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Council asks planning commission to review ordinance addressing one lot in two zones

2011 ordinance has unintended consequences


The Morgan County Council recently asked the planning commission to consider changes to an ordinance that addresses one lot that straddles two or more zoning districts.

In Morgan County, there is a lot of what planners refer to as “tunnel zoning.”  This means that smaller residential lots are concentrated along major roads such as Old Highway Road and Morgan Valley Drive, while larger agricultural lots are located behind those homes.

In April of 2011, the county council first created an ordinance that

“It was my understanding that the intent was, if you have a full blown building lot (in a smaller, one-acre zone), but you want to build in the back of your property (on a larger 20-acre agricultural zone), you can, but you forsake the (building) rights on the front piece,” said Councilman Robert Kilmer.

“We changed an ordinance so one individual could build a home in an A-20 (agricultural 20-acre) pie-shaped lot, they wanted to put it clear back in the back lot,” recalled Councilman Ned Mecham. “When we did that, it had some real problems.  The consequences in the future are not good.”

Technically, if a land owner with a portion of land zoned A-20 doesn’t have a full 20 acres, a home cannot be built on that portion.  But the ordinance allowed building on portions of A-20 as long as the parcel also included a smaller residential zoning in front of it.

Mecham is worried that after building a home in the back using the 2011 ordinance, years would pass by and someone would attempt to build a new home near the road in the smaller-zoned area, essentially having two homes where only one was allowed.  That would create a whole other problem known as a “flag lot,” Mecham said.

A flag lot is created when a home well off the main road needs access to the roadway, and so a small lane is made from the back home past another home that is closer to the road.  Therefore, the back lot is made up of the area around the home, as well as the “flag pole,” or small lane leading to the roadway.  Flag lots can be problematic, especially when the lane is too narrow for emergency vehicles to access.

Both Mecham and Kilmer were members of the council when the original 2011 ordinance was created.  Since, the county has hired a new planning director who has interpreted the ordinance a bit differently than what was first intended.

Planner Bill Cobabe said it reads so that the smaller residential zone applies to a whole lot that may on the books be straddling two zones at least as far as area, height, coverage, width and frontage regulations are concerned.  In other words, zoning would be administered per the smallest zoning district.

And that was not the intent, Kilmer and Mecham agreed.

“It is open enough to depend on interpretation,” Kilmer said.  “I would like to clarify this.  Ned would like to eliminate the ordinance entirely.”

Cobabe noted that he knows of only four lots in the entire county where “tunnel zoning” is exactly opposite, or where the larger agricultural zone is nearer the major road than the smaller residential lot.  These four lots wouldn’t meet the setback requirements, meaning there is not enough room between the building lot and the road where a home could be approved.

“It is a very rare issue,” he said.

Cobabe said the planning commission is currently considering several other “wordsmithing” issues, and adding this ordinance as one to be reviewed would make sense.

“If the intent is different than what is stated in the code, if it is open for interpretation, and the plain language says something different than what was intended, we need to take a look,” Cobabe said.

Changes would go through a public hearing process, Cobabe said.

Councilman Logan Wilde said he hopes the changes are made before an application using the ordinance is brought forward, as he suspects may happen.

“I didn’t want these unintended consequences,” Kilmer said.  “I want to clarify before we have 400 applications.”

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