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  1. #1

    Build on two lots as if one?

    So, I'm still somewhat new to local-level land use/subdivision/building laws, but today after work, while talking to my boss about the details of some upcoming variance requests, he mentioned something that struck me as odd. Apparently, our fair resident (literally) builder in our fairy small city was able to build on what are two separately platted lots adjacent to each other as if they were one large parcel of land. At least, in terms of building and calculating for impervious cover and such. The builder is still following all the proper setbacks, keeping the middle property line shared between the two lots in mind. The home and garage will be built on one lot, with appropriate setbacks, while the driveway will be built on part of the other lot, crossing the shared property line between the two lots to reach the garage. The future owners could build something like a garden shed or whatever on the non-house lot if they wanted, assuming they meet setbacks and don't add too much to the existing impervious cover percentage.

    I found this really interesting/confusing because I'd always been under the impression that you couldn't do this kind of thing. I had always thought you couldn't build on two adjacent platted lots as if they were one parcel of land. As in, you would need to replat the two smaller lots as one larger lot. My boss was under the same impression too and conferred with our city attorney, who gave the okay on this issue. Apparently, the builder has set up a restrictive covenant on the two lots (he owns them both) such that any future seller of the home/lots/property will only be able to sell them together.

    Is anyone aware of a technical term for this kind of building/parcel arrangement? Have any of you had experience with it? Are there any potential pitfalls or advantages? Is it a common practice, because I had no idea this could be done without replatting into a larger parcel of land. Then again, I'm still a new guy in a lot of ways, and our small town doesn't see more than a few new homes built a year.

    Thanks in advance for any responses!

  2. #2
    Unfrozen Caveman Planner mendelman's avatar
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    Sure - this is very common practice - usually called a "zoning lot".

    Where I used to work there are many such zoning lots. Bascially, if the local culture is cool with a development code that allows it, then the platting of a particular area of land into small segments is really more about good title transfer than about the rigors of a development code.

    It's usually defined as a two or more lots or portions of a lot or parcel of land used to comply with the bulk regulations of the underlying zoning district.

    I personally love the concept of "zoning lot". Replatting of existing platted lots is often times burdensome and unecessary and really what public purpose does it serve especially when the proposed development complies with all the underlying zoning district's bulk regulations.

    Although, politics can and often does screw up a device that has been used perfectly well for decades. In the last place I worked there were alot of single family teardowns happenning in established neighborhoods. But one happened in a neighborhood of all platted uniformly shaped 20K sqft lots (large lots by the standards of this muni). Well, someone hit the jackpot (literally) and bought the house next door and built giant sqft house across the (now) 40K "zoning lot". The neighbors had a fit and then the code was changed to prohibit the creation of new zoning lots in residential districts.

    But zoning lots are still permitted in all the other districts and for good reason - requiring replatting can hamper economic development.
    Last edited by mendelman; 08 Apr 2010 at 11:18 AM.
    I'm sorry. Is my bias showing?

    The ends can justify the means.

  3. #3
    Cyburbian Salmissra's avatar
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    Quote Originally posted by Civilivy View post
    I found this really interesting/confusing because I'd always been under the impression that you couldn't do this kind of thing. I had always thought you couldn't build on two adjacent platted lots as if they were one parcel of land. As in, you would need to replat the two smaller lots as one larger lot. My boss was under the same impression too and conferred with our city attorney, who gave the okay on this issue. Apparently, the builder has set up a restrictive covenant on the two lots (he owns them both) such that any future seller of the home/lots/property will only be able to sell them together.

    Is anyone aware of a technical term for this kind of building/parcel arrangement? Have any of you had experience with it? Are there any potential pitfalls or advantages? Is it a common practice, because I had no idea this could be done without replatting into a larger parcel of land. Then again, I'm still a new guy in a lot of ways, and our small town doesn't see more than a few new homes built a year.

    Thanks in advance for any responses!
    My fair city USED to allow this. If both parcels were owned by the same person, they could build on them as if it were one lot, observing all setbacks, etc. Or use one lot for home, other lot for "extras". Nowadays, the owner MUST replat the two lots into one, so there are some interesting residential replats coming through the office.

    Allowing it because of a covenant is strange. We wouldn't allow that to influence subdivision regulations, because subdivision regulations stand on their own, and also, covenants are private contracts, not public. Your city attorney is either too busy to do the research to write a ruling not allowing it, or you follow the Houston guidelines. In Houston, because there are no zoning regulations, the City is allowed, by the State Constitution, to regulate the part of covenants/deed restrictions which would normally be covered by zoning-ie lot coverage, use, etc. I'd get your City Attorney to put their ruling in writing, because you might need it later on!

    Good luck!
    "We do not need any other Tutankhamun's tomb with all its treasures. We need context. We need understanding. We need knowledge of historical events to tie them together. We don't know much. Of course we know a lot, but it is context that's missing, not treasures." - Werner Herzog, in Archaeology, March/April 2011

  4. #4
    Cyburbian Cloverhill's avatar
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    So to reach the house and garage you must cross the unbuilt lot? Sounds ok as long as there is an easement. My issue with this type of arrangement is that, inevitably, your land owner will fall on hard economic times and want to sell one of the parcels (or all parcels to different owners) and there is an argument about who has rights of access to what. A well-crafted deed of easement and plat can head off lots of problems.
    No one stood up and yelled, "Socialist Government takeover of science and engineering!" when Neil Armstrong set foot on the moon.

  5. #5
    Cyburbian
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    Where I've worked, we would require a replat, at some point. Ordinances here typically don't allow for the primary structure to be on one lot and accessory structures/uses, like driveways, to be on adjacent lots. That's not to say that we don't have situations where two (or more) lots have been developed like that, but in the long run it can create problems when the owner goes to sell or improve their property. Banks prefer one large lot, and as Cloverhill mentioned, if the owner wants to develop or sell one of their lots, that's a whole other issue. It's just easier to replat. Perhaps because we have these requirements, getting the lots replatted as one is not a particularly burdensome process.
    I don't dream. I plan.

  6. #6
    Cyburbian mike gurnee's avatar
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    I have always used the policy mendelman describes. Never had a problem. Many towns I have worked are platted into 25' wide lots. My first house was on three such lots. No commie planner type was going to make me spend the cash on a re-plat!

    By the way, I have more important things to do than make prospective homeowners mad processing unnecessary replats.

    In order to foster higher density, we are considering requiring multiple lot owners to build to one side--so in the future a dwelling could occupy the remaining lot or lots.

  7. #7
    Mystery solved! The builder in question came by today to drop off a couple of things for an unrelated variance request, and I took the chance to ask him about this particular project of his. He showed me on our city-wide parcels/lots map where the two lots are, and it turns out that the parcel of land that the driveway is being built on is in fact a narrow, dead-end road easement that he owns along with the "house" property next to it, so it works out okay. Looks like this was just a misunderstanding on my part, as my boss gave me the impression the builder was on two single-family lots.

  8. #8
    I realize you answered your own question, but in case others are researching this in the future, I thought I would add to the discussion.

    In our city, we allow this, but typically only for single-family residential. In addition, the adjacent properties must be under common ownership and we require a "unity agreement" that gets filed in the deed records that basically allows us to treat two adjacent lots as one lot for the purpose of zoning and building rules, in exchange the property owner agrees to maintain ownership of both lots and not to sell either lot individually without rescinding the unity agreement and bringing the lots into compliance as two separate lots.

  9. #9
    BANNED
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    I have been wondering about this. I aquired 2 lots adjacent to each other, and was hoping I would be able to combine them into a single property to build on. I wasn't sure on how I would go about that exactly, but was pretty sure there was a way to make it happen. Thanks.

  10. #10
    Cyburbian
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    It sounds like in Canada we have the exact opposite problem. Under Canadian law when two parcels are owned by the same person they are automatically combined into one lot. If the owners wants to sell one of the lots in the future they will have to apply for a severance to split the lots up again. To avoid having to go through that process people (generally speculators) will buy adjacent properties in their wife, husband, son or daughter's name, or they will set up a series of numbered companies. It also means that when two adjacent properties are purchaced by the same person the old internal property line legally disappears which means the setbacks to that line also disappear.

  11. #11
    Quote Originally posted by scorge View post
    I have been wondering about this. I aquired 2 lots adjacent to each other, and was hoping I would be able to combine them into a single property to build on. I wasn't sure on how I would go about that exactly, but was pretty sure there was a way to make it happen. Thanks.
    Check with your planning office, though. Here on the opposite end of the state, we permit it and encourage the owner to submit a deed of consolidation to legally combine the two lots into one. This benefits you as well, since you won't get tax bills/drainage bills/ etc for each parcel. But DO check with your locals to be sure.
    Je suis Charlie

  12. #12
    Cyburbian SW MI Planner's avatar
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    Quote Originally posted by Howl View post
    It sounds like in Canada we have the exact opposite problem. Under Canadian law when two parcels are owned by the same person they are automatically combined into one lot. If the owners wants to sell one of the lots in the future they will have to apply for a severance to split the lots up again.
    Our ordinance states that three or more contiguous lots under common ownership are automatically combined.

    The previous city I worked in did not allow for "zoning lots", but required the parcels be combined (which did not require a replat, just a parcel combination).

    The city I work in now does allow for a zoning lot, but I guess I prefer the previous way. What happens if someone owns two contiguous parcels, builds a house on one parcel, and an accessory building on another, and then sells off the accessory building? You are left with a legal nonconforming accessory building (because there is no principal use of the property). It just seems easier to consider a lot a lot

  13. #13
    Cyburbian Otis's avatar
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    Quote Originally posted by ok_planner View post
    I realize you answered your own question, but in case others are researching this in the future, I thought I would add to the discussion.

    In our city, we allow this, but typically only for single-family residential. In addition, the adjacent properties must be under common ownership and we require a "unity agreement" that gets filed in the deed records that basically allows us to treat two adjacent lots as one lot for the purpose of zoning and building rules, in exchange the property owner agrees to maintain ownership of both lots and not to sell either lot individually without rescinding the unity agreement and bringing the lots into compliance as two separate lots.
    We do essentially the same thing, requiring the execution and recording of a "restrictive lot line covenant" that treats the two lots as one for zoning purposes. We discourage vacating lot lines as it can result in loss of future development rights and a squandering of allowed density in the long run.

  14. #14
    Unfrozen Caveman Planner mendelman's avatar
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    Quote Originally posted by SW MI Planner View post
    You are left with a legal nonconforming accessory building (because there is no principal use of the property).
    I think you're not giving yourself enough credit. In my previous experience, they would not be allowed to keep the detached garage on the lot being sold, because the act of dividing the zoning lot would automatically render the detached garage noncompliant.

    Unless you have some realy effed up nonconforming rules in your code.
    Last edited by mendelman; 21 Jul 2011 at 1:20 PM.
    I'm sorry. Is my bias showing?

    The ends can justify the means.

  15. #15
    Cyburbian
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    Quote Originally posted by SW MI Planner View post
    Our ordinance states that three or more contiguous lots under common ownership are automatically combined.

    The previous city I worked in did not allow for "zoning lots", but required the parcels be combined (which did not require a replat, just a parcel combination).

    The city I work in now does allow for a zoning lot, but I guess I prefer the previous way. What happens if someone owns two contiguous parcels, builds a house on one parcel, and an accessory building on another, and then sells off the accessory building? You are left with a legal nonconforming accessory building (because there is no principal use of the property). It just seems easier to consider a lot a lot
    In Canada you wouldn't be able to sell the lot with the accessory building without getting permission from the municipality to sever the larger lot in two. If they think the new lot will create problems they will deny the severance.

  16. #16
    Cyburbian
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    my town used the "zoning lot" approach for many years w/o requiring formal consolidation...however a couple of years ago we started running into problems. Some examples - (1) if the second (or third) lot was vacant were had homeowners appealing their assessment and claiming it should be taxed as a vacant "unbuildable" parcel (2) we had homeowners who failed to pay the taxes on the second (or third) lot and lost the property in a tax sale...

    Sure these are not really "zoning" problems per se but there is a governmental interest.

    We now require consolidation if the additional lot(s) are needed to comply with minimum lot area/width, setback and/or lot coverage requirements for new construction including additions. $500 and a 4 to 6 week process is not burdensome

  17. #17
    Unfrozen Caveman Planner mendelman's avatar
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    Quote Originally posted by der Bebauungsplan View post
    $500 and a 4 to 6 week process is not burdensome
    In my opinion that is burdensome, especially for simple additions. Zoning/Subdivision rules are a poor tool to use to make sure people pay property tax bills, etc.
    Last edited by mendelman; 21 Jul 2011 at 2:30 PM.
    I'm sorry. Is my bias showing?

    The ends can justify the means.

  18. #18
    Cyburbian
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    reasonable people can disagree and I see it as closing a tax loophole created by the zoning regs. Why should homeowner A pay less taxes than Homeowner B who has the same size parcel, same market value but has it all on one zoning lot rather than two?

  19. #19
    Cyburbian Richmond Jake's avatar
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    The lots should be combined. If not, you have issues with setbacks from the shared property line. That's been my experience.
    Annoyingly insensitive

  20. #20
    Cyburbian SW MI Planner's avatar
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    Quote Originally posted by mendelman View post
    I think you're not giving yourself enough credit. In my previous experience, the would be allowed to keep the detached garage on the lot being sold, because the act of dividing the zoning lot would automatically render the detached garage noncompliant.
    So in a situation such as this, how would you deal iwth it? Would you then require it to be tore down, since it is a violation? I'd rather not deal with zoning lots and just say you have to combine two lots than deal with trying to fix it later.

    Quote Originally posted by mendelman
    Unless you have some realy effed up nonconforming rules in your code.
    Or maybe I'm interpreting it wrong?! The way I see it (perhaps incorrectly) is that if your code allows for zoning lots the accessory building would have been constructed legally, but then selling off the parcel would leave an accessory building on it which is prohibited. However, since the building was compliant when constructed, it would be legal nonconforming.

  21. #21
    Unfrozen Caveman Planner mendelman's avatar
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    Quote Originally posted by SW MI Planner View post
    So in a situation such as this, how would you deal iwth it? Would you then require it to be tore down, since it is a violation? I'd rather not deal with zoning lots and just say you have to combine two lots than deal with trying to fix it later.
    Yep. tear it down or build a principal building right away.
    Quote Originally posted by SW MI Planner View post
    Or maybe I'm interpreting it wrong?! The way I see it (perhaps incorrectly) is that if your code allows for zoning lots the accessory building would have been constructed legally, but then selling off the parcel would leave an accessory building on it which is prohibited. However, since the building was compliant when constructed, it would be legal nonconforming.
    But they want to change the circumstances of the lot. They, not the code, are forcing it into nonconforming status, and I'm sure that would not bind the muni to accept it as legal noncomforming. Nonconforming statutes exist to preserve property rights from action of the government changing the parameters of compliance, not the actions of the property owner changing the parameters.

    But context for my position on the value of zoning lots is that the platting/replatting/consolidation review process was cumbersome where I previously worked. So, if your regs or processes for replatting/consolidation are not cumbersome and/or burdensome (ie basically administrative) than requiring automatic consolidation or a simple admin approval of minor replats/consolidation would be fine.

    I just run into too many situations where munis treat consolidation of two lots with the same long cumbersome process they use for large subdivisions (30+ lots).

    I mean really, the lines on a platted lot distinguishing it from adjacent platted lots is really nothing more than imaginary lines delineating legal ownership. Unfortunately, development review planners in the US are trained to intertwine subdivision and zoning to an extent that is probably excessive.
    Quote Originally posted by der Bebauungsplan View post
    reasonable people can disagree and I see it as closing a tax loophole created by the zoning regs. Why should homeowner A pay less taxes than Homeowner B who has the same size parcel, same market value but has it all on one zoning lot rather than two?
    Perhaps, but I think the responsibility for fixing the loophole should be County Assessor's job, not the job of the muni to impose additional development red tape.
    I'm sorry. Is my bias showing?

    The ends can justify the means.

  22. #22
    Cyburbian SW MI Planner's avatar
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    Quote Originally posted by mendelman View post
    They, not the code, are forcing it into nonconforming status, and I'm sure that would not bind the muni to accept it as legal noncomforming.
    Oh, but they try to bind us on everything

    Thanks for taking the time to explain mendelman. Until recently I've never had to deal with it. Even now, a parcel combination is a one page application and a $50 fee, so it seems that not having a "zoning" lot makes things so much easier for future issues - you want a garage, you have to put it on the legally described parcel and in accordance with setbacks for that parcel.

  23. #23
    Cyburbian transguy's avatar
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    Quote Originally posted by mendelman View post

    I just run into too many situations where munis treat consolidation of two lots with the same long cumbersome process they use for large subdivisions (30+ lots).
    State law dictates that all changes in property (moving a property line 1 foot or large subdivision) must go through a certain process. It's not always the city that gets to decide on how the process plays out. Does it make sense? No. But that's what we're stuck with.
    Much work remains to be done before we can announce our total failure to make any progress.

  24. #24
    Cyburbian Tobinn's avatar
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    Quote Originally posted by mendelman View post
    In my opinion that is burdensome, especially for simple additions. Zoning/Subdivision rules are a poor tool to use to make sure people pay property tax bills, etc.
    I agree.
    In my fair city we have a process called unity of title. At last check there was not fee unless you had to go through a variance procedure associated with the unity of title (i.e. also looking for a parking reduction of setback reduction or something like that or a conditional use).

    Basically it's a staff level review, you file new survey with the Clerk of the Court (County) and with the City so everyone's on the same page and that's about it.

    Section 4-1601. - Unity of title.

    A. Where it is necessary that two or more lots, plots, parcels, or portions thereof be added or joined, in whole or in part, to meet minimum plot area or plot dimensions required by this development code, or to ensure that a development is planned, developed and maintained as an integral project, an application for development approval for such property shall be accompanied by evidence of recording a unity of title declaration, as described in this section, in the public records of the county.

    B. All lots, plots, parcels, or portions thereof to be joined, in whole or in part, under a unity of title declaration shall be adjacent and shall not be physically separated by a public right-of-way greater than 100 feet in width.

    C. Two or more lots, plots, parcels or portions thereof may be joined, in whole or in part, if the lots, plots, parcels or portions thereof are physically separated only by a public right-of-way 100 feet or less in width unless approved as part of a Level One or Level Two approval. In such cases, the right-of-way shall not be included in determining the plot area, depth or width, or density of development. No land which is submerged or unbuildable under the building or zoning codes shall be included for the purposes of determining plot area, depth or width, or density of development.

    D. A unity of title declaration shall state unequivocally that the entire property created by the combination of recorded lots, plots, parcels, or portions thereof shall be regarded as unified under one title as an indivisible building site, and that the property shall be henceforth considered as one plot or parcel of land. The sale, assignment, transfer, conveyance or devise of a condominium parcel created by a recorded declaration of condominium subjecting the property to the condominium form of ownership shall not be deemed a breach of the declaration of unit of title; however, the entire property shall continue to be regarded as unified and as a single building site for all applicable code purposes. The parties to the declaration shall agree that the declaration of unity of title shall constitute a covenant to run with the land, as provided by law, and shall be binding upon the parties thereto, their heirs, successors and assigns, and all parties claiming under them until such time as the declaration may be released, in writing, by a properly authorized representative of the city.

    E. The city manager or a designated representative of the city manager is authorized to release a unity of title declaration, in whole or in part, when such declaration is no longer necessary due to the discontinuance or abandonment of the project.
    At times like this, you have to ask yourself, "WWJDD?"
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