# Non Conforming lots question



## Mac (Nov 17, 2011)

A zoning question has arisen and I need to poll the forum. An owner of a landlocked lot has asked about non-conforming lots of record:

§ 174-41.  Nonconforming lots of record.

A permitted building or use may be constructed or located on any lot of record as of the effective date of this chapter or applicable amendment, in any district, even if said lot does not meet the minimum lot area, lot depth, and lot width requirements for said use in the district in which it is located, provided that the following conditions exist or are met:

A.	The owner of said lot owns no adjoining unimproved land which would create a conforming lot if combined with the lot which is deficient in area, width, or depth.

B.	Any building or use located on a nonconforming lot shall have front, side and rear yards conforming to the minimums required for the district in which said lot is located.

From the definitions;

YARD, FRONT  -- A space extending the full width of the lot between any building and the front lot line, and measured perpendicular to the building at the closest point to the front lot line. Such front yard is unoccupied and unobstructed from the ground upward as may be permitted elsewhere in this chapter.

LOT LINE, FRONT  -- The lot line separating a lot from a street right-of-way.

The dilemma: For exception "B" to apply, the lot needs to have a front yard "conforming to the minimums". The definition of front yard refers to the front lot line. The lot has no frontage on a street, ergo no front line at the street right-of-way.

Access to this particular lot is by easements or rights of way granted by previous owners of adjacent properties.

My question: Is the lot buildable?   A strict interpretation indicates no, because the front yard has no frontage on a street right-of-way.  A more generous interp could be that the law meant to allow for non-conforming lots to be built upon, but the wording and definitions are an unintended glitch and construction should be approved.


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## mark handler (Nov 17, 2011)

If you do not allow it you may be guilty of the "Takings Clause" of the Fifth Amendment Which is one of the provisions of the Bill of Rights

Be ready for a law suit.


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## mjesse (Nov 17, 2011)

Mac said:
			
		

> ...the law meant to allow for non-conforming lots to be built upon, but the wording and definitions are an unintended glitch and construction should be approved.


That's my vote

mj


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## mtlogcabin (Nov 17, 2011)

Sit down with the owner and powers to be and agree in writing what are the front, side and rear portions of the lot. Make sure the FD has access for their equipment and move forward. Or ammend the definition of LOT LINE, FRONT in the zoning code to something that is more workable

What do you do with shopping centers where there are out parcels of individual recorded lots with cross easements for the parking lots a drive ailses that do not have a front lot line meeting your definition?

Agree with Mark it may be a taking if you deny a permit based on what you have presented here


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## cboboggs (Nov 17, 2011)

I also agree with Mark, this probably would be considered a taking. I would also agree with your interpretation that this is an unintended glitch. If it is indeed a pre-existing lot of record, I would measure for the required front yard from the property line the front of the house is going to face.


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## imhotep (Nov 17, 2011)

Mac said:
			
		

> A zoning question has arisen and I need to poll the forum. An owner of a landlocked lot has asked about non-conforming lots of record:§ 174-41.  Nonconforming lots of record.
> 
> A permitted building or use may be constructed or located on any lot of record as of the effective date of this chapter or applicable amendment, in any district, even if said lot does not meet the minimum lot area, lot depth, and lot width requirements for said use in the district in which it is located, provided that the following conditions exist or are met:
> 
> ...


IMHO I would toss the lot line/ROW issue out and stick to required yard widths and access.  The front yard would be the one with access (recorded easement) from the public ROW.

How big is the lot?  What are the setbacks?  Ask for a plot plan that shows the property lines, easement to ROW, and setbacks.  The hole in the middle of the lot is the build able area.  Ask the FD to comment on whether or not they can reasonably fight a fire on the property.

A picture is worth a thousand words.


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## Keystone (Nov 18, 2011)

Due to the location of the non-conforming lot and the assumed typical standards defining lot, frontage, etc., the owner should seek a variance or other relief to remedy the non-conforming lot as this is a situation beyond the owners control and your municipalities typical standards.


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## Mac (Nov 18, 2011)

After consideration, I'm going with Keystone's take on this.

The definition requires frontage on a street right of way. My canned spiel in cases like this: "I can't approve it but the Zoning Board of Appeals can." They have a perfect record (of approvals) so far.


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## Papio Bldg Dept (Nov 18, 2011)

Mac said:
			
		

> Access to this particular lot is by easements or rights of way granted by previous owners of adjacent properties.
> 
> My question: Is the lot buildable?   A strict interpretation indicates no, because the front yard has no frontage on a street right-of-way.  A more generous interp could be that the law meant to allow for non-conforming lots to be built upon, but the wording and definitions are an unintended glitch and construction should be approved.


Yes the lot is buildable as long as the easement is maintained.  There should also be provisions (for interpretation) for the Planning Director to assign which yards shall be designated as front, side, and rear yards for a non-conforming lot.  Adminstrative amendments may be an option as well.


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## Mule (Nov 18, 2011)

Why would you require a variance? The lot was a legal conforming lot at the time of the adoption of the codes.

Is it a semi rectangular lot? There has to be a "front". Which way is the owner wanted to face the building?

I'm with mtlogcabin......... Sit down and determine where everything is and proceed. Why put the owner through something that he did not create?


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## pwood (Nov 18, 2011)

let the planner deal with the issue of front ,side, and rear, yards and setbacks. we have had situations with flag lots that have had 5,6,and seven sides and we let the planner figure this stuff out administratively. what would happen with a round lot?:mrgreen:


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## TJacobs (Nov 18, 2011)

Just because it is an existing lot doesn't make it buildable.  I'd kick it back to zoning for either a variance or a replat.


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## Mac (Nov 18, 2011)

"What do you do with shopping centers where there are out parcels of individual recorded lots with cross easements for the parking lots a drive ailses that do not have a front lot line meeting your definition?"

A commercial center would have a Planning review to determine site considerations.

"I would measure for the required front yard from the property line the front of the house is going to face."

The front yard has already been defined and this lot has none.

"Why would you require a variance?" See above.

The owner is not starting construction until spring. The variance will cost $20 bucks and take about three weeks. I will not try to determine what the authors of the ordinance might have meant, but will strictly apply the terms that were enacted into law. If you wish to ignore facts and parse meanings to support a decision you have already made, I submit that is exactly what people dislike about codes & CEO's - bending the language to suit your whim.


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## Mule (Nov 18, 2011)

20 bucks????? Well shoot yeah go for a variance! Around here they costs anywhere from $500 and up! That's one reason I said why put them through it!!

EVERY lot is buildable! It may not be what the owner wants but..... four feet wide and one hundred feet deep building by forty feet tall!


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## cboboggs (Nov 18, 2011)

Wow $20 for a variance!!! Here the minimum cost is $200 plus all the signed and sealed drawings they would have to provide. Not to mention, we have a hardship requirement that can't be financial or a mere convenience to the owner.


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## gbhammer (Nov 18, 2011)

Mule said:
			
		

> 20 bucks????? Well shoot yeah go for a variance! Around here they costs anywhere from $500 and up! That's one reason I said why put them through it!!EVERY lot is buildable! It may not be what the owner wants but..... four feet wide and one hundred feet deep building by forty feet tall!


:lol:Now thats some funny stuff.


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## Mac (Nov 18, 2011)

Heck, if the variance is approved, I'll process the building permit the next day. And that's what I tell 'em all.


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## Papio Bldg Dept (Nov 18, 2011)

Mule said:
			
		

> EVERY lot is buildable! It may not be what the owner wants but..... four feet wide and one hundred feet deep building by forty feet tall!


Hey don't hijack this discussion.  4' wide, 100' long and 40' tall sounds like a means of egress stairs...clearly, this is not the thread for vertical egress through separate building.


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## Mule (Nov 18, 2011)

My bad! :banghd


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