Zoning and Planning, Subdividing of Land, and Special Issues
· Describe the major provisions of the Growth Management Act
· Know when the development of regional impact review is needed
· Understand the purpose of the concurrency provision
· Distinguish among a variance, special exception, and a nonconforming use
· Describe the characteristics of a planned unit development
· Distinguish between zoning and subdivision regulations
· Explain the use of impact fees and dedication of land
· Explain the basic provisions of the Florida Uniform Land Sales Practices law
· Briefly describe the purpose of the Clean Water Act of 1997 and the Coastal Zone
In the early years of the United States, cities and counties followed a plan of “laissez-faire,” which means to let things be. In other words, planning and zoning could take their own course without the interference of the government.
The unregulated industrialization from 1860 to 1900 led to unsafe factories, polluted rivers and streams, health and safety violations for workers, and unsafe levels of human density.
Several human tragedies resulted from the policy. The Great Chicago Fire of October 1871, when 300 people lost their lives and 90,000 were left homeless, was due to inadequate building materials, too great a density of people and too few city inspections. The Iroquois Theater Fire in 1903 (Chicago), when 600 died, was due to a lack of fire inspection and poor exit design. The Shirtwaist Factory Fire (New York City) in 1911, when 145 women, mostly immigrants, died in a fire, was due to locked doors, inadequate fire escapes and no fire inspections by the city.
In the era of social reforms of the 1920s, many efforts were made to enact zoning laws to protect the public from loss of life, substandard housing and loss of property value. By 1926, the Supreme Court had determined that legally enacted zoning laws were constitutional and for the good of the public.
An improvement on a piece of property that does not comply with the current zoning. The city has the option of issuing an order to have the improvement destroyed or grandfathering the improvement. Some structures were built before the new zoning. These properties can be grandfathered into the new zoning. This means that the building will be allowed to stand so long as it remains the same type of business it has always been or no major changes are made to the building. Some cities will say that if the property is sold, it must be demolished; while others will allow the building to stand so long as it stays the same business. In either case, if the building burns, it cannot be rebuilt as that business without obtaining a variance.
Written permission from the city or county to do something (like have a sidewalk over a setback line) that would be in opposition to the current zoning. A variance may be sought to provide a deviation from the ordinance to put up a sign, build a bigger building, etc. The purpose of the variance is to give the zoning board flexibility for the common good. The applicant must explain how the variance he seeks would not be detrimental to the community and how he would be deprived of the use of his property if the variance were not granted. A variance must be sought before a building is built or before a sign is erected, etc.
A SPECIAL EXCEPTION is an authorized departure from current zoning laws. For example, if a property owner wanted to build a convenience store on a residentially zoned lot, the owner could request a special exception. The property owner would request a permit to build a convenience store with no other use allowed and try to demonstrate that the special exception will benefit the surrounding community.
Planned Unit Development
A fairly new concept in development has been the Planned Unit Development, also called the Planned Urban Development. This type of planning is similar to cluster planning and it integrates several types of zoning to create a community.
Denser than regular residential property, the PUD uses common ground and green spaces to connect homes. Homeowners own lots, as opposed to condominium owners who own air rights. PUD owners do not have any interest or ownership in the common ground as condominium owners do. The PUD is governed by a corporation, rather than a homeowner’s association. A PUD is governed by deed.
Each owner of a property in a PUD has his own property to sell, lease, etc. within the confines of the deed. Fannie Mae describes the PUD as: “A planned unit development that has a minimal amount of common property and improvement (which have little effects on the value of the individual units in the development) to the point that the owner’s association has minimal financing responsibility for maintaining the common property and improvements.”
Fannie Mae uses a standard appraising form to determine the value of PUD, instead of a special condo appraisal form that condos use.
The National Flood Insurance Program is a federal program enabling property owners in participating communities to purchase flood insurance against losses from flooding. This insurance is designed to provide an insurance alternative to disaster assistance to meet the escalating costs of repairing damage to buildings and their contents caused by floods.
Participation in the NFIP is based on an agreement between local communities and the Federal government that states if a community will adopt and enforce a flood plain management ordinance to reduce future flood risks to new construction in Special Flood Hazard Areas, the Federal government will make flood insurance available within the community as financial protection against flood losses.
A Special Flood Hazard Area is identified by FEMA in Flood Hazard Boundary Maps. A Special Flood Hazard Area (SFHA) or high-risk area is defined as any land that would be inundated by flood, having a one percent chance of occurring in any given year. This is also referred to as the base flood.
The NFIP’s Community Rating System recognizes community efforts beyond NFIP minimum standards by reducing flood insurance premiums for the community’s property owners. The discounts may range from 5 to 45 percent. The discounts provide an incentive for new flood mitigation and planning and preparedness activities that can help save lives and protect property in the event of a flood.
Development within the Special Flood Hazard Area must be restricted so as not to obstruct the natural flow of floodwaters, and residential property must have the first floor above the “Base Flood Elevation.” Non-residential structures must meet the residential requirement or be water-tight below the Base Flood Elevation. Over 40 percent of the purchasers of National Flood Insurance are in Florida.
For more information on the National Flood Insurance Program go to: http://www.fema.gov/business/nfip/
Besides the restrictions established by the grantor, cities also control subdivision construction as part of the Master Plan. Examples of these regulations are:
Location, grading, surfacing, and widths of streets, highways and other rights-of-way;
Installation of sewers and water mains;
Minimum dimensions of lots and length of blocks;
Building and setback lines;
Areas reserved for public use, such as schools or parks;
Easements for public utilities.
In a case where the grantor’s restrictions and covenants are more restrictive than the city’s regulations, the more restrictive will govern.
Private Land use is controlled by the grantor (seller, builder) of the deed. The grantor (seller) decides how the grantee (buyer) can use the property. The grantor creates deed restrictions (also called restrictive covenants) which limit the use of the property. These restrictions are encumbrances on the property.
A Planning Commission has three primary areas of responsibility and authority:
Subdivision Plat Approval: Required when a developer intends to develop subdivisions. Building permits will not be issued until the planning commission has approved the plat.
Site Plan Approval: Similar to the subdivision plat approval, but requires more details in areas such as traffic, impact on neighbors, and environmental issues.
Sign Control: Protects motorists by restricting hazardous and distracting signs. Community pride demands that sign companies be sensitive to the overall aesthetics of a community.
Deed Restrictions/Restrictive Covenants
A restriction is a use encumbrance. Restrictive covenants limit the use of a property and the restrictive covenants are placed by the grantor in a deed, thereby binding future owners.
Limiting restrictions: Things you cannot do. (No fences, no dog runs, etc.)
Affirmative restrictions: Things you must follow. (Setback requirements, minimum square footage, front of the house must be brick, etc.)
When there is a problem between one neighbor and another because of restrictions, the neighbor seeking help must go to the courts for relief, rather than calling the police or taking action individually.
Anyone living under the same bylaws and/or restrictions can bring an action asking for enforcement.
The courts enforce the restrictions.
The court issues an injunction to prevent a neighboring lot owner from violating the recorded restrictions.
Deed Restrictions may restrict an owner’s use more severely than a zoning ordinance (government control). For example, if the deed restriction says that a building must be “set back” from the street 15 feet and the zoning ordinance says 10 feet, the most restrictive would govern. The more restrictive of the two takes precedence. Deed restrictions are recorded with the deed or on the deed itself. Restrictions and covenants are recorded with the deed and some restrictions have time limits (when they will expire) placed by the grantor.
FLORIDA COMPREHENSIVE PLAN AND GROWTH MANAGEMENT ACT
Overview: The Growth Management Act of 1985 (Chapter 163, F.S.) has had a major impact on the real estate industry. The state of Florida mandated that every local government implement a plan of future growth that would be compatible with the overall growth of the state. Elements of the comprehensive plan must include:
1. Future land use
2. Traffic circulation
3. Water, sewer, drainage, and sanitation
4. Conservation of natural resources
7. Coastal zone protection (when relevant)
8. Intergovernmental coordination
Other important elements that are optional include historic elements, scenic preservation, and public facilities. Zoning is used to implement the comprehensive plan.
Community Planning Act
The State of Florida implemented The Growth Management Act in 1985 which was a bold initiative to plan the future of Florida. It included the CONCURRENCY provision that mandates that infrastructure (roads, water, sewer, etc.) be in place before new development can begin. In 2015 the Growth Management Act was repealed and replace with the Community Planning Act giving local governments control over their own future. Concurrency and other important development issues are handled by local governments.
Additionally, Florida law includes directives for local governments to establish planning commissions that operate as advisors to city councils and county commissions. Ideally, members of the planning commission should represent a cross-section of the community and are not professional planners.
Authority of the Planning Commission
A Planning Commission has three primary areas of responsibility and authority:
1. Subdivision Plat Approval: Required when a developer intends to develop subdivisions. Building permits will not be issued until the planning commission has approved the plat.
2. Site Plan Approval: Similar to the subdivision plat approval but requires more details in areas such as traffic, impact on neighbors, and environmental issues.
3. Sign Control: Protects motorists by restricting hazardous and distracting signs. Community pride demands that sign companies be sensitive to the overall aesthetics of a community.
SUBDIVIDING AND LAND DEVELOPMENT
Florida Uniform Land Sales Act: Under this law (Chapter 498, F.S.), the Division of Land Sales, Condominiums, and Mobile Homes regulates the sale of SUBDIVISION lots in Florida if the subdivision contains 50 or more lots. This law requires delivery of the public offering statement and provides a prospective buyer with a seven-day rescission period after entering into a contract to purchase.
This statute defines a SUBDIVIDER as a person or group that owns an interest in land that has been subdivided or is expected to be subdivided with the intent to resell. The sale of the subdivided land can be performed by the subdivider or anyone legally authorized to perform the task of selling. Subdividers are commonly known as developers. In addition, a subdivision is defined as any parcel of land that is divided or is expected to be divided into 50 or more parcels with the intent of resale. In some situations, the developer/subdivider may offer more that one subdivision within the same general area. If the subdivider is developing more than one subdivision with an aggregate of 50 or more lots, this statute applies. For example, one subdivision of 30 lots and another of 20 lots and the overall marketing plan includes both.
The subdivider/developer is required to have an escrow account with a commercial bank or savings association doing business in Florida and insured by the FDIC. Each subdivision must be registered with the Division of Land Sale. At the time of sale a public offering statement, real estate sale and purchase agreement, warranty deed, and any other legal document required for the transaction must be provided to a potential buyer. There is a seven-day recession period after entering into an agreement to purchase.
There are exemptions to Chapter 498, F.S. that do not require the public offering disclosure. Some of these exemptions include:
1. parcels whose sale price is $50,000 or more
2. parcels sold to builders or contractors for the purpose of resale
3. the sale of government land
4. the sale of land for condominiums, cooperatives, and cemetery plots
SUBDIVIDING AND LAND DEVELOPMENT
Federal Law: The Interstate Land Sales Full Disclosure Act requires that a PROPERTY REPORT be provided to all prospective purchasers at least three days prior to entering into a purchase agreement if the subject development consists of 25 lots or more. The prospective buyer has seven days to rescind the contract if the property report was given in a timely manner. In the event the property report is not timely delivered, the buyer has up to two years to rescind the contract with a full refund.
WETLANDS AND ENVIRONMENTAL ISSUES
Introduction: The federal government has sweeping powers over the nation’s environment. The majority of federal legislation affecting Florida real estate deals with wetland and waterway issues.
Federal Water Pollution Control Act: This legislation is also known as the Clean Water Act. Florida wetlands are important because they provide an ecological system that provides a natural habitat for plants and wildlife. In 1997, the United States Army Corps of Engineers was given the authority to issue permitting for dredging and filling in wetland areas associated with navigable waters. As part of the permitting process, an environmental impact study must be performed to ensure the safety of the environment. Any landowner who fills wetlands without being permitted will be disciplined which could include going to prison for up to five years.
Coastal Zone Management Act: This legislation was designed to manage coastal environment issues. CZMA is administered by the National Oceanic and Atmospheric Administration. It provides authority to each state to develop a plan to manage and protect coastal waters. States must establish coastal zone boundaries and permissible uses.
The major provisions of Florida’s Growth Management Act include that local areas should have a comprehensive plan, volunteer planning commission to offer opinions to elected officials and that philosophy of concurrency should be followed
A Development of Regional Impact review is needed if a proposed development will have effects on more than one county
The concurrency provision of the Growth Management Act of 1985 provides that infrastructure must be in place before development can begin
The purpose of a variance is to provide relief from the strict letter of the zoning law while a special exception provides a use other than what the zoning laws allow. A legally non-conforming use is one in which a particular use pre-dates current zoning laws (grandfathered in).
A Planned Unit Development (PUD) is a large parcel of land that combines residential, multifamily, commercial, and common area use into a self-contained community.
Zoning regulations are governmental regulations that provide for areas of permissible use. Subdivision restrictions are private regulations that govern only a limited geographical area.
Impact fees provide for additional revenue in consideration for the extra demand placed on utility services, such as water or sewer. Developers transfer the title of infrastructure to local governments (or owner’s association) through the process of dedication.
The Florida Uniform Land Sales Practices Act provides that developers of subdivisions of 50 lots or more provide potential buyers with a public offering statement (prospectus) and a 7-day right of contractual rescission.
The Clean Water Act of 1997 provides for the wetlands permitting system implemented by the Army Corps of Engineers. The Coastal Zone Management Act requires individual states to identify the coastal zone areas.
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