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Background
The Planning
Commission and Board of Supervisors have recently considered
a text amendment filed by Ray Pennington related to
legalizing illegally created lots in order to make them
buildable. Staff noted several concerns with that broadly
focused text amendment, but further noted several specific
cases where a text amendment might be appropriate to
legalize lots with existing homes. This alternative text
amendment seeks to provide a more narrowly focused mechanism
to legalize illegally created lots with 1) existing homes or
2) where substantial construction has occurred toward such a
home.
Staff is
aware of two cases where homes exist on what are technically
illegal lots. Each of these cases affects two lots/homes.
In addition, staff has identified a third case where a home
has not been built, but construction of a septic field for a
home was completed under a land disturbing permit issued by
the County in 2005. Each of these cases is summarized
below.
Case #1: Lot created through Boundary Line Adjustment;
County issued permit for house
The subject 2.0
acre parcel was actually created as a boundary line
adjustment in 1982 and was to be added to the adjoining 2.0
acre parcel, which contained a house. A house was
subsequently built on the property in 1992, with permits
issued by the County. Because it was not legally a
separate lot at the time, such permits should never have
been issued. The property has subsequently sold twice, and
the current owner had no involvement in the original
transaction.
Case #2: Two lots, each with a house, created through
metes and bounds description and sale
In this case a 5.0 acre tract was split when a parcel was
sold off by metes and bounds description in 1977, in
violation of local ordinances. Each parcel has a home,
both of which appear to have existed prior to the split.
The two lots, although legally one, have been sold and taxed
as separate lots with homes since 1977.
Case #3: Lot Created through Boundary Line Adjustment;
County issued permit for drainfield
The subject 5.0
acre parcel was actually created as a boundary line
adjustment in 1984 and was to be added to the adjoining 1.9
acre parcel, which contained a house. Although both
parcels were held in common ownership until 1999, the 5.0
acre lot was taxed as a separate lot with a home site since
at least 1990. In 1999 the 5.0 acre lot was sold to family
members. In 2005, the County issued a land disturbing
permit to the new owners authorizing “building driveway to
gain access, clear house and septic site and install septic
field.” The work under this land disturbing permit has been
completed except for the driveway.
Staff Analysis
The County’s
records are such that it is exceedingly difficult to
determine in any comprehensive and systematic way the extent
to which illegal or non-conforming lots exist, and whether
or not such lots have residences or permits for residences
approved by the County. Therefore, staff cannot estimate
with any certainty the extent to which a text amendment on
this issue might impact lots.
It is known that
it is not uncommon to find lots reflected on the
Commissioner of Revenue records as separate lots which are
not actually legal lots of record. Typically these lots
were either illegally transferred through metes and bounds
descriptions (as in Case #2) or lots which were actually
recorded as boundary line adjustments—i.e., not new parcels,
but additions to existing parcels—but then incorrectly
mapped on Commissioner of Revenue records as separate lots
(as in Cases #1 and #3). In the two years staff has been
keeping a record of these lots—typically discovered during
the subdivision potential research process—62 such illegal
lots have been identified. More than three-quarters of
these lots were created as boundary line adjustments and
most of these remain under common ownership with the parcel
to which they were to be joined, have not been built upon,
and are not taxed as separate buildable lots. As these lots
are discovered, the owners are notified (with an opportunity
to appeal the determination) and the information is provided
to the Commissioner of Revenue to correct the tax records
and maps. These corrections will reduce the likelihood that
permits will be incorrectly issued in the future on illegal
lots.
However, not all
cases identified are so easily resolvable, as lots have
sometimes been sold and therefore title to the two parcels
comprising the legal lot are held by different owners. In
some of these cases, where density is available, the issue
is resolvable by taking the parcels through a legal division
process to create the two separate legal lots. However, in
other cases, there is no means available for a property
owner to legalize an existing illegal lot and the result is
an unbuildable lot.
The three cases
summarized above are three cases which are not resolvable
under current regulations and which raise unique issues
because homes are located or being built on each parcel
comprising the legal lot. It is likely, however, that other
such lots exist and are yet to be discovered and
identified.
The proposed
text amendment seeks to provide a mechanism whereby such
illegal lots with homes can be legalized. As currently
drafted, for a lot to qualify, the home must have:
·
existed at the time of the illegal division
(Case #2);
·
been built by approval of a Zoning/Building
permit approved by the County (Case #1); or
·
is planned to be constructed with a land
disturbing permit issued for such future construction, and
the lot owner detrimentally relied on such land disturbance
permit and completed a substantial amount of the work under
the permit (Case #3).
The third
criterion was included to address a specific case of which
staff recently became aware. Although no house exists in
this case, the owner did secure a land disturbing permit
from the County for work related to the construction of the
house (driveway, clearing and installation of a septic
field).
In the proposed
text amendment, staff has proposed a cut-off date of January
1, 2005, with only lots recorded prior to this time eligible
for the relief. This date was selected because it
represents the time-frame where staff believes a more
rigorous approach to recording and mapping lots began, and
there are likely to be few cases of illegal lots recorded
after this date.
The Planning
Commission unanimously voted to initiate this text amendment
on July 26, 2007. The Commission held a public hearing on
the text amendment on August 30, 2007 and voted unanimously
to recommend approval. |