Agenda - Planning Commission - 07/01/1997

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accessory structures if landowners meet certain requirements or merge lots may improve the quality of development or its sensitivity to environmental constraints. For example, such an incentive could be provided if the owner builds in a certain part of a lot with a better slope ratio. Or the plan might retain a woodland buffer separating development from a known wildlife migration corridor. The community's goals may also have changed with regard to density. Here, the planning objective is simply to find ways to reduce the amount of development from the level envisioned for the subdivision when the developer originally secured plat approval. Replatting and lot mergers are the most likely scenanos. Finally, it may be that local planners have come to realize that the entire plat, or at least most of it, was a mistake and that development simply is not appropriate. In that case, the goal is to retire the land's development potential by either vacating the original plat, acquiring the land if there is a valid public use for it such as a park, or otherwise returning it to open space uses. In many cases, these were agricultural purposes, but forestry and mining are among the other possibilities. Who Owns the Land? It is impossible to know how best to proceed without knowing the identity and intentions of the current landowners. This is important partly because it will help to settle the issue of vested rights. As noted in last month's issue, mere zoning or subdivision approval is generally not sufficient by itself to establish the vesting of development rights. Zoning merely establishes what is permissible in the general area of an individual parcel; subdivision approval simply draws lot lines without, in itself, constituting an investment by the lot owner in improvements to the property. On the other hand, significant expenditures by the developer in installing infrastructure such as roads and sewers will likely tip the balance. Consulting applicable state law is the only way to determine precisely what triggers vesting of development rights. As in the question of objectives, there are three major categories of potential situations facing local planners. First, the entire subdivision may still be intact under one owner, whether or not the original developer retained it or sold it to someone else as a unit. For planners, this is the most promising scenario because there is just one landowner with whom to negotiate. If that owner is willing to propose the needed changes in the lot lines or the overall design of the subdivision and placement of streets and other infrastructure, the matter of amending the subdivision plat is relatively simple and straightforward. This situation is the one that makes plat vacation most feasible. Second, there is the possibility that a developer has sold individual lots to some owners, but that none has actually commenced any building or invested in significant site improvements. This situation complicates the process of redrawing lot lines and may obviate the possibility of completely vacating the plat. State statutes generally require efforts to protect the rights of individual lot owners in situations where the developer is applying for a total or partial vacation of the plat. But the lack of improvements stiIlleaves open the possibility that owners may agree to a replatting without any . condemnation or forcing of lot mergers on the part of the local government. The developer also may be able to reacquire the lots. However, Wayne Daltry, director of the Southwest Florida Regional Planning Commission, says some individual lot owners there have become suspicious of a developer's intentions Ifb ..> in seeking to repurchase the lots, even if local planners are asking him to do so. The third possibility puts the most limits on a local government's options for crafting a solution. Individual owners may already have proceeded to build on their land. At that point, they not only have vested rights in the property but a dear stake in maintaining the existing lot lines. They mayor may not be interested in acquiring or selling neighboring unimproved lots as a means of helping the community to rationalize the subdivision's overall design. At the same time, many of the remaining lots may be inadequate either by current zoning standards or because of physical constraints posed by the lots themselves. While planners may be able to induce lot mergers and acquisitions among the owners of remaining unbuilt parcels, their task becomes considerably more difficult depending on the size of the subdivision and the issues involved. Time for a Vacation Not every state empowers local government to initiate the vacation of a plat, though a growing number have adopted statutes to do so. More typical are states like Wyoming and Utah, which provide for owner-initiated petitions for plat vacation, spelling out the conditions under which this may occur. Utah, for instance, requires a hearing on any "proposed vacation, alteration, or amendment of a subdivision plat" within 45 days of application under three conditions: (i) the plat includes the vacation of a public street or alley; (ii) any owner within the plat notifies the municipality of their objection in writing within 10 days of mailed notification; or (iii) a public hearing is required because all of the owners in the subdivision have not signed the revised plat. (Utah Code ~ 17-17-808.) Virginia very dearly authorizes plat vacation or amendment initiated by the local government as well as "on application of any interested person." (Virginia Code Ann. ~15.1-482.) California also authorizes plat vacation initiated by the local government, based on a series of required findings, including the developer's failure to make required improvements within two years or the agreed upon time..- wnichever is later, or that no lots shown on the parcel map have been sold within five years from the date of filing. (CaI. Gov't Code ~ 66499.16). California calls this "reversion to acreage." Florida, on the other hand, repealed government-initiated plat vacation after an adverse court decision (Maselli v. Orange County, 488 So.2d 904 [Fla. Dist. Ct. App. 1986]). Freilich and Shultz, in Model Subdivision Regulations (see box), provide language for local subdivision ordinances that provide for plat vacation by either the owner or the local government. In the latter case, the planning commission may vacate the plat of an approved subdivision under three conditions: . No lots have been sold within five years of final approval; . "The developer has breached a subdivision improvement agreement," and the local government cannot obtain funds to complete construction; . The plat is more than five years old, and the commission determines that further lot sales present a threat to public health and safety. As some lots may have been sold in this last