Zoning Compliance, "Illegal Use", and the 1004

[Mike Kennedy]

In my area this is what we have as far as zoning goes. We have zoning maps on CD. At the bottom of each map there is a statement that says " this map may be out of date. Call the zoning office for clarification. When you call the zoning office you are told that the only way to obtain an exact and current zoning is to send in a written application with $50.00 fee and wait thirty days for the office to inspect the property. I put this information in my appraisals and leave it up to the underwriter. Whats the answer?

The answer is exactly what you cite. "IF AVAILABLE during the normal course of business" .....is the key. If it is - verify. If its' not - include the info you cite above with appropriate ordinary assumptions and caveats. Piece o cake.

 

[hastalavista]

The problem rests with zoning. Zoning is frequently not regulated to the letter, or if it is, it is done so selectively and punitively.

Unfortunately, you are correct.

In this case, I believe I might simply evoke a EA and assume it is legal non-conforming based up the past history that they have not cited the owner for same. THe HBU as is = 'as is". THe HBU as if vacant would be to built a conforming dwelling. Therefore, HBU is "as is" warts and all.

I follow your logic. But, what if you verified that the subject didn't conform because of the garage conversion, and the authorities had cited (or, said they would cite) the owner.
Knowing that it does not conform because it does not have the required parking amenity and the authorities are likely to do something about it, is it:
Legal?
Legal, non-conforming?
"Illegal"?

And, I don't know if there is one right answer. I know if someone builds a residential improvement in a commercial zoned area where residential properties are prohibited, I'd check "illegal" (and comment that I mean "does not and conform to permitted uses and is not allowed"): That's a no-brainer even for me!:wacko:

But what if someone changes their previously conforming home into a non-conforming configuration; one that would not be allowed by code and one for which a variance is not possible. Does that change create an illegal use as characterized by the check box on the form?

 

[Ben Vukicevich SRA]

As a former zoning board chairman, you don't have an illegal use. You have a non-conforming structure. The USE is residential. Your property meets that USE.

Unfortunately, like most things in life, "use" is not defined. LOL.

 

[hastalavista]

Ben-

Thanks- It isn't clearly defined as it should be (IMHO).

And, Marcia in a prior post reminded me in such cases, there is another option on the Freddie/Fannie forms; at the bottom of page one, to check off "does not conform" to the neighborhood; that would be an appropriate option in this case (as I see it).

 

[Ben Vukicevich SRA]

Denis,

I've always found it hard to lose my old zoning board hat. LOL

Here's how it goes:

If you read the Fannie regs after my post, they may make sense or they may not. LOL. Notice they always reference a higher intensity use than allowed by current zoning in their guidelines.

You use is one family residential. That use is conforming to the neighborhood. The structure does not conform to the bulk zoning requirements for that approved use.

A legal non-conforming use would be a prior multi-family use in one unit zoned neighborhood. That structure could be conforming or non-conforming as could the site. A legal non-conforming use could be a home office in a residentially zoned neighborhood. I have my office in such an area. It's legal, non-conforming. The structure is non-conforming but the site is conforming.

An illegal use is a meth lab in a house, on-site marijuana farming in Hopland, a garage being used for commercial auto repair or body work, a tradesman running his business out of his house or garage. Those uses would not be allowed by zoning as they do not conform to the neighborhood. Some of those uses may not destroy the residential character of the dwelling so that could be noted in the report. Inspections may be required if the commerical use has damaged the residential character of the site such as pollution from chemicals.

 

[Otis Key]

The problem rests with zoning. Zoning is frequently not regulated to the letter, or if it is, it is done so selectively and punitively. Go complain to the Mayor often enough and you get a zoning review. I would suspect that the Zoning Dept. would not give you a clear answer were you to ask them. In this case, I believe I might simply evoke a EA and assume it is legal non-conforming based up the past history that they have not cited the owner for same. THe HBU as is = 'as is". THe HBU as if vacant would be to built a conforming dwelling. Therefore, HBU is "as is" warts and all.

Knowing Denis and what he does I would say that more than likely his question is in reference to a URAR form report, the revised version, and therefore the above bolded part wouldn't fly. On a narrative or non-fannie product, I agree.

A legal non-conforming use would be a prior multi-family use in one unit zoned neighborhood. That structure could be conforming or non-conforming as could the site. A legal non-conforming use could be a home office in a residentially zoned neighborhood. I have my office in such an area. It's legal, non-conforming. The structure is non-conforming but the site is conforming.

Not sure you meant the bolded part the way it was written or I read it. The structure is still a conforming use but the use of the structure would, could or might not be "conforming". Right? Or maybe I misread it. The way I see it is that it also has to do with, beyond what you posted, the conversion of a SFR into a multi-unit residence; additions that are non-conforming due to lack of plans and specs and/or inspections etc.

 

[Ben Vukicevich SRA]

Otis,

It is correct as written. I'll explain it in detail: The original use was residential. The current structure/dwelling is a non-conforming structure as it violates the side yard requirements on one side. The site conforms to the current size requirements. The office use in a residential area is non-conforming but has been there prior to the new zoning ordinance.

So I have a non-conforming use inside a non-conforming structure on a conforming site.

 

[The Warrior Monk]

I agree with Ben. I discuss the zoning in two parts: use and everything else (setbacks, underpermitted additions, etc.).

I recommend searching for permits if it is reasonable to do so. In one area I work, we have a link to the town GIS system and can access the permits on line. In another, they have a summary in the computers in the assessor's office. However, if one has to fill out FOIL forms and wait a few weeks for someone to dig out that information, that may be unnecessary for the standard SFR.

 

[Terrel L. Shields]

Otis
The problem is that if you don't evoke the EA, and you cannot determine the compliance, you have to substitute your judgment for someone in charge....well, that's a problem. Even if you have the person standing in front of you who is responsible for making that decision, try getting a straight answer.

We have a 12' deep hole [measured by laser] in our front lawn as the city moves the utilities for a road expansion. That hole has appeared, disappeared, reaappeared and it had no fence around it, and no shoring. Anything over 48" is supposed to be shored up.

The state highway doesn't care
The city doesn't care
The contractor doesn't care
The county Environmental board doesn't care
The local paper wasn't even too interested even though they let us complain
Apparently even OSHA doesn't care.
SO we await until a small child jumps out of their car in our parking lot and runs to the plastic fence to see and slides right under it and the hole collapses on him. And you expect the city employee to take responsibility for some zoning 'thing'?

 

[hastalavista]

Knowing Denis and what he does I would say that more than likely his question is in reference to a URAR form report, the revised version, and therefore the above bolded part wouldn't fly.

You are correct, Otis. But knowing Terrel, he'd tell me to go jump in a lake (a dry lake at that!).


The zoning and "legal/illegal" issues along with pre-printed cert#1 is a CF (IMNSHO).

I posted From Fannie's selling guide because I thought that was relevant to completing an assignment using their form. In their Selling Guide section on zoning, they talk about not making a loan if the subject is an "illegal" use. But, they list possible exceptions. One of the exceptions is this:

We will purchase or securitize a mortgage secured by a one-family or two-family property that includes an illegal additional unit or accessory apartment (which may be referred to as a mother-in-law, mother-daughter, or granny unit) as long as the illegal use conforms to the subject neighborhood and to the market.

Fannie's statement above is inconsistent with Ben's excellent explanation of conforming/non-conforming use. When I read Fannie's comments, I infer that Fannie considers a property to be an illegal "use" if there is an Illegal additional unit.

So, that's what drove my question regarding the Fannie Form specifically: Is there a definitive definition of what Fannie concludes an "illegal" use is?

(And, since they are an explicit intended user when reporting on their form, I think this question does matter in regards to communicating to the client in a meaningful way, and meeting the client's expectations.)