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Thread: Use of Conservation Zoning District...

  1. #1
    Cyburbian prudence's avatar
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    Use of Conservation Zoning District...

    I have a proposal on my plate...

    The developer owns a parcel of land...it has two zoning districts on it. One is Agriculture and the other is conservation.

    On the Ag lands the developer has constructed a series of bulidings for storage. THis was approved by conditional use. A condition of approval was that the development must maintain a minimum of 50-percent greenspace. The developer also owns the adjacent lands...some 40 acres. He is looking to utilize the conservation lands to provide for his permeable surface requirement.

    I have no problem with this. The Village, however, is not in favor of the situation. I need to provide a report on the legality of such practice. So, I am enlisting the Cyburbia Throbbing Brain to help me find examples of situations where properties have employed this practice, or where the attempt was made and was legally denied.

    NOTE: This must be legally definsible, one way or the other. Please do not respond with "Professional Planner Opinion." I am not concerned with what is good planning sense, rather what the laws will allow.

    THanks for your help.
    "Dear Prudence...won't you open up your eyes? "

  2. #2
    Cyburbian Wannaplan?'s avatar
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    Quote Originally posted by prudence
    On the Ag lands the developer has constructed a series of bulidings for storage. THis was approved by conditional use. A condition of approval was that the development must maintain a minimum of 50-percent greenspace. The developer also owns the adjacent lands...some 40 acres. He is looking to utilize the conservation lands to provide for his permeable surface requirement.
    I'm not sure if I follow... If the parcel in question is where the permeable surface is to go - the 50-percent greenspace I presume - then what do the adjacent 40-acre parcel(s) have to do with the storage building development?

    If I'm reading your post correctly, then it sounds like the developer wants to transfer the 50-percent greenspace requirement onto the adjacent parcel(s) and use the original parcel for more storage buildings. Zoning goes with the land - why would the commission modify its original conditional use permit?

  3. #3
    Cyburbian Cardinal's avatar
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    Hmmm... If I understand correctly, the developer wants to expand his storage building use, but can't do it without exceeding a requirement for no more than 50% coverage. He owns adjacent land, and is asking to be allowed to exceed the 50% coverage using that land to meet the open space requirement. I suppose the developer could combine the lots into one, or add area to the existing lot through a lot line adjustment. I would be hesitant to allow him to develop at a higher density with the 50% ratio covering multiple parcels.

    This assumes that there is developable land on the second parcel, and he is simply expanding on the original site instead of developing new ground. If that is not the case, then I can see why the community might be concerned. Let's say the first lot is five acres, and half of that might be developed with an impermeable surface. The forty-acre lot is all conservancy, and the community had an expectation that none of that would be developed. If the two lots are combined, then all of the original five acres might be developed. That is quite a bit different from the community's original expectation.
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    Cyburbian SGB's avatar
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    From a literal-interpretation-of-the-law standpoint, would the problem go away if the owner consolidated the two parcels into one? B-)
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  5. #5
    Quote Originally posted by SGB
    From a literal-interpretation-of-the-law standpoint, would the problem go away if the owner consolidated the two parcels into one? B-)
    I'm with SGB. Actually, our code would consider the whole tract as one parcel because they are adjacent and are in single ownership. For comfort, I would recommend vacation of the plat and re-plat as a single tract (if applicable) or recordation of a surveyor's plat turning off the lot line and creating a single leasehold.
    Batter up!

  6. #6
    Cyburbian donk's avatar
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    Off-topic:
    OFF TOPIC

    Quote Originally posted by Gedunker
    I'm with SGB. Actually, our code would consider the whole tract as one parcel because they are adjacent and are in single ownership.

    What happens when they sell one of the two parcels? What happens if they build across the line and create an incumberance in the future?

    We get this all the time, "but I own both pieces". We still make them consolidate the land into a single lot before we issue a permit.

    Sorry just curious.
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  7. #7

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    Not sure the explanation is clear enough to provide really accurate help. I definitely do not understand the objection to the owner's proposal. The court cases that support clustering development - which is how I interpret this situation since the land is all in one ownership - go back into the 1960's, but it would take hours to dig out all the cites. The fastest way would be to get to a university law library and use the land use treatises (Williams', Ziegler, etc.).

  8. #8
    Quote Originally posted by donk
    Off-topic:
    OFF TOPIC What happens when they sell one of the two parcels? What happens if they build across the line and create an incumberance in the future? We get this all the time, "but I own both pieces". We still make them consolidate the land into a single lot before we issue a permit. Sorry just curious.
    Off-topic:
    donk, it doesn't happen here that often (we're almost built out). In the event of a sell-off, if there are conditions with the two lots, a written commitment is required to be recorded that encumbers the future owner of the new lot. In the event of a building over a lot line, a subdivision would be required that would meet all dimensional standards of the zoning code. A self-imposed hardship would not impress our PC/BZA.
    Batter up!

  9. #9
    Cyburbian PlannerByDay's avatar
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    Quote Originally posted by SGB
    From a literal-interpretation-of-the-law standpoint, would the problem go away if the owner consolidated the two parcels into one? B-)
    I don't think it is as simple as one parcel or two and it seems that all posts so far have overlooked the fact that we are dealing with two different parcels in two different zoning districts. One is Agriculture and the other is Conservation.

    If the property owner combined the two parcel with two different districts how is it going to be zoned?

    What I think will need to happen is the owner will need to request that the parcel zoned conservation be changed to AG. Once this is done I think he would have a better basis for using the current parcel zoned conservation (now AG assuming the rezoning is allowed) as part of his 50% undeveloped.

    Until the zoning designations are similar he can't use the area zoned conservation for his 50% undeveloped.

    The 50% undeveloped requirement is a requirement of the AG District and that is what is allowed. If he wants to ask for a variance on this and he can show some kind of hardship that 50% undeveloped is excessive on the AG zoned parcel than let him try that.

  10. #10
    Cyburbian Cardinal's avatar
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    Quote Originally posted by PlannerByDay
    I don't think it is as simple as one parcel or two and it seems that all posts so far have overlooked the fact that we are dealing with two different parcels in two different zoning districts. One is Agriculture and the other is Conservation.

    If the property owner combined the two parcel with two different districts how is it going to be zoned?

    What I think will need to happen is the owner will need to request that the parcel zoned conservation be changed to AG. Once this is done I think he would have a better basis for using the current parcel zoned conservation (now AG assuming the rezoning is allowed) as part of his 50% undeveloped.

    Until the zoning designations are similar he can't use the area zoned conservation for his 50% undeveloped.

    The 50% undeveloped requirement is a requirement of the AG District and that is what is allowed. If he wants to ask for a variance on this and he can show some kind of hardship that 50% undeveloped is excessive on the AG zoned parcel than let him try that.
    You brought up something I wrestled with when I made my first post. I was not sure if one parcel was ag and the other conservation, or if the parcel had more than one zoning class. In our case, the conservancy district is an overlay. A re-zoning might be required if there is a lot line adjustment or a consolidation of the parcels. At a minimum the conditional use would need to be considered.
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  11. #11
    Cyburbian donk's avatar
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    I've read the original post a few times, from it I get the follwoing

    1) There is a single lot that has 2 zoning districts on it.
    2) There is a development on a portion of the property that required a special approval in the past.
    3) The developer wishes to change the exact conditions of the special approval, while maintaining the intent of the conditions associated with it.

    Hope those are right, as my advice is based on those being the facts.

    My first thought is to look, really nit picky / carefully at the way the zoning by-law enforces and defines maximum lot coverage. I double checked ours and a few others online and they all seem to speak of the area of the entire lot, not the area of the portion within a specific zone. As such, the developer could argue that they are complying with the letter of the law as long as they build exclusively in the portion that permits the proposed use. I'd also review the development agreement/approval and see exactly how it was worded.

    Besides the legal argument, it probably makes planning sense to intensify the AG lands rather than spread into the Conservation Lands.
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  12. #12
    Cyburbian prudence's avatar
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    I apologize for any confusion in the original post...it was late. I would have responded to the thread sooner but was working off-site today.

    There are 3 contiguous properties under one ownership. All are legal lots of record. A 10 acre parcel is zoned Ag; a 5 acre parcel is zoned C-2 (COnservation); the third (approx 40 acres) is also zoned Ag. Lets focus on the 5 and 10 acre lots.

    The 10 acre lot has 6 boat storage buildings approved by CUG by the municipality. A condition of approval was that the parcel must maintain 50-percent greenspace. The developer has applied for approval for a 7th building by the same means as before. However, the new building will reduce the greenspace below the 50% threshold. As such, the developer has combined the 5 acre lot with the 10 acre lot...thereby increasing the amount of greenspace on the entire parcel. However, the NEW parcel has two separate zoning districts on it. I am not a fan of this practice, but to my knowledge there is nothing to prohibit multiple zoning districts on a single parcel.

    Now, let's not forget the other 40 acre lot...this developer can add as much land as he wants to achieve his goals.

    The community now does not want a 7th building and is looking for a reason to deny the proposal. I do not see how that is possible at this point. But my task is to comment on the legality of multiple zonings on a single propery.

    Is anyone aware a denials of this type of situaiton? If so, please provide details. Thanks.
    "Dear Prudence...won't you open up your eyes? "

  13. #13
    Cyburbian Cardinal's avatar
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    First, you are right in saying that there is no explicit prohibition of a parcel having more than one zoning designation. In practice, this was done in years past on large parcels in a pre-development state. It is not common now as it leads to problems like you face. We would now zone the parcel to Ag Transitional and approve the final zoning when it develops.

    I think in your case it might be advisable to recommend that the parcel be re-zoned. This probably should have occurred when the two parcels were combined. On top of this, I would interpret that the development requires a new conditional use. The original granting related only to the original lot, and does not automatically expand with the lot.
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  14. #14
    Cyburbian
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    I would also add, probably idealistically, that since the 5 acres were zoned for conservation, and are presumably going into the 10-acre parcel as AG to facilitate development, that a condition be put on those 5 acres that they remain in their natural state, to preserve the intent of their original zoning. He'd probably want that anyway, to help with the 50% open space, and it might ease the residents' minds a bit to know that those 5 acres are not going to turn into a gas station at some point.
    It's not that unusual in our area to have land with more than one zone, especially in the less-developed areas. We usually prefer to see it all go to one zone, though, rather than granting a variance, just to clean things up.
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  15. #15
    Cyburbian prudence's avatar
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    Thank you

    Thaks everyone for their thoughts and input...I am torn between what is "good planning" and what is allowed by law.
    "Dear Prudence...won't you open up your eyes? "

  16. #16
    Cyburbian Emeritus Chet's avatar
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    Quote Originally posted by prudence
    Thaks everyone for their thoughts and input...I am torn between what is "good planning" and what is allowed by law.

    Wait a second.... are you a closet Democrat???!! Do whats allowed by law dammit!

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