I’ll do my best to keep this easy to follow.
Client wants to cut out a frontage lot on an existing parcel. Lots in the applicable zone need to meet a shape factor and the client does not want to meet this particular requirement for various reasons. After explaining the implications of going this route (lot will not be considered buildable), he asks me to prepare a sketch plan so he can discuss with the planning board and building inspector(zoning enforcement). I prepare a sketch, showing both a proposed lot that conforms to zoning, and his proposal. He brings the sketch to planning and gets their approval that the lot is indeed an ANR. He does not consult the building inspector.
Now wants us to produce the ANR plan showing this non-buildable lot on nothing more than the planning board saying “ok”. We think a note should be added to the plan stating the non-conforming nature of the lot so that 10 years down the road when some poor slob goes to get a building permit on this lot and is denied, we don’t get sued for purporting to create a developable lot. When explained to the client (a realtor, I might add), he becomes belligerent, and gives us an ultimatum, stamp as is, or I’ll find someone else.
Additionally, I feel it’s unethical to do this without a variance from the zoning board of appeals. Does the note to the effect that the planning board has made no determination regarding zoning compliance (Smalley v. P.B. Harwich) protect us or just the P.B.? How about protecting the public…right? Thoughts?
Thanks in advance.
-V
VH, we will frequently create non-buildable lots. usually for conveyance to an abutter, or to create zoning compliance were it didn't exist before. In your case I agree that a note stating "Endorsement of this plan by the XXXXXX Planning Board does not constitute zoning compliance as a buildable lot." That is how we handle it. There are several towns, locally, that have a stamp they put on every ANR plan that comes through them. It is the building inspectors job to determine compliance NOT the planning board. [USER=6239]@VH[/USER]
Whenever I create an unbuildable parcel on an ANR (usually to be added to another lot), I call it "Parcel A" instead of "Lot", and add a note like "Parcel A is not a building lot due to lack of frontage" or area or whatever. This is almost always required by the town anyway, and it protects me also.
I don't know if I would prepare a plan without this notation that I knew did not conform. Your client sounds like a jerk, and will probably be the first to sue you if a sale falls through or a buyer finds out he can't build.
Personally, I would have shown him the door once he became belligerent. I don't need clients like that.
OK Ma guys: ANR?
Ken Salzmann, post: 322575, member: 398 wrote: OK Ma guys: ANR?
Approval Not Required, meaning that it does not require approval under the subdivision control law.
I agree. I have no problem creating the lot as he wishes so long as there is a note on the plan stating the nature of the non-conformity so when this comes back to bite (and it will), our bases are covered. I usually use the parcel vs lot method as well, when creating a non conforming lot. I've spoken to various attorney's on the matter and they are all in agreement that implies Lot=buildable, Parcel=Not, of course with the notation "not to be considered a buildable lot."
Additionally, the fact that he did not consult the building inspector is what really worries me. He believes since the PB gave their blessing, that is all he needs and did not want to hear otherwise from me. I tried to explain the difference between an ANR endorsement and a non-conforming lot as it pertains to zoning, but he didnt care. He's a new client, and I'm fairly certain this will be the end of our relationship.
Thanks guys for the input. Much appreciated. G'night.
-V
I realized that I forgot to mention that he wants to create this new non-conforming lot around an existing dwelling which sits on a lot that currently is in conformance. We will be taking a conforming lot and making it non conforming without the plan ever going to zba.
VH, post: 322719, member: 6239 wrote: I realized that I forgot to mention that he wants to create this new non-conforming lot around an existing dwelling which sits on a lot that currently is in conformance. We will be taking a conforming lot and making it non conforming without the plan ever going to zba.
I assume that the structure(s) don't pre-date zoning so that protection is not afforded here. (is there only one structure?)
So, if you create a non-conforming lot, with an existing building will the building inspector take action? Or does it become an issue when the building and non-conforming lot are conveyed?
I don't think that you have to state that the lot is Non-conforming, just that endorsement by the planning board does not constitute build ability of the lot.
"So, if you create a non-conforming lot, with an existing building will the building inspector take action? Or does it become an issue when the building and non-conforming lot are conveyed? "
Both, I think. Certainly he will not grant a building permit on the lot should any future work be proposed. And, I think it will be an issue when the lot is conveyed. Does this become a title issue, since the lot was created without going to zba? The more I think about this, the worse it gets.
We spoke with the client this morning, and said we are calling the lot a parcel, and stating on the plan that it does not meet the shape factor. When he realized there was no other way he was going to get the plan, he agreed. But now I'm hung up on whether the zoning act allows such a creation without going to zba.
-V
As far as I can tell there is not any prohibition on creating non-conforming lots. Like I said earlier, what if clients wanted to swap pieces of land that were substandard to size and /or frontage? Like to clear up a setback issue or maybe an encroachment?
On a parcel of land that does not already have a conforming dwelling on it, I agree. But in this case, we would be taking an existing conforming dwelling, and making it more non-conforming by creating a non conforming lot around it.
Check out Spooner LLC v. Brookline ZBA. Judge ruled an ANR invalid b/c the division rendered an existing dwelling non conforming with zoning.
VH, post: 322740, member: 6239 wrote: On a parcel of land that does not already have a conforming dwelling on it, I agree. But in this case, we would be taking an existing conforming dwelling, and making it more non-conforming by creating a non conforming lot around it.
Check out Spooner LLC v. Brookline ZBA. Judge ruled an ANR invalid b/c the division rendered an existing dwelling non conforming with zoning.
thanks for the info!
foggyidea, post: 322757, member: 155 wrote: thanks for the info!
VH check Don Schmidt's publication. Its an oldie but a goodie. ANR lots are about frontage and access. With that said your situation still is a little stinky. I'm putting a clear note on that plan calling out the zoning issue. He doesn't like it ...bye bye.
http://www.mass.gov/hed/docs/dhcd/cd/zoning/anrhandbook.pdf
FI thanks for the citation.
The Hack
Yup, the note is on the plan...along with a letter sent certified mail explaining our stance and the nature of the non-conformity. Thanks for the input.
-V
We always add the note to the plan and unless it is registered, we call out Lots and Parcels. Lots are generally buildable. Parcels are not.
Parcel A contains insufficient area and frontage to comply with Zoning and will be joined with an adjacent property for building purposes.
If it makes you feel better, the ANR endorsement means little until the first deed is conveyed out. If you really want to push the issue, file two ANR plans simultaneously: One containing your client's desires, the other containing the compliant properties. That really spells out the fact that the ANR means little (except for the 3-year Zoning Use protection and the 3-year Board of Health regulation freeze) until the first deed is conveyed out.
Then in 10 years, you will really remember. Or you will wonder why there are two plans.
