February 1998

You can generally assume that if you own a lot in a subdivision that was recorded before some change in the zoning codes creates new restrictions-such as limiting new construction to lots of sizes or shapes different than those on the plat of your parcel-your rights will not be "grandfathered" when constructing a new building on your lot. Various "vesting" rules have been created in court cases and statutes which might allow you to complete a building you have started (or, in some jurisdictions, have merely obtained permits for) before a change in the codes. Alternatively, your lot might be grandfathered for a specified number of years.

In general, though, the mere ownership of a lot made nonconforming by a change in zoning codes confers no special rights. Most often this issue arises in municipalities with old plats describing tiers of narrow lots, e.g., 25' wide, filed before new zoning codes require a minimum lot width, e.g., 50'. Houses already built on 25' wide lots will typically be allowed to remain as nonconforming structures; construction in progress on 25' wide lots when the new zoning code takes effect will typically be completed under vesting doctrines, but any subsequent construction will typically require the combination of two or more adjacent lots.

A different but related question may arise concerning the legality of lots in old subdivisions after changes in subdivision codes. These lots may or may not meet zoning requirements as to size and shape. However, irrespective of zoning questions, the old subdivisions will typically never have been subjected to the rigorous design, public hearing, or utility extension requirements found in newer subdivision codes. Would a local government be justified in restricting the use or sale of such a lot, even if it meets zoning requirements, until the parcel has been subjected to the same examinations required of a newly created subdivision? This issue was recently raised in Washington in the form of a state Attorney General's Opinion (Wash. AGO 1996 No. 5). The opinion states that municipalities in Washington lack the legal authority to permit the development of lots created before certain dates unless those lots have been subjected to the same review as lots in newly created subdivisions. In practical effect, this demands that the municipality conduct some review beyond the zoning and building permit stages, and might even demand replatting the lots. Although the AGO lists three reasons supporting its conclusion, the main point for discussion is found in its third supporting argument:

"[T]he 1969 (new) platting act was enacted for a new and very different purpose than the old territorial platting acts. The third point is particularly persuasive, in that the 1857 (old) platting statute was essentially an aid to land conveyancing, in that it allowed property owners to record maps and surveys and to refer to lot and block numbers instead of describing property by metes and bounds. This was a convenience to the parties and probably served, through mapping and surveying, to reduce boundary disputes, but was in no sense a 'land use' law. By contrast, the 1969 statute specifically grants local governments a wide measure of control over the way land is subdivided, sold, and developed." AGO 1996 No. 5 at 3-4.

Resubdividing existing lots can be a particularly burdensome process, so I was surprised that I found only a few reported cases on the subject. Those that I located came from the Northeast and date to the late '50s and early '60s. They are instructive, however, and raise several issues that should be reviewed by any municipal authority considering its approach to older platted lots.

The following quotes, taken from Washington Land Use and Environmental Law and Practice by R.L. Settle (1983) give an overview, along with the author's personal comments, of the evolution of subdivision law in this country:

"The public importance of subdivision design and the coordination of public facilities with private development apparently was appreciated in colonial America. Land often was publicly owned and released for private development only after streets, common areas and sites for churches and public buildings had been set aside. During the nineteenth century, as developable land increasingly passed into private ownership and government regulation of private conduct fell into disfavor, public supervision of land development was rare and at the end of the century generally was limited to technical regulation of the survey and mapping of subdivisions. Commonly, statutes provided that once a plat had been prepared in accordance with the prescribed technical requirements and properly recorded, lots could be conveyed simply by reference to the plat rather than by cumbersome metes and bounds descriptions. These statutes, which generally were unconcerned with subdivision design and the provision of public facilities, sought merely to facilitate land conveyance and avoid title disputes arising out of easily mistaken metes and bounds descriptions. Subdividers could escape even these modest procedural requirements by foregoing the convenience of conveying by reference to a plat. Consistent with the prevailing economic policy of laissez faire, the quality of land division and development was considered a private matter, of concern only to developers and their customers and best left to the 'invisible hand of the market.'

"Early this century local officials and civic groups began to realize that land use and development often imposed substantial costs on neighbors and the community at large and that since parties to a land development transaction generally did not bear such costs, they lacked economic incentive to minimize them. The 'invisible hand' was to this extent deficient....

"Chafing under the financial burdens left by rampant premature subdivision and inefficient, random street patterns which were the cumulative expression of each developer's 'own sweet will,' cities began to regulate subdivision design so that streets and sewers conformed with local plans and to impose the costs of such facilities on the developer....

"By 1920, New York City permitted subdivision only if consistent with an official street map. In 1921, a survey of 27 representative cities with population exceeding 100,000 found that 15 had relatively comprehensive control, five had partial control, and seven had little or no control over land subdivision. In 1928 the U.S. Department of Commerce offered encouragement and guidance through model legislation, A Standard City Planning Enabling Act.

"While land development proceeded at a slow pace during the late 1920s and 1930s, the lessons of unrestricted subdivision during the earlier booms had been learned. By the end of World War II, and the frenzied residential development which followed, virtually all states had granted municipalities authority to regulate land subdivision, and most growing cities had adopted implementing regulations. Today, subdivision regulation addresses not only the layout of lots, streets and sewers but also design, land dedication and detailed improvement requirements for streets, gutters, curbs, sidewalks, street lights, street trees, earth berms, screen plantings, underground utilities, recreational facilities and school sites." R. Settle at 85-87.

The Cases

Lake Intervale Homes Inc. v. Township of Parsippany-Troy Hills, 28 N.J. 423, 147 A. 2d 28 (1958).

The Lake Intervale development was approved and the plat recorded in 1941, pursuant to what the court calls New Jersey's "Old Map Act", R.S. 46:23-1 et. seq. The lots as platted had frontages of approximately 50'. The municipality adopted its first zoning ordinance in 1945, requiring 100' frontages. Until 1950 the development had been largely unsuccessful; in that year Reid Development Corporation acquired 332 lots in a mortgage foreclosure. Reid constructed homes on some parcels by combining adjacent lots to achieve the necessary frontage, and during this process entered in to various disputes with the municipality over the costs of extending utilities to the new construction sites.

Pursuant to what the court calls the Planning Act of 1953, N.J.S.A. 40:55-1.14 et. seq., the municipality adopted in 1954 a new subdivision code requiring developers of subdivisions to pay for necessary utility extensions. Lake Intervale Homes Inc. was formed in 1954 and proposed construction of 15 new homes on 30 lots. Eighteen of the lots fronted one unimproved street, while the other 12 were situated in pairs on various unimproved streets throughout the old plat. Sometime in 1954 Lake Intervale obtained permits to begin construction of four homes, but then became entangled in disputes with the municipality over the costs of extending the necessary street improvements. The municipality refused to extend utilities at its expense, and sought to impose these costs on Lake Intervale by applying the new subdivision code (which provided the legal basis to impose such costs) to its lots. Thus, this dispute centered on whether the new subdivision code could be applied to Lake Intervale's pre-existing lots.

The New Jersey Supreme Court addressed the matter beginning with a long discussion of the policies behind applying the new subdivision code to existing lots, under various circumstances:

"In our view, where the owner of a tract of land filed a subdivision map and has taken no further action prior to the time of the adoption of a subdivision regulation ordinance, then the lot lines delineated on the old map may be ignored for purposes of determining whether a 'subdivision' exists under ... the Planning Act of 1953. The Old Map Act was hardly more than a conveyancing aid....

"Basically the [Old Map] act was intended (a) to provide a method for officially filing maps so that future conveyancing instruments might refer to a parcel of realty by reference to the lot numbers as delineated on the map, and (b) to set forth sound engineering standards for maps so filed so as to avoid surveying errors... There was no compulsion for a developer to obtain approval of a map except as a condition precedent to filing, nor were there any penalty provision(s) for subdividing a tract differently than as approved... The Old Map Act contained what might be termed rudimentary planning features with respect to the width and location of new streets and highways." 147 A. 2d at 33-34.

"The subdivision control provisions of the Planning Act of 1953... stand our in marked contrast. Where a municipality has established a planning board and has adopted a subdivision regulation ordinance, developers must obtain plat approval as a condition precedent to recording... and as a condition precedent to the sale of any lands within a subdivision not classified as a minor subdivision under the ordinance.... Penalties are provided for non-compliance." 147 A. 2d at 34.

The court then outlines the Planning Act of 1953's requirements for provision of utilities and performance guarantees by the subdivider. It further listed the improvements which the municipality might require of the developer if found to be in the public interest.

"It is readily perceived that there is little overlap in the purposes of the Old Map Act and the Planning Act of 1953. The latter act was designed to afford municipalities desiring the advantages of its provision to enact comprehensive regulatory standards which would facilitate sound and orderly future municipal growth along preconceived lines, in short a planned community growth." 147 A. 2d at 35.

The court quoted from a planning study listing what it called the "baneful consequences" of premature and unregulated platting during the "1920 land boom." It also described the "enormous tax deficiency" problems created by the excessive costs of serving early subdivision lots that were inefficiently laid out.

"What may have been deemed an adequate proposed development in 1941 from a planning standpoint may be grossly inadequate today in view of the changes in the surrounding areas of the development and in view of changes in the science of municipal planning itself. Rights in land must give way to greater needs of the community implemented by reasonable exercise of the police power.... It is firmly settled in this State that lot lines as delineated on a map filed under the Old Map Act must give way to a subsequent exercise of the zoning power increasing area requirements.... Subdivision control, like zoning, is an implementing tool of planning. We can perceive no reason for concluding that filing of a map under the Old Map Act does not prevent application of the one power but it does the other. Both are necessary to abolish the social disease of blight, the essential difference between them being the difference between inoculation and surgery." 147 A. 2d at 37.

After making these sweeping pronouncements, the court sidesteps the difficult question that arises from this broad policy-based argument:

"Thus, at least where virgin lands are concerned, the Planning Act of 1953 is applicable to instances where a plat plan of the tract had previously been approved and filed pursuant to the Old Map Act. But a problem emerges with respect to situations where the owner of a filed plat plan under the Old Map Act has taken additional steps other than merely filing the plat plan. Where, for instance, there have been conveyances of lots, developed or undeveloped, to individual owners pursuant to the filed plan vested rights in the nature of nonconforming used may be created.... The resulting problem is to determine under what circumstances a tract may be classified as undeveloped and hence to require the exercise of planning powers.... What may be appropriate regulation where a small virgin tract is subdivided into a small number of lots may not be appropriate where a small tract is carved out of a larger tract for purposes of further subdivision, where the larger tract has already assumed certain characteristics. The question of the applicability of the Planning Act of 1953 to situations where further action occurred, other than the mere filing of a plat plan under the Old Map Act, is one which is in need of legislative clarification. It is worth of note that the two reports of the State Planning Commission, previously referred to, classified undeveloped subdivide lands into two categories, i.e., those tracts which were totally unoccupied and those which were sparsely occupied, the latter being defined as tracts containing one to five houses per block.... A similar quantitative line for purposes of determining the applicability of the Planning Act (if that be the advisable manner of treatment) is one that should be only drawn by the legislature." 147 A. 2d at 37-38.

While it is certainly true that "what may have been deemed an adequate proposed development in 1941 from a planning standpoint may be grossly inadequate today in view of the changes in the surrounding areas," it is equally apparent that application of new subdivision requirements might be fair in some instances and grossly inequitable in others. One can easily imagine, for instance, the power that the voices of the owners of "five houses" in an otherwise undeveloped block might hold in a typical public hearing if all five opposed building on the other undeveloped lots, assuming (as is common) that the new subdivision code requires approval of the subdivision at a public hearing. This court simply stated that it could not decide where to draw the "quantitative line" necessary to resolve such issues, and further implored the legislature to tackle the problem.

As to deciding the outcome of the particular dispute before it, the court created its own fairness test to hold that the developer should not be subjected to the costs of extending utilities to its building sites in the Lake Intervale development. The court pointed out that the municipality's ordinance imposed total costs for developer extensions without regard to the benefits conferred by the improvements. Noting that in this case the municipality would be requiring, in some instances, the extension of improvements along entire streets to service one new house in a block, it held that the municipality's ordinance was "arbitrary and discriminatory." 147 A. 2d at 39. Although the municipality does have the discretion of requiring the developer to shoulder the costs of improvements, it must do so according to "standards or regulations to which applicants for service of the kind in question may turn for guidance as to the manner in which the discretion will be exercised." 147 A. 2d at 39.

Blevens v. City of Manchester, 170 A. 2d 121 (N. H. 1961).

In this New Hampshire case the plaintiffs asked the court to declare that Manchester's subdivision ordinance, enacted in 1958, did not apply to their property which had been subdivided into lots prior to the ordinance. The plaintiffs had been actively engaged in developing such residential areas since 1946. The 1958 subdivision ordinance, if applied to the plaintiffs' property, would impose penalties for selling any of the lots until street grading, surfacing, sidewalks and other improvements were completed. The plaintiff argued that to apply the 1958 code to their already existing lots would be an unconstitutional retrospective application of the law, and would be arbitrary and discriminatory. Nowhere in the case report does it state whether the lots in question met modern zoning requirements.

Just as the New Jersey court did in the case discussed above, this court make broad pronouncements about the value of controlling the subdivision of land.

"The subdivision of land has a definite economic impact upon the municipality and hence the regulation of subdivision activities has been sustained as a means by which the interests of the public and the general taxpayer may be safeguarded and protected. Since the subdivider of land creates the need for local improvements which are of special benefit to the subdivision, it is considered reasonable that he should bear the cost rather than the municipality and the general taxpayer....

"The fact that the lot areas may be satisfactory to the subdivider and prospective purchasers, or that the streets and drainage are also satisfactory to them does not bar the application of the subdivision statute and the ordinance enacted pursuant to it.... One of the problems that has arisen is that of seeing to it that building lots are not laid out and sold and houses put thereon without some decent minimum of street paving and without some decent safety and health minimum of water and sanitary facilities, and then later the community feels forced to protect the residents and take over the streets and in some way or other provide for the facilities." 170 A. 2d at 122-23.

"The subdivision law and ordinance apply to all of the plaintiffs' lots shown on their recorded maps which are unsold and any conveyed after the subdivision ordinance was approved by the city. This is not a retrospective law... [T]he fact that the plaintiffs have recorded plans approved under a prior statute, which show 'paper streets' or unaccepted streets or that some lots previously sold are upon accepted streets, give the plaintiffs no vested right to demand that future sales shall be beyond the purview of the subdivision law and ordinance. What may have been and adequate proposed development when the plaintiffs' plan was first recorded may be clearly insufficient to municipal needs today....

"The subdivision ordinance is attacked on the ground it its arbitrary and discriminatory. At the corner of Fairfield Street and Blevens Drive as shown on the plaintiffs' map are four lots... The first two are owned by individual owners, the third is admittedly not subject to the subdivision ordinance while the fourth owned by the plaintiffs is subject to the ordinance. These lots are beyond the portion of Fairfield Street which has been accepted by the city, and as shown by the plan lot 146 is situated in an unimproved block of twelve lots wholly surrounded by unaccepted streets. If the plaintiffs must under the ordinance supply municipal services for that lot, it will in effect be beneficial to the other lots not subject to the subdivision regulation. This is the price of progress in any attempt to improve land development, subject however to any right to relief because of 'practical difficulty or unnecessary hardship' as provided by RSA 36:26. It is no different from the effect of zoning generally where certain property may be zoned in one class and a contiguous property in another. The city must have a starting point for any new law or ordinance and it is not discriminatory merely because every lot of land is not regulated in the same degree." 170 A. 2d at 124.

The court held that the plaintiffs' arguments concerning the fairness of applying the ordinance to their lots was answered by provisions in the law for variances and timed development:

The ordinance contemplates that a plat may be submitted for approval which covers "only a part of the subdivider's entire holding," in which case a sketch of perspective future streets "of the unsubmitted part shall be furnished." A subdivider may thus avoid the expense of improving more land than will be immediately required. Both the statute and the ordinance provide for the granting in proper cases of exceptions, or variances from the literal enforcement of the regulations, to avoid "undue hardship" or "practical difficulty or unnecessary hardship." 170 A. 2d at 124.

Conclusion

The problem with applying new subdivision codes to pre-existing lots arises from the difficulty of determining what, if any, level of individual lot development should be subject to the often rigorous requirements of the new codes. Taken to their literal extreme, many modern subdivision codes could be read to prohibit the sale of a single lot by its owner, merely because the lot was platted under an earlier code. At some point the application of such a law is likely to be perceived as unfair. The Washington Attorney General's opinion cited at the beginning of this article makes the following point:

"In such a case [concerning open land, never developed and still owned by one party] property owners can claim no serious prejudice if, before actually selling or developing such land, they are required to comply with the 1969 act and any ordinances and rules enacted under it. It is certain, however, that in addition to the undeveloped old plats... there are plats in the state which have been sold off and developed, or partially so. Where [an old] plat has long since been sold, and now contains houses, shops, and streets, it may well be impracticable to require that the land be replatted under a new ordinance passed since 1969. Since there is no way to anticipate an analyze all the factual variables, it would probably be prudent for any ordinance implementing [the 1969 law] to clearly specify the extent to which it requires replatting of land platted under earlier laws, and to set up substantive standards and/or procedural options to handle the obstacles which may be encountered in dealing with partially sold/partially developed plats." Wash. AGO 1996 No. 5 at 4.

Prudent indeed. For example, the Connecticut Supreme Court, in Sherman Colonial Realty v. Goldsmith, 230 A. 2d 568 (Conn. 1967) approved a subdivision ordinance as applied to pre-existing lots in a large part because it contained a variance clause:

The 1963 regulations did, however, contain a section, § 11-1, entitled "Variations from Regulations," which authorized the planning commission to permit variances in cases where a strict application of the regulations would cause extraordinary hardship and provided that "[i]n determining the extent to which variations may be granted with respect to a subdivision shown on a map filed in the office of the Town Clerk prior to March 1, 1959, the Commission shall be guided by the amount and nature of work done thereon prior to July 13, 1963, and by whether and to what extent full compliance with the regulations would deprive the owner or developer of the benefit of funds prudently invested in development of the subdivision prior to said date." 230 A. 2d at 570.

Remember that the New Jersey Supreme Court, in Lake Intervale Homes, stated that the legislature had the responsibility of drawing the "quantitative line" below which the new subdivision codes should not be applied. For a court to make such a pronouncement means, of course, that the legislature had not at the time met their responsibility. All of these courts required some level of fairness in the application of these codes. For example, if the primary purpose of applying a subdivision code is to force the developer to pay for utilities, it would seem unfair to apply the code in areas where the utilities are otherwise available. Fairness, of course, is all too often a different matter to different people (note the opposite answers to the question of the fairness of requiring the developer to extend utilities past existing lots to a single undeveloped lot expressed in Lake Intervale Homes and in Blevens.) This is clearly an area where regulators must present ordinances with clear guidelines and appropriate procedural protections.