Legal or Legal Non Conforming

[Robert Gonsalves]

Hello;
I would like to hear everyone's thoughts on the issue of marking Legal or Legal Non Conforming and how everyone interprets its meaning on the Fannie Mae 1004 Form.
Me and my local piers have had discussions about this and all have different theories and examples. As an example I will use a structure built in 1950 on a 1.00 acre lot with well water. Zoning is AR B6 1.5, current zoning description is Agriculture and Residential District / Specific Acreage Density Requirement / 1.5 Acre Density, with a minimum lot size on well water of 1.5 acres.
I find when I call the County Resource Management Department I am told if this parcel was established prior to enactment of this current zoning description and lot size was legal at that time than this parcel's zoning is considered Legal. When I ask about Legal Non Conforming I am always told that nowhere in zoning description is the term legal nonconforming found under land use and in there interpretation legal nonconforming pertains to structures.
Now some of my piers hear the same thing from the county but disagree with that theory. They state that if the parcel was developed prior to enactment of current zoning it is legal but should be marked legal nonconforming and it does not conform to current minimum lot size now.
What say everyone as to marking Legal or Legal Nonconforming?
Robert G.

 

[CANative]

The B designation ususally indicates a special lot size/density combining district. These types of combining districts were usually implemented after the base zoning district and were designed to allow older farm and ranch owners to subdivide a portion of their lands so that they could keep the homestead and a few acres and sell of the rest.

The FannieForm is not asking the right question. Your 1 acre lot is less than the minimum lot size allowed by zoning so in that regard it is "non conforming." I check the "legal, non-confoming (grandfathered) box on the fannieform because that seems to be more technically correct if they're talking about the land. But then I almost always get hasseled for rebuild letters.

What the zoning guy is telling you is that if the lot was created lawfully and in compliance with the current state subdivision map act or the map act in effect at the time it was created then it is a legal lot of record and is capable of being sold, leased or financed separately from any contigous lot. Some counties use the word "grandfathered" and some don't.

Anyone appraising rural property in California should be aware that just because there is an AP# doesn't necessarily mean that the lot is a separate, legal lot of record. AP#'s are created for tax purposes only. You can have one lot comprised of multiple AP#'s and determining if these other marked lots can be separated and sold separately requires a certificate of compliance or a thorough investigation of the chain of title.

 

[Wendy]

I usually do "legal non-conforming". It's pretty common to find these. Knock on wood, but I've not been hassled for a re-built letter in a long time.

I also note the current min size reqs w/ the spelled out zoning info.

 

[Smokey Bear]

This is an example of bad forms. There are several aspects to legal, conforming: the lot itself, the use, and the structure. You have to evaluate each of them separately. In most venues, if you have what appears to be a non-conforming lot, if you search the code you will find an exception for lots created before the zoning code, that makes it legal conforming. The use must match, but also check to see if "lesser" uses are allowed - say residential in a commercial zone. Most industrial areas will not allow residential, but commercial will sometimes allow residential, and some areas, like mine, will give a variance to allow commercial in residential, making it legal. As for the structure, most of that is beyond our expertise. If it's obvious that there is an addition or add'l building that was done w/o permits, then that's either non-conforming or illegal, depending on how the city views it. If they require teardown and give no other options, it's illegal. As to the rest of the structure, unless you're an expert at reading permits, plans and determining if the work done conforms to the approved plans, I'd SOW that part out by stating in my scope of work that inspecting plans and permits for conformance is beyond the scope of work. I don't want responsibility for determining whether the builder pushed out a wall an extra 2 feet and the final inspection didn't catch it.

So having 1 set of checkboxes for 3 different issues is a fault in the form, you can always leave it blank and explain, unless all 3 issues have the same answer.

 

[Ken B]

I wonder if a pier has more cognitive ability than a post?

 

[Carnivore]

Now that smokey gave you the answer the next issue rears its ugly head.

Considering intended use, I think there may be a larger issue of conformity and a skrinking market segment for this subject. Dont forget to address those aspects in the appraisal.

 

[Smokey Bear]

Oops, forgot to add, need to check the general plan as well as the zoning code.

 

[Mike Boyd]

This is an example of bad forms. There are several aspects to legal, conforming: the lot itself, the use, and the structure. You have to evaluate each of them separately. In most venues, if you have what appears to be a non-conforming lot, if you search the code you will find an exception for lots created before the zoning code, that makes it legal conforming. The use must match, but also check to see if "lesser" uses are allowed - say residential in a commercial zone. Most industrial areas will not allow residential, but commercial will sometimes allow residential, and some areas, like mine, will give a variance to allow commercial in residential, making it legal. As for the structure, most of that is beyond our expertise. If it's obvious that there is an addition or add'l building that was done w/o permits, then that's either non-conforming or illegal, depending on how the city views it. If they require teardown and give no other options, it's illegal. As to the rest of the structure, unless you're an expert at reading permits, plans and determining if the work done conforms to the approved plans, I'd SOW that part out by stating in my scope of work that inspecting plans and permits for conformance is beyond the scope of work. I don't want responsibility for determining whether the builder pushed out a wall an extra 2 feet and the final inspection didn't catch it.

So having 1 set of checkboxes for 3 different issues is a fault in the form, you can always leave it blank and explain, unless all 3 issues have the same answer.

Cynthia, I think you are trying to combine land use with zoning. The legal, non conforming issue relates to zoning. Most properties early in CA history were originally zoned something other than what they are zoned now, or, there was simply no zoning at all.. When cities and counties started hiring planning directors they recognized orderly growth was preferred to enhance neighborhoods. Obviously, if a house was built on a 5,000 sf lot and recent zoning mandates 10,000 sf lots they are not going to make anyone tear down the house on the 5,000 sf lot and to NOT PERMIT rebuilding could be considered a taking. So, they were allowed to remain and to be rebuilt if destroyed. The 10,000 sf designation only relates to newly developed lots in that zoning neighborhood.

With land use there are a number of issues that have to be addressed.

 

[Smokey Bear]

Umm, that's what I said. If the lot is "non-conforming" per zoning, if you continue to look in the code you usually find out it's not considered non-conforming because it was created before the zoning code came into affect.

 

[Brad Ellis]

Cynthis,

I am going to have to disagree.

The issue is basic- could the existing improvements (or lot size, for that matter if there are no improvements) be put to the exact use that it is being put to today?

So a SFR on a smaller than allowable lot, while legal because it was grandfathered, is not a conforming use today because the minimum lot size would be larger today. Hence, legal (grandfathered) but non-conforming becuase it does not conform to the curent legal requirements.

Must be careful here. If it were fully legal a lender would not need to know if it could be rebuilt in its current configuration. If legal non-conforming, they do need to know.

Brad