Recording variance approval with deed

[AG74683]

All,

Working to tweak our variance language to fix a few issues and reflect the state minimum guiding statutes for these. One thing I want to implement is some better way of tracking approvals, specifically requiring an update to the property deed or somehow recording the approval as an agreement and noting it on the tax card. I'm wary of burying it in the RoD because we rarely have title searches done here and if it's not specifically attached to the deed, more often than not it'll be ignored.

Does anyone actively draft a new deed for the property owner? I'm proposing a written policy in the ordinance wherein the County works with our attorney to draft a new deed (from the owner to the owner) that has the variance approval and/or findings of fact attached to the deed. Is this overkill, or outside the bounds of what we should be doing as a local government? Maybe I'm making this more difficult than it needs to be, but I don't think variances are well tracked here at all, and that is becoming an issue that needs to be addressed.

 

[DVD]

all my variances are just in the files. we don't record them. We will force you to record things if we think something funny might happen like a storage building that's likely to become a second house in the floodplain. We have them file it as a deed restriction in the RoD office. We do the same with a subdivision process where we give you an extra lot, but you have to restrict the rest of the property for ag use. It's still easier to find the records in my office even though no one really looks for them.

 

[mendelman]

Here's a response I provided to my State's APA listserv:

We simply issue the applicant a decision resolution outlining the decision and any conditions of approval.

We also draft summary minutes and have them approved by the BZA at the next available meeting.

In regards to recording the BZA decision(s), it likely wouldn’t hurt, but then you would need to determine whose going to be responsible for coordination and cost. There certainly can be difficulty with in-house record keeping and institutional knowledge.

Alternatively, when is a BZA decision still valid over time? If a decision is recorded against the property and a title search pulls up a 30 year old decision, you’ll (the City) be asked to determine if it’s still applicable/enforced. That can create extra and potentially unnecessary work for the City staff.

I have dealt with this academic question many times in my career so far and have concluded that it is best to make sure BZA decisions and any conditions applied should be executed physically to the site at the time of implementation and try to minimize and/or avoid operational or extra-procedural conditions that aren’t readily evident from the site conditions or applicable zoning code section(s).

 

[AG74683]

Thanks for the replies.

My understanding has always been that a variance runs with the land, and is perpetual in nature (at least here in NC). This makes logical sense to me that a variance would never simply "disappear" as it is based off of land based or other certifiable hardship to the property. I have the logistics worked out as far as recording the deed. Basically we would work with our county attorney to update the deed and record it. The only responsibility of the property owner and/or applicant would be to sign on the dotted line. The cost for the deed work would be included in the cost of the variance fee. Our attorney seems to think it's a good idea, as does his paralegal who does most of the legwork.

Case in point. I signed off on a plat map for an existing tract the other day (watershed statement). The reason for the plat was because the overhang of the house was 1' over the contour line of the lake (essentially the rear property line), and the power company was forcing the issue. That's a problem, considering the house should have been 10' from that line to begin with per our setbacks. I was prepared to talk to the surveyor about it and make it known that if they ever had any zoning issues out there, it likely would not be a positive outcome since the house was 10' over the setback line. Turns out they had secured variance approval, I stumbled upon the approval letter looking for something else. It's not referenced anywhere, not on the tax card, and to any normal person it was built in violation of the code. My method would solve this by including the full approval in the actual property deed and marking the tax card with the case number. Any realtor, attorney, planner, surveyor, or property owner, could find the approval in seconds rather than wading through variance approval letters that may or may not exist.

 

[The One]

Good Grief

All,

Working to tweak our variance language to fix a few issues and reflect the state minimum guiding statutes for these. One thing I want to implement is some better way of tracking approvals, specifically requiring an update to the property deed or somehow recording the approval as an agreement and noting it on the tax card. I'm wary of burying it in the RoD because we rarely have title searches done here and if it's not specifically attached to the deed, more often than not it'll be ignored.

Does anyone actively draft a new deed for the property owner? I'm proposing a written policy in the ordinance wherein the County works with our attorney to draft a new deed (from the owner to the owner) that has the variance approval and/or findings of fact attached to the deed. Is this overkill, or outside the bounds of what we should be doing as a local government? Maybe I'm making this more difficult than it needs to be, but I don't think variances are well tracked here at all, and that is becoming an issue that needs to be addressed.

Yuck....forget about forcing a new deed. What if YOU miss something on the deed or make an error? No way your attorney could be on board with this unless they just don't have enough work already. What do you mean by "rarely" having title searches done? Does everyone buy their property with cash and refuse to know the history of the property (Schedule B) let alone that the chain of titles is clean?? Now to answer your question:

1. List all discretionary approvals on your zoning map for each property. Normally held in a different database with property identifiers to tie cases to individual lots.
2. A title endorsement is available for a buyer concerned about such issues http://www.vuwriter.com/en/guidelines/2008-4/GL00000060.html. Just file the variance away and if a new owner complains about not knowing later ask them for the title endorsement. If they don't know what you are talking about suggest they ask their realtor or an attorney.

 

[AG74683]

No way your attorney could be on board with this unless they just don't have enough work already. What do you mean by "rarely" having title searches done?

He is, and actually thinks is a good idea. And by rarely, I mean never because the attorneys here are lazy and no one wants to spend money on a title search.

I have a case where the order approving a variance was registered with the RoD. I knew this because a surveyor brought in an existing plat map for my signature and included a note on the plat for the deed book and page for the variance approval. All is great, should be easy to find for anyone. The property transferred in April of '16, and the new deed doesn't reference the plat map I signed, nor the variance approval because surprise, the attorney didn't bother to do any legwork and copied/pasted the description from the prior deed.

There's really no mistake to be made with it. The only thing we are doing is either including the variance approval as an attachment, or potentially as an item in the description similar to covenant references. It appears that Massachusetts requires the approval of a variance (or any ZBA decision) to be registered with the RoD. I don't think they require it to tie in to a deed though.

Either way, at the very least, I will be recording the action approving the variance and asking the Tax Department to note it on the tax card. It doesn't solve the problem, but it helps alleviate some issues.

 

[luckless pedestrian]

I make them record variances, special use permits and anything that is a form of relief with the deed - it protects them and the municipality

 

[AG74683]

Planning Board meeting on this one just wrapped up. We went with the policy to record an instrument of approval including the required findings of fact and then add a note to the tax card. I just couldn't bring myself to recommend the whole deed redraft item. Just too much liability there and too many "what if" questions we couldn't answer. I hate that it doesn't absolutely certify that these approvals are perpetually kept with a deed, and future buyers may have no clue a variance was approved for their property, but it's the best option I think we have.

 

[Whose Yur Planner]

We (me) draw up a resolution after either a conditional use or a variance is granted by the elected officials. It has the PPIN number and a legal description for the property. Whenever somebody does a search on a property, these pop up. We also do an Ordinance of Rezoning for map amendments. Again, this pops up when someone does a search on a property. The GIS Department also updates our zoning map regularly.