Oceanfront communities & Non-buildable lots

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    I’m a masters student researching a common issue of non-buildable lots for oceanfront communities (population size does not matter).  If anyone has acted as a planner or worked on planning studies for these types of communities what were your recommendations for developing a proactive approach to make these properties re-buildable?   I am trying to come up with recommendations for a proactive approach to rebuilding these properties despite common influences. (i.e. beach re-nourishment)  If anyone has recommendations or has worked on studies for these types of communities please feel free to post or contact me directly at rmcalist@gmail.com

    Andrew Garulay, RLA

    I’m not a planner, but I deal with their regulations fairly often in a CE office. We do several raze and replace site plans every year. I’m on Cape Cod. I don’t believe that any of our towns have any regulation to rebuilding specifically on ocean front property. We have multiple levels of regulation for such properties, not the least of which are coastal wetlands protection laws.

    The bulk of the regulatory affect on redevelopment on ocean front projects is through the conservation commissions in each of the towns as they are responsible for hearing, permitting, and enforcement of town by-laws and most of the state wetland laws as well. There are many coastal wetlands resources that are protected including many that extend well inland. Many have 100′ buffer zones to them that may include “no disturbance” buffers as well. Much of the limitation comes from requirements for on-site mitigation that is done with quantifiable calculations. Typically, the square feet of alteration within a certain buffer distance to a specific resource will be multipled by some factor to determine required mitigation.For example you might add 200 SF of decking within 75′ – 100′ of a Coastal Bank, so you might be required to multiply that by 2 and have to mitigate 400 SF. This is usually done closest to the most significant resource that is protected (perhaps there is lawn mowed to the edge of a Salt Marsh). The requirement is usually to convert lawn, pavement, ornamental landscape or other non-naturally vegetated surface into a indigenous woody vegetated buffer and left to grow naturally. Also, they typically make the applicant back off from their current non-conformity. The applicant can not often expand a non-conformity. It can become very restrictive in that the more that is built, the more that has to be given up (including views) and you have to already have those un-natural areas to convert. It has a big impact of restricting expansion on most ocean front projects.

    Zoning limitations are not “ocean front” specific, but in our neck of the woods, or sand bar if you will, most residential raze and replace jobs are on water front homes. One town has specific rules for pre-existing non-conforming homes on lots of 10,000 SF or less that limits floor area in terms of percentage of upland of the lot. Again, they don’t let anything get more non-conforming. Many undeveloped lots were subdivided as building lots prior to various zoning ordinances being passed and those are still buildable as “grand fathered” lots. However, being buildable by zoning does not trump other restrictions that could render the lot unbuildable.

    Some of these communities limit gross floor area in terms of percentage of SF upland of the lot for any areas. There are also height restrictions based on existing grade of the site so as to minimize impact on the views of others.

    We also have some “Areas of Critical Environmental Concern” (ACEC) that have restrictions of there own – including aesthetic views from the water back to the land in one case.

    Additionally, there is one of the largest historic districts in the country -Old Kings Highway Histric District that goes across at least six towns in a wide contiguous band. This is a much more subjective regulatory process with a lot of discretion empowered to board members to determine whether the aesthetics of a project is “suitable”.

    Then there is the Natural Heritage and Endangered Species Act (NHESP) which is at the state level. They map both areas where endangered species and species of concern are found and areas that have potential to support them are (they grow every time the maps get revised despite the additional development that has gone on). Development or re-development in these areas require$ a filing for them to determine the impact and possible mitigation that may be required (typically putting significan t areas of the property in conservation restriction).

    The big one is the regional planning authority – The Cape Cod Commission. This is a Cape wide regulatory agency that a project has to cross certain thresholds to fall into their jurisdiction that should somehow be considered a regional impact. …. a master’s thesis of its own.

    Between these “non-ocean-front -specific” regulations, it really does a pretty good job at pretty consistent rules that improve environmental concerns while allowing people to make improvements to their own personal goals as well. It really harnesses the re-development to make the improvements that are quite noticeable.

    That’s how it works here, but I would not consider this a one size fits all approach.

    Trace One

    Don’t build on them..What is wrong with a little open space, for a couple of birds, for gods sake..
    Southampton has dune setback requirements, which relates specifically to ocean-front mean high tide, etc. But what opened up the whole place to building is the flag lot regulations..Flag lots allowed every inch of southampton to be buildable..
    I would hope that most communities would see it as being in their interest to keep as much space non-buildable as possible.
    Perhaps when the home mortgage tax deduction ends, we will finally be able to stop the endless reflexive and thoughtless subjugation of the natural world…

    Andrew Garulay, RLA

    The key word here is “re-buildable”.

    Trace One

    Is that a euphemism, or just confusion? I am asking, not meaning to be rude.
    Ryan asks in first sentence about non-buildable lots, a subject that always comes up in planning.

    A lot that has been built on runs into pre-existing non-conforming stuff, inhibiting it’s abiltiy to expand or change. Is that what you mean by re-buildable?

    Two separate categories..Ryan uses both words.

    And I would probably have the same sentiment about pre-existing non-conforming expansions – let it die, give the land back to nature..But not if it makes sense to densify the human destruction zone, in order to preserve greater continuous areas for natural systems.

    Thomas J. Johnson

    Aren’t most non-buildable / non-rebuildable (my spell-check is freaking out!) lots categorized as such in the best interest of the developer or based on existing environmental legislation? I.E. If you build here there is a good chance your home will fall into the ocean / If you build here you will be in violation of NEPA guidelines?

    There is a great park in Laguna Beach that is built on a “non-rebuildable” site. A historic ocean front home was destroyed in a storm, leaving behind a small unstable bluff. The owner donated the land to the city. The city, with help from a local landscape architect, used materials from the home to build an ocean front park. The whole effect is wonderful. Re-used bricks, local artisans work, preserved history and additional open-space / a little-known perch to enjoy sunsets…

    Mother nature always wins eventually. Sometimes it’s best to recognize a losing battle for what it is… and make the best of it.

    Andrew Garulay, RLA

    Lots that are undeveloped are much harder to get a building permit on in these areas than it is to raze and replace an existing home. The standard for raze and replace is to improve the overall situation while still allowing some of the existing non-conformity. The standard for new construction is to be fully compliant on everything.

    The idea of not allowing people to rebuild an older home might sound more environmentally sound, but in reality it is not. The existing condition would be maintained. This can be done forever unless the land erodes away. This includes maintaining lawns, pavement, existing septic systems (unless they fail, in which case a maximum feasible compliance system would be allowed) and every other negative situation. When a project such as an addition or a re-build happens, it forces the property owner to trade improvements to the environment for whatever they are trying to do. The more they do, the more they have to give up. It is not limitless. They have to have a negative situation to improve to be able to make their changes in development. In other words, things actually improve almost every time this happens. This is most notable in big natural woody native vegetated buffers (habitat, animal corridors, food sources, obstruction to human activity, nesting, absorption of excess nutrients, erosion control,….) that otherwise would continue to be used as lawns or other heavy human use.

    These boards are tough.

    Thomas J. Johnson

    I don’t know where you’re talking about but in Laguna Beach, it’s nearly impossible to “raze and replace” a home. If it’s not historic, it’s in your best interest, tax / permit wise, to leave a few outside walls standing. If you’re unfortunate enough to own a “historic” house, you basically have to stop maintaining the home and let it fall down on it’s own before the city will let you build anything else. Like you said, there needs to be a pre-existing condition that merits re-building / remodeling, like the foundation has rotted away… Some of the dilapidated shacks they protect as “historic” are nothing more than rat-infested, mold and termite factories that SHOULD be torn down. I’d hate to be the neighbors next to one of those plague incubators…

    Andrew Garulay, RLA

    Cape Cod, Massachusetts

    I just did one two years ago where a 10 year old Salt Marsh fronting home was razed and replaced so that the person thar purchased the home could have HIS house instead of the perfectly fine home that was there. That house was also a raze and replace of a much older house (done in the office that I work in before I got there). There is Coastal Bank, Land Subject to Coastal Storm Flowage, Salt Marsh, and Bordering Vegetated Wetland(BVW), and Area of Critical Environmental Concern on the property. This house had to move back just a few feet to make it less non-conforming. All of the area within 50′ of the BVW was required to be restored to native woody plants.

    The original house was right up to the BVW with lawn and landscaping going into it. Now there is a minimum of a 50′ buffer to the wetland and the septic system is more than 100′ away from all resource areas and much higher above the groundwater.

    The point is to use people’s motivation to get what they want in order to implement improvements that are often too costly and more often simply not what individuals want to do to their properties.

    ….oh it should also be noted that people with ocean front homes generally seek the services of landscape architects a lot more than those who let their homes revert back to nature. They also pay a great deal of money in taxes. Most are second homes of people who do not live in the communities and have no children burdening the school systems. What often happen with land that is not re-developed is that it gets sold to the towns, often at “highest and best use appraisal value”, and then no one pays taxes on it any more. Other times they get huge tax breaks by putting it in a conservation restriction where they still own it and it is not available to the public … sort of having your cake and eating it.

    It is sort of humorous that we often have news reports of how great it is that the town bought two million dollars worth of real estate and later in the report they announce that there is going to be a vote to raise taxes because there is not enough money for fire and police in the budget.. … ithere is a price for everything.

    Thomas J. Johnson

    Hmmm… interesting. That salt marsh project sounds like a very worthwhile endeavor. You also raise some great points about public lands and taxes. Thank you for the insight! I definitely learned something on Land8 today!

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