Mid Atlantic Real Estate Journal — Mid Year Review — June 22 - July 12, 2012 — 11B
www.marejournal.com
S ITE P LANNING
By Susan Baumann, RA, The Aztec Corporation Prospective builders: Have you retained your architect or engineer yet?
X
YZ Company, a new small manufacturing business, purchased a tract of
There are also instances of con- ditional uses, where the building will be permitted but the owner must be prepared to make certain concessions. If a prospective buyer is interested in a site despite prohi- bition of their use, a Use Variance can be sought with the Board of Adjustment and approval can be made a condition of the sale of the property, providing a “back-out” clause if the application is rejected. According to municipal land use law, bifurcated applications must be permitted. A bifurcated process means that the applicant can seek approval for the “use” alone, despite knowledge that more vari- ances will be required in order for
his project to move forward. This bifurcation minimizes initial costs by eliminating the need for full scale site plan consultation involv- ing site grading, drainage, utility planning, etc. If the use is rejected early in the process, the buyer can back out of his purchase and no more costs need to be incurred. After Use permission, there are a multitude of other concerns during site selection. Wetland designa- tions, flood plains, soil capacity and environmental contamina- tions should all be disclosed as part of the sale. These conditions may require buffers, expensive footing designs and possibly remediation actions. Physical geometries of the
building design will be governed by allowable building heights, required setbacks and buffers, floor-area to site-area ratios and parking requirements. The design can also be influenced by required site drainage: storm water is not permitted to be diverted across another property and there is a maximum allowable percentage of the site that can be covered in impervious materials. In addition, properties adjacent to County or State Roads require DOT involve- ment. Any deviation from these rules, which vary considerably from town to town, requires a separate variance application. Existing Nonconforming Uses in
the neighborhood confuse matters further. One of the most common laments that architects hear: “You must be wrong, the building next door is operating as a factory so why can’t I build one too? ’Zon- ing Ordinances and zoning maps are ever changing. Pre-existing conditions are typically considered “grandfathered” and are permitted to remain if unaltered. Despite a site’s seemingly obvious suitability for a particular use, a prudent business owner seeks the advice of a design professional early in the process. Susan Baumann, RA is an associate at The Aztec Corporation. ■
land with the int ent i on o f constructing a new building for their small processing cen- ter and offices. They carefully r e s e a r c h e d their process
Susan Baumann
flow, their required square footage, the utilities they would require on their new site and finally they hired an architect to help them realize their dream. That is when their troubles began. After some research into the local Zoning and Planning Ordinances, their architect advised them that the company’s Use was not permitted on the site, a small portion of the site was wetlands, the site was adjacent to a residential zone, and though the square footage they required would easily fit onto the site, it would not fit within the required setbacks and buffer zones. In addition, once the applications were announced to the public, it was discovered that the neighbors were openly opposed to the building and had retained their own attor- neys to bar its construction . This is not an uncommon sce- nario. Most prospective builders in search of a site are savvy enough to know that they need a real estate professional, an attorney, and eventually engineers and architects. Often however, as in the scenario above, they retain the architect or engineer too late. And although some of the obstacles presented above can be overcome through variances, another site would likely have been a more suit- able choice for this facility. Initial cost probably drives the hesitance to seek professional guidance while searching for a site. Not surprisingly, no business wants to incur professional fees until they are absolutely neces- sary. Nevertheless, the risks and potential added expense due to a lack of early due diligence can be high. Projects requiring variances involve more attorney time, ad- ditional research such as traffic and noise studies, and in the end, there is no accurate way to assess the possibility of approval from the Planning Board or the Board of Adjustments. Every municipality and every project is unique. There are numerous consider- ations during site selection. The most important is to determine if the company’s intended “use” and potential future uses are permitted on the site by the zoning ordinance.
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