Charlottesville Daily Progress
Tuesday, April 24, 2007

Whether Charlottesville can “fix” its error regarding protected property in Woolen Mills may be a moot question:

The city might not have the authority to retroactively alter a past decision.

But the philosophical questions surrounding errors and fixes will remain. Should governments be able to correct old oversights? If so, how? When?

The debate centers on an historic property now owned by Preston Coiner, a member of the city’s Board of Architectural Review, which has some jurisdiction over historic properties.

The seven-acre property containing the historic Timberlake-Branham house had been subdivided into two parcels in 1989, but the tax maps were not updated at the time because the property did not change ownership.

In 1993, the city declared both parcels to be historic.

In 1996, Mr. Coiner bought the house and land. He says he did so under the impression that only one parcel was protected by historic designation, that surrounding the 1886-era home.

In 2001, he further subdivided the property. That’s the point at which a city review of the paperwork should have revealed that historic designation applied to both the parcel surrounding the house and the nearby parcel that had previously been subdivided in 1989.

But the historic designation was not noticed. As a result, the Planning Commission did not know that the land was protected and granted approval for Mr. Coiner to build the Woolen Mills Self Storage complex.

Last year, Mr. Coiner broached the idea of building 10 to 12 houses between the storage site and the historic home.

Only then was it discovered - by concerned residents - that the historic designation was not carried forward on the paperwork for the second parcel.

There is logic in residents’ insistence that the city correct its mistake. That “property interests” can be taken from residents by a typo is “a frightening and unspeakable precedent,” said University of Virginia law professor Anne Coughlin.

For many people, a sense of justice would demand that an error be fixed.

But Mr. Coiner wasn’t the one who made the error.

And correcting it would take away his “property interests.” He has been operating for the last 11 years under the good-faith impression that the land carried no special restrictions. To suddenly impose a restriction would be unfair.

It falls to the city’s Board of Zoning Appeals to determine whether a “correction” can and will be made. The board is seeking legal advice as to whether state law even permits it to act. If the answer is “no,” this case will resolve itself.

But it might prompt activists to seek a revision of state law to allow “technical errors” to be corrected. And if that happens, citizens and legislators will have to cope with some very complex issues.

Yes, it makes sense for government to correct errors in its paperwork.

But when the correction creates hardship or injustice, then what? When property owners have trusted the paperwork to be correct and have made plans and spent money based on that reasonable assumption, how are they to be compensated for loss?

At the very least, there should be a statute of limitations beyond which no correction is possible.