Can a Virginia landowner combine adjacent parcels to meet the minimum acreage for the land-use tax break?

Plain-English summary

Spotsylvania County Commissioner of the Revenue Deborah Williams asked AG William Mims two practical questions about Virginia's land-use assessment program, the tax break for working farms and forest land that lets owners be taxed on the property's use value (typically lower) rather than fair market value.

The first question was about aggregation. To qualify, farmland must be at least 5 acres and forest land must be at least 20 acres. What if an owner holds several smaller adjacent parcels that together meet the threshold? The AG said combining contiguous parcels titled in the same name was allowed. Section 58.1-3233(2) says the minimum acreage "shall be determined by adding together the total area of contiguous real estate excluding recorded subdivision lots recorded after July 1, 1983, titled in the same ownership." A 2004 AG opinion had reached the same answer: aggregating parcels does not defeat the land-use program's purpose so long as the parcels stay under common ownership and the division is not subject to the locality's subdivision ordinance. Earlier opinions (1987-88, 1989) had been even clearer that § 58.1-3233(2) authorizes combination only when the contiguous parcels are titled in the same ownership. So the Spotsylvania practice of letting same-owner contiguous parcels aggregate to meet the 5/20 acre thresholds was correct.

The second question was about mixed-use parcels. Say a single parcel contains both forest and farmland but neither portion alone hits its threshold. Could the two uses be combined to get a land-use assessment? The AG said no. The land-use statute requires that the parcel be devoted to a qualifying use (agricultural, horticultural, forest, or open-space) and meet the minimum acreage specified for that use. A mixed-use parcel can qualify only if each individual use meets its own minimum acreage by itself; mixing forest and ag acreage to clear a single threshold was not permitted. The 5-acre ag minimum applies to the ag-use portion; the 20-acre forest minimum applies to the forest-use portion. Separation of lots that no longer meet the minimums triggers rollback taxes.

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 § 58.1-3233 text before relying on any specific rule.

Common questions

Q: What are Virginia's land-use assessment minimum acreages?
A: Agricultural or horticultural land must be at least 5 acres; forest land at least 20 acres; open-space land at least 5 acres (or a higher local minimum). The land must be devoted to that qualifying use.

Q: Can I aggregate contiguous parcels under different ownership?
A: No. Section 58.1-3233(2) requires that the contiguous parcels be titled in the same ownership. The AG opinions from 1987-88 and 1989 hold this strictly.

Q: What about recorded subdivision lots?
A: Subdivision lots recorded after July 1, 1983, are excluded from the aggregation. The legislature drew a line at that date to keep landowners from carving up land into qualifying tracts.

Q: My parcel is part farmland and part forest. Can I combine them?
A: Only if each use independently meets its own minimum. If you have 4 acres of crops and 18 acres of forest on one parcel, neither qualifies; you cannot total to 22 acres and call it agricultural-plus-forest. You would need at least 5 acres of crops or 20 acres of forest standing alone.

Q: What is a rollback tax?
A: When land that has been receiving the use-value assessment loses eligibility (for example by being subdivided or no longer meeting the minimum), the locality recovers the tax savings for prior years.

Background and statutory framework

Article 4, Chapter 32 of Title 58.1 (§§ 58.1-3229 through 58.1-3244) is Virginia's land-use assessment statute. The program lets localities adopt ordinances that assess qualifying land at its use value (typically lower for working land) rather than fair market value, in exchange for keeping the land in agricultural, horticultural, forest, or open-space use. Section 58.1-3233(2) sets the aggregation rule. The commissioner of revenue makes the factual call about whether a parcel meets the criteria.

The opinion's bigger point: aggregation works horizontally (same owner, contiguous tracts) but not by use type within a single parcel. The legislature drew the lines by purpose, and the commissioner must apply them straight.

Citations

• Va. Code Ann. § 58.1-3233(2) (minimum acreage aggregation rule)
• Va. Code Ann. § 58.1-3230 (qualifying uses)
• 1987-1988 Op. Va. Att'y Gen. 138 (contiguous parcels under same ownership)
• 1989 Op. Va. Att'y Gen. 325 (aggregation requires same ownership)
• 2004 Op. Va. Att'y Gen. 201 (parcel aggregation does not defeat program purpose)
• 2008 Op. Va. Att'y Gen. 141 (commissioner of revenue's factual determination)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2009/09-085-Williams.pdf

Original opinion text

COMMONWEALTH OF VIRGINIA
Office of the Attorney General
William C. Mims

900 East Main Street
Richmond, Virginia 23219
804-786-2071

Attorney General

December 10, 2009

The Honorable Deborah F. Williams
Spotsylvania County Commissioner of the Revenue
P.O. Box 175
Spotsylvania, Virginia 22553-0175

Dear Ms. 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 contiguous parcels of real estate with identical ownership may be combined to form tracts that contain at least twenty acres devoted to forest use and five acres devoted to agricultural use to be eligible for use value assessment. You also ask whether a parcel that has a mixed use such as part forest and part agriculture can qualify for use value assessment when the use acreage does not meet the minimum requirement.

Response

It is my opinion that contiguous parcels of real estate that are titled in the same owner may be combined to form tracts of at least twenty acres devoted to forest use and at least five acres devoted to agricultural use and are eligible for use value assessment. It further is my opinion that a parcel with mixed use may qualify for a land use assessment provided the use acreage meets the required minimum acreage for each land use.

Background

You relate that Spotsylvania County allows contiguous parcels with identical ownership to receive the deferral as long as the total acreage of all parcels meets or exceeds the five acre minimum for agricultural use and twenty acre minimum for forestal use.

Applicable Law and Discussion

Article 4, Chapter 32 of Title 58.1, § 58.1-3229 (not set out), §§ 58.1-3230 through 58.1-3244, provides for the special assessment of real property for land preservation. In general, to qualify for land use assessment and taxation: (1) agricultural or horticultural property must consist of a minimum of five acres; (2) forest property must consist of a minimum of twenty acres; and (3) open-space property must consist "of a minimum of five acres or such greater minimum acreage as may be prescribed" by the locality.[1] Section 58.1-3233(2) provides that "[t]he minimum acreage requirements for special classifications of real estate shall be determined by adding together the total area of contiguous real estate excluding recorded subdivision lots recorded after July 1, 1983, titled in the same ownership."

A 2004 opinion of the Attorney General concludes that the aggregation of parcels does not defeat the purposes underlying the land use program as long as the real estate that is divided into parcels remains under common ownership and is large enough that the division is not subject to the locality's subdivision ordinance.[2] Further, as long as the aggregated parcels otherwise satisfy § 58.1-3233(2), the purpose of the land use program is satisfied.[3] Therefore, it is my opinion that parcels may be aggregated for purposes of meeting minimum acreage requirements for land use taxation established by § 58.1-3233(2).

Furthermore, other opinions of the Attorney General conclude that § 58.1-3233(2) authorizes the combination of contiguous parcels of real estate for the purpose of satisfying the minimum acreage requirement of the statute only when the contiguous parcels are titled in the same ownership.[4] I concur in these prior opinions. It also is my opinion that contiguous parcels of real estate being titled in the same ownership may be combined to form tracts that contain at least twenty acres devoted to forest use and five acres devoted to agricultural use to be eligible for use value assessment.

Prior opinions of the Attorney General tangentially answer your second inquiry.[5] A commissioner of the revenue should make the factual determination regarding whether a parcel meets the criteria for participation in the land use taxation and assessment program.[6] To 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 specified in § 58.1-3233.[7] In addition, I note that the separation of lots that do not meet the minimum acreage requirements triggers the application of roll-back taxes.[8] Therefore, it is my opinion that a parcel with mixed use, i.e., part forest and part agriculture, cannot qualify for use value assessment unless each such use acreage meets the required acreage by itself.

Conclusion

Accordingly, it is my opinion that contiguous parcels of real estate that are titled in the same owner may be combined to form tracts of at least twenty acres devoted to forest use and at least five acres devoted to agricultural use and are eligible for use value assessment. It further is my opinion that a parcel with mixed use may qualify for a land use assessment provided the use acreage meets the required minimum acreage for each land use.

Thank you for letting me be of service to you.

Sincerely,

William C. Mims

1. VA. CODE ANN. § 58.1-3233(2) (2009).
2. See 2004 Op. Va. Att'y Gen. 201, 203.
3. Id.
4. See Op. Va. Att'y Gen.: 1989 at 325, 326; 1987-1988 at 138, 140.
5. See infra notes 6-8 and accompanying text.
6. See 2008 Op. Va. Att'y Gen. 141, 143.
7. See Op. Va. Att'y Gen: 2002 at 318, 319; id. at 315, 316; 1997 at 193, 194.
8. See Op. Va. Att'y Gen.: 1990 at 245, 246; 1986-1987 at 306, 306-07; 1985-1986 at 305, 306; 1982-1983 at 545, 545; 1979-1980 at 339, 340.