Board of Supervisors Meeting Date:

Planning Commission


October 11, 2007

Staff Lead:


Kimberley Johnson, Zoning Administrator


Community Development



A Zoning Ordinance Text Amendment to Section 2-403 to Legalize and Make Buildable Certain Existing Lots


Topic Description: 

Several lots with existing homes have been identified as being illegal lots.  This amendment to Section 2-403 establishes a procedure whereby such lots and existing homes, or where substantial construction has occurred toward such a home, can be legalized.


Requested Action of the Board of Supervisors:

Conduct a public hearing and consider adoption of the proposed amendment (Attachment 1).


Financial Impact Analysis:

No financial impact analysis has been conducted.


Summary Staff Report: 


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.

Identify any other Departments, Organizations or Individuals that would be affected by this request:

Commissioner of the Revenue


Attachment 1

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