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Non-Conforming Lot: When / How Does It Revert

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scorolo

Junior Member
What is the name of your state (only U.S. law)? Arkansas

My neighbor has 9 acres of land zoned A2 with a house (mobile home) on it. A2 zoning means one must have at least 5 acres per house or mobile home.

My neighbor wanted to build a house for he and his wife at the back of his property, so he wanted to split his A2 lot into 2 lots to be able to build the house. One lot would be a 7 acre conforming A2 lot where he would build, and the other lot would be a 2 acre non-conforming A2 lot where his mobile home is. The mobile home may not be moved as it is too old and our zoning ordinance prevents it.

In 2002, he stated before our Board of Commissioners during the public hearing that the only reason he wanted to split the property was to build his dream house on the 7 acre lot. Because the split was for him to build his house, I also spoke in favor of it as he had been a good neighbor. I own 30 acres next to him. As a result, the commissioners granted his request to split his property into 2 lots still zoned A2.

PROBLEM: He never built his dream house. He never even got a building permit. Now it is 2009, and he wants to sell his property and sell each lot separately.

Our zoning ordinance at the time stated:

"Action by County to Rezone Property to Original Zoning.
When a rezoning request has been granted for a parcel of land on
request by the owner or his agent, and no building permit has
been applied for within (12) months of the date of the rezoning,
the Board of Commissioners may initiate action to rezone the
parcel to its original zoning."

And:

"If there is a rezone with a division of a portion of the property,
the plat must be done within (1) one year of the zoning approval
or, the zoning reverts back to the original zone."

QUESTION: Can he legally sell these lots separately even though he got the split to non-conforming status through misrepresenting his intentions at the public hearing?

My reading of the ordinance is that he lost his chance when he did not get a building permit within 12 months of the split.

Surely he cannot do this. If he could, all one would have to do to get away with making non-conforming lots, then selling them for profit, would be to lie and say you're building a dream home, home for grandma, etc. and just never build the home. Wait a bit. Then leave and stuff $$ in your pocket.

Anyone know anything about this scenario?

Thanks in advance
 
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drewguy

Member
Based on what you've posted, you appear to be correct.

But what is your question--how to proceed? You could call the local zoning authorities to report the problem and ask them to rescind the rezoning.

The other thing to keep in mind is that it appears from what you've posted that if he sold two lots only one would be buildable. The 2 acre lot is still zoned A2, correct? If so, how could a purchaser build anything on it? At best they could keep the mobile home.
 

scorolo

Junior Member
Thank you for the response. It's not the 2 acres I'm worried about someone building on. I'm worried about someone building on the 7 acres, because the only buildable locations butt right up against my property.

Again, this neighbor has been a good guy and a friend. And if he had built HIS home on it, I had no problem. I do have a problem with him (intentionally or not) misrepresenting his intentions and then trying to sell that lot so someone else can build on it, essentially profiting from his misrepresentation.

If the lots are recombined, as they should be, back into one, 9 acre lot, the buyer will not be able to build on the 9 acres because of the existing mobile home. Can't have more than 2 homes on an A2 lot (without a rezone or a request for special circumstances).

The only way someone could build on it would be to destroy the mobile home, and as it is on a permanent foundation and has been built on to, and really much nicer than your typical mobile home, I find that unlikely.

I hired an attorney today, just to be sure.

Thanks again.
 

justalayman

Senior Member
the 7 acre lot is in compliance with the zoning regardless what happens so that is a buildable lot.

the only thing in contention is the 2 acre lot. If the lots were separated legally, the township cannot put them back together but they can remove the A2 zoning on the 2 acre parcel. It would simply be a lot that cannot be built on.

Oh, wait, there is already a house on the 2 acre parcel so it is a non-conforming use that will continue until such time the house is razed.
 
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scorolo

Junior Member
the 7 acre lot is in compliance with the zoning regardless what happens so that is a buildable lot.

the only thing in contention is the 2 acre lot. If the lots were separated legally, the township cannot put them back together but they can remove the A2 zoning on the 2 acre parcel.
Just from my short conversation with my attorney today, that information is not correct. He split a 9 acre lot, and the 7 acre lot was supposed to have been built on. Our ordinance stated:

""Action by County to Rezone Property to Original Zoning.
When a rezoning request has been granted for a parcel of land on
request by the owner or his agent, and no building permit has
been applied for within (12) months of the date of the rezoning,
the Board of Commissioners may initiate action to rezone the
parcel to its original zoning."

He did the split in 2002. He not only did not get the building permit within 12 months, he never got it at all.

So, the 2 lots will have to be recombined to a 9 acre lot I think and my attorney believes so as well.

Again, if all you had to do was go to a public hearing for a rezone / split and lie and say you were going to do one thing, then you turn around and do something else, people would be having a field day just lying at the hearing, then once they get the rezone or the split, do something different than the testimony they gave at the hearing.

I'll follow up as this evolves. My attorney assures me that under our zoning ordinance, one will not be rewarded for misrepresenting / lying at the rezoning hearing.

Thanks for the opinion though. The 7 acres should not be a buildable lot, because under our ordinance, because he never got his permit within 12 months, the property is supposed to have reverted to being only one 9 acre A2 lot, as it was before the hearing.

And not only can the county put the lots back together legally, the lots are actually automatically put back together by law. Here's the ordinance (also in the original post):

"If there is a rezone with a division of a portion of the property,
the plat must be done within (1) one year of the zoning approval
or, the zoning reverts back to the original zone."

I should point out he did not have the survey done, or the plat recorded within 1 year of the split, so I think I'm on pretty good ground here. I hope the lots are recombined into one lot automatically and all I have to do is bring it to their attention. Otherwise, I think I could have it done by a court, if I point out the owner's misrepresentation at the original hearing and failure to follow up with his house construction. Hopefully that is not necessary.
 
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154NH773

Senior Member
Technically the zoning never changed. It was A2 before and it is still A2 on both lots.

"If there is a rezone with a division of a portion of the property,
the plat must be done within (1) one year of the zoning approval
or, the zoning reverts back to the original zone."
The "plat" is not application for a building permit, it is a map showing the subdivision that is filed at the Registry. The plat may have been filed.

I tend to agree with justalayman, that the 7 acres is a buildable lot, and the 2 acre is not a buildable lot, but now contains a nonconforming structure (trailer).

Lawyers have a way of building up your expectations to get your business, but tend to hedge when trial approaches.
 
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scorolo

Junior Member
Thanks again. There was no rezone, but getting a variance to a nonconforming status carries the same weight, and the process is the same as a rezone (advertising, hearing, etc.) I believe it is treated the same under the zoning ordinance.

I believe the plat was recorded, but not within 12 months of the hearing, which, under the ordinance I posted, would nullify the split.

Again, if all you had to do was lie at a public hearing, these things would happen all the time. They don't happen all the time, so I'm assuming the law frowns upon lying to the commissioners at the hearing.

The lawyer who is handling this is an excellent real estate attorney and family friend and is doing this pro bono, so I think I'm in good hands there.

I think even in the worst case scenario I (and many of the surrounding property owners who are equally upset) could go to court because a judge can listen to the testimony from the hearing back in 2002, and read the minutes, and hear the guy say the only reason he wants to do the split, and the only reason I and the rest of the people around did not oppose him, was because he was going to build his house. Had he been honest about his real intentions at the hearing and said he actually was not going to build his house, but was going to turn around and try to sell each lot individually, there would have been 40 people there opposed and he would not have gotten the property split.

I should add this is agricultural area and not in a town or in a subdivision, so we want to preserve the agricultural property.
 

justalayman

Senior Member
for some reason, you are under the misunderstanding that they rezoned something and now they can undo that. They didn't rezone anything. They allowed a non-conforming 2 acre lot to be created. They cannot demand the lots be recombined and since the 7 acre lot is conforming, they cannot refuse to allow a build.

while you want to claim that issuing a non-conforming variance has the same limitations, while it may, the ordinance you post is meaningless in this situation.

Again, they did not issue the variance for the 7 acre lot. They issued a variance for the 2 acre lot and that lot is being used as the variance allows.



and while you continue to call the neighbor a liar, who is to say that he simply had some problem that caused him to not be able to fulfill his dream of building his dream home?

here is a real simple action the guy can take to stifle any action you want to try to take:

he sells either lot. Once that is done, the township cannot undo the sale and they cannot force a consolidation and they cannot refuse to allow a build on the legal lot.

I don't think he will even need that to keep things as they are but that would put a stop to anything in even trying.
 

scorolo

Junior Member
while you want to claim that issuing a non-conforming variance has the same limitations, while it may, the ordinance you post is meaningless in this situation.

....

and while you continue to call the neighbor a liar, who is to say that he simply had some problem that caused him to not be able to fulfill his dream of building his dream home?

here is a real simple action the guy can take to stifle any action you want to try to take:

he sells either lot. Once that is done, the township cannot undo the sale and they cannot force a consolidation and they cannot refuse to allow a build on the legal lot.
Thanks. Regarding the odinance, your interpretation conflicts with my real estate attorney's.

This guy has tried to purchase (a strip) of land from my farm, because the land in question he wants to sell has serious access issues.

As far as selling it, that is why I am taking action now. My farm runs the length of his property. I can put various types of livestock along the line that will make the property virtually impossible to sell. I used to have a mobile home near the location. I could just put another mobile home back there and paint it pink and rent it out. His property is already a difficult sell because of the lay of the land. The only spots to build are close to my line, and I have a water well there, so they have to be at least 100' from the well. Well, his land is kind of a long, skinny strip with another farm on the other side, so it's going to be tough to build on. I have considered just sinking some more wells that would also render the lot unbuildable. I don't care if he sells it; I just don't like to see someone profit from misrepresentation and try to put little lots in the middle of a bunch of farms. This isn't a subdivision. You seem to think someone can just testify at a public hearing and get away with lying. They can't. Sure, a judge may side with him if he has had some hardship. Hell, I may side with him if has had some hardship. But I know the guy quite well and he isn't selling due to hardship, and he didn't "not build" due to hardship. He better be prepared to document and provide evidence of that hardship. He never built because they decided to build their dream home somewhere else out of state. I have no problem with that, but in that case, since you aren't doing what you said you were going to do at the hearing, just recombine the lots and sell the property as it was when you arrived. You can't just say one thing at the hearing, then do another, when if you had been forthright, you never would have been granted the split to begin with!

This is farmland out here. No one here is happy with what this guy is trying to do, and no one is happy that he is not doing what he said he was going to do at the hearing.

The ONLY reason the commissioners granted his request (and I have already spoken to 3 of our commissioners about this who heard the request) is BECAUSE he stated he and his wife were building THEIR house. At any court proceedings I think those commissioners testimony will be very helpful to my and the surrounding neighbors case. They said they would be prepared to give an affidavit or testify that they would not have granted the split if the applicant had stated he was not going to build his personal residence on the lot.

Hopefully there is no case, as our ordinance states, he had 12 months to get the building permit and he didn't.

I appreciate the advice, but I'm a little surprised that some of you think one can lie at a public hearing and not be called on it and have to pay a penalty for it. Again, if you had a hardship, that should be considered. I don't think any judge will consider deciding to try to blackmail your neighbors into buying the land you split under false pretenses so you can actually go build your dream home out of state a "hardship."

Thanks again. I appreciate the viewpoints. It is helpful for me to see how others view the situation. I have no ill will against this guy. He's been a good neighbor. But I have seen too many situations where those of us who have lived and farmed here for generations and been good stewards of the land have gotten hoodoo-ed by relative newcomers who put making a buck, even if it involves lies and manipulation, above the land. That doesn't fly too well around here.
 

154NH773

Senior Member
Let's look at this scenario differently. Suppose he had built his dream house, and then sold it, you would have the same situation that currently exists, and you could not make your current argument.

Once a variance is granted, it would be unusual for it to be rescinded after the property has been subdivided. While your lawyer may be correct, I have my doubts. A court can make almost any decision it wants, so be prepared for disappointment.

Your speaking in support of the subdivision and variance will not be in your favor. If you were in favor of him building a house, how can you say that you are not in favor of someone else building a house?

A lie (also called prevarication), is a type of deception in the form of an untruthful statement, especially with the intention to deceive others ...
It would be hard to prove he lied at the time of the variance hearing. He probably had every intention of building his dream home, but in the time since, he changed his mind. This should be a lesson to anyone concerning zoning variances, you can't make someone else live where you want them to, they can always sell to an obnoxious person. Always anticipate the worst case scenario when deciding to support a variance.
 
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drewguy

Member
Let's assume he lied at the hearing. That's an issue separate from your concerns. Let the state/county prosecute him for perjury or false statements. But that doesn't change the land.

As justalayman points out, if the land has been replated so that there's a 7 acre lot and a 2 acre lot, it's going to be nearly impossible to force a recombination of the two.

At this point he presumably has the right to build a house on the 7 acre lot (after obtaining a permit). The 2 acre lot is the one in limbo. It is now a non-conforming lot because he failed to apply for the permit within 12 months. However, what does that mean? Does he have to remove the mobile home? Perhaps. If not, can he build on it in the future? Probably not. Could he sell it to someone? Yes, but they won't be able to build on it either.
 

scorolo

Junior Member
Let's look at this scenario differently. Suppose he had built his dream house, and then sold it, you would have the same situation that currently exists, and you could not make your current argument.

Your speaking in support of the subdivision and variance will not be in your favor. If you were in favor of him building a house, how can you say that you are not in favor of someone else building a house?
You are almost correct. We knew his plans and location for his house. So, yes, for those plans and that house, we had no objection. So, even if he sold it, it would still be that house in that location. My argument holds, because what we supported at the hearing, and the only reason the split was granted according to the commissioners, was his plans for that house.

We have had similar situations where owners asked to rezone to B1 and tell everyone it is for one type of business. Then, they have tried to turn around and make what was supposed to be a B&B into a convenience store. And, no, just because you lie at the hearing, get your wish, then change your plans, you don't just get to go forward. Those projects were halted as well, for the same reason. They went back and got the minutes and the tapes from the hearing.
 
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scorolo

Junior Member
Well, I've got some guys over there today building a lot for some livestock just to be on the safe side. I doubt anyone will be interested in purchasing that property. My farm is on one side. And a friend's farm is on the other (the side where the lay of the land prevents construction). If they do, I doubt they will want to build on it, certainly nowhere near my farm. And my family and friends will have some delicious pork and beef to boot! :)

You are right. I wish I had not spoken in favor of him splitting the lot. But I can get those tapes from the meeting and it is VERY clear, we only supported HIM building HIS house because we knew the plans and location. If we had known he was lying - we nor any neighbors would not have supported it, and I have 4 commissioners now who tell me they would not have granted it. Just goes to show, people will say anything to pull a con. Lesson learned. Fortunately, the rest of the neighbors around here are not like that, but most of us have all been here a long time and have a commitment to and believe in protecting the land.

My attorney believes the split will not stand.

Thanks again for the opinions guys.
 

justalayman

Senior Member
well, you may have just caused yourself a new problem. While I really hate when city dwellers move to the country and grip about the animals that are already there, you are intentionally moving the animals into an area that was not used for livestock. I don't know about your area but I do know in mine, that would be a contestable action with the livestock owner most likely losing.

to your statement about your attorney does not believe the split will stand.

. They cannot force the split to be reversed. They also cannot refuse to allow a build on the 7 acre lot. An owner could sue for that and easily win.

The only non-conforming situation is the 2 acre lot. They would be hard pressed to even do anything with that lot. All they can do is prevent a building from being built in the future on that lot. As it stands, the mobile home is now grandfathered in and you are where you are.


The truth of the matter, unless there is something about not allowing a parcel of land to be less than a certain size, and if there was no mobile home involved, they would not have been able to prevent the split at all. Of course, the 2 acre lot would not have been buildable but that does not mean he could not have split the lots and, unless some additional ordinance prevented it, sold that lot for some family to have picnics on if that is what they wanted.
 

scorolo

Junior Member
well, you may have just caused yourself a new problem. While I really hate when city dwellers move to the country and grip about the animals that are already there, you are intentionally moving the animals into an area that was not used for livestock. I don't know about your area but I do know in mine, that would be a contestable action with the livestock owner most likely losing.

to your statement about your attorney does not believe the split will stand.

. They cannot force the split to be reversed. They also cannot refuse to allow a build on the 7 acre lot. An owner could sue for that and easily win.
No, the area has always been used for livestock. This is a FARM. And the lot in question is not only surrounded by other farms, it is also zoned agricultural. ALL of the property for miles is zoned A1 or A2. The "A" stands for "agricultural." So, no, I'm not bringing in livestock into an area that had none; I'm exchanging existing livestock for different, much more "fragrant" livestock. In this case, cattle and hogs. Copious quantities of both that my family has raised for generations! "Contestable action?" Are you joking? All the property here is zoned agricultural. The land where the livestock is going is zoned A1 - pigs, cows, chickens and darn near anything else not only allowed, but encouraged! The farms and agriculture were here looooong before this guy tried to hoo-doo everyone with his scheme to stuff a few measly dollars in his pocket.

Anyway, those of you who said the split couldn't be undone stand corrected. After doing a little research, my attorney contacted Planning & Zoning and they said the 2 lots WERE recombined back into one - just the maps had not been updated. Even the owner had not been notified. I would like to see his face when he gets the letter. Planning & Zoning said the reason why the lots were recombined is that he never followed through with his building permit / plat, per the ordinance requirements, as stated. So my attorney was right on the money.....Score one for the good guys, and more importantly, score one for the land.

Still moving forward with the livestock plan. I've learned my lesson. Can't be too careful. Who knows what any buyer may want to do. When they see (and smell) the benefits of farm living, I have a feeling we won't have to worry about this problem again. Heck, it may make that property a little difficult to sell. Things this fellow should have considered before he lied to everyone at the hearing. And one can never have enough healthy organic beef and pork and chicken!

Posting here wasn't that helpful, but I appreciate the alternate viewpoints.

I don't wish anyone to be the victim of someone else's deception, but let my experience be a good lesson for anyone with a similar problem with adjoining landowners. Don't put much faith in free advice - get yourself an attorney and get a good one!

Me and some of the other farmers / landowners are having a little dinner tomorrow. This has been a good experience as far as bringing us together and everyone seems united in making sure something like this doesn't get this far ever again, so maybe all has worked out not just good, but even better in the end. We really have to be pretty vigilant to defend farms and beautiful land from those who would lie and cheat and speculate to ruin it just to make a quick buck.

Thanks again guys.
 
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