Zoning definition changes after development platted
by Joel Larsen
Visitor Question: The housing area I am building in now is zoned R36. At the time all of my neighbors built their houses, the offsets from property lines were 10', per R36 regulations at that time.
At some point, the city changed the definition of R36 to be 15' offset.
Do I have to follow the new definition of R36, or can I follow the original definition of R36 as per when the whole development was platted? The original plat documents show it as 10' offsets.
Editors Reply: The answer we are going to give you below will be the correct answer 98 or 99 percent of the time. We do need to caution you that maybe 1 percent of the time, a quirk in Arizona law, local case law, your local zoning ordinance, or even your local subdivision ordinance means that our answer would not be valid. So if it means a lot to you, do check locally with your city before you act on this advice. Your city government should know about state law applicability, so if you talk directly with someone at your city, you should find out what you need to know.
Generally, a subdivision approval of a plat map should be regarded as a minimum requirement when it comes to what you call offsets, which we assume to be what zoning ordinances generally call setbacks.
(For other readers, we should note that some items on a plat are absolute numbers, such as the width of street rights-of-way, the dimensions of lots, and the widths of easements.)
In almost all situations in the U.S., you would be required to obey the applicable subdivision regulation, the zoning ordinance, and any deed restrictions. If these are in conflict, the most restrictive requirement is the pertinent one that you must abide by.
As another aside for other readers, if there is genuine conflict among these types of restrictions, meaning that one says Do X and another says Don't Do X, you have to ask your city government to help you resolve the issue.
So if your city government says you must have a 15 foot setback of your building from each of your property lines, that would be what we would expect your city to enforce. If a city's own requirements are in conflict, generally a city government will take the stance that the most recent regulation should prevail; this is another reason for our answer.
But why not ask your city zoning official this question directly? Many residents seem to be afraid to do this, but actually it can only work to your benefit. These staff members re paid in part to respond to your questions, so take advantage of that fact.
You will generally receive the best information from a zoning official if you make a direct and personal contact. Many city halls are closed to outside visitors at the moment due to the pandemic, but if yours is open, try to drop by at the end or beginning of the work day. (Some zoning officials spend quite a bit of time out in the field and are therefore more likely to be in the office early or late in the day.)
If your city hall is closed, try to have a phone conversation, since almost all local governments are working during this time. As a last resort, try email or an online contact form.
The reason we are urging you toward the most personal communication possible is that this typically gives you the richest source of information about what will be required and what the review process will entail.
If by any chance you already have been turned down for a building permit due to zoning non-compliance, you should also be aware that more than 99 percent of all zoning ordinances provide a process for applying for what is called a variance. This process entails going to a board that may be called board of adjustment, board of zoning appeals, or something similar. It is not the same group as the planning commission, and it does not require a second hearing and vote from a city council, as is the case with a rezoning. Again, if it matters this much to you, you might be a candidate for a variance. See our page on zoning variances if you need more information.
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