Non-Conforming Lot: When / How Does It Revert

[justalayman]

so provide a link to a county that the commissioners do control the zoning. I simply grabbed that county at random. If it is the only county among the hundreds of counties in the southern states that the county does not control zoning, you do realize the chances of me choosing that one county by random choice would be very unlikely.

"Reviews and approve subdivision platting"

Also, the county commissioners are responsible for "establishing long-range thoroughfare, open space, and land use plans" ( including zoning ordinances)

No, the "including zoning ordinances" are your words. It did not state anything of the sort on that site.

so, either prove yourself or realize you are wrong. I proved myself yet you somehow want to claim it is a win for you but to claim such, you insert verbiage into a their site that is not there.

but I think you will post anything to make an argument. Seriously, when you post a link to information that absolutely disproves your nonsense...well, that speaks for itself.

No. it did not state they had anything to do with zoning ordinances. A master plan is not a zoning ordinance. It is a general overview of the direction those county commissioners want their county to work towards. It is not binding and it provides no ordinances. In fact, it spoke of "the community" and their zoning should reflect the intent of the master plan. That implies it is a more local authority that is in control of zoning ordinances and it also implies the local authority can deviate from the master plan.


You have failed to show any support for yourself. I have provided support for my position regardless what you want to try to read into the statements, as wrong as it is.

Since you cannot prove yourself correct, one can only surmise that you are just plain wrong.

 

[appraiser55]

so, with a vague statement such as "the plat must be done within one year of approval" It simply requires one to pictorially delineate the area for which the zoning change is requested. That is required in most typical zoning change requests.

where does it state it must be recorded and if it is to be recorded, where is it to be recorded.....


and still, what does any of this have to do with the courthouse in any given area?

The plat must be done, means the plat must be done. The plat is not LEGALLY done until the plat is recorded, usually (always in my experience) at the courthouse or county govt. building which usually houses the courthouse and public offices.
You ask questions that you should know the answer to. You ask, "where does it state it must be recorded and if it is to be recorded, where is it to be recorded?"
READ THE ORDINANCE. Somewhere in that ordinance there will be a section called DEFINITIONS. PLEASE READ THEM to answer your redundant questions demonstrating ignorance. Example: You will see definitions for important terms like LOT OF RECORD: defined in most ordinances as a lot or parcel whose existence, location, and dimensions have been legally recorded or registered in a deed or on a plat in whatever courthouse are municipality you are in. Key words for you, my friend: "LEGALLY RECORDED on a plat or deed" at the courthouse, clerk's office, etc. Around here, it's recorded with the Clerk of Superior Court. But again, READ THE DEFINITIONS and you will know when, where and why!
Sorry, stashing a drawing you call a "plat" and putting it in Grampaw's cigar box in the cupboard is not a legally recorded plat. We have no way of knowing for certain when it was done, who did it, how it was done, etc. And the citizenry had no way of accessing the information - that's why all of these plats and the very important information they contain are matters of public record. If the plat isn't recorded, how are you going to prove when it was done? For that matter, read my example above, how will you prove you have a Lot of Record with no recorded plat? Good luck! And if the ordinance requires the plat showing your rezone or division done within 12 months, as is the case here, you will most certainly want to be able to prove you did the plat or find that you no longer have a Lot of Record! Pretty important, eh?
You are correct in stating "That is required in most typical zoning change requests." Exactly. A recorded plat is required in rezones and variances. Heck, as we see, it's to benefit YOU. You're catching on. You seem to think requesting a variance is significantly different from requesting a rezone. It isn't. Read any zoning ordinance and you will see that there are permitted uses that require a variance. For you to get that variance, you still have to advertise in the legals, put up a sign for 30 days (or whatever time is specified in the ordinance), have a public hearing, etc. just like a rezone.
Everywhere I've been those hearings are before the county commissioners. Some (most, virtually all) counties force you to have 2 hearings - one before some sort of Planning Board that carries no legal weight. It only serves as an advisory panel to the commissioners who make the final decision on the rezone or variance at the second hearing. And if there is any division of property involved, you have to have a survey done and a plat recorded showing the division and the rezone. Again, sketching out a cartoon on your lunch napkin or notebook doesn't meet any legal standard. Matter of fact, the only time I can imagine a legally recorded plat would not be required would be in a rezone, and even then, depending on how important your rezone is to you, most lawyers would probably recommend recording a new plat anyway, just to safeguard yourself from any attempt to defeat your rezone later on, as happened in this case precisely because the landowner never had his plat recorded as required in the ordinance. Again, "done" means "done." Good luck pulling that napkin sketch out of your cigar box and getting a judge, jury, or anyone else to believe that is somehow a plat. Not saying it can't be done, but it sure would be easier to have a legal Lot of Record complete with a recorded plat on file at the Clerk's office. YMMV

 

[appraiser55]

Read the ordinance

so provide a link to a county that the commissioners do control the zoning.

OK! Here's one of many, many, many!

Montgomery County North Carolina, A Golden Opportunity!

That's for Montgomery County, NC.

From the Montgomery County zoning ordinance we see:
"Any case involving an appeal or variance requires a public hearing to be held by the Board of Adjustment and any case involving a Conditional Use Permit, a change of zoning district classification or other ordinance changes requires a public hearing to be held by the Board of County Commissioners. The Planning Board may also hold a public hearing."

I have not read the entire ordinance, but it looks pretty typical. Looks like they have a Zoning Administrator, and then a Board of Adjustment and / or a Planning Board appointed by the county commissioners, with conditional uses and rezones going through a Planning Board and the County Commissioners. Final authority and final decisions rest with the County Commissioners. No surprises here!

Also, from the Montgomery Co. ordinance:
"Appeals may be taken to the Board of County Commissioners by any person, firm, or corporation aggrieved, or by any officer, department, or board of the county affected by any decision of the Planning Board."

Again, they spell it out. Final decisions rest with the County Commissioners. After that, if you aren't happy, you have to go to court.
Like I said, any Zoning Board, Planning Board, whatever you want to call it, is appointed by the County Commissioners. All Zoning staff, etc. are hired by and serve at the pleasure of the commissioners. Very typical representative zoning ordinance in my experience.
Interestingly, the Montgomery Co. ordinance has a provision similar to the one that benefited the OP on this thread regarding fraud, misrepresentation, or not acting in a timely fashion:

From the Montgomery Co. ordinance:
"Section 5. Revocation of Conditional Use Permits and Variances
After a public hearing has been held and approval granted for a conditional use or variance,
the Board of Adjustment of Board of County Commissioners, whichever originally granted
approval, may reverse any decision without a public hearing upon finding one or more the
following.
A. That the approval was obtained by fraud;
B. That the use for which such approval was granted is not being executed;
C. That the use for which such approval was granted has ceased to exist or has
been suspended for six (6) months;
D. That the permit granted is being, or recently has been exercised contrary to the terms or conditions of such approval;
E. That the permit granted is in violation of an Ordinance or statute
F. That the use for which the approval was granted was so exercised as to be
detrimental to the public health or safety, or so as to constitute a nuisance."

So, those who say a variance cannot be undone or that it is not within the commissioners' authority to undo a variance, are wrong depending on the wording of your zoning ordinance. If you apply for a variance under the conditions set forth in your ordinance, you are working under that ordinance. Better read it!
So, what do we see? This ordinance is like almost everyone I've ever seen. Looks like Montgomery Co. has a Planning Board, appointed by the County Commissioners, responsible for enforcing ordinances. If you go before the Planning Board, and you agree with the Planning Board's decision, then you are effectively rubber-stamped by the County Commissioners.
If you disagree with the Planning Board's decision, you have the right to go before the County Commissioners who serve as an appellate board, and the COUNTY COMMISSIONERS decision is the one that carries final authority. That's how it should be as those guys are actually elected.
Some counties will come right out and say the Planning Board is not the final authority and require 2 hearings for all applicants, one before the Planning Board and another before the Commissioners, but the end result is the same - the COUNTY COMMISSIONERS make have the final say (barring legal action) on rezones.
Today's lesson? No matter where you are located, if you own property or do a rezone, variance, division of property, etc. under jurisdiction of a Zoning Ordinance you better READ THE ORDINANCE and FOLLOW THE ORDINANCE.

 

[justalayman]

=appraiser55;2349884]The plat must be done, means the plat must be done. The plat is not LEGALLY done until the plat is recorded, usually (always in my experience) at the courthouse or county govt. building which usually houses the courthouse and public offices.

and where is your support for this? Drawing a plat is as simple as scribbling on a napkin and unless there is specifications to how the plat is to be done and what is done with the plat after production, that is all that is required. Anything beyond that would require legal direction to enforce. Where is your legal direction that recording is required?

You ask questions that you should know the answer to. You ask, "where does it state it must be recorded and if it is to be recorded, where is it to be recorded?"

Should know the answer? The laws are not written so a person is to "guess" or "presume". They are written to provide direction, which, if not included, means there are no legal directions to act as, as you would say, "should know".

READ THE ORDINANCE.

I read what was provided. If there is more, it is up to you to provide it. You are arguing that there is more, not me.

Sorry, stashing a drawing you call a "plat" and putting it in Grampaw's cigar box in the cupboard is not a legally recorded plat.

and again, where are the requirements for a "legally recorded plat"?

. If the plat isn't recorded, how are you going to prove when it was done?

and where is the requirement to be able to prove when it was done?

For that matter, read my example above, how will you prove you have a Lot of Record with no recorded plat?

a lot of record? Why are you dealing with "lots" which I read to be something such as; lot 101 of Old Farmer Jones subdivision of 1937 as recorded on liber 239.

I simply designate the dimensions of my division along with a starting point, deed it to whomever who records the deed at the registrar of deeds and viola`, we have division.

And if the ordinance requires the plat showing your rezone or division done within 12 months, as is the case here, you will most certainly want to be able to prove you did the plat or find that you no longer have a Lot of Record! Pretty important, eh?

well, first, this situation did not concern rezoning. Next, the lot of record, as you want to call it, does not neccessarily concern any legally dedicated and defined property description associated with the title of land. I can request the the 40 feet of my lot be rezoned to C-1 and leave the remainder at R-1 so I can put a fruit stand near the road. That does not require division of the land and unless a pictorial plat map is required, the description is self evident and within the application and if approved, documented by the granting of the request.

You seem to think requesting a variance is significantly different from requesting a rezone. It isn't. Read any zoning ordinance and you will see that there are permitted uses that require a variance. For you to get that variance, you still have to advertise in the legals, put up a sign for 30 days (or whatever time is specified in the ordinance), have a public hearing, etc. just like a rezone.

Ok, let me answer this using my local zoning ordinances. Zoning- the specific designation of an area which defines the allowed uses and associated rules. Special use permits- uses of the land already designated within the zoning ordinance but requiring specific permission to utilize an area for those purposes. Variance- a deviation from the rules of a zoning designation but still leaving the zoning designation as it is. rezoning- changing the actual zone designation which would then totally remove all allowances and restrictions of the original zoning designation and place the allowances and restrictions of the new zoning designation on the area.

So, which did the OP's situation concern? Obviously, a variance. That means the original zoning is still there but a request for a deviation from the rules of that zoning designation were sought, and allowed.

Everywhere I've been those hearings are before the county commissioners.

I know of no county that determines zoning although I will not positively state that it is never the case.

Again, sketching out a cartoon on your lunch napkin or notebook doesn't meet any legal standard.

well, they have to determine the "legal standard" and unless it requires the pictorial be drawn to scale, the accuracy of the drawing (so as to make the drawing scalable if desired), or anything else concerning the drawing, then there is no "legal standard".

Again, "done" means "done."

and when you show me an ordinance the defines "done" as being produced and then recorded by some unspecified method, I'll believe you.

 

[justalayman]

E=appraiser55;2349907]OK! Here's one of many, many, many!

Montgomery County North Carolina, A Golden Opportunity!

Ok. You have found where a county also controls the zoning. So, take a look at this application and the rules included therein and show me where it states the requester must record a plat of the variance. http://www.montgomerycountync.com/online_forms/Zoning/ZoningVarianceRequest.pdf

I have not read the entire ordinance, but it looks pretty typical. Looks like they have a Zoning Administrator, and then a Board of Adjustment and / or a Planning Board appointed by the county commissioners, with conditional uses and rezones going through a Planning Board and the County Commissioners. Final authority and final decisions rest with the County Commissioners. No surprises here!

and none of it I have seen states anything about requiring a recording, by the landowner, of a plat of the variance or even the rezoning.

here is the page that access the germane sites:

Montgomery County North Carolina, A Golden Opportunity!

here is the actual request for rezoning application. Still don't see any requirement to record a plat map.

http://www.montgomerycountync.com/online_forms/Zoning/RezoningRequest.pdf

Again, they spell it out. Final decisions rest with the County Commissioners. After that, if you aren't happy, you have to go to court.

fine, they control it at the county level there. That still does not prove any of your statements other than there are counties that control zoning rather that smaller municipality designations.

Like I said, any Zoning Board, Planning Board, whatever you want to call it, is appointed by the County Commissioners. All Zoning staff, etc. are hired by and serve at the pleasure of the commissioners. Very typical representative zoning ordinance in my experience.

ibid

Interestingly, the Montgomery Co. ordinance has a provision similar to the one that benefited the OP on this thread regarding fraud, misrepresentation, or not acting in a timely fashion:

it's great that, now, the both of you list fraud in your arguments. I suggest 7 years shows that there was no inherent intent to commit fraud, simple the circumstances did not allow the requester to fulfill his intentions. Fraud is an ugly word. Claiming a person committed fraud is an actionable offense.

From the Montgomery Co. ordinance:
"Section 5. Revocation of Conditional Use Permits and Variances
After a public hearing has been held and approval granted for a conditional use or variance,
the Board of Adjustment of Board of County Commissioners, whichever originally granted
approval, may reverse any decision without a public hearing upon finding one or more the
following.
A. That the approval was obtained by fraud;
B. That the use for which such approval was granted is not being executed;
C. That the use for which such approval was granted has ceased to exist or has
been suspended for six (6) months;
D. That the permit granted is being, or recently has been exercised contrary to the terms or conditions of such approval;
E. That the permit granted is in violation of an Ordinance or statute
F. That the use for which the approval was granted was so exercised as to be
detrimental to the public health or safety, or so as to constitute a nuisance."

gee, you now have something concerning a variance rather than the OP's rezoning ordinance.

So, those who say a variance cannot be undone or that it is not within the commissioners' authority to undo a variance, are wrong depending on the wording of your zoning ordinance.

I NEVER said that. I said the board cannot recombine lots that have been divided.

If you apply for a variance under the conditions set forth in your ordinance, you are working under that ordinance. Better read it!

read what? you are arguing something that has never been contested.

Some counties will come right out and say the Planning Board is not the final authority and require 2 hearings for all applicants, one before the Planning Board and another before the Commissioners, but the end result is the same - the COUNTY COMMISSIONERS make have the final say (barring legal action) on rezones.

so? It does not affect the fact that they cannot recombine property. All they can do is rescind a variance if the rules are not fulfilled.

Today's lesson? No matter where you are located, if you own property or do a rezone, variance, division of property, etc. under jurisdiction of a Zoning Ordinance you better READ THE ORDINANCE and FOLLOW THE ORDINANCE

.wow, that speaks volumes. Too bad it is irrelevant to the discussion at hand.

 

[appraiser55]

Like I said, County Commissioners control zoning, via hiring of staff, appointment of zoning / planning boards, and in being the final authority on zoning decisions / variances in all the states I've been in.You asked for a link. I supplied one of many. There are literally HUNDREDS to choose from. Heck, YOU even supplied one in your example and you weren't aware that your example proved what the rest of us know to be true! LOL...I think we're done here.

 

[justalayman]

Like I said, County Commissioners control zoning, via hiring of staff, appointment of zoning / planning boards, and in being the final authority on zoning decisions / variances in all the states I've been in.You asked for a link. I supplied one of many. There are literally HUNDREDS to choose from. Heck, YOU even supplied one in your example and you weren't aware that your example proved what the rest of us know to be true! LOL...I think we're done here.

mine did not state the commissioners controlled zoning. In fact, they implied that they did not oversee zoning issues as they suggested that those that were in control of zoning issues should endevour to follow their master plan, which itself, is not legally binding.

As well, I can show you where the county commissioners have absolutely no control over any zoning issues.

While you see that as a victory, it is not. It is irrelevant to the entire premise being discussed.


and yet, you fail to support anything other than your statement that in some areas, the county does control zoning. While that is a thrilling victory (note sarcastic attitude), it has nothing to do with the basis of the entire discussion. It does nothing to support your argument that there is a requirement to record a plat of a proposed zoning variance somewhere and with some unknown recorder of zoning variances lest it not be "legal".

It does nothing to support your statement that regardless of the legality of a split of property (note; not a granting of a variance or even a rezoning) that the entity that grants such zoning approvals can somehow recombine the parcels into the original configuration without the intervention of the courts.

Further, you have failed in any attempt to refute and refused to support any other arguments regarding the basis of this thread and my position, which you contend is incorrect.

Unless you have something of substance other than your steadfast clinging to a hollow and irrelevant partial victory regarding an issue that has nothing to do with the point of the thread, I am done here.

 

[154NH773]

Sorry... I got tired reading, so maybe I'm being redundant. I think the point has been missed.

The lot was approved for a subdivision, with one conforming lot that may be built upon, and a lot that was given a variance to continue a structure (mobile home) that does not conform to the zoning code.

That means that there was no rezoning. Both lots retain their original zoning designation of A2.

The nonconforming structure, for which the variance was granted, did not have to be "acted on, or executed". The structure already existed.

You can argue fraud or lies, but people's situations change. You would have to prove he knew at the time he wasn't going to build his house. Good luck...

 

[scorolo]

Sorry... I got tired reading

You can argue fraud or lies, but people's situations change. You would have to prove he knew at the time he wasn't going to build his house. Good luck...

You may have missed it with all the off topic back and forth, but fortunately I don't have to argue fraud, or lies, or anything. I don't have to argue at all. He did not get his building permit, or record the plat in the 12 months our ordinance requires, so his variance and split were essentially recombined, or more accurately, the split never was legally granted as he did not follow through with the requirements of the ordinance and survey and record the plat within the 12 months after the hearing. So, he was under the impression that he had gotten a variance and had split the property. Under the ordinance, the split would not have occurred unless he recorded the plat within 12 months. He didn't.

I won without having to argue at all, just had to have my attorney do a little research.

The guy didn't seem that upset about it. And his property is for sale now. All as one lot, as it should be!

He actually came to talk to me about buying some of it, because if I buy it, I can absorb what would be a non-conforming lot into my acreage. He knows he will NEVER get another variance now that I and the farm owner on the other side are on to him. So I may very well buy it now that it is priced much, much lower as a result and just add those few acres to one of my pastures.

So if I don't buy it, no one who perhaps buys it will be able to build on it because there is an existing home on the 9 acres, and our zoning restriction limits one house per lot, and no future buyer will ever get a variance after this fiasco, guaranteed! If I do buy it, and it looks like I may, I'm getting a waaay better deal, less than half what he was asking, and in any case we won't have to worry about having another little lot with a house or a trailer on it stuck here in the middle of pristine farm acreage right on the property line.

In the end, everything worked out great.

 

[154NH773]

In the end, everything worked out great

Glad to hear it. It's always better to work things out without going to court.

I still believe you are lucky he didn't contest the issue in court, because anything may have been decided there. Without researching the ordinance and dates of recording deeds etc., there is still a question in my mind whether you are correct in your argument.

If he never recorded the separate DEEDs, I would probably agree with you. I don't believe you ever mentioned the deeds, just the plat. (Couldn't wade through all the arguments)