County Attorney says realtors on Board do not have conflict of interest in regard to Land Division Ordinance
Durbin also reminded the Board that the current version of the Land Division Ordinance is the one that was advertised before the public hearing was held on Aug. 26. He said the Floyd County Planning Commission’s recommended changes were suggestions that haven’t been incorporated into the document.
Floyd County Attorney Steve Durbin took the floor of the Board of Supervisors meeting on Sept. 9 to address concerns raised by citizens surrounding the proposed Floyd County Land Division Ordinance.
Durbin said Supervisors Linda DeVito Kuchenbuch of the Little River District and Levi Cox of the Locust Grove District, both of whom are Floyd County realtors, do not have conflicts of interest when it comes to the Land Division Ordinance and voting on the standards it sets.
The topic, and the “optics,” of Kuchenbuch and Cox being involved with the development of the ordinance was questioned several times at the Aug. 26 joint public hearing of the Board of Supervisors and Floyd County Planning Commission regarding the document.
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Durbin referenced the Virginia Conflict of Interest Act, which states that conflicts of interest exist when there are particularized personal interests, Durbin said, and/or specific benefits or detriments to an owned business or business an involved party works for.
“Because there’s no clear nexus between any particular change in the ordinance and a benefit to any individual realtor’s business, I just don’t see a conflict here,” Durbin said.
He also noted there are exceptions provided in the state code that state, in part: “B) An officer or employee of any state or local government or advisory agency who has a personal interest in a transaction may participate… 3) If it affects the public generally, even though his personal interest, as a member of the public, may also be affected by that transaction.” (2.2-3112)
In answering another question that was raised at the Aug. 26 meeting, Durbin said the Board is not prohibited from considering housing costs in the development of the Land Division Ordinance.
Durbin referenced Virginia Code 15.2-1200, which lists the “general powers of counties” and includes the following statement: “Any county may adopt such measures as it deems expedient to secure and promote the health, safety and general welfare of its inhabitants…”
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“I think that is a legitimate thing for you all to consider, if you choose to,” he said. “... You’re allowed to take economic factors into consideration.”
Additionally, Durbin addressed the Board’s authority to adopt prescriptive measures in the ordinance.
“Most laws — most ordinances — you adopt are prescriptive in nature,” he said. “It’s hard to have any kind of law without having it be prescriptive.”
For example, Durbin said, if the Board couldn’t use prescriptive measures in regard to lot sizes, the ordinance would have to read, “subdivisions shall have a sufficient lot size,” which provides no guidance.
By state code, localities are prohibited from adopting measures that directly conflict with state policy, Durbin said, but they are allowed to adopt measures that are “in harmony with” or "parallel to” the state’s policies.
“Adopting a prescriptive lot size is the Board’s obligation,” Durbin said. “I think you’re on fairly solid ground to do so.”
He added that the Board could choose to adopt a “hard prescriptive standard,” a measure that depends on professional certification, or a requirement that combines both the Board’s standard and a professional certification reviewed by engineers.
Durbin also reminded the Board that the current version of the Land Division Ordinance is the one that was advertised before the public hearing was held on Aug. 26. He said the Floyd County Planning Commission’s recommended changes were suggestions that haven’t been incorporated into the document.
He said that the Board can hold another public hearing — and that it would be well advised if the Board was going to make additional changes that are “more restrictive” — but is not required to do so by law.
While the ordinance was listed on the agenda as an Action Item to be voted on by the Board, Supervisor Jerry Boothe of the Courthouse District said he would rather have another work session to read through the document and discuss any changes.
Chairman Joe Turman of Burks Fork agreed and said he’d already made up his mind that he “could not in good conscience” vote on it that evening.
The Board hopes to have the work session scheduled by its next regular meeting on Tuesday, Sept. 23.
- Planning Commission recommends changes to Land Ordinance
- County addresses Land Division Ordinance misconceptions