Plat of Survey Setback Rules/Wording
I guess maybe the question is how to determine the writing of our final plat of survery. On the final plat of survery there is a diagram on each phase that indicates a 25 foot building setback from front and back and 8 foot building setback from sides. The diagram states TYPICAL LOT LAYOUT. In the “Owner’s Certificated” section it states that: Front and side yard buidling setback lines are hereby established as shown on this plat, between which lines and the property lines of the streets, there shall be erected or maintained no building or structures.
The question in hand is per the Final Plat of Survey would be, is there a 25 foot building setback rule against buildings or structures (ex: sheds, swingsets, pools, decks etc) from the BACK lot line?
Keep in mind that enforcing a rear setback line of 25 feet would make use of any backyards in our subdivision very difficult due to lot sizes.
Thanks in advance for any assistance you may be able to give.
The ESH Family!
- 19 Replies
There is no cut and dried answer to your question. Building setbacks and their interpretation vary from one jurisdiction to another. I would suggest that you contact your local zoning official or building codes official. One of these or their equivalent can explain the regulations that apply to your area. Also, locate a copy of the Covenants and Restrictions for your subdivision, these often spell out in greater detail what is and is not allowed.
> I guess maybe the question is how to determine the writing of our final plat of survery. On the final plat of survery there is a diagram on each phase that indicates a 25 foot building setback from front and back and 8 foot building setback from sides. The diagram states TYPICAL LOT LAYOUT. In the “Owner’s Certificated” section it states that: Front and side yard buidling setback lines are hereby established as shown on this plat, between which lines and the property lines of the streets, there shall be erected or maintained no building or structures.
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The written zoning ordinance should provide the definition and interpretation of the setback lines. The ordinance should differentiate between the main dwelling, attached and detached garages, and accessory buildings with different setbacks for each.
> The question in hand is per the Final Plat of Survey would be, is there a 25 foot building setback rule against buildings or structures (ex: sheds, swingsets, pools, decks etc) from the BACK lot line?
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The written ordinance should distinguish each of these structure types and list their characteristics as permanent, non-permanent, appurtenant, non-appurtenant, etc. The note on the plat is entirely ambiguous. Without a written ordinance, all you’ve got is very good questions with no answers.
> Keep in mind that enforcing a rear setback line of 25 feet would make use of any backyards in our subdivision very difficult due to lot sizes.This is an excellent example of why zoning requirements should not be indicated on a plat of survey. Sometimes a picture isn’t worth the thousand words required to clearly cover the zoning issues. Zoning issues should be spelled out in a zoning ordinance which is equally applied across the board to all development. No singling out is allowed as a matter of protecting property rights with equal standing for each individual lot.
As soon as zoning setbacks are depicted on the plat, they appear to be fixed forever. Zoning ordinances are dynamic, flexible, and change over time. When they change, the present and future development requirements for all lots within the zone change while the past developments are grandfathered in by exemption. Plats with zoning information on them now contradict the zoning ordinance and you have two opposing conditions and an argument over which should be imposed. IMHO, the will of the people enacted through the current ordinance is the controlling document; but I’m sure there are others who would argue the plat depiction controls. Therein lies the problem.
JBS
Thank you for your reply. Over the last week this has been in the hands of the city officials who do NOT know the exact answers and have this in their legal departments hands. We should have heard back from them end of last week but have not yet. Also the convenience and restrictions do not state anything about the setbacks for the subdivision. There is also nothing in the convenience about these items.
If the building setbacks are indeed something that is a City Rule, then you should be able to find it in writing. In NH, it would most likely be in the Town Subdivision Regulations and would be listed along with Minimum Lot Acreage, Min Lot Frontage, etc. Just walk into the office and ask the person behind the counter and they should point you to the right book. For the record, I have never seen a town that had Front & Side Setbacks but a ZERO rear setback.
There is also a small chance that these setbacks are part of some Covenant and would not be under City’s jurisdiction. Probably some kind Homeowner’s Association would rule here.
You could also call the company that generated the plat and ask them if it is a mistake.
City rear setback is 5 feet. There is no HOA present. There is although a convenience mentioned in the final plat of survey to meet the rules and regulations of the convenient. BUT again the setback nor the building and structures are not mentioned in the covenience.
Do you think contacting the original survey company who drew up each phase final plat of survey would help get an understanding of what was intended?
Here in Mass we have many irregular shaped lots, which then begs the question “how do you define Side, Rear or Front set backs?”
My preference is to make a table of the zoning requirements and NOT show the set back lines. To actually draw the lines means you have made a legal interpretation of the zoning ordinance, checked all back actions on the property and determined that NO variances have been granted and there are no pre-existing conditions that alter the current zoning requirements.
If you get input from the Building Inspector or City Solicitor, make sure you put a note on your plan stating their interpretation is shown hereon. You’ll see how reluctant they are to have you do that…..makes you wonder why doesn’t it?
this sounds like a deed restriction over a zoning bylaw
who enforces the restriction?
when does it expire?
or was it a restriction imposed by the Planning Board (or equivalent) when they approved the subdivision? go check the statement of conditions (or equivalent) and other notes regarding the subdivision.
Do you think contacting the original survey company who drew up each phase final plat of survey would help get an understanding of what was intended?
Then there is the “DEFINITION” for structure that is also in question. What exactly is defined as a structure if there are no exceptions saying sheds, fencing, decks, swingsets etc. I found this definition online:
1struc·ture
noun ?str?k-ch?rDefinition of STRUCTURE
1
: the action of building : construction
2
a: something (as a building) that is constructed b: something arranged in a definite pattern of organization
3
: manner of construction : makeup
4
a: the arrangement of particles or parts in a substance or body
b: organization of parts as dominated by the general character of the whole c: coherent form or organization 5
: the aggregate of elements of an entity in their relationships to each other
— struc·ture·less adjective
— struc·ture·less·ness noun
See structure defined for English-language learners »
See structure defined for kids »
Examples of STRUCTURE
They studied the compound’s molecular structure.
The film had a simple narrative structure.
the structure of a plant
the social structure of a college campus
changes to the company’s power structure
The structure was damaged by fire.
Children need a lot of structure in their lives.Origin of STRUCTURE
Middle English, from Latin structura, from structus, past participle of struere to heap up, build — more at strew
First Known Use: 15th century> Then there is the “DEFINITION” for structure that is also in question. What exactly is defined as a structure if there are no exceptions saying sheds, fencing, decks, swingsets etc.
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The meaning of a structure in the context of real estate is one which is permanently attached to and made part of the real property excluding personal property. Typically, that means anything which requires a foundation which provides a mechanism to attach the structure to the ground.Black’s Law Dictionary defines a Structure as:
> “Any construction, or any production or piece of work artificially built up or composed of parts joined together in some definite manner. That which is built or constructed: an edifice or building of any kind.> A combination of materials to form a construction for occupancy, use or ornamentation whether installed on, above, or below the surface of a parcel of land.”
The bottom line you are confronted with is that the plat is entirely ambiguous. The first problem is that it’s the wrong document to impose use restrictions; that’s what Covenants, conditions and restrictions (or zoning ordinances) are used for. The second problem is use of the term “structure” without defining it in the context of a real property use. Most structures are personal property. That’s what separates them from buildings which are real property. A land use restriction should never govern personal property, so items like sheds (not on foundations), fences, decks, and swingsets, are naturally excluded. Only buildings and structures attached to permanent foundations (not temporary) would be included in the restriction.
JBS
Sorry for not being completely intellegent to this subject. Forgive my 100 questions. LOL!!!
So does a shed, fence, deck, swingset etc classify as a structure then? Would the shed be considered a building if it does not have a concrete foundation setting and keeping it into place nor occupancy?
We have no idea what is in your local zoning ordinance.
I agree that showing setbacks on a Survey is a bad idea but maybe it is required in your case.
For example, setbacks often vary based on various things such as the number of floors, parking or landscaping and so on. There is not necessarily a single hard setback distance.
Accessory Structure Setbacks ?
Accessory structure setbacks may be listed within each Zone requirements or may be separately listed elsewhere in the ordinance. Typical wording is a lesser amount from side and rear than the residence and most be behind the primary structure so front yard does not apply.
It is always a quandry with corner lots. Most ordinance require 2 front yard setbacks, but only 1 rear with the other being a side. whci is which may not be decided until a dwelling is built. Some base the front as the front door, i.e. address, some base it on the driveway aand some give no guidance at all.
In my Zone “A” in my town a garage facing a rear alley may have a zero sideyard setback since the adjoiner may match it. A stand alone shed may not have zero setback. Every town is very different and some have unusual quirks brought about for reasons now unknown from way back when.
Based on the information given here no one can or should give you a definitive answer. If you are unhappy with the Zoning Officer’s decision pay your appeal fee and request a hearing.
Paul in PA
> Do you think contacting the original survey company who drew up each phase final plat of survey would help get an understanding of what was intended?
yes.
also, for the records, most towns in my area require the setback lines show on the subdivision plat. They have saved many a contractors’ butt.
Accessory Structure Setbacks ?
Per the city ordinences etc the setback rule is 5 foot in back and 5 foot on the sides. But per this final plat of survey they are showing on a TYPICAL LOT LAYOUT that there are 25 feet setbacks from the front and back and 8 feet set backs from the sides. The wording as said above says front and sides. So since they have only contacted an attorney to try to stop us from getting our shed how would I file an appeal etc?
Accessory Structure Setbacks ?
“Building or structure” should be defined in the ordinance. Only that which meets the ordinance definition should have to comply with the filed map setbacks.
“Accessory building or accessory structure” should be separately defined in the ordinance. That is what one is allowed to build to the lesser setbacks.
Once you are clear that satisfies you, submit copies of those sections to the attorney in the form of a question, not in the form of a challenge. Give him a chance to look good in helping out a citizen.
Paul in PA
> So does a shed, fence, deck, swingset etc classify as a structure then? Would the shed be considered a building if it does not have a concrete foundation setting and keeping it into place nor occupancy?
The definitions should be found in your local zoning ordinances. Typically, the zoning ordinances only deal with real property which is defined as the land itself and anything permanently attached to it. Personal property, on the other hand, is moveable.Applying that thinking, a shed attached to a foundation is real property and will be subject to the ordinance; an unattached shed would typically not be considered. A swingset may be “anchored” to the ground, but can easily be moved, so isn’t typically included as it’s personal property. Same thing with a fence.
The difference between a building and a structure isn’t quite as clear. Typically, a building would be enclosed on all four sides, while a structure would be open (like a carport, for instance). There is typically a distinction between attached and detached structures as well. The setbacks are typically different for detached structures or accessory buildings than they are for the main dwelling and attached structures (which it sounds like your plat is referring to).
Your questions really come down to the local zoning ordinances and their normal application in the local area. That can vary considerably between jurisdictions. I would suggest you find a good real estate attorney in your local area who is conversant with your local ordinances.
JBS
Accessory Structure Setbacks ?
I want to THANK EACH and EVERY ONE of you for your help! Today I reached our builder who provided me with a officially sealed by notary letter to present to the attorneys and city we live it.
In this letter he stated that the 25′ setback showing on the recorded plat of survery for our subdivision is designed for the single family houses ONLY! Therefore there are no restrictions for adding or constructing any sheds, fencing, decking or playground equipment.
I am so very happy. My attorney was quite impressed too, lol saved him a lot of his time since I was doing the leg work.
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