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Recorded Subdivisions and Zoning Ordinances (PA)

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Recorded Subdivisions and Zoning Ordinances (PA)

Posted by Terry Jr. on Mar 16, 2011 12:05 pm

While performing a Survey, (in PA) for a clients bank loan, I had to show the as-built foundation to be sure it was within the property boundaries. But while creating the Plat I added the setback lines as stated on the recorded plan. The recorded plan specified the setbacks as: Front Yard 30', Rear Yard 60, and Side Yard 25'. The foundation was approximately 3/4 over the Side Yard setback line. As you can imagine the client was a taken by this and asked were I got those setbacks. I had informed my client that they are on the recorded subdivision, to which he replied that the Zoning Office informed him that those stated on the plan are void since the Zoning Ordinance was adopted after the plan was recorded and the new Zoning Ordinance now governs over what is on the recorded plan. My client used the setbacks from the ordinance which are: Front Yard 30', Rear Yard 20', and Side Yard 10'. 

I have contacted the County Zoning Office and their Solicitor and tried to say as nice as I could how i thought they are wrong. The Zoning Ordinance establishes “Minimum Building Setbacks”. If a Subdivision Plan is recorded, whether its recorded before or after the Zoning Ordinance is adopted, the owners of the lots within that Subdivision Plan are bound by the setback requirements as shown and stated on the Subdivision Plan and/or the recorded Covenants and Restrictions within the deed for that lot or as referenced in the deed for that lot, for the particular Subdivision Plan. These are set in place to both restrict and protect the lot owners within the Subdivision Plan.
 
Since the Zoning Ordinance establishes only “Minimum Building Setbacks” a property owner deciding to create a Subdivision Plan, has the right to establish a setback that is greater than the “minimum setbacks” as required by the adopted Zoning Ordinance.

Am I off track with this? If anyone has some information I can use for back up to my arguement it would be appreciated.

Terry
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Re: Recorded Subdivisions and Zoning Ordinances (PA)

Posted by MLB on Mar 16, 2011 1:16 pm

"3/4" what? Inch? Foot? Yard? Meter?

It depends most likely on your state law. When the foundation was built is a factor as well. Was it constructed before or after the zoning ordinance was put in force? Here (California) a new owner would most likely be bound by the ordinance currently in force. You would need to file a map showing the conditions with appropriate annotations. Typically any "new business" has to meet current statutory requirements. There are vehicles like variances and certificates of compliance to remedy individual situations. But telling a Zoning Commission they are "wrong" would not a be a winning strategy here.

Good luck,
MLB
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Re: Recorded Subdivisions and Zoning Ordinances (PA)

Posted by JBStahl on Mar 16, 2011 1:48 pm


Terry,  You raise an excellent example of why setback lines (zoninig regultions) should NEVER be shown on a subdivision plat!!!  Zoning regulations are just that... regulations.  Regulations are prone to change over time and are subject to variance grants, etc.  Setbacks are not boundaries.  They are lines of regulatory interests which impact property. 

As such, when the zoning setbacks were changed, their change impacted all property within the zoning district.  Particular parcels (lots in your subdivision) cannot be singled out for different regulations than their neigbors within the same district.  With that in mind, I'd agree with the Zoning Office and their Solicitor (regulation enforcement officials) that the current regulations would be imposed on new construction just as the current regulations would have been imposed on the date the construction was made.

Of course, an individual property owner can choose to increase their own setback, but they have no regulatory interest in making their neighbor do so.  There would be an exception, of course, for any covenants, conditions or restrictions filed against the property.  The question there arises as to who has the enforcement rights of CC&R's.  Likely, it's the same agency officials who will use blanket agency rules.

JBS


JBStahl, PLS, CFedS
***May your Boundaries Fall in Pleasant Places*** Ps. 16:6
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Re: Recorded Subdivisions and Zoning Ordinances (PA)

Posted by Don Poole on Mar 16, 2011 3:01 pm

Terry,
it is pretty standard that subdivision plans will protect against zoning changes that may be more resrictive for a limited amount of time (grandfathering) but when those bylaws are less resrictive the owner can use those bylaws to their benefit.

i agree with John (as usual except for tidal boundary lines) that zoming setback lines don't belong on the plans because they can be a fluid entitiy.   We ask the building inspector for their determinaton since the grandfathering issue can go back a long way!!


Don Poole PLS
Outermost Land Survey, Inc.

"Outstanding in the field"
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Re: Recorded Subdivisions and Zoning Ordinances (PA)

Posted by Steve Gardner on Mar 16, 2011 3:41 pm

When I first read the original post, I thought the setbacks were something created by the recordation of the Subd. Plan.  If they were just shown to depict the zoning ordinance of the time, I agree that they shouldn't have been shown and that the current ordinance would apply.  Around here, setbacks larger than those required by ordinance are often dedicated on the Subd. Plan (we call it a plat) as "easements for light and air" and as long as they are at least as large as the ordinance requires, they would apply.  Now if setbacks are dedicated on the plat (plan) and later on the local ordinance is changed where the ordinance's setbacks are larger than those dedicated, the new larger setbacks might apply, but there could be an argument that the dedicated setbacks apply.  I've never run into that situation though.
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Re: Recorded Subdivisions and Zoning Ordinances (PA)

Posted by Paul in PA on Mar 16, 2011 10:53 pm

There are areas in PA where the subdivision setbacks are set per a homeowners association and remain in effect despite what municipal requirements are.

With specific language on the plat, they may in fact remain despite what the municipality accepts.

Paul in PA
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Re: Recorded Subdivisions and Zoning Ordinances (PA)

Posted by Terry Jr. on Mar 17, 2011 7:30 am

Thank you all for the feedback.

To answer a few questions: the foundation is new construction for a new house, the foundation its self is 3/4 across the setback line, the setbacks created on the Subdivision Plan were greater than the old ordinance and differ from the new ordinance, the setbacks were both shown and stated on the Subdivision Plan, other homes in the Subdivision Plan are situated by the setbacks as stated on the plan, I did not create this particular Subdivision Plan.


Thanks again for the feed back.


Terry 
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Re: Recorded Subdivisions and Zoning Ordinances (PA)

Posted by Paul in PA on Mar 17, 2011 8:14 am

Since the plan exceeds the previous zoning, it appears that an exclusive community was intended. Show it as over the plan setbacks. Since it is not a current zoning problem the town does not care. It would be up to a homeowners association or adjoiners to sue. For 3/4 of a mile? will they?

Paul in PA

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Re: Recorded Subdivisions and Zoning Ordinances (PA)

Posted by Cee Gee on Mar 17, 2011 9:45 am




Unfortunately, if things in PA are anything like things in Maine, the question is not "will they sue" but "can they?" Because if the parcel is violation of legitimate restrictions imposed on the subdivision by the subdivider (which sounds like the case here) title companies may refuse to insure and the banks may then refuse to loan. And if it's subdivider-imposed and not a zoning thing, the municipality has no power to waive anything. The remedy around here has historically involved getting every owner in the subdivision to sign off (and there's always at least one who squawks). Sometimes a court may rule the restriction void if it can be shown that every house on the block is likewise non-conforming. And there may be an estoppel argument. But both are long, costly shots.


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Re: Recorded Subdivisions and Zoning Ordinances (PA)

Posted by Steve Gardner on Mar 17, 2011 11:25 am

So Terry says the setbacks as shown on the Plan were created on the Plan.  For what it's worth, around here in CA, that would mean that they were dedicated as sort of an easement to the public and the local agency would have jurisdiction to enforce them.  If they are just shown on the plan in reference to a deed restriction or CC&R, the local agency wouldn't care, it would be a civil matter or like Cee Gee says get the homeowners association to grant a waiver.  Even dedicated or ordinance-based setbacks can be waived or modified by applying for and gaining approval of a Variance or whatever it would be called in that jurisdiction, but again, around here if the neighbors show up to the hearings and squawk, you probably wouldn't get it approved.  Also, the hearing body would have to make a finding that there are special circumstances that would warrant a reduction of the setbacks. 

As far as what to show on the survey, I'd show the Plan setbacks and ordinance setbacks in relation to the house if there's any question about which ones apply.  It doesn't seem like such a complex issue that it can't be decided which ones apply before finalizing the survey, though, is it?
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Re: Recorded Subdivisions and Zoning Ordinances (PA)

Posted by SUNSHOT on Mar 18, 2011 7:52 pm

When confronted with multiple and often conflicting setbacks.  Recorded on the plat,  or deeded restrictions, and/or (current) local jurisdiction  zoning requirements.  I indicate on my map of survey (with a note) the source and extent of each . to let whoever may be concerned, aware of the potential problem.  (Which may arise now or in the future, particularly with regard to the local jurisdiction official , who's assertion of which setback is valid may change with the next individual who replaces him).  I may go so far as to reference the jurisdictional official's assertion of which setback is valid.  Try to get this assertion in writing, and file it away.

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