Vacant contiguous nonconforming lots

[michaelskis]

Vacant Continuous Nonconforming Lots

Here is a case that was discussed before, but here is a slight twist.

Two vacant, nonconforming lots. Both are independent lots of record and have been independent since before the city was incorporated or the zoning code was adopted. Both are continuous, and both owned by the same person, and were bought at different points in time. The property owners live on the other side of the street, and do not own any other lots around them. Both have sewer leads. They are nonconforming in area and width. The are taxed as separate lots. They were not required to be combined into a single lot, and for all purposes, are two legally separate lots.

If they were not continuous, there would be no question that they are buildable. The property owners want to sell them as separate buildable lots.

Together, they are would be a conforming lot, and have some left over.

What would you do?

[luckless pedestrian]

this is what we have in our ordinance now, it could be written more clearly, but you can get the gist (basically, it's a rule whereby the lots automatically are combined):

A. Two or more nonconforming vacant parcels of land in common ownership shall be consolidated to form one or more lots conforming so far as possible to the lot standards of the district in which the parcels are located. If possible, the lots shall be consolidated so that no nonconforming lot or lots are formed.

B. One or more vacant parcels of land that adjoin a nonconforming lot in common ownership and containing a building or structure shall be consolidated with said improved lot to the extent necessary to bring the improved lot into conformity so far as possible. If the remaining portion of the vacant parcels constitutes a conforming lot, said remaining portion shall constitute a separate lot. Otherwise, the combined lots shall constitute one lot.

[mendelman]

I would say that, despite common ownership, if your code allows pre-existing, non-conforming lots to be buildable, then they should be allowed to do so.

I think that the ownership is probably irrelevant in this case, although I don't know the intricacies of your zoning code.

[Gedunker]

If they were platted and of record prior to the zoning code that established minimum lot area requirements, your code should speak to it in terms of permitted uses. (I'm presuming it's a single-family district, so single-family should be permitted on these lots.) Although the use may be permitted, there may be development standards variances required for dwelling width, side yards, et cetera.

My read: two distinct single-family dwelling lots transferable as such.

[Richmond Jake]

IMHO, you're treading on thin ice if you require merger of the lots. Because they're legal parcels of record, they should be entitled to be sold and developed separately.

I worked in a California jurisdiction for years that had an involuntary lot combination ordinance and it was never used. The county lawyers would have soiled themselves if planning staff had initiated a combination.

[luckless pedestrian]

IMHO, you're treading on thin ice if you require merger of the lots. Because they're legal parcels of record, they should be entitled to be sold and developed separately.

I worked in a California jurisdiction for years that had an involuntary lot combination ordinance and it was never used. The county lawyers would have soiled themselves if planning staff had initiated a combination.

wow, really - we do it all the time w/o being appealed

[Lee Nellis]

I agree with luckless pedestrian. They should be considered to be merged. How the paper looks down at the courhouse is irrelevant. On the other hand, Michigan has some interesting twists in its planning law, so you really need to talk local land use lawyer.

[NHPlanner]

luckless pedestrian's ordinance language is very similar to what I've experienced with zoning ordinances in NH. Contiguous non-conforming lots can be combined involuntarily by a municipality for zoning purposes as long as the lots are both owned by the same entity.

[mendelman]

I agree with luckless pedestrian. They should be considered to be merged. How the paper looks down at the courhouse is irrelevant. On the other hand, Michigan has some interesting twists in its planning law, so you really need to talk local land use lawyer.

Well, before he goes to a LU lawyer, he should determine precisely what the Zoning Code says regarding this issue. Most codes address this very issue and seem to do it quite well.

If the Zoning code allows these types of lots to be buildable on their own, then it shouldn't matter that they are contiguous. They should be treated as separate vacant lots with the same owner.

Now if there was a building using these lots to gain compliance and the owner wanted to divide the zoning lot, then, yeah, they should be kept together.

[michaelskis]

See that is the thing... legally, they are two lots right now.

I can not see how we can legally prevent them from selling them separate from each other. When the code was adopted, any nonconforming lots that were continuous and owned by a single owner, became a single lot. So having these as separate lots shows that they were owned by different people.

I advised my supervisor that I don’t see how we can prevent them from selling them as two lots since for all legal and real purposes, they are two lots.

[Richmond Jake]

If I owned two or more contiguous legal parcels of record that were made nonconforming due to the actions of government, that were buildable prior to government action and subsequently that government involuntarily combined them, I’d retain a mean junkyard dog lawyer, take off it’s collar and leash, and give the order: “sic ‘um.”

[abrowne]

I'm not sure about your specific zoning laws, but otherwise be ready for a lawsuit if you force the merger of two legal lots that were here before YOUR zoning codes. When they were created they were conforming (or, rather, there was nothing to conform TO), and that should be enough. This represents a large loss in potential income for the owner and they'd have a right to call the city on it I think.

[luckless pedestrian]

If I owned two or more contiguous legal parcels of record that were made nonconforming due to the actions of government, that were buildable prior to government action and subsequently that government involuntarily combined them, I’d retain a mean junkyard dog lawyer, take off it’s collar and leash, and give the order: “sic ‘um.”

welcome to new england - har de har...

and the things is, it's automatic - no vote, no nothing - just happens -

in my last town, alot of widow lots were lost and I had some "spailnin' to do

lol - but really, i know what you are saying -

remember, the premise of non-conforming protections is to seek conformity someday, grandfathering isn't necessarily forever, so the reverse of your argument may be why should you get to build more than I do when I , like a good doobie, lawfully create a lot of that new larger size?

[Richmond Jake]

...and the things is, it's automatic - no vote, no nothing - just happens - ...

And no due process? Me thinks that stinks.

[luckless pedestrian]

And no due process? Me thinks that stinks.

this is good stuff - forces me to think about this -

since it's written in the ordinance, that it's automatically done, then there is no process to be due

[michaelskis]

Thanks for the advice. We decided that they are going to remain as separate buildable lots.

[jordanb]

People talk about "Due Process" here. I don't think this is a Due Process issue. Although I've not looked at it in-depth, from what I understand, the courts have narrowly defined Due Process as being cases where a well-established procedure is abridged for a particular individual.

For instance, the constitution does not say that you shall be charged before a judge, it just says you must be charged somehow within 3 days of being arrested. But established procedure is that it must be in a hearing before a judge, so if the police decide to violate that procedure and just charge you themselves, letting you know in a letter or something, that would be a violation of Due Process.

In this case I don't see how Due Process applies because this is not a circumstance where procedure has been set. There seems to be a notion here that it's not fair to automatically combine non-conforming lots, and maybe it's not really fair (it could go both ways, to be honest, as luckless pedestrian has demonstrated) but it's not a constitutional Due Process issue at all because it's not a case of established procedure being abridged.

[pandersen]

Here's another twist - regardless of what the zoning by-law says regarding non-conforming lots, you might want to talk with your Land titles Office for their spin on this issue.

In one jurisdiction I worked in, if you had contiguous parcels registered by the same person in the same manner, after a certain period of time, the Land titles Office deemed the parcels to be consolidated

e.g.
Parcel 1 - owned by J. Smith
Parcel 2 - ownd by J. Smith

After a given period of time, Land titles Would consoilidate on title both lots.

If a person wanted to prevent this consolidation from automatically taking place, he had to be sure to uniquelt register each lot.

e.g.
Parcel - owned by John C. Smith
Parcel 2- owned by J. Smith (or some or variation of the owner's name different from parcel 1.

[Richmond Jake]

...I don't think this is a Due Process issue....

I disagree. Due Process of Law: n. a fundamental principle of fairness in all legal matters, both civil and criminal, especially in the courts. All legal procedures set by statute and court practice, including notice of rights, must be followed for each individual so that no prejudicial or unequal treatment will result. While somewhat indefinite, the term can be gauged by its aim to safeguard both private and public rights against unfairness. The universal guarantee of due process is in the Fifth Amendment to the U.S. Constitution, which provides "No person shall…be deprived of life, liberty, or property, without due process of law," and is applied to all states by the 14th Amendment. From this basic principle flows many legal decisions determining both procedural and substantive rights.

[luckless pedestrian]

okay, gotta stay with this one:

richmond - but there is a process - it's in the ordinance that this happens -

remember too: it's the responsiblity of the landowner to know the laws pertaining to their property and to keep up with zoning changes

we make every effort to let everyone know when potential zoning changes are occurring and in new england, everybody gets to vote on zoning changes

[SW MI Planner]

luckless pedestrian's ordinance language is very similar to what I've experienced with zoning ordinances in NH. Contiguous non-conforming lots can be combined involuntarily by a municipality for zoning purposes as long as the lots are both owned by the same entity.

Our ordinance is similar, but specifies three contingous lots, rather than just two. Ours also is automatic.

[ssc]

In our ordinance, the lots would be considered combined:

"No structure shall be erected on any non-conforming existing lot of record if hte owner of said lot owns any adjoining vacant land which would create a conforming, or less non-conforming lot, if said vacant land were combined with the lot deficient in area."

In my opinion, this is no more onerous than other limitations on preexisting non-conforming uses. In every community I have worked in, pre-existing non-conforming lots and uses are grandfathered but expansion over a certain amount or change to another non-conforming use/structure requires a variance. I suspect that the basis for the exceptions for existing lots of record in most ordinances is the recognition of hardship. What if the ordinance did not allow for development on existing lots of record? Owners would have to ask for variances, which would be granted due to demonstrated hardship. So the ordinances recognize this and formalize these - kind of like an automatic variance. However, once the property owner purchases two adjacent non-conforming lots the hardship would be difficult to prove because the owner now has the ability to bring the property into conformity and still have some economic gain.

[cololi]

Because the lots are vacant, don't they have to comply with the current ordinance standards, not ones in place years ago? The lots should be combined. How can you approve a building permit if the lot is not conforming? Do you wavethe lot size requirement, reduce setbacks? That to me becomes an arbitrary decision. At the least, they should go through the variance process.

Two different types of due process, procedural and substantive. this certianly qualifies as procedural due process, due to the fact some changes are made. Procedural due process could be satisified simply by sending the owner a letter stating what he needs to do appeal the decision, get a variance, etc.

[imaplanner]

The lots should be combined. How can you approve a building permit if the lot is not conforming? Do you wavethe lot size requirement, reduce setbacks? .

Takings anyone?

If the existing lot is too small to enable a building to meet the setbacks then there would seem to be good reason for a variance under the usual hardship provisions.

My jurisdiction is dealing with similar issues but with lots that are affected by wetlands.

[Richmond Jake]

I'll add a couple of more thoughts then I'll shut up. I'm not necessarily opposed to the combination of lots. I can see beneficial circumstances if parcels are too small to accommodate on-site septic disposal systems or environmental constraints limit buildable area (but I guess that's different if they are legal, buildable, nonconforming parcels of record prior to an ordinance change). In either case, to combine lots without notice to the owner does not seem ethical or fair.

To those of you that have automatic merger: a) how often does this happen, and b) are you ever challenged?