Does a Virginia parcel with woodland, swamp, and a home site qualify for the use-value land tax program if it falls short of the minimum acreage?

Plain-English summary

A county commissioner of the revenue asked whether a 12.8-acre parcel could enter the county's Land Use Program, which provides use-value (rather than fair market value) assessment for qualifying property. The parcel was made up of one acre dedicated to a home site with a dwelling, 8.6 acres of woodland, and 3.2 acres of marsh or swamp land. The taxpayer wanted to break the land further into tidal marsh, vegetated riparian buffer, swamp, Resource Protection Area, and woodland.

The AG concluded that even if the parcel fell within a qualifying classification under § 58.1-3230, it could not receive use-value taxation if it did not meet the acreage requirements of § 58.1-3233(2). Section 58.1-3230 sets up four eligible classifications: agricultural, horticultural, forest, and open-space. Each carries its own acreage floor under § 58.1-3233(2):

• Agricultural or horticultural use: minimum 5 acres.
• Forest property: minimum 20 acres.
• Open-space property: minimum 5 acres, or whatever higher minimum the locality sets by ordinance.

On the facts presented, the 8.6 acres of woodland fell short of the 20-acre minimum for forest classification. Whether the marsh and swamp portions qualified under any classification, and whether the applicable acreage minimum was met, was a factual determination for the local commissioner, not something the AG would resolve in an opinion. The AG framed the bottom line plainly: if the commissioner concludes the land fails either the classification criterion or the acreage criterion, the parcel may not receive a special assessment.

Currency note

This opinion was issued in 2013. 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.

Common questions

What's the use-value program?
A special tax assessment regime where qualifying land is taxed at its value for the current use (agricultural, horticultural, forest, or open-space) rather than fair market value. A locality with a land-use plan may adopt an ordinance providing for it under § 58.1-3231.

Why does the acreage minimum matter?
Because under the opinion a parcel has to clear two gates, not one. Even land that fits a use classification under § 58.1-3230 is denied the special assessment if it does not meet the applicable minimum acreage in § 58.1-3233(2).

Does the home site count toward the acreage?
The opinion did not address this directly. It treats which portion of a parcel is devoted to which use as a factual determination for the commissioner of the revenue.

Could the marsh, swamp, or riparian portions qualify?
The opinion did not decide that. It treats whether those portions fall within a qualifying classification, and whether the applicable acreage minimum is met, as a factual determination for the local commissioner.

Can a commissioner of the revenue request expert help?
Yes. The opinion notes 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 to assist with classifying a parcel.

Background and statutory framework

Section 58.1-3231 authorizes any locality with a land-use plan to adopt an ordinance providing use-value assessment for real estate classified in § 58.1-3230. Section 58.1-3230 establishes the four classifications: agricultural, horticultural, forest, and open-space.

Section 58.1-3233 directs the commissioner of the revenue first to determine whether a parcel falls within a qualifying classification, and then to determine whether the applicable minimum acreage requirement under § 58.1-3233(2) is satisfied. The minimum acreages are:

• Agricultural/horticultural: 5 acres.
• Forest: 20 acres.
• Open-space: 5 acres, or a greater minimum prescribed by the locality.

A previous opinion of this Office, quoted here, had already stated that to qualify for the special assessment, the land must both be devoted to a qualifying use and satisfy the minimum acreage requirement.

Citations

• Va. Code § 2.2-505 (Attorney General opinions)
• Va. Code § 58.1-3230 (special classifications for use-value assessment)
• Va. Code § 58.1-3231 (locality ordinance authority)
• Va. Code § 58.1-3233 (commissioner of revenue's determination; acreage requirements)
• Prior AG opinion (referenced; quoted on the classification-plus-acreage requirement)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2013/12-051_Davenport.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

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 with § 2.2-505 of 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. 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 . . . ."

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. 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. Once the commissioner has classified the property, he further is directed to determine whether the applicable minimum acreage requirement is satisfied.

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.

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

Kenneth T. Cuccinelli, II
Attorney General