Land Subdivision Ordinances: The Regulatory Exceptions

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Richard Ducker

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Last month my blog concerned the way the term “subdivision” is defined in the North Carolina General Statutes for purposes of city and county land subdivision regulation. This month’s blog is a follow-up and concerns the four exceptions to the scope of subdivision regulation set forth in G.S. 160A-376 and G.S. 153A-335. Are these exceptions mere minor loopholes (for these of you prone to analogies from the art of knitting), or can you drive a stock trailer through the gap in the regulatory fence (for those of you prone to analogies from cattle ranching)? One particular exception is wide enough for a small pickup truck, but most of the rest are relatively minor in impact.

Let’s review the county statute (G.S. 153A-335) and the city statute (G.S. 160A-376).

First, a procedural issue. If a division of land is exempt from regulation, how is the local government notified of the division in order to confirm that it is, in fact, exempt? May a county or city require that someone who wishes to take advantage of one of the exceptions prepare a plat of the proposed division that the local government may review to determine whether the division is exempt or not? The answer is no. G.S. 153A-331(b) and G.S. 160A-372(b) provide in part that an ordinance may require that a plat be prepared, approved, and recorded “whenever any subdivision of land takes place.” By implication, a plat may not be required if the division is outside the scope of the definition of “subdivision” or is exempt from it. As a result, many exempt divisions are accomplished by deed without the benefit of a recorded plat. If the sponsor does prepare a plat, then a city or county may provide a “certificate of no approval required” or stamp the plat as an “exempt subdivision” so that it may be recorded. (See G.S. 47-30 (f)(11)).

The Recombination Exception (No. 1).

The first exception is known as the “recombination” exception. Note that it applies to “the combination or recombination of portions of previously subdivided and recorded lots if the total number of lots is not increased and the resultant lots are equal to or exceed the standards of the (county)(city) as shown in its subdivision regulations.” (Underlining added.) If two or more whole lots are merged to create a larger lot, then this first exception does not apply. Why? Because in such a case there is no subdivision of land in the first place, and no need for a statutory exception. The merger of lots (sometimes referred to as a reversion to acreage) can best be accomplished by the preparation and recording of a plat. Since the survey involved is of existing parcels and does not create or change an existing street (see G.S. 47-30(f)(11) (c)(1)), then a surveyor’s certificate to that effect is sufficient to allow the plat to be recorded.

The first exception applies to the divisions of land that are created when portions of lots are added to or subtracted from existing lots. These “existing lots” need not have been platted. They need only have been subdivided (by deed or by plat) and recorded. Prior to 1979, eligible lots had to have been platted as well as recorded.

Recombination may occur only if the number of lots is not increased. But wait a minute. How is this possible? Suppose two lots each 100 feet in width lie side by side. The owner of both lots intends to take a twenty (20)-foot strip along the boundary from one lot and add it to the other so to make an 80-foot-lot and a 120-foot lot. At some stage of the process doesn’t that involve three lots (an 80-foot lot, a 20-foot lot, and a 100-foot lot)? Yes, but the law is concerned only about the final result. A plat can illustrate the 80-foot lot and the 120-foot lot after the recombination, and recombination deeds may refer to such a plat.

Qualification under the recombination exception requires that all of the resulting lots must meet the current standards of the ordinance. Suppose a number of old shotgun lots along the coast were platted at 50 feet in width. Suppose also that today the ordinance requires lots of 100 feet in width. May a developer recombine lots so that the new lots are 80 feet in width, a considerable improvement some might think when compared to the old plat? The answer is no. The nonconforming lots of record must be reconfigured to conform in all respects with present subdivision ordinance standards, or the recombination may not occur at all.

One puzzle concerns what it means for “the resultant lots” to meet “the standards of the (county)(city) as shown by its subdivision regulations.” The standards that must be met in connection with the first exception (and the fourth) are lot-related. Not all standards in a subdivision ordinance apply to lots (some apply to streets and other improvements, open space, general topography, etc.). Standards related to lot size, width, shape, slope, and street access are most likely the ones that will apply.

Another final principle is clear: lots must meet the standards of the subdivision ordinance, not the zoning ordinance. For communities with a unified development ordinance, it will be necessary to sort out whether a particular standard derives from one authority or the other. As last month’s blog makes clear, lots that are exempt from subdivision regulations are not necessarily exempt from zoning. The sponsor of an exempt division ignores zoning requirements when creating exempt lots at its peril.

The 10-Acre Exception (No. 2).

The second exception is known as the “10-acre exception.” It exempts the “division of land into parcels greater than 10 acres if no street right-of-way dedication is involved.” Let’s start with the word “dedication.” North Carolina courts have held that the term implies a grant of a property interest to the public. Conveying a series of private drives or driveway easements to lot owners or a homeowners’ association does not amount to a “dedication.” Well, then, what if the local ordinance requires that all new subdivision streets be offered for dedication to the city or the North Carolina Department of Transportation? That makes no difference. The subdivision ordinance itself cannot be the source of a requirement that makes an otherwise-exempt division subject to regulation. If a subdivider proposes new private streets, then one of the two requirements for exemption is met because “no street right-of-way dedication is involved.”

The other requirement for the exception is that the activity involve the division of land into parcels greater than ten acres. This feature is not particularly significant in areas around most municipalities. However, this exception is the source of some consternation among rural counties where activity to divide recreational or second home lots into sizes just above threshold (10.1 acres) can be substantial. What if a subdivision includes lots both greater than and less than ten acres in size? Are some of the lots exempt from review while others are not? Viewing the subdivision as a unified whole, that reading of the statute seems strained. A more reasonable reading is that this exception applies only when all of the lots in the subdivision exceed ten acres in size. In any event the 10-acre exception is often viewed as a source of regulatory avoidance and possible abuse.

The Public Right-of-Way Acquisition Exception (No. 3).

The third exception, which applies to the public acquisition by purchase of strips of land for widening or opening streets or public transportation system corridors is largely self-explanatory.

The Two-into-Three Exception (No. 4).

The fourth and final exception is for the “division of a tract in single ownership the entire area of which is no greater than two acres into not more than three lots, if no street right-of-way dedication is involved and if the resultant lots are equal to or exceed the standards of the (county)(city) as shown by its subdivision regulations.” This is the “two-into-three” exemption. A key interpretation involves the language “a tract in single ownership the entire area of which is no greater than two acres . . .” “Single ownership” in this context does not refer to whether the parcel is owned by a corporation, by several persons, or by a single individual. Instead it means that all of the contiguous land owned by the qualifying owner does not exceed two acres.

Suppose that Brown owns an eleven-acre tract and divides the parcel into a 9.25-acre tract and a 1.75-acre. That division is a subdivision subject to regulation. Suppose that Brown sells the 1.75-acre parcel to Jones and retains the 9.25-acre parcel. Any further subdivision by Brown will be subject to subdivision regulation. However, Jones may qualify for the two-into-three exception and divide the land again, if he owns no additional land that is contiguous to the 1.75-acre parcel, and he meets the other requirements of the exception. What’s more, Brown may then divide the 9.25-acre parcel into a sub-two-acre parcel and a larger parcel; that division is not exempt. However, if he sells the smaller parcel, the buyer of the smaller parcel can take advantage of the two-into-three exception just as Jones did. Thus the two-into-three exception can be enjoyed by more than one purchaser of land from the same parent tract.

So, there you are. Four exceptions to the definition of “subdivision” limit the regulatory scope of local land subdivision ordinances. If you have read to the end of this blog, interpretation of the exceptions should be more simple and less taxing.

Leave a comment ?

24 Responses to Land Subdivision Ordinances: The Regulatory Exceptions

  1. Connie Price says:

    A developer has a preliminary subdivision plat apprvoved by the county. Hard times come and the lots are not selling. He now wants to sell the remaining land in 10.1 acre tracts. This would short circuit the street network and make two dead end streets. Developer thinks the lots are exempt from the subdivision requirements. I think not. ????????????

    • Connie,

      Your question is one of the more difficult ones in the law of subdivision regulation. It concerns when during the subdivision approval and built-out process a subdivider may back out of the arrangement that has been approved by a local government and change those subdivison plans without prejudice. I call it passing the point of no return.

      I know of no North Carolina law exactly on point. However, it would seem to me that if no lots have been sold in the subdivision and the local government has required no financial perfrmance guarantees in connection with subdivision improvments, then the subdivider has not passed the point of no return. The subdivider may propose a wholly revised plat after the original plat was recorded and expect the local government to act on it, if the proposal is not exempt.

      If a final plat has been approved and recorded and if improvements are subject to a financial performance guarantee, one could expect that any plat revision must be consistent with the terms of the guarantee agreement unless the local government is willing to waive its rights under the agreement.

      If lots have been sold and there is no performance guarantee in the picture, then the law presumes that the streets and open areas depicted on the plat are part of an inducement to sell lots. Lot purchasers have a property right to keep those streets and open areas open and unobstructed. A local goverenment might use that as a reason to disallow any revision of the street or open space network that would compromise the rights of lot purchasers. The merger or recombination of lots, of course, is always possible.

      So, in the case you describe, the result may depend on whether any lots have been sold or not.

      Rich Ducker

  2. Ben Andrea says:

    Rich,

    Thanks for clarifying these, and timely due to a recent issue in our office. We had a landowner who owned two contiguous lots, both approximately .45 acres. The landowner wanted to recombine the lots to offer more flexibility in placement of a home and septic system. The combination of the two lots, however, would not have resulted in the total of 1 acre minimum required in the zoning district. Staff was split on whether a variance to the minimum lot size was required, some opined that it was, but others felt that that the recombination did not increase the nonconforming situation. We have a UDO, so would dimensional requirements be considered a zoning or subdivision regulation?

    Thanks,
    Ben Andrea, Pender County Planning

    • Ben,

      If I understand correctly the situation you describe, the two contiguous are proposed to be merged into one .90-acre parcel. If that is the case, no subdivison of land will occur, the recombination exception (No. 1) will not apply, and subdivison regulatons will be inapplicable. The owner simply gets to go forward with the merger. The main question will be how the zoning regulations apply to the merged lot. Most development ordinances have regulations dealing with nonconforming lots of record (which the .45-acre parcels apparently were). However, if the lots are merged, they may no longer meet the definition of a nonconforming lot of record. You’ll have to look closely at the zoning regulations in your development ordinance.

      Rich Ducker

  3. Adam Tyson says:

    Rich,

    A few questions on subdivision exceptions:

    1. Are building setbacks “lot-related” standards. For instance, if a Recombination Plat relocates a property line too close to an existing struture so that the minimum setback is no longer met, should the county a) refuse to approve the plat, b) approve the plat but cite the property owner with a zoning setback violation, or c) approve the plat and treat the setback discrepancy in some other manner since it was created through a legally exempt process?

    2. It appears that divisions of land into parcels greater than 10 acres (if no street right-of-way dedication is involved) would not have to meet any standards of the local ordinance to be recorded. However, if such a division created lots that do not conform to the county area or width requirements, then is it appropriate to withhold future building permits for those lots on the basis of zoning noncompliance? Also, how should the county address a building setback violation created by such a division plat?

  4. Deb Hill says:

    So, the local government may not enforce that a recorded plat be a requirement of issuing a building permit, if the exempt division was accomplished by deed without the benefit of a recorded plat?

    • Deb,

      A local government may certainly require that the lot for which a building permit application is submitted is adequately described. But that description may be accomplished in a deed as you suggest; a plat is not necessary. Of course, if the lot is an illegal lot because it was divided in violation of the subdivision ordinance, that fact allows a local government to withhold the building permit because of the violations. G.s. 160A-375(a); G.S. 153A-334(a).

      • Deb Hill says:

        By “in violation of the subdivision ordinance,” might that mean not meeting the minimum dimensional requirements for that zoning district (i.e., lot width, size)?

  5. Don Jones says:

    have 4 acres “flag shaped” would like to split off the pole portion 1/2 acre from the rest. The whole parcel is platted now. Does this qualify as an exception?

  6. Juanita says:

    We built our home in the middle of two lots. We were receiving 2 tax bills (one for a vacant lot and one for house and lot). We had new survey done and took it to the tax office and the register of deeds.
    They could not answer our question on whether we needed a recombination deed. They told us to check with an attorney. Could you clarify this for us?

    • If your house straddles the interior lot line so that portions of it are located on each lot, and you have already had prepared a new survey, it might be a good idea to merge the lots by preparing and recording a recombination deed. Such a deed would have the effect of eliminating the interior lot line and would ensure that your property was not assessed as two lots.

      The only disadvantage is that if one of your lots is entirely vacant, it may be that you could have sold one of the lots and made a little money. Or you could move or demolish your house (ugh) and try to take advantage of the land market by selling two adjacent lots. Whether these last two possibilities are the least bit attractive may depend on whether the local zoning ordinance includes a mandatory lot recombination provision for “nonconforming lots of record.” It is worth checking with the planning/code enforcement office.

    • Juanita,
      I suspect that a recombination deed (or merger deed) would be useful to you for tax purposes, for zoning purposes, and for purposes of reselling your house someday.

  7. Donald E Robinson, PLS, CFS says:

    I have a client that has 100+ acres. Neat the center of this 100+ acre parcel is an existing 1 acre parcel (Island Parcel)

    My client wants to create 10+ acrea parcels and in doing so, there is residual acreage containing 8 acres abutting the existing 1 acre parcel. Wouldn’t it be considered an exempt recombination If we recombined the existing 1 acre parcel with the residual acreage making it 9 acres.

    I say yes, but, the town clerk say it has to be larger than 10 acres.

    • As I stated in my blog, I am inclined to think that that the so-called “10-acre exemption” may be used only if all of the resulting lots exceed 10 acres in size. If that be the case, no exemption applies unless the residual exceeds 10 acres, whether by merger with the one-acre lot or otherwise.

    • Mr. Robinson,
      All parcels (including residuals) need to exceed ten acres in order for the subdivision to be exempt.

  8. Cliff Wagner says:

    Richard,
    Thank you for the excellent article. I see many municipalities have regulations that directly try to get around the state exceptions. In particular, I have recently seen an ordinance which requires the filing of a plat before issuing a tax-id, regardless of whether a lot falls under the exceptions noted above. In essence, they wont accept a lot or allow development unless a plat is filed, even if the lot meets all the zoning requirements. Would such an ordinance be valid?

    • Mr. Wagner,

      I am no authority on what may be required to describe a lot for property tax purposes. But for zoning purposes it is legitimate for a planning and zoning office to expect the property owner/user of the lot to include a plot plan or site plan showing how a development proposal may meet the standards of the zoning ordinance as part of an application for a zoning permit. A plot plan, typically required for single-family residences or minor commercial activities, must generally be to scale, show required setbacks and the proposed location of buildings, driveways, and out-buildings and a variety of other types of minor information. If a lot has not been platted or mapped in some primitive way, it is difficult to imagine just how an owner is going to demonstrate proposed compliance with zoning. It may be possible in remote, rural areas where parcels are large and zoning is quite basic and relaxed. But in more developed areas it is likely that a requirement that a parcel be surveyed in order to meet zoning permit application requirements would be found to be reasonable. And, of course, whether a lot must eventually be surveyed as part of the zoning process is unrelated to the question of whether the lot was exempt from land subdivision regulations in the first place.

  9. bobby simpson ncpls says:

    union county planning and zoning states to me that the area inside the the existing state road right of way is not part of the greater than 10 acres. i.e. a tract with 660 feet along the center of a state road with a 60 feet r/w would be required to be 10.46+ acres to be excluded from the requirement for a subdivision.

    • Mr. Simpson,

      I am inclined to think that the answer lies in how the adjacent parcel is described in the chain of title. If the lot is described to the center-line of the adjacent highway, and the highway involves an easement interest, then I would expect that the area of right-of-way would not be excluded from comprising part of a parcel for purposes of the ten-plus-acres-subdivisioon exception.

  10. Corey Sauter says:

    Hello Mr. Ducker.

    I am interested in purchasing three vacant lots and subdividing them into six lots. The total of all three lots equal 1.95 acres. Two of the lots total 1.8 acres and one is .15 acre. The smaller lot must be absorbed to eliminate some set back issues. Can I merge the smaller lot into one of the larger lots and use the two into three exception on the two resultant lots?
    My original plan was to subdivide them into 7 lots and build on them but things have bogged down in what hoops I have to jump through and whose job it is to tell me where to jump. The lots are in an unicorporated area of the county, outside the city limits, but the county wants the city to sign off, the city claims the parcels are in the “sphere of influence” of a little nearby incorporated village. The village officials clearly state that their influence starts at the “incorporated village” sign that is four side streets and a mile up the road. So you can see that once there is consensus as to whose decision it is, it will be much easier if I can avoid the subdivision ordinances.

    Thank You for any help

    Corey

    • Corey,

      Based on what you have said, I see no reason why the two-acres-into-three-lots exception would not be available. Lot mergers are exempt from subdivision regulations. Keep in mind, though, that the resulting three lots must meet the standards of the subdivision regulations. Also, you may want to ensure that no municipality is exercising extraterritorial planning authority in the area involved.

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