I am working on an ALTA update, and I have been furnished a zoning report. The zoning report indicates that the zoning for this property has a varying setback anywhere between 2' and 30'.
One of the storage buildings encroaches into the front setback 0.1'. The recorded plat has a recorded setback of 30'.
The paralegal, in her comments, stated that the zoning reports indicates that this is not an encroachment, and that it should not be shown as such. I believe that a recorded setback trumps the zoning, and I do not want to remove the encroachment notation.
What do you think?
I would show the building and note which portion is into the setback. I stop short of using the term encroachment. While this fits the websters definition it may not meet the legal definition. ..
> What do you think?
I think the Alta Standards say it very well:
TABLE A
OPTIONAL SURVEY RESPONSIBILITIES AND SPECIFICATIONS
"..The surveyor cannot make a certification on the basis of an interpretation
or opinion of another party..."
> What do you think?
I think I would
- Show the platted setback labeled "30' Setback per Plat Book XX Page XXX
- Dimension the offending building corner.
- Put in the notes "Per zoning letter issued by XXX on XXX the site has varying
setbacks from 2-30 feet" (quote letter verbatim) - Respond to any further inquiry by stating that any further interpretation of zoning violations falls outside the surveyors scope per the ALTA standards.
- Collect my big honking fee.
A few additional points.
1. "the paralegal" Whose? Most ALTAs I work on have a law firm engaged by the buyer, a law firm working as a agent for the title company, and a law firm representing the lender. They are each biased advocates for different parties, so watch out thinking they speak from a position of authority. On survey matters, YOU are the only authority.
2. I always refer to this portion of the ALTA process as "the ceremonial exchanging of the liabilities". You can judge a lawyers sense of humor by their reaction to that statement.
3. Friend don't let friends place zoning matters which are protean into the chain of title by platting setbacks. Whenever the opportunity arises, use examples like this to help persuade those drafting subdivision regulations that this is a very bad idea.
Why did they not choose to use the previous surveyor who stamped the setback at 30'?
Do your monuments and theirs match? Do your plans match?
Did they perhaps locate the foundation and you the corner board? (My favorite one of those was when the foundation was located at the setback and the building was cantilevered by a foot...)
In New Jersey the setback line on the recorded plat is a deed restriction, while the zoning setback line is part of the municipal zoning ordinance.
Two different things and both would need to be shown.
> I am working on an ALTA update, and I have been furnished a zoning report. The zoning report indicates that the zoning for this property has a varying setback anywhere between 2' and 30'.
>
> One of the storage buildings encroaches into the front setback 0.1'. The recorded plat has a recorded setback of 30'.
>
> The paralegal, in her comments, stated that the zoning reports indicates that this is not an encroachment, and that it should not be shown as such. I believe that a recorded setback trumps the zoning, and I do not want to remove the encroachment notation.
>
> What do you think?
Jimmy,
Was that a 30' building setback line or a 30.0' building setback line?
Thanks for all of the replies.
This is a PD, and the plat dictates the 30' setback for this particular parcel.
I spoke with the attorney that signed the contract, and explained my stance and she understood.
I am definitely not certifying to anything outside of he surveyor's responsibility, I am plotting to the PDF to send over now. We'll see what she says about my statements.
:good: