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Land Use Questions and Answers Index (older version of this web page, not always kept up-to-date).
|Lot in a subdivision is to small.||We have a parcel which is a lot in a recorded subdivision. It is 10,000 square feet. Our zoning ordinance requires 15,000 square feet. Because it is in a subdivision is it automatically a legal non-conforming parcel?
(April 27, 2000)
| If an individual owns a lot that does not meet the district standards under the new ordinance, he has a grand fathered, nonconforming lot upon which he can make any use consistent with the new ordinance. If, however, an individual has two contiguous nonconforming lots, they must be treated as a single lot for purposes of the zoning ordinance. Sometimes this is done through use of the term "parcel" (as in the Court of Appeals case); other times it is simply stated in the ordinance that two lots shall be treated as one for purposes of zoning (without resorting to "parcel" vs. "lot" linguistics). If the individual subsequently sells one of the nonconforming lots then he (as owner of one of the parcels) and subsequent purchaser (as owner of the other) are both prohibited from building on either lot. Many ordinances take the next step and say that if the owner of an individual nonconforming lot subsequently purchases an adjacent nonconforming lot then the same merger requirement applies. You can spin out different scenarios ad nauseam, but that is the crux of the issue.
The Michigan Court of Appeals (542 N.W.2d 276; 214 Mich.App. 7, 542 N.W.2d 276) ruled October 13, 1995 in Kalinoff v. Columbus Township:
Action was brought challenging township's failure to enforce zoning ordinance governing lot size for single family residences. The Circuit Court, St. Clair County, James T. Corden, J., entered judgment in favor of plaintiffs, and township appealed. The Court of Appeals, Richard Allen Griffin, J., held that ordinance governing contiguous lots in single ownership did not exempt from area requirements lots that were platted before adoption of ordinance.
|Splitting a Lot||How does land division work within the platted portions of a Village. Our community does not handle that many requests and we are unsure.
(July 1, 2002)
| The Land Division Act does not handle further divisions within existing subdivisions very well.
First, the Land Division process (sections 108-109b of the Land Division Act) does not apply.
An existing lot in a subdivision can not be further divided, or split, unless there is a local ordinance adopted that provides for a review and process to approve splitting/dividing a lot (section 263 of the act).
Without such a local ordinance, one is left to the process of amending the existing plat of the subdivision. That process will require the services of a professional land surveyor and an attorney. It is done pursuant to sections 221-229 of the act. Some communities might try to also use an assessor's plat process (sections 201-213) but that process is not quite the function intended.
---Kurt H. Schindler
|Site Condos||Can an individual that received permission from the Village to build two duplex structures (4 units total) on one lot then sell each unit separately as condo's? We have had inquiries. Is there a special procedure for this? If there is, we do not have one.
(March 7, 2002)
| A "condo" is a form of ownership, like a deed, or lease, or renter.
A dwelling (single family dwelling), duplex, apartment building is a type of building--which is what a land use/zoning ordinance would regulate.
You cannot regulate form of ownership with zoning.
If the village approved a duplex, and they built a duplex, then they can sell it, rent it, lease it, or condominiumized it. You cannot base zoning approval on if it will be rented, leased, sold or condominiumized.
Condominiums of land (site condos) should be regulated, if at all, in the same way the village would regulate subdivisions or land divisions--which means site condo provisions would be in the village land division/subdivision ordinance. If no such provisions exist in such an ordinance, then there is a loophole and that type of development can occur without local regulation. Regardless, one still can not approve/disapprove dividing property based on if it is going to be a site condo, land division, or subdivision. They all have to get equal treatment.
----Kurt H. Schindler
|Site Condo v. Subdivision||I realize there is a distinct advantage between getting a Site Condo approved and recorded versus getting a Subdivision platted and recorded. What other distinct differences are there between a Site Condo and a Subdivisions? What makes a site a Site Condo rather than a Subdivision? Thanks.
(May 15, 2006)
| The largest difference between a site condo and a subdivision is the process for review, approval and recording (with the subdivision process usually taking much longer).
I believe there is nothing one can do with a site condo that one cannot do with a subdivision, or visa-versa. There are some elements (with the condominium association) that make the site condo approach more long term for purposes of managing common properties, etc. But the same thing can be done with a subdivision association. There are some elements of property ownership (fee simple, quit-claim, etc.) where the subdivision may be preferred by some buyers. But depending on how the condominium unit is defined and set up in the master deed for the site condo most those differences can also be negated.
With the recent amendment to the Land Division Act --requiring a county to provide an expedited coordinated preliminary plat review-- maybe the longer subdivision process will not be as large of a disadvantage when compared to site condo process. I would be interested in the private sector's perspective on how this is working --or is it too early after adoption of the Land Division Act amendment to know?
Finally there may be local governments who have written local ordinances such that they do not apply to side condos --thus resulting in little or no local regulatory authority for a site condo. But that is becoming pretty hard to do, given court's very broad interpretation of local ordinance language which includes regulation of site condos.
The above thoughts are generalities. Your question might be better put to an experienced real estate or development attorney.
----Kurt H. Schindler
H. Schindler, AICP, Senior Educator, Government and Public Policy (land use), MSU Extension, Manistee County;