November 18, 2009 – After recently completing a subdivision project for a client who has property adjacent to Mill Creek Lake, (near Lowesville, VA) two unique setbacks needed to be considered in the production of the final plat. Within these setbacks no building can be constructed and no drainfield may be installed. Excepting the uses of pasture land, conservation and recreation the property encumbered by these setbacks, is, for all intents and purposes, dead unusable space. First, there is a 200 foot setback called a P-1 Setback that is required from any property line that is adjacent to a National Forest or County Reservoir property line. Second, there is a 350 foot Reservoir Setback from the normal pool elevation of the lake. In the case of my client the 200 foot P-1 Setback contained the 350 foot Reservoir Setback. However, both setbacks had to be shown overlapping on the final survey plat before the plat could be approved. The most interesting fact is that out of the client’s ±10 total acres only 5.7 acres can be considered usable space, unencumbered by setbacks. While we all recognize the usefulness of setbacks for preservation of our natural resources, we must balance the rules with the consequences those rules may cause. Many times a simple good spirited rule may, indeed, have unintended consequences, like in this case. Perhaps we all need a little less rule in favor of more flexible, sound principle judgment.  In this case, in lieu of these encumbering setbacks I would hope that there is a fair valuation of the property for tax purposes. A property so encumbered by setbacks certainly should cause an adjustment in property tax liability. However, I suspect that my client will most likely be taxed on the full value of 10 unencumbered acres, even though nearly half of his property is essentially useless to him. That is, unless, my client decides to raise Cain to the assessor who most likely does not consider the effect that the local ordinance has on property values in the real world. It really is amazing how property rights have changed so much that the local government can essentially restrict your rights and at the same time tax you for that privilege. IN THIS CASE THE SETBACK IS REALY A SETBACK!