Top 10 Changes to the minimum requirements for ALTA surveys
#4: What's the deal with setbacks?
Setback and zoning restrictions can make or break a project. It’s no wonder that they are often addressed as part of an ALTA survey. The 2011 ALTA standards took strides in clarifying not only what setback and zoning information should be shown on an ALTA survey, but who should obtain it. The 2016 ALTA standards offer additional improvements to the current language and provide more guidance towards a complicated issue.
Optional Table A, Item 6(a) and (b), within the 2011 ALTA standards states that zoning and setback information be provided by the insurer. When this language came out, it caused bit of a stir within the title and surveying communities. Many felt that if this item was selected, it automatically placed the responsibility on the title company to obtain and provide the necessary information to the surveyor in order to address it on the survey. This, however, was not the intent of Item 6(a) and (b). It is, in fact, the client’s responsibility to negotiate, obtain, and provide to the surveyor whatever information is necessary to feel confident in their purchase – zoning information included.
In the course of doing their due diligence, most owners request a zoning endorsement from the title company in order to mitigate the potential risk caused by zoning violations of both unimproved and improved land. Completing a zoning endorsement requires careful research. In most cases, a title company will not rely on the land surveyor to provide the relevant information. Instead, they will either research the information themselves or purchase it through a third party in the form of a zoning report.
It would make sense that, if this information was obtained, it could be provided to the surveyor in order to show it on the survey (hence, the verbiage in the 2011 ALTA standards.) The 2016 ALTA standards aim to clarify this by indicating that the information be provided to the surveyor by the client. Should a zoning report not be completed or obtained by the title company, the surveyor and client are still able to negotiate to what extent zoning matters are shown on the survey.
Three things to keep in mind regarding setbacks and zoning regulations:
- Surveyors should be careful providing legal advice. It is important to remember that setback and zoning regulations are legal matters, not survey matters. Often times, a surveyor is asked to certify that there are no zoning violations taking place on the subject property; however, offering an opinion on matters of law often oversteps the boundaries of the surveyor’s professional services.
- Zoning and setback regulations are extremely complex. Depending upon where a particular piece of property is, determining the proper zoning designation can prove difficult. Is the property in the city or the county? Is it zoned office or industrial? Quite possibly, it’s zoned both. Often times, zoning maps are drawn at scales that require interpretation and guess work. Even if the zone is tied down with some comfort, it is common to have overlay districts within them providing an additional layer of zoning regulation.
- Setbacks can be just as confusing as the zone that controls them. Determining the front, rear, and side yards sounds easy, but what happens when you’re on a corner lot? Often times, the building setbacks are a function of height or use ratios. I could go on, but the details here are not as important as understanding that the uniqueness of a property drives what it will require.
A recent ALTA survey that I conducted in California may help to demonstrate the complexity. In this case, the property was in both the city and the county. To further complicate matters, the parcel was near the coast. Not only did each jurisdiction have separate zones for the property, there was also a coastal overlay district and an environmental-sensitive overlay district on top of that. Needless to say, interpreting the zoning regulations for this particular piece of property was not an easy task!
Communicating early and often about the need for setback and zoning information on an ALTA survey can go a long ways towards making sure projects stay on track. The 2016 ALTA standards provide additional guidance towards a complex and often confusing subject.
Coming up next - #3: Who's doing the research?
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