcels; (2) boundary or property line adjustment surveys, where the boundary line between parcels is changed from the original survey or deed description, but no new parcels are created; or (3) a survey, by any other name, which changes a property line or creates new parcels or lots.[18] However, the boundary survey plats and physical survey plats about which you inquire do not meet these criteria.[19]

Conclusion

Accordingly, it is my opinion that localities are not authorized to require the review and approval of boundary survey plats and physical survey plats as a prerequisite for recordation. It further is my opinion that circuit court clerks may not refuse to record such plats based solely on the lack of such review and approval from the local planning official.

Thank you for letting me be of service to you.

Sincerely,

William C. Mims
Acting Attorney General
1:213; 1:941/08-105

1. You advise that the boundary and physical surveys about which you inquire are surveys that do not change or alter property lines or create new parcels of land. Further, you explain that a boundary survey is a survey or a retracement of the metes and bounds of an existing parcel of land based on a prior survey or deed description of the property. A physical survey is a survey of a lot or parcel which also shows the location of all structures, physical and recorded encumbrances, and manmade physical features located within the property's existing boundaries. For purposes of this opinion, any reference to "boundary survey plats" and "physical survey plats" means the surveys you describe and about which you inquire unless otherwise noted.
2. See Turner v. Commonwealth, 226 Va. 456, 459, 309 S.E.2d 337, 338 (1983); Vollin v. Arlington Co. Electoral Bd., 216 Va. 674, 678-79, 222 S.E.2d 793, 797 (1976).
3. 2003 Op. Va. Att'y Gen. 45, 46.
4. Nat'l Realty Corp. v. Va. Beach, 209 Va. 172, 175, 163 S.E.2d 154, 156 (1968).
5. Bd. of Supvrs. v. Horne, 216 Va. 113, 117, 215 S.E.2d 453, 455 (1975).
6. Id.
7. Ticonderoga Farms, Inc. v. County of Loudoun, 242 Va. 170, 174, 409 S.E.2d 446, 448 (1991).
8. See 1989 Op. Va. Att'y Gen. 100, 101.
9. See Op. Va. Att'y Gen.: 1992 at 59, 61; 1990 at 94, 96.
10. See, e.g., National Realty, 209 Va. at 176-77, 163 S.E.2d at 157-58 (noting general authority to impose fees for licenses and permits did not authorize specific fee for review of subdivision plat).
11. See 2006 Op. Va. Att'y Gen. 71, 74.
12. See, e.g., VA. CODE ANN. § 15.2-2245(A) (2008) (granting power to act on performance bonds); § 15.2-2254(2) (2008) (granting power to approve plats for recordation); § 15.2-2259 (2008) (granting power to planning commission to act on plats); §§ 15.2-2260, 15.2-2261(B)(1), 15.2-2271(1) (2008) (granting various powers to governing body regarding plats).
13. See, e.g., Op. Va. Att'y Gen.: 2006 at 200, 201; 1984-1985 at 284, 284.
14. See also § 15.2-1600(A) (2008) (parallel statute).
15. See Mendez v. Commonwealth, 220 Va. 97, 102, 255 S.E.2d 533, 535 (1979) (stating that "authority of a clerk of court to administer an oath or take an affidavit is purely a creature of statute"); Harvey v. Chesapeake & Potomac Tel. Co., 198 Va. 213, 218, 93 S.E.2d 309, 313 (1956) (noting that duties of clerk related to filing and lodging of court papers are ministerial); 21 C.J.S. Courts § 136 (2006); Op. Va. Att'y Gen.: 2001 at 121, 122; 1987-1988 at 80, 81.
16. 1987-1988 Op. Va. Att'y Gen. 208, 210.
17. Id.
18. See, e.g., §§ 15.2-2254, 15.2-2258, 15.2-2265, and 15.2-2275 (2008).
19. See supra note 1.