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Thread: Nonconforming status results from highway condemnation

  1. #1
    Cyburbian fringe's avatar
    Aug 2008
    Comer, GA

    Nonconforming status results from highway condemnation

    Here is one that will likely be trotted by the City attorney, but worth asking here for general info.

    A parcel that lies in the path of a highway project will be reduced after condemnation by state to a size that puts the parcel into nonconformance with the minimum area for its zone category.

    Must the owner apply for rezoning to a category that would make it compliant, or can the governing body initiate a rezone to correct the noncomplinace that results?

  2. #2
    Cyburbian btrage's avatar
    May 2005
    Metro Detroit
    At my previous employer, we had a new freeway go through and ran into this issue. The purchase of right-of-way (often through eminent domain) resulted in numerous situations where the remnant parcel was non-conforming because of lot size or a setback requirements.

    Do we require the property owner of the remnant parcel to request a variance? We decided not to, thinking that it wasn't their fault because of the eminent domain. We also decided not to require a variance even when there was an agreed to sale that didn't require eminent domain. We just didn't think it was fair to the property owners. And really, what the hell was going to happen if our ZBA denied the request? Absolutely nothing. This was a MAJOR state freeway project.

    For county highway projects, we did require a variance be sought. These were all pretty much slam dunk approvals.

    We almost wrote into the code that remant parcels resulting from a condemnation, did not require a variance. We opted not too, because we thought it might discourage the state DOT from purchasing entire parcels, which we preferred.
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  3. #3
    Cyburbian Tarf's avatar
    Jul 2011
    Encinitas, CA
    Definitely consult your city attorney...

    In most states, yes the city can rezone the property - and in this case that would seem most appropriate so the landowner doesn't have to bear the burden of the rezone process.

    Another possible option, depending on your municipal code, would be to grant a variance for lot size (and possibly also setbacks, if needed) when they come in for permits. It would seem to me that condemnation of a portion of the lot created an unusual hardship for the landowner that could be fixed via a variance, though you'd need to check your municipal code to make sure that lot size can be reduced by variance, etc.

    Just my $0.02.
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  4. #4
    Cyburbian mike gurnee's avatar
    Feb 1998
    Greensburg, Kansas
    In my last few towns we put in the code that resultant lots were exceptions to setback rules. I didn't think about btrage's concern, which is valid. Regardless, this is an ideal situation for an administrative ruling if your code permits such.

  5. #5
    Cyburbian Cardinal's avatar
    Aug 2001
    The Cheese State
    I am wondering why there would be an exception for remnants caused by DOT acquisition of a portion of the parcel. The underlying conditions - parcel size or dimensions most likely - would create an undesirable site configuration regardless of the reason why the lot was nonconforming. Perhaps owner A had a portion of their property taken by the DOT. Is that really much different than owner B, whose property was platted in 1852? Particularly when eminent domain is involved, the acquisition process recognizes the value of the remnant parcel after the DOT acquires the piece it will use. If that remnant cannot be developed, or may preclude an existing use from being expanded, then the owner will be compensated for that loss.
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  6. #6
    Cyburbian Tobinn's avatar
    Aug 2005
    Clearwater, FL

    Nonconformities created as a result of eminent domain

    From the Code of my fair City:

    Section 6-110. - Nonconformities created as a result of eminent domain.

    A. In the event that an eminent domain action creates a nonconforming structure, such nonconforming structure may remain as a legal nonconforming structure provided that all other regulations of this Code regarding nonconforming structures are met. This section shall not be applicable to single-family detached and attached dwellings.

    B. In the event that an eminent domain action renders a site nonconforming with respect to the development standards of this Code, the property shall be required to comply with the development standards to the maximum degree physically and financially feasible as determined by the community development coordinator. The community development coordinator may require mitigation and/or improvements to the site that are related to the specific conditions of the site, that adequately improve the public safety issues of the site and which implement the purposes of this Code.

    C. All other nonconformities created as a result of eminent domain shall be governed by the provisions of this article.
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