This is probably too detailed, so feel free to skip to the end if you're easily bored!
I'm doing a retracement of a parcel that was surveyed and broken off in 1970 (by my dad!). This is in an old ritzy neighborhood where the streets must have been laid out and surveyed between 1917 and 1933 - there are original stone bounds still remaining at most of the PCs & PTs, but oddly, no surviving plan of the original design.
This particular street starts out at 50 feet wide, and then in front of the lot in question narrows to 45 feet, all based upon the stone monuments that are still in place.
In my dad's old files, I found what appears to be a partial copy of a taking plan, dated 1933, that shows the street in question as 50 feet wide throughout it's length, and shows how the 50 foot layout is to be fit to the old stone bounds that are 45 feet apart. The extra 5 feet comes out of the property I am retracing. My dad for some reason did not follow this layout plan and held the 45 foot wide layout based on the monuments.
I'm pretty sure the layout plan is not recorded. The partial copy I have must have come from the Town Engineering Dept several decades ago. They searched, but could not find it in their current records. The Town Clerk found the original acceptance vote from 1933 and it references an attached plan (which was not found) well enough that I'm sure it's the same as the the partial copy that I have.
So...I'm reasonably certain that the road was taken as a 50 foot wide right of way throughout, and for some reason they never removed the old monuments at the 45 foot width or reset new ones at 50 feet. No problem...
So I calculate the frontage along the 50 foot width, and due to the angle one of the sidelines intersects at, the frontage is 148.23 feet, rather than 150.00 feet that is shown on my father's 1970 plan. Guess what the minimum frontage is in the zoning bylaw? That's right - 150 feet.
So now the lot no longer conforms to zoning... or does it?
I have seen it argued here that a later survey showing a shortage doesn't necessarily make a lot non-conforming. My zoning bylaw expert friend disagrees (he's not a surveyor or attorney, but wrote a good chunk of the current bylaw). He thinks that if any new construction is planned, the Building Inspector will require it to go through the Board of Appeals, who he thinks will easily approve it, but it's still non-conforming.
What do you think? And does it matter that this little 1 acre lot is worth close to $1 million?
And what do I tell the client?:'(
Most zoning / subdivision ordinances have a "grandfather" provision, so the first thing is to look at that and see what it says about pre-existing lots. There may also be provisions in the state code that need to be examined.
If there is no help there, then it may indeed now be a non-conforming lot and need special approval.
Lots of "ifs" and that is all you can tell your client. Even getting something in writing from the appropriate gov't official may not be deemed acceptable 5 years from now.
I think whoever owns the million $ property should hire a lawyer and they will get ER done conforming or not. I also think your Dad would spank you for not taking his stone bounds.
It Is A Conforming Lot In PA And NJ
A lot that is made nonconforming by a taking is still legally conforming. Written into PA Municipal Planning Code and NJ Land Use Law.
It saves having to burden Planning/Zoning Boards from having to hear cases for which they must ultimately grant variances because the harship is not of the landowner's making.
Paul in PA
> I'm pretty sure the layout plan is not recorded. The partial copy I have must have come from the Town Engineering Dept several decades ago. They searched, but could not find it in their current records. The Town Clerk found the original acceptance vote from 1933 and it references an attached plan (which was not found) well enough that I'm sure it's the same as the the partial copy that I have.
>
> So...I'm reasonably certain that the road was taken as a 50 foot wide right of way throughout, and for some reason they never removed the old monuments at the 45 foot width or reset new ones at 50 feet. No problem...
>
Based on the partial data you present my inclination is to trust the bounds that have been in place all these years. Being "reasonably certain" what the town meant to do isn't certain enough for me to go against the hard physical evidence.
Absent additional information I say the clients property goes to the bounds. If I read you right, that means there is no issue with the frontage.
If the town can come up with some sort of proof they got the full 50 feet, let them. Otherwise, their intentions can't trump the rights of the citizen.
Just my two cents worth.
Larry P
most of the minimum acreages and minimum road frontage requirements in my area apply only to the creation of new lots.
As a side note, we always add a couple feet to the minimum requirements to avoid problems like this in the future.
> Based on the partial data you present my inclination is to trust the bounds that have been in place all these years. Being "reasonably certain" what the town meant to do isn't certain enough for me to go against the hard physical evidence.
That was my original thinking before the Town Clerk came up with the acceptance vote record. But when I say "reasonably certain" I really meant "99.9% sure." That being said, based on my search, I may be the only person on Earth with a copy of that layout...
> Absent additional information I say the clients property goes to the bounds. If I read you right, that means there is no issue with the frontage.
If only it were that simple! I just checked my original configuration (with the 45' width), and I get a frontage of 148.72 feet - it turns out I disagree with dad on the left sideline, where he "virtually pincushioned" a bound that is clearly shown on a 1939 plan as the corner. Although it is broken a foot or two down and wiggles slightly, I am "reasonably certain" that it is in it's original location. I think he may have held an arc length from another bound, but the only record length is from that same 1939 plan...
I could hold dad's 1970 pincushion, but...the abutting property was surveyed in 1992 and that surveyor held the bound. That surveyor was....ummm...me, working for my dad!
So the frontage loss is actually mostly due to that, although the street width difference accounts for about half a foot. This is getting complicated...
What I did not mention is that my client is not the homeowner, but the next door neighbor who is buying the property. His lot is the same property my dad cut this piece out of in 1970, so he could just do a little 2 foot lot line change and make this all go away after he purchases it I suppose...
With that additional information I'm starting to see the difficult choices that lie ahead. All I can say is if it was easy, any dern fool could do it.
Do the best you can and be prepared to defend why should the need arise.
Larry P
Was the current zoning regs in place when this lot was created? Did they even have zoning back then? Why was a non compliant lot approved?
If you can zone folks out of the use of their property that complied before or was created before there was zoning then from my viewpoint they have had there land rights violated. It's different in every state. Most zoning ordinances when they are first put in place allow existing parcels to be developed. I don't think that an area zoned for 1/4 acre lots can be re zoned to 1/3 acre lots and then make all the 1/4 acre lots non buildable. That's just not right.
I was made the chairman of my counties planning and zoning commission last night. I'd fight like heck to stop something like this from taking owners land rights away. We been easing off the regs for a couple years now and I hope to do more (rewrite the ordinances to be less restrictive).
The bigger problem
Is zoning in the first place. It's one of those really bad ideas that someone came up with years ago to screw those who own the land and put them under the control of those who don't. I really don't think that's what the framers of the Constitution had in mind.
The bigger problem - you can fix it
You can change it but it takes time and patience. I had some issues back in 2007 with some development I wanted to do and problems with the county P&Z. I started to go to meetings as a citizen and voice my concerns. After a couple years a vacancy opened up and I was urged to apply. Seems others saw a need for change, all that was needed was an idea and a change agent. We've already fixed what was my main issues and now have a commission willing to look at it all and fix it!
Now is the time to act as the public has lost most interest. In 2007 lots of folks came to the meetings to voice concerns. Now we hardly ever get public comment. Things are slow and folks have decided their properties are not headed in value to the moon. When opportunity knocks, answer the door. Land rights are being restored in my county and I'm going to push it for all it's worth, get it rewrote so folks can enjoy their property.
i read halfway through and would suggest the following
Based on MGL 82 S 23, the plan is to be submitted with the Town Clerk and MGL 82 S 32, the Town Clerk is supposed to record the plan in a book.
I cannot find the reference but there is an 120-day deadline between the Town Meeting accepting the way and the recording of the plan. This route may need a lawyer.
Does it have a house on it? MGL Ch 40a S 6 may just cover it. Back to the lawyer.
The bigger problem
AMEN. Zoning is the greatest scam perpetuated upon the human race.
"We been easing off the regs for a couple years now and I hope to do more (rewrite the ordinances to be less restrictive)."
Good man! Give these people their liberty back. Hopefully other towns take notice.
You call it a "taking"; but I assume it is just a right-of-way easement.(?) If it were a full fee-simple taking, wouldn't there be offers, condemnation if offers are not accepted, and finally a deed written for the additional right of way? Can they even widen without an offer for damages to the adjoining property? And what about the need? It seems that at least 43 years have passed without the need for additional roadway. A private citizen can't "adverse possess" against a public agency, but is there any kind of acquiescence that has gone on? If a local agency is going to "take" an easement by vote, shouldn't this plat/plan be recorded and the exact location be shown so that a private citizen can actually conform to the decision? Was it just done that way, by vote, without any further action? If they needed additional roadway, they would have had to take down the wall, I would think.
Sorry, I just don't know about a "taking" by vote without some kind of deed or transfer of funds or a physical widening taking place.
I am definitely not a lawyer; and I would recommend that the client get some kind of written authorization to build into the possible setback (having said all the previous stuff). You don't own that kind of property at that kind of value without having confidence on what you can and can't do. All you can do as a surveyor, as I see it, is show whatever information you found. It puts your client on notice as to what s/he might need to do to clear things up. You definitely should not let the information you found go un-noticed. You could really get burnt if somehow the client suddenly has to go through a great deal of expense due to ignorance of the situation.
