SUBDIVISION LAW May 16, 2016 Presented by: Anne Torregrossa, Esq. Brann & Isaacson Tel: (207)

 The Basics  Subdivision Approvals  After Approval  Planning Considerations WHAT WE WILL COVER

THE BASICS

 The division of a tract or parcel of land into 3 or more lots within any 5-year period  Whether by sale, lease, development, buildings or otherwise DEFINITION – DIVISION OF LAND

 Things to think about  What is the original “tract” or “parcel”  Contiguous  Common ownership  Roads and streams  Is it a division  Mortgage  Lease DEFINITION – DIVISION OF LAND

Farmer Fred

Lawyer Lisa 6/1/2015

Farmer Fred Lawyer Lisa Carpenter Carl 6/1/2017 * What if Lisa transfers to Carl after 6/1/2020?

Farmer Fred Farmer Fred’s Road - built by Farmer Fred in 1962 and accepted by Farmville in 1976*

Farmer Fred Lawyer Lisa 6/1/2015 Farmer Fred’s Road - built by Farmer Fred in 1962 and accepted by Farmville in 1976*

Farmer Fred Carpenter Carl 6/1/2017 Lawyer Lisa Farmer Fred’s Road - built by Farmer Fred in 1962 and accepted by Farmville in 1976* *What if Farmville had never accepted the road? *What if Farmer Fred built the road in 1975?

Farmer Fred

Lawyer Lisa 6/1/2015 Farmer Fred

 The division of a new structure or structures on a tract or parcel of land into 3 or more dwelling units within a 5-year period  New = constructed after 1988  Dwelling Unit = any part of a structure intended for human habitation  Sale or lease  Single-family  Multi-family  Condos  Apartments  Time shares DEFINITION – DIVISION OF STRUCTURES

Garage House * Both were built the year Anne was born

In-Law Apartment Duplex * What if house and garage were built in 1995 Converted in 2013 Converted in 2015

 The construction or placement of 3 or more dwelling units on a single tract or parcel of land  Within a five-year period? DEFINITION – CONSTRUCTION OF DWELLING UNITS

Farmer Fred

Farmhouse built in 2012

Farmer Fred Lawyer Lisa 6/1/2014 Duplex built in 2014

 The division of an existing structure or structures previously used for commercial or industrial use into 3 or more dwelling units within a 5-year period  Why not existing residential? DEFINITION – RESIDENTIAL DIVISION OF COMMERCIAL STRUCTURES

 The division of a structure for commercial or industrial use  ONLY IF there is a local ordinance DEFINITION – COMMERCIAL DIVISION OF COMMERCIAL STRUCTURES

 Where both divisions are accomplished by a person who:  Has been “principal residence” for 5+ years  Has kept for own use as a single-family residence EXEMPTIONS – HOMESTEAD

Farmer Fred Lawyer Lisa Carpenter Carl 6/1/2017

Farmer Fred

Lawyer Lisa 6/1/2014

Lawyer Lisa Carpenter Carl 6/1/2015 Farmer Fred

Lawyer Lisa Carpenter Carl 6/1/2015 Teacher Tracy 6/3/2015

 ONLY IF adopted as an exemption by local ordinance or regulation  Not in shoreland areas EXEMPTIONS – 40+ ACRES

 Gifts to a related person if:  Held by the gift-giver for 5 years before the gift  Given to a “person related to the donor”  Cannot be resold outside the family for 5 years  “Person related to the donor” = spouse, parent, grandparent, brother, sister, child, grandchild  Gift = less than ½ assessed value EXEMPTIONS – GIFTS TO FAMILY

Farmer Fred Purchased in 1960

To Fred, Jr.To FrancineTo Flo 6/1/15

FrancineFlo 2016 Fred, Jr.

FrancineFlo 6/1/16 To Gertrude (Fred Jr.’s Cousin)

 Transfer to an abutter  Merged land cannot be split for 5 years EXEMPTIONS – TRANSFER TO ABUTTER

 Will  Takings (eminent domain)  Court Order  Gift to Municipality EXEMPTIONS

 Airports EXCEPTIONS

 Functional subdivisions  Subdivisions in existence before 1971 that didn’t require approval  Subdivisions that have escaped enforcement action for 20+ years  No recorded denials of subdivision or building permit  Subdivisions approved under less strict municipal ordinances  What if the lots are now nonconforming? EXCEPTIONS – EXISTING SUBDIVISIONS

In the mid-1800’s Big City was a thriving mill community. Big City Mill Company owned and operated the mills, and also owned a significant portion of the land that makes up modern-day Big City. In its heyday, Big City Mill Company built many tenement and single family houses on its property for its mill workers and managers. As the mills closed down, Big City Mill Company sold off the houses, but retained ownership of the land and entered into ground leases with the purchasers. Big City Mill Company comes to you with a plan to divide up the land and sell it to the respective owners of the structures. However, almost none of the lots will meet current lot standards, including minimum lots size and setbacks. How do you advise Big City Mill Company?

 Pull deeds for every building permit  What if the permit is for the first (legally) created lot?  Assessor  Requests for no action letters  Should you do it?  Did you already issue a building permit?  Requests for consent ENFORCEMENT – HOW DO YOU FIND THEM?

 How?  Options:  No action letter  After-the-fact approval  Consent  80K  What about building permits?  Who?  You  Planning Board  Attorney General ENFORCEMENT – WHAT TO DO?

SUBDIVISION APPROVALS

 Municipality notifies abutters  Review for completeness  30 days – extend deadline in writing?  Who reviews?  Major vs. minor subdivision APPLICATIONS – PROCEDURE

 Plan stamped by a professional  Evidence of financial and technical capacity  Written requests for waivers APPLICATIONS – CHECKLIST What do applicants always forget?

 Timing  Publication  Optional?  Who participates? CONSIDERING THE MERITS – PUBLIC HEARING

 Statutory  Ordinance CONSIDERING THE MERITS – REVIEW CRITERIA

 Freshwater wetlands  Rivers, streams, or brooks  Identifies exempt lots and retained land  Identifies NRPA subdivision exemption CONSIDERING THE MERITS – THE PLAN

 Subdivision requirement or zoning requirement?  Only ZBA can waive zoning requirements  Put waivers in writing and record them  On the plan  In a certificate for amendments  Record within 90 days of final approval CONSIDERING THE MERITS – WAIVERS/ VARIANCES

 Who will own the roads?  Major vs. minor subdivision  Road Commissioner sign off?  DOT permits? CONSIDERING THE MERITS – ROADS

 Subdivisions  Buildings, roads, or other clearings of more than 3 acres CONSIDERING THE MERITS – SITE LAW

 Subdivision exemption  Commercial < 5 lots and 20 acres  Residential < 15 lots and 30 acres  Lot exemption  40+ acres if not in shoreland  500+ acres  Transfer to abutters  Transfer to family CONSIDERING THE MERITS – SITE LAW EXEMPTIONS

 Density < 1 lot per 5 acres  50% in conservation easements  Minimum of 10 acres and shape restrictions  Enforceable by third party  Limitations on activity on certain slopes  Erosion control  Notification  Must be identified on the plan plus separate certificate  Must be identified in deeds CONSIDERING THE MERITS – SITE LAW EXCEPTION

 Location  In, on, or over protected natural resource  Adjacent to wetland, pond, river, stream brook, etc.  Activities  Dredging  Removing soil, vegetation, etc.  Draining  Filling  Construction repair or alteration of structure CONSIDERING THE MERITS – NRPA PERMIT

 Navigable waters  Stream or wetland crossings  Vernal pools CONSIDERING THE MERITS – ARMY CORPS PERMIT

 30 days from public hearing  60 days from completed application  Otherwise mutually agreeable THE DECISION – TIMING

 Approve  Deny  Approve with conditions THE DECISION – OPTIONS

 Findings and conclusions  Finalize the Plan  Include conditions  Include waivers on the plan  Don’t be afraid of notes  Approval signatures THE DECISION – DOCUMENTATION

 Exempt Lots  Note on plan (if part of subdivision)  PB determination of exemption (if no subdivision)  CEO determination of exemption for building permit  Affidavit of facts supporting exemption MORE DOCUMENTATION

 Performance Bonds  Get them!  Recording the Plan  Make sure it gets recorded! FINAL THOUGHTS

AFTER APPROVAL

 Is it signed?  Did it get recorded?  Who  When  Now what?  Does it have the correct references? WHAT COULD GO WRONG? – THE PLAN

 Permanent markers required  Utility installation – municipal certification required  Is construction substantially under way in time?  5 year automatic limitation?  Is it substantially complete in time? WHAT COULD GO WRONG? – ON THE GROUND

 Public or private roads?  Who owns the roads?  Road associations  Claims against performance bonds WHAT COULD GO WRONG? – ROADS

 Did developer retain rights to streets  Did municipality reserve its rights  Is it a street? WHAT COULD GO WRONG? – PAPER STREETS

 Permits before subdivision approval  Permits for an approved lot  Permits for an exempt lot WHAT COULD GO WRONG? – BUILDING PERMITS

 Does it have to go back to the Planning Board?  What is the change?  Remaining land or lot?  Exemption for remaining land?  Time passed  Local ordinance  Private rights of existing lot owners CHANGES – BY THE DEVELOPER

 Does it have to go back to the Planning Board?  Exemption?  Time passed  Local ordinance  Private rights of existing lot owners CHANGES – BY A LOT OWNER

 Options:  New plan  Certificate of abandonment  Private rights of existing lot owners  Vacation of public streets CHANGES – ABANDONMENT

 Limited review  New lot is subject to same conditions (unless previously exempt?)  Make sure title block references original plan, has correct reference CHANGES – PRACTICAL TIPS

PLANNING CONSIDERATIONS

 Minor vs. Major  Cluster Subdivisions  Open Space PLANNING CONSIDERATIONS