County recorded plat w/ unusable PERC, Now what?

[chipmunk226]

What is the name of your state? MD

Short Story: My lot should have never been approved by the County for residential development with a conventional septic.

Long Story:
I purchased a 2.5 acre lot located in Washington County, MD in early 2019 with the intent to build a home. The land that includes my lot was subdivided in 1990. There are a total of 15 lots over about 40 acres. Over the past 30 years the lots have been slowly developed. I purchased the last vacant lot in the subdivision. There is no public water or sewer, so a well and septic are needed. The land was platted and approved and recorded by my county in 1990 with proposed well and septic locations. All other lots have been able to build and install well and septic systems, the most recent home being completed in August of 2019.

Doing my due diligence, in Spring 2019, I contacted zoning and permitting and got a checklist of what I needed to do. They look at the plat of my lot, see the recorded perc, proposed septic and well locations. At this time I was not informed that a well would be needed prior to getting the building permit. I was also told, no perc test is needed as the lot has one recorded on plat, but we should order the records from health dept. since it was done some time ago. I did and health dept. gets back to me and says, we don't have detailed records of the perc test, but because it was recorded previously, you don't need to get a new one. This should have been my first red flag.

Fast forward: My builder contacts the zoning office in December 2019 and they say, hold on, there's no well? You need that first. In January 2019 the rules changed. Prior, you could get a building permit without a well or septic permit. Now, you must have a well installed first. However, throughout all my conversations I had over the course of 2019 with zoning, this was this ever mentioned to me. Fine. No worries. I move forward with getting the well installed out of pocket because the loan is still in underwriting. The health dept also said they wanted soil eval done prior to a approving the permit because there was no record of the previous perc test.

The county health dept. came out this past Thursday to do a soil eval of the proposed septic field before approving our permit to install the well. The excavator got no more than 18 inches down and hit rock. And now that it's winter and the grass is dormant, you can visibly see the outcropping of rock in the platted septic field. They did test digs all over the possible areas and all rock within 2 feet. They even dug where the proposed house is going and it was a little better, but still rock.

My Dilemma:
My lot is staked, my construction loan is about a week away from closing, I have a lot of money tied up in deposits and other pre-construction expenses, I am ready to break ground. The health inspector is saying, I don't know how this lot was recorded with this or apparently any area approved for a conventional septic field, because you have rock, everywhere. I would need to get a engineered septic system in order to build. That would quadruple, if not more, the budgeted amount for septic, possibly pushing the expense to 6 figures. Not only that, it now delays every other part of the construction process. I am going to have a construction loan with no construction going on, along with my current mortgage.

Do I have any legal recourse against the county? Or am I just SOL?

Thanks

 

[LdiJ]

What is the name of your state? MD

Short Story: My lot should have never been approved by the County for residential development with a conventional septic.

Long Story:
I purchased a 2.5 acre lot located in Washington County, MD in early 2019 with the intent to build a home. The land that includes my lot was subdivided in 1990. There are a total of 15 lots over about 40 acres. Over the past 30 years the lots have been slowly developed. I purchased the last vacant lot in the subdivision. There is no public water or sewer, so a well and septic are needed. The land was platted and approved and recorded by my county in 1990 with proposed well and septic locations. All other lots have been able to build and install well and septic systems, the most recent home being completed in August of 2019.

Doing my due diligence, in Spring 2019, I contacted zoning and permitting and got a checklist of what I needed to do. They look at the plat of my lot, see the recorded perc, proposed septic and well locations. At this time I was not informed that a well would be needed prior to getting the building permit. I was also told, no perc test is needed as the lot has one recorded on plat, but we should order the records from health dept. since it was done some time ago. I did and health dept. gets back to me and says, we don't have detailed records of the perc test, but because it was recorded previously, you don't need to get a new one. This should have been my first red flag.

Fast forward: My builder contacts the zoning office in December 2019 and they say, hold on, there's no well? You need that first. In January 2019 the rules changed. Prior, you could get a building permit without a well or septic permit. Now, you must have a well installed first. However, throughout all my conversations I had over the course of 2019 with zoning, this was this ever mentioned to me. Fine. No worries. I move forward with getting the well installed out of pocket because the loan is still in underwriting. The health dept also said they wanted soil eval done prior to a approving the permit because there was no record of the previous perc test.

The county health dept. came out this past Thursday to do a soil eval of the proposed septic field before approving our permit to install the well. The excavator got no more than 18 inches down and hit rock. And now that it's winter and the grass is dormant, you can visibly see the outcropping of rock in the platted septic field. They did test digs all over the possible areas and all rock within 2 feet. They even dug where the proposed house is going and it was a little better, but still rock.

My Dilemma:
My lot is staked, my construction loan is about a week away from closing, I have a lot of money tied up in deposits and other pre-construction expenses, I am ready to break ground. The health inspector is saying, I don't know how this lot was recorded with this or apparently any area approved for a conventional septic field, because you have rock, everywhere. I would need to get a engineered septic system in order to build. That would quadruple, if not more, the budgeted amount for septic, possibly pushing the expense to 6 figures. Not only that, it now delays every other part of the construction process. I am going to have a construction loan with no construction going on, along with my current mortgage.

Do I have any legal recourse against the county? Or am I just SOL?

Thanks

You are going to want to consult with a local real estate attorney. That is a complex problem. Who did you buy the lot from? It may be that you have more recourse against the seller than the county.

 

[FlyingRon]

I can't see any recourse against the county. It's not their job to assure the validity of the perc test for YOUR purposes. I'd be researching mound systems or other ways to get the septic to work.

 

[chipmunk226]

You are going to want to consult with a local real estate attorney. That is a complex problem. Who did you buy the lot from? It may be that you have more recourse against the seller than the county.

We purchased the lot from another individual. He purchased it as a long term investment and not to build on. That is why it was never developed previously.

EDIT: We are in the process of looking for a Land Use attorney.

 

[chipmunk226]

I can't see any recourse against the county. It's not their job to assure the validity of the perc test for YOUR purposes. I'd be researching mound systems or other ways to get the septic to work.

The land was subdivided with the purpose of residential development. In order to do so, the county health department signs off and says, yes, the lot can be sold to be built on and here are where we approve the well and septic to go. If I had bought the land in 1990-2018, I would have been able to show the recorded plat to the zoning office, get a building permit, and go about my way. If my intent was to purchase the land to be improved on and I now find out that their recordation was flawed, that's on me?

 

[FlyingRon]

In a word, yes. The fact that things have been approved for subdivision or whatever doesn't mean that you won't run into problems later on. Without putting your own eyes on the perc test or doing one yourself, you have no assurance that the septic system will work. You have no claim on the county. If the person who did the subdivision fraudulently faked the perc test and you bought it from him, you might have a course of action there.

 

[chipmunk226]

In a word, yes. The fact that things have been approved for subdivision or whatever doesn't mean that you won't run into problems later on. Without putting your own eyes on the perc test or doing one yourself, you have no assurance that the septic system will work. You have no claim on the county. If the person who did the subdivision fraudulently faked the perc test and you bought it from him, you might have a course of action there.

I realize I have been unclear. The issue is the county platted the lot with an approved septic field for the effluent. They never approved a septic system. That's not the issue. It's that they approved the subdivision of the land with an approved septic field. Now we are being told, this area cannot be used for a septic field at all. Which means all the plans I have had prepared are now thrown out the window because it was planned around where the septic was already platted. My options are limited as to where the field can be moved due to other developed lots and a natural depression toward one corner. The county zoned, recorded, and taxed the land as residential. Yes, an alternative system can be used but I purchased the lot with the impression that there was an already suitable and recorded area for a septic field.

 

[FlyingRon]

Again, your "impression" is not the county's fault.

 

[FarmerJ]

local governments are now a lot more aware of their obligation to protect ground water , It is sad you chose to not put in your well and septic first before doing any thing else. The owner of the home to my south had to drill twice for his well , each time about 8k because he didn't get water in first but did his septic system first. SO if soil conditions are that poor perhaps you may have to consider installing a holding tank and living with the cost of regular honeysucker visits to empty it when the signal light comes on.

 

[xylene]

I would have been able to show the recorded plat to the zoning office, get a building permit, and go about my way. I

Unless your septic contractor was criminally incompetent or simply a criminal you would NOT have simply been able to 'go about your way' and install a conventional septic system.

The ground reality matters, more than what is on the plat.

If the land was suitable for septic and the plat said no, you'd likely have recourse in that way

But in this case, the platted map is not correct to the soil condtions, and the plat was very likely developed with setback and other aurface considerations and likely did not include and susbsuface investiagations beyond the perc test at one site in the orgianl lot. (Devlopers often do not perc each created subdivided lot)

Have you approach other homeowners in the area to discuss this and what challenges they face with septic?

 

[chipmunk226]

local governments are now a lot more aware of their obligation to protect ground water , It is sad you chose to not put in your well and septic first before doing any thing else. The owner of the home to my south had to drill twice for his well , each time about 8k because he didn't get water in first but did his septic system first. SO if soil conditions are that poor perhaps you may have to consider installing a holding tank and living with the cost of regular honeysucker visits to empty it when the signal light comes on.

I wish we did do well and septic first. But since a home was just built (we toured the home before it was finished because we were considering same builder) and he said the well and septic are typically put in after the house. He told us that because for that house that was the case because they started building it before Jan 2019.

We never have had experience with well and septic before. We researched online and called our local depts and septic installers and thought we had educated ourselves. Not until we did all this other stuff did it come out and we're ready to proceed did it come to light that we can't use the approved and platted septic field as is.

 

[chipmunk226]

Unless your septic contractor was criminally incompetent or simply a criminal you would NOT have simply been able to 'go about your way' and install a conventional septic system.

The ground reality matters, more than what is on the plat.

If the land was suitable for septic and the plat said no, you'd likely have recourse in that way

But in this case, the platted map is not correct to the soil condtions, and the plat was very likely developed with setback and other aurface considerations and likely did not include and susbsuface investiagations beyond the perc test at one site in the orgianl lot. (Devlopers often do not perc each created subdivided lot)

Have you approach other homeowners in the area to discuss this and what challenges they face with septic?

The plat had markings where holes and trenches were dug within the proposed septic field. Just the details were never recorded. There is a line I the description that soil composition is as shown, but there arent any notations of soil types on the plat.

Homes have been built there in multiple phases. Early as 1991 and as late as Aug 2019. All have conventional septic. I know how to access plat and land records for our state and only 2 lots have had thier septic areas replated. One because they wanted a U shaped driveway another because a portion of one lot's septic field was sold to a neighboring plat when some open area was replated and subdivided. This is why we had the expectation that we wouldn't run into any major issues. Didn't mean to imply we'd just install something and then ask for forgiveness later

In doing more research I learned that my county adopted an ordinance in Oct 1990 that required more detailed information be recorded. Like soil composition. So my suspicion is that because my final plat was approved Mar 1990, that is why ours is lacking. The ordinance also requires that the county wouldn't approve a situation like ours today but all other lots already subdivided prior to the adoption did not have to conform . We have the MD Dept of Environment coming to see if we can get a variance. We are also consulting an attorney that has experience with land use.

 

[chipmunk226]

Again, your "impression" is not the county's fault.

Even if they are the one that gave the impression that the land was suitable and pre-approved for a septic field to go there? We didn't just get the idea out of thin air.

The final plat of the subdivision, my lot is #15

 

[FlyingRon]

Again, you "impression" doesn't make anything actionable.

All that plat shows is that the person who subdivided the lot showed he had a place to put the field and the house and hence the lot is as far as layout and setbacks and things buildable. It does not indicate that there is necessarily adequate soils. You can belabor this here all you want, but it won't change anything. The county building department is NOT liable for such issues.

I'm not sure why you continue to beat a dead horse. Your only possible course of action would be to pursue the person from whom you bought the lot, but there might not be any course of action there either since you've not provided any relevant details.

 

[NeilTheCop]

As you stated the original proposed location for the well and septic was approved 30 years ago in 1990. Laws and regulations have changed since then, and Maryland is in a drought with the groundwater being fast depleted by both development and agriculture. So now, like many other states it's a case of get the water first, then build.
The original site for the well may have been perfect in 1990, but today may be too close to a neighbors septic leach field, who knows?
Not sure that you can blame anyone, but your attorney may say otherwise.