My client owns several lots in a subdivision that was filed 2 years ago. When the subdivision was filed it contained the note. "This property is zoned R-20-C. R-20-C had a 20 foot side setback. The county has now adopted a new Unified development ordinance which does not contain the R-20-C. The county indicates that my clients property is now zoned RA and has a 10 foot side setback. I think that because the subdivision was approved and signed by the planning commission with the zoning clearly represented on it, I am now stuck with the old zoning. I could even see where a purchaser of a lot may sue my client for damages if a house were to be built less than the 20 foot setback..any comments from others would be appreciated.
Deeded setbacks are one thing, zoned setbacks are another. Zoning is fluid and will change at the will of the local government. Your split map was valid at the time it was filed, and a snapshot in time, just like a survey. The zoning has been superceeded, and the parcel now has different setback rules. It doesn't make the map or split any less valid. It may be a different case if they were trying to make it more restrictive, but zoning can be a powerful thing if regurarly enforced and adheared to.
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I agree with toivo. If those were the only words stating what zone the subdivision was in, it doesn't sound like it was imposing a rule. Only a statement of fact at that time (when the plat was made and signed)
I concur as well although I would check to see if there's anything in the covenants or HOA, if there is one, that contains any setback language. I would also speak directly with the community development person who handles setbacks and see what their thoughts are as to what they will or will not enforce. I've seen more than I care to where a gov't official will enforce something that I did not think agreed with the UDO.
Zone use appeal for a special permit
It will cost the landowner, but they will be granted the permit. The city does not want to get sued, and they will lose every single time, so the variance will be approved.
...cha ching...$$$
If they would have built right away, this would be a moot point.
The note is what it was then, not now. It' been superceeded by the current zoning regulations. Our plats never show zoning because they can by a council vote after recommendation by our planning commission be changed.
This is like and alta that requires you to get a zoning ruling from your planning commission to put on the alta. It's only a snapshot of what it was then.
That's how it works in SW Okie anyway.
Deral
we always show zoning and a date
this is exactly my point, if they made it more restrictive, then they could turn buildable lots into unbuildable and I believe they would lose that battle in court. Likewise if a neighbor following the old rules comes along and says that this new setback somehow diminishes his property value, then a court may likely rule in his favor. By signing off on the plats, the planning board is fixing the setbacks as shown on the plat...I agree btw, that this is a good reason not to include setbacks or zoning on plats.
I agree that discussing it with the proper municipal official to get an interpretation is a good idea. Whatever she says, get it in writing.
Remember, if it is not in writing, it does not exist.
KS
Had a similar situation a couple of years ago in Central N.C. $400/hr. attorneys work wonders.
I believe that I have found applicable state law to this situation. Once a subdivision is approved the owners have a vested right to complete the development. If zoning or other factors change they do not appear to apply for a period of 2-5 years. This does not appear to mean that the client can not accept the new zoning. If anyone is interested it is NC General Statute 160A-385.1..Thanks for all the comments.
This is legal issue, not a survey one. We will show current zoning classifications on ALTA's or otherwise if requested or required (Subdivisions), but we do not make compliance determinations. A determination can only be done by the legal authority having jurisdiction, i.e: The Zoning Compliance Officer. I would also suggest that paid advocacy in legal matters is the practice of law.
I believe I am well within the bounds of surveying to determine a setback for proposed construction. I do not determine compliance of existing buildings, however I can read the statutes as well as anyone. Do you hire an attorney to interpret boundaries for you? This is clearly surveying. An attorney might be required if a variance request was rejected or if the client was arguing against the statute.
Maybe. In the case of a new UDC, the government may adopt the right to rezone the property; however, if there were deed restrictions/covenant restrictions filed at the time of the subdivision's creation, and they state a 20' building line, then it will trump the 10' building line, regardless of the new zoning status. At the very least, there is a conflict between the plat and UDC. If they build to the 20', then they'll never encroach on the 10'. 🙂
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thats a great cite Joe, thanks for the input.