Subdivision Controls

Subdivision is a necessary step in the process of residential development. Land is subdivided when its owner divides a tract of land into two or more smaller parts for the purpose of conveying the parts to separate owners. In common law, a landowner had the right to subdivide his property without obtaining government approval, selling lots to individuals who could build homes or make other uses of the lots. To accomplish this, a seller described each lot in its own deed of conveyance by specifying the lot boundaries, using what is known as a metes and bounds description. This practice often led to confusion and mistakes. A more efficient practice emerged. At the outset, the seller hired a land surveyor to prepare a map, called a subdivision plat, and then conveyed all the lots by deeds that referred to the plat.

Broadly speaking, subdivision controls comprise all public and private controls for residential developments in which dwelling units will be separately owned. Private controls include covenants and restrictions set forth in deeds, condominium declarations and rules, easements, and similar agreements entered into by lot purchasers. Usually, however, the phrase subdivision controls refers more narrowly to [Page 709]regulations adopted and enforced by governments, making the term synonymous with subdivision regulations.

In the United States, public subdivision controls began in the late 19th century with state legislation designed to improve conveyance methods. The statutes required the filing of subdivision plats as part of the public land records. Small subdivision plats often do not necessitate the creation of new public streets, but larger residential subdivisions invariably require the separation of lots into blocks with new streets within the subdivision's boundaries. Soon states amended their subdivision statutes to require that streets and roads meet certain standards.

The most basic subdivision control, which dates back to the original legislation, is the submission of a subdivision plat for approval to a local governmental agency, often a planning commission or planning board. The owner cannot legally sell or convey any lots before approval of the plat.

The adoption of comprehensive zoning in the 1920s led to an expansion of governmental control over the subdivision process. Part of the expansion was fueled by the need to coordinate subdivision approval with zoning regulations. Zoning usually provides for minimum lot sizes and building setbacks in residential zones. A planning commission legally must deny approval to a subdivision plat that contains one or more lots that fail to meet the zoning standards.

One must consult the particular state subdivision statute, and sometimes a local subdivision ordinance as well, to determine the specific requirements for the plat and the steps in the approval process. Ordinances usually require the plat to contain details indicating lot and street dimensions and the location of all public and community improvements to be installed by the developer. Usually, the law requires a public hearing, at which members of the public may appear and speak, prior to approval of the subdivision plat. Today, the subdivision regulations are often highly technical, detailed, and complex. As a consequence, often a subdivision application may request a variance or waiver from one or more of the technical requirements. In addition, many states have exemptions or an expedited process for very small subdivisions, for example, dividing a 3-acre parcel into three lots without the creation of any new street.

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