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Thread: when do zoning regs apply

  1. #1
    moderator in moderation Suburb Repairman's avatar
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    when do zoning regs apply

    This has always been a point of confusion with me, especially in a city that has not been incorporated for a long period of time.

    Most of the subdivisions in my city were platted prior to the city's incorporation. After incorporation, the city assigned zoning districts setting minimum setbacks that in most cases, were above and beyond those indicated on the plat/deed restrictions. Also, the zoning regs include a requirement that RVs, trailers, etc. be placed to the rear of the house & inside the side & rear setbacks.

    So, if a house was built on a lot platted prior to zoning and they want to do an addition, do they have to comply with the zoning setbacks or can they stick to their lines on the plat?

    Here's my next question that's more along the lines of code compliance: If the house built prior to incorporation was done in such a way that it would be nearly impossible to locate RVs to the rear as stated in the ordinance, does the ordinance still apply? Right now I'm assuming yes, but I'm just trying like hell to avoid having to do all the damn variances that we're about to deal with (and a public relations nightmare from telling people where they can & cannot put their stuff).

    "Oh, that is all well and good, but, voice or no voice, the people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same way in any country."

    - Herman Göring at the Nuremburg trials (thoughts on democracy)

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    Cyburbian SGB's avatar
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    Quote Originally posted by Suburb Repairman
    Most of the subdivisions in my city were platted prior to the city's incorporation. After incorporation, the city assigned zoning districts setting minimum setbacks that in most cases, were above and beyond those indicated on the plat/deed restrictions.

    So, if a house was built on a lot platted prior to zoning and they want to do an addition, do they have to comply with the zoning setbacks or can they stick to their lines on the plat?
    Municipalities administer and enforce publicly adopted zoning codes - not private covenants or restrictions.

    If the house built prior to incorporation was done in such a way that it would be nearly impossible to locate RVs to the rear as stated in the ordinance, does the ordinance still apply?
    Yes, unfortunately it does. Time to talk this one out with your planning board, zoning board and cheif elected and/or administrative officer. I smell zoning amendments!
    All these years the people said he’s actin’ like a kid.
    He did not know he could not fly, so he did.
    - - Guy Clark, "The Cape"

  3. #3
    I'm presuming that your zoning ordinance addresses legal non-conforming use and legal non-conforming structures. What guidance does it give to these issues?

    Otherwise, I'm with SGB. Good luck.
    On pitching to Stan Musial:
    "Once he timed your fastball, your infielders were in jeopardy."
    Warren Spahn

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    moderator in moderation Suburb Repairman's avatar
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    I was pretty sure that was the answer, but I was hoping that some of you more experienced folks might have dealt with something like this before and had a creative way of dealing with it. I was headed down the amendment route anyway, but this makes me feel like I did all I could.

    SGB, what I meant to say was did our zoning setbacks even apply since the property was subdivided before city incorporation. I've had at least one person flip out about a lot in their subdivision being deed restricted residential that we allowed a business to locate on since it is zoned commercial. I tell them to take it up with the HOA and give them their contact info.

    Thanks for helping me out! This novice planner is very appreciative of the throbbing brain!

    "Oh, that is all well and good, but, voice or no voice, the people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same way in any country."

    - Herman Göring at the Nuremburg trials (thoughts on democracy)

  5. #5
    Cyburbian SGB's avatar
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    Quote Originally posted by Suburb Repairman
    SGB, what I meant to say was did our zoning setbacks even apply since the property was subdivided before city incorporation.
    Generally speaking, only structures and uses that pre-exist a zoning code and are continued after code adoption are grandfathered. If the structure or use wasn't in place already, the current zoning regulations apply. Regardless of what any private convenants may state.

    Double check your state enabling statutes and any subsequent case law. Also, check with your regional planning commission, state APA chapter, or state planning office for any materials they have produced on grandfathered rights and zoning law in your state.
    All these years the people said he’s actin’ like a kid.
    He did not know he could not fly, so he did.
    - - Guy Clark, "The Cape"

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    Whoever created all those nonconforming uses when they adopted the zoning was not thinking very clearly. In the final analysis, you may have to change the zoning ordinance to eliminate some of the problems.

  7. #7
    moderator in moderation Suburb Repairman's avatar
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    Quote Originally posted by Lee Nellis
    Whoever created all those nonconforming uses when they adopted the zoning was not thinking very clearly. In the final analysis, you may have to change the zoning ordinance to eliminate some of the problems.
    The ordinance is pretty screwy; it was put together without much (if any) legal input other than what they read from state law. Things were done pretty odd around here before they had professional staff. I'm already researching for a new ordinance. The Planning Commission has been pretty open about the fact that we need to throw the current ordinance(s) out the door and start over. Since I know you're into this, I am looking at some flexible/performance techniques for a future zoning ordinance and possibly doing a unified code.

    "Oh, that is all well and good, but, voice or no voice, the people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same way in any country."

    - Herman Göring at the Nuremburg trials (thoughts on democracy)

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