Building on an “Unbuildable” Lot

Faith writes: Where do I start to make my six-acre unimproved lot buildable? Though there is a house on the lot adjacent to my land, in addition to three to four homes in front of my property, the planning and zoning department in my county is saying that my land is not buildable.

Steve Bliss, of BuildingAdvisor.com, responds: The place to start is by talking with the planning and zoning department in the local government — town, city, or county — that has jurisdiction over your property. Find out specifically who is saying that the lot is unbuildable and why — most likely the zoning department. A face-to-face meeting is often more productive than talking on the phone or emailing.

Since building and zoning laws vary in every jurisdiction, there is no general answer or general solution to your problem. In most cases, the problem is based in zoning regulations — for example, your lot is too small under current zoning rules. It could also have to do with access to the site or anything else controlled by zoning department. Water well and septic issues are often under the jurisdiction of the health department. The state DEQ may also play a role is issues related to the environment.

Once you know the specific reason(s) cited, ask the official in charge, if he/she is aware of any steps you could take that would enable you to build on the site. For example, if the problem is one of perc testing, you may be able to install an “alternative” septic system. If the problem is lack of access or frontage, you may be able to negotiate a right-of-way with a neighbor. If the problem is one of lot size, or other zoning regulations, you may be able to apply for a zoning variance. In some cases, if a lot was buildable when it was subdivided, it may grandfathered as a buildable lot even though it is unbuildable under current regulations.

If a zoning official tells you that the site would be buildable if you do X, ask them politely if they please put that in writing in the form of a letter (on official letterhead).

Once you have a clear understanding of the problem, you will need to speak with a local attorney with extensive experience in real estate law. In a short phone conversation, or a one-hour meeting, you should be able to determine the likelihood that you will be able to build on the lot, and the time and expense required to achieve your goal. For what it’s worth, I know of at least two “unbuildable” lots in my area that were eventually built on, sometimes years later by someone who made the effort to untangle the regulatory restrictions.

One final caution: if you apply for a variance, abutters will be officially notified and allowed to raise objections during a limited time period. They can also appeal the variance once it’s granted. This happened to me in one case and I had to hire a lawyer and pay him a few thousand dollars to deal the groundless appeal.

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