This blog focuses on projects that do not meet zoning. Let’s look at a property being sold for residential use, and see how an unsuspecting buyer in a hot market may commit to buying a property that may be not buildable.
The property in question is at 3396 Green Meadow Circle, in Bethlehem City. It is 3.48 acres, and is off the end of a cul de sac in a very nice neighborhood. The Altonah Estates development was created in the 1960s by an attorney named Ellwood Shimer, and the homes were “estate homes”, some of which were owned by doctors and lawyers. The lot is the last one in the development that was not built on (except the neighboring lot which was not built on for similar reasons, and then purchased as buffer by an adjacent landowner). The asking price is $179,000. Neighboring lots have water and sewer service – but as will be seen services to this lot are problematic. The listing for the lot is here. Note that several illustrations of exotic custom home designs are shown, and interior home pictures, but there is only one picture of the lot that is up above, on what we will see is an inaccessible area. There is a picture of the street, but not of the frontage of the lot that is for sale. A picture of the frontage from Google Maps is shown below, since the Realtor chose not to present an accurate depiction:
So, why was this lot never developed? Steep slopes. The elevation lines above are at 20' intervals. The north end of Bethlehem is home to “Camel’s Hump”, which is a hill that juts up about 200 feet compared with the surrounding terrain. The Archibald Johnson estate is on the north side of Camel’s Hump, and this property is literally on the south side. The peak of the hump is a few hundred feet off the northeast corner of the property.
In the 1940s, there began discussion of the possibility of a reservoir on Camel’s Hump. This idea was still being evaluated in the 1960s, and there is evidence that the developer had discussions with Bethlehem of this possibility. The reservoir would have been fed via gravity from Bethlehem reservoir(s) to the north. However, this plan was scrapped and in 1978 the developer made the last adjustment to lot lines, as shown in the diagram below. Note that the plan states “City can not serve [water] over this elevation [450']”, and this elevation is right near the street.
A prospective buyer contacted the City Engineer, and he stated that static water pressure at the cul de sac is 32 psi – the bare minimum for water service. He stated that a supplementary pump would be need to be provided for a home on this lot. He also stated that the sewer connection in the street was not extended to the end of the road, and that the lot owner would have to pay to rip up 130 feet of city street, excavate, and replace the paving. Furthermore, the steep slopes on this lot would make a sewer connection problematic, as a 2% slope is the recommended maximum, while the lot has slopes of 35% and more. Gravity sewer lines do not function properly with too steep a slope. Thus a non-standard solution will be needed to connect sewer to a home anywhere on the lot.
A neighbor with a two-story house reports that he has only a half basement due to a large boulder that could not be removed. He had to install his own water pump to supplement the city pressure, and water and sewer cost $34,000 to install. Part of this cost was excavating in rock to run the lines.
The Bethlehem Zoning Officer was asked about building on this lot, and his first response was to point out that Bethlehem has a Steep Slopes Ordinance. The Ordinance has requirements for the minimum lot size required for developing on slopes over a certain percentage. Slope is rise over run, like a line. So a 45 degree slope would have a slope of 1/1, or 100%. You can do the math to find out a 15% slope is 8.5 degrees, a 25% slope is 14 degrees, and a 35% slope is 19.5 degrees.
“Ready to Build”
The advertisement for the lot until a month ago included statements such as “there is a designated driveway entry”, “ready to build” and "utilities available on site". We covered the last one above, and we will see that none of these is true.
Discussion with owner “This is the place” (Brigham Young, 1847)
A prospective buyer met the landowner on site, who proceeded to lead the way up a ramp on the left side of the property, through the “designated driveway cutout”. The ramp is fairly steep – a 20% grade and about 200 feet long. The owner proceeded to the top left of the property, and stated “don’t you think this is the place to build a house?” Indeed, this is the least steep portion of the property, as well as would have the best view if trees were removed. Remember, this juts upward almost 200 feet above the north end of Bethlehem. The problem is, there is no way to get up there. The owner supplied Sheet 2 of a three sheet site plan she and her husband paid to have created in 2006. Here is a hi resolution version obtained later from the engineer. Note areas with no shading are over 25% slope.
Discussion with owner’s engineer
The owner paid a whopping $175,000 for this lot in 2004, and hired an engineer to create a development plan for a house. This plan required a massive 24 foot excavation at the deepest point, and well over an acre of disturbance. The proposed driveway would have a 15% slope, while the Ordinance allows a maximum slope of 10%. This engineer was contacted, and he stated that the maximum must have been 15% when he created the plan. He also stated “I would not agree to purchase that lot unless you have obtained ALL approvals. Zoning, Engineering and Conservation District (erosion and storm water)”. Further, he stated “I would suggest a plan that proposes the absolute minimal disturbance” which is the exact opposite of the plan he was hired to create. The engineer supplied the two missing sheets of the site plan he had created.
Any development will have to conform to current zoning, so the 10% is the maximum driveway slope. If there is significant rock formation below the surface, the proposed 24’ excavation may not even have been possible to achieve. Even if it can be, the proposed excavation for the owner’s plan might exceed $1m. If disturbance exceeds an acre, an NPDES permit is required, which alone may cost $20,000.
The Steep Slopes Section of the Zoning Ordinance
Bethlehem Zoning Ordinance Steep Slopes on Scribd
The three page section of the zoning ordinance is shown above, and it contains everything that will make this lot difficult very to develop. The complete ordinance is here.
- Steep Slopes pertains to construction on slopes >15%
- Construction on slopes >25% requires a 4 acre lot, slopes>35% a 10 acre lot
- Walls no greater than 5' tall
- Driveways shall have a slope no greater than 10%
What the site plan reveals
An inspection of Sheet 1 of the site plan reveals that within the building setback (dashed line), there is no location adjacent to the street with less than a 25% slope to build. The “construction area” is defined in the steep slopes ordinance as an area of disturbance such as driveway, house, etc. To build near the top of the property requires routing a driveway through areas of slopes >25%. Therefore, a lot size of 4 acres or more is required, but the lot is 3.48 acres. Also revealed is that the ramp is outside the building setback, so nothing could be built on it. Furthermore, Sheet 3 shows the existing ramp has a 20% slope, so it can not be used as a driveway. If the slope of the ramp is lessened to 10%, this requires excavating down about 10 feet. But the steep slopes ordinance allows for 5’ high maximum retaining walls.
If a home could be built off the cul de sac frontage, it is impossible for there to be a garage within the setback due to the steepness of the existing terrain. Who is going to build a custom home, and not have at least a one-car garage?
An analysis shows that with an absolute minimum 15% driveway up the ramp and beyond, using three tight switchbacks, it is possible to reach near the top left of the property. However, a 15% grade driveway with tight setbacks is a significant hazard for winter driving, as well as 50% in excess of the 10% permitted.
Discussion with Zoning Officer
With the previous site plan in hand, the Zoning Officer was revisited. He agreed that a variance would be needed for the minimum lot size to develop on steep slopes. He also agreed that walls over 5’ tall will require a variance, and that a driveway over 10% will require a variance. Basically, to build anything on the lot will require a zoning variance.
Discussion with Conservation District
A specialist with the county Conservation District was contacted, and provided the topography of the lot. The Conservation District will have to approve an Erosion and Sedimentation plan for development on the lot. He stated that there would likely be multiple controls required, which would be very expensive, for development on this lot. A swale at the top of the property to intercept water from offsite, drainage at each driveway setback, and a filter basin.
Not “ready to build”
The fact that multiple variances will be needed to put a home anywhere on this lot by definition means it is not “ready to build”. It is ready to be a pain the butt and bank account of the person who purchases it. It is a beautiful property, but it is essentially not buildable. Who would pay to create a custom home on the 35 to 50% slopes at the bottom, and not have even a single car garage? Hoping to obtain variances to build on the upper portion is even more of a gamble – there is no guarantee variances would be granted. Neighbors would have a legal right to appeal in court if variances were granted to build anywhere on the lot.
And if one does build, and new runoff issues are created that affect neighbors (there currently are some runoff issues in the area), who is going to be blamed? The person with the highest property - this lot.
Neighbors threatened with Cease and Desist for speaking with Prospective Buyers
It is reported that concerned neighbors are informing prospective buyers of the issues with this property, including that there are drainage issues in the area, and zoning variances are needed to build on this lot. It is also reported that these neighbors have been threatened with a cease and desist by the Seller's attorney. Now why would that be? Those things are facts.
Realtor makes some adjustments to listing based on feedback
A Realtor and lot owner have an obligation to to divulge known issues with a lot that affect its value and ability to be developed. Feedback on the above issues was supplied to the listing Realtor. The ad now reads that a “designated opening for a walking path” is present (no longer a driveway), and the phrase “Ready to Build” has been removed from the listing. Now it reads that it is ready for you to bring your engineer, architect and dreams. A buyer better also bring a big fat loan from a bank, and be prepared for nightmares, in order to build on this property. The neighbors report that the current owner’s husband was asked if he checked the zoning prior to purchase, and he replied “why would I have to do that?” It is noted that he never was able to build his dream home on the lot – that is why he should have checked the zoning.
This blog post is supplied to show that due diligence is needed when buying property. The Seller would like nothing more to dump this property, possibly onto an unsuspecting new owner. The prospective buyer she spoke with was not told of anything her engineer found in 2006, nor supplied with anything except an 8-1/2 x 11" copy of Sheet 2 of the Site Plan. In the interest of full disclosure, the Realtor should hand each prospective buyer the 3-page Steep Slopes ordinance, as well as the 3-page site plan. But will she?
