Setbacks on plats vs current zoning...Case Law?

My thoughts would be...

It is the municipalities who required us to put the setback lines of the subdivision plat in order to get approval of the subdivision. I have a hard time believing that the municipality could then change the setback lines on lots (making them more stringent) that were previously approved and recorded.

I don't know about NC, but the Counties I work in Virginia will hold the recorded setbacks over the new ones. Once the subdivision plat is signed by the County and recorded, those setbacks are "grandfathered" if the ordinance changes in the future. If a lot comes in for a boundary line adjustment, consolidation, or subdivision, then the current required setbacks must be placed on the new plat.

Gary

I have personal experience with this: I purchased two lots with platted set-backs of 35-feet. The subdivision was at least 40-years old and for some reason most of the existing home were built on two lots. The adjoiner was a city council person and when he found out I was going to build two homes, he got the council to pass a 50-building line set-back ordinance. This would have made it impossible to build two separate homes. I hired an attorney and they investigated law precedents and they determined that I stood a good chance of winning. After my attorney met with the city’s attorney, the City retreated on the issue. I built my two houses and came out ahead even with the 15K fee to the attorney.

Sorry, but I don’t know what the specific cases were, but I am sure an attorney could find them.

Here in Hesperia, CA many of the older subdivision maps (tract maps) show building setback lines that do not coincide with the current zoning. The city allows the developer to file a Certificate of Correction (C fo C) to the original map to adjust the setback. The C of C is recorded with the San Bernardino County Recorder's Office after review.

I wouldn't think most people would want to use the newer setbacks. They are likely to be larger and not match any existing construction in the block.

What incentive would they have to file an "allowed" correction?

There was a case on point here in Jefferson County about 20 years ago. A developer bought an old subdivision and was building houses. The county (Jefferson, WV) enacted a zoning ordinance with brl's which were greater than those imposed by the subdivision plat and denied the developer a build permits for the same size houses he had been building. Developer sued the County in Federal Court I think the case was styled Everhart v. Jefferson County Planning Commission. It would have been about 1990 I think. Court found for the County against the developer.

The County then revised the zoning ordinance to grandfather any subdivison which had previouisly established brl's.

City of Little Rock v. Southwest Builders, Inc

By its complaint in this case the appellee seeks to compel the city of Little Rock to issue a building permit for the construction of a $28,500 residence on Lot 23 in Edgehill Addition. The city defends its refusal to grant the permit on the ground that the proposed construction would violate the municipal zoning ordinance. The principal defense, however, is interposed by several neighboring property owners who intervened in the case. The intervenors contend that any construction at all upon Lot 23 is prohibited by the original plat and bill of assurances for the addition. The chancellor rejected both defenses and granted the relief sought.

"No plot or lot shall contain more than one residence. All residences in said addition shall be erected so as approximately to face the front building line indicated on said plat or map, and no building or other structure shall be erected closer to any street, drive or road indicated on said plat or map than the building line shown on said plat or map * * * is forbidden..."

If we look to the plat alone, the fact that the building lines were not carried into Lot 23 creates at most an ambiguity. It could be inferred that the absence of a building line was intended to prohibit the act of building, but it might also be supposed that the absence of this line implied a corresponding absence of the restriction that the lines were designed to impose.

DDSM

Oregon Revised Statute:

Notice item ( 9 ).

92.050 Requirements of survey and plat of subdivision and partition. (1) A person shall not submit a plat of a subdivision or partition for record, until all the requirements of ORS 209.250 and the plat requirements of the subdivision or partition have been met.

(2) The survey for the plat of the subdivision or partition shall be done in a manner to achieve sufficient accuracy that measurements may be taken between monuments within one-tenth of a foot or one ten-thousandth of the distance shown on the subdivision or partition plat, whichever is greater.

(3) The survey and plat of the subdivision or partition shall be made by a registered professional land surveyor.

(4) The plat of the subdivision or partition shall be of sufficient scale and lettering size, approved by the county surveyor, so that:

(a) The survey and mathematical information and all other details are clearly and legibly shown on the plat.

(b) Each lot or parcel is numbered consecutively.

(c) The lengths and courses of the boundaries of each lot or parcel are shown on the plat.

(d) Each street is named and shown on the plat.

(5) The locations and descriptions of all monuments found or set must be carefully recorded upon all plats and the proper courses and distances of all boundary lines, conforming to the surveyor’s certificate, must be shown.

(6) The location, dimensions and purpose of all recorded and proposed public and private easements must be shown on the subdivision or partition plat along with the county clerk’s recording reference if the easement has been recorded by the county clerk. Private easements become effective upon the recording of the plat.

(7) The area of each lot or parcel must be shown on the subdivision or partition plat.

(8) In addition to showing bearings in degrees, minutes and seconds and distances in feet and hundredths of a foot, the following curve information must be shown on the subdivision or partition plat either on the face of the map or in a separate table:

(a) Arc length;

(b) Chord length;

(c) Chord bearing;

(d) Radius; and

(e) Central angle.

(9) A city or county may not require that a final subdivision, condominium or partition plat show graphically or by notation on the final plat any information or requirement that is or may be subject to administrative change or variance by a city or county or any other information unless authorized by the county surveyor. [Amended by 1955 c.756 §10; 1983 c.309 §3; 1989 c.772 §8; 1991 c.763 §10; 1993 c.702 §3; 1995 c.382 §4; 1997 c.489 §2; 1999 c.1018 §1; 2005 c.399 §5]

In many tracts a portion of the lots were intended to be for neighborhood commercial or retail. The commercial lots were never developed as such and had larger setbacks. When someone wants to build a house on one of these lots they do the C of C to get a smaller BSL based upon the residential zoning.

Generally newer setbacks hold over older plated ones.

That would we true where the term Plat means nothing but a survey. Where they go through the application then the approval process and approvals are given with conditions of approval are then met and all required approvals are documented on the plat, then recorded in the County Clerks Office, they are treated as Deed Documents and can only be changed by a Re plat of equal or higher requirement. That is why non deed items do not belong on such things. Different definition of Plat. It gets confusing sometimes on just what is meant by the use of that term on this board.
jud

Right on, Jud.

As it should be... Recorded Subdivision plats should simply never depict transitory information that is subject to change through ordinance or variance. The subdivision plat should only reflect matters that affect title to the property, not regulatory issues.

You can immediately see how such depictions have caused a number of problems which have required the invention of methods to undo what should never have been done in the first place. Sometimes local requirements are just not right. When surveyors don't stand up to these "requirements" when they're first imposed, someone later must suffer the consequences. Surveyors need to know the consequences of placing stupid stuff on subdivision plats and should warn against the passage of such "requirements."

Landowners don't know this stuff. Surveyors are licensed to protect their interests.

JBS

It is common to see a front setback on Sacramento County subdivision maps from the 1950s, typically 25'. The current zoning code allows for 20'.

But platted setbacks operate like an easement, in fact the owner's statement calls them an easement for light and air. They supersede the current zoning code.

Typical boiler plate from a 1953 Subdivision:
"Easements for light and air over those strips of land lying between the front and/or side lines of the lots and the lines shown hereon and designated "set back line" said strips to be kept open and free from buildings."

Usually the municipality would grant a variance for a grandfathered lot. Otherwise they have purchased the lots, and they don't want to pay for that. It would be a regulatory taking, inverse condemnation. And grandfathering does not work if the owner ever had "control" of an adjoining lot. Adjoining lots must be used together to comply with current setbacks if there was any time that they could have been.

But in my neck of the woods these things are usually limited to rural areas now (near urban centers most of the old smaller lots have already been built on). In rural areas you still have the problem of compliance with health department regulation setbacks which involve public health and can not be varianced. So, one may not be allowed to install an onsite sewage treatment system of conventional design. May have to use a holding tank or very expensive onsite treatment facility. Essentially making it more expensive to build than is worth it for many of these small rural lots.

I have not noticed that inclusion on the map has an effect one way or the other. Except one odd situation where a lot owner approached the original surveyor to stake the setbacks. The surveyor told her she didn't need to waste money having them do it when she could do it herself. The surveyor gave her a copy of the map from archives with setbacks listed on the map. She measured them off found pins and built a poured concrete foundation. Codes officer said she was in violation. She called me. Turns out in the approval process the setbacks had been changed and the filed and approved map showed these different setbacks (which had not changed since then). In addition, one of the pins had been disturbed and another was on a curve, both of which affected her tape measurements. They sawed off part of the poured foundation and walls, then built toward the other side. Glad the original surveyor was so keen on "protecting the public" from unecessary fees.

> "platted setbacks operate like an easement, in fact the owner's statement calls them an easement for light and air. They supersede the current zoning code."
>
> Typical boiler plate from a 1953 Subdivision:
> "Easements for light and air over those strips of land lying between the front and/or side lines of the lots and the lines shown hereon and designated "set back line" said strips to be kept open and free from buildings."

Dave, I'd say they don't "operate like an easement" at all. They are clearly easements according to the dedication language. An easement and a setback are two entirely different animals. One (the easement) is a property right; the other (a typical setback line) is a regulatory interest which is part of the administrative function of government (or are privately imposed). Setback regulations are not property rights and the two would be created, modified, and terminated by completely different methods.

Again, that's why building setback lines should never be shown on a recorded subdivision map. Items on the subdivision map are intended to affect rights and title to the land, not regulatory interests which tend to be modified over time.

JBS

This comment pertains to Pennsylvania Only.
The Pennsylvania Municipalities Planning Code protects property owners (subdividers) from changes in a Zoning Ordinance for a period of five years from the date of approval of a subdivision. After that you must adhere to whatever the current ordinance requirements are. Also applies to preliminary plan approval.

Around here we have local urban ordinances with setbacks and specific exception clauses for already built up areas. Let's say you have a vacant urban lot with a house on either side. One has a 15' setback the other a 25' setback. You could actually average them out and build at 20' per ordinance despite the zone requirements.

In order to require greater setbacks in large developed areas with existing vacant lots a serious study and "reason" are required, otherwise the words "arbitrary and capricious" apply.

Also in large developemnts with filed map setbacks different from rural municipal requirements esoecially if greater, the municipalities bow to the Homeowner's Associations as valid "municipalities" within municipalities. If the filed map says 35' front and the municipality says 25' you will not get a municipal variance for 25' because they cannot give you permission to do what they must allow you to do. So go ahead and build at 25' and then watch the H.O. sieze your lot and you will still owe them the cost of tearing the structure down.

Filed Map setbacks are deed restrictions and should be listed on the survey but no need to show the lines on the map. Very often Filed Map setbacks are typical especially on corner lots. Side, rear and somtimes front can change based on orientation of the structure. That is up to the Zoning Officer.

Surveyors should be more concerned with filed map sight, drainage, access and utility easements which never seem to make it to metes and bounds deed descriptions.

Paul in PA

It isn't done like that anymore. I don't know why they did it back then, maybe they didn't have setbacks in the zoning codes.

I think that would apply to unsold lots, but after they have been sold they would be grandfathered. I could be wrong though.