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  1. #1
    Join Date
    Oct 2013

    Default When Can an Affidavit Restricting Issuance of Building Permit be Vacated

    My question involves real estate located in the State of: kansas

    I bought a single family residential lot in a subdivision several months ago that i plan on building my home on. After the purchase of the lot i found out that there was an affidavit restricting the issuance of a building permit on my lot and the lot adjacent to me that is also vacant. The lot backs up to a temporary sediment basin that was supposed to be removed by the developer once 80% of the homes where occupied. the developer deeded back most of the lots to the bank during the recession and never completed the removal of the sediment basin. I bought my lot from the person who owns the lot next to mine who have a home on there lot. They bought my lot from the bank the the lot was deeded back to from the developer.

    The affidavit says
    "lot A and lot B in xyz subdivision will not be issued building permits until the sediment basin on tract x has been removed and the public storm sewer extended as shown on the public improvement plans for xyz subdivision. Withholding building permits on lots A and B is necessitated because there is insufficient flood protection during the 100-year storm until the sediment basin is removed and access to the sediment basin is provided only through these lots."

    I had no luck in getting the city to enforce the removal of the sediment basin by the developer or the home owners association so i was going to have it done myself and the developer who still owns tract x, was not going to do the required improvements but had no objection to letting me on the property to have them done. I got several bids on the project and it was going to cost almost $100,000 to have done. That was to much for my budget so i hired the original civil engineering firm who designed the subdivision and through meetings with the city and the engineers i have been able to have the sediment basin re engineered but the only catch is the developer has to sign a maintenance agreement on the property that he owns and he refuses to do so. So i feel like i'm stuck. The re-engineered plan is only going to cost $12,000 now with the engineering and work to be done.

    During the discovery phase of the re-engineering we found that the temporary sediment basin does not create a threat to lots A and B during a 100-year storm because off site down stream improvements improved water flow. The re-engineered plans just call for some regrading of dirt on the backside of the sediment basin to prevent water from ponding in the basin. Even with water ponding if the sediment basin was left as is it still does not create a threat during a 100-year storm event. Also the affidavit says that access to the sediment basin is provided only through lots A and B. But there is more that 70 feet of access through lot C, which the developer still owns.

    i guess my question is the affidavit restricting the issuance of the building permit still valid. I can prove that my lot is not in a flood threat and that there is other access to the property the sediment basin is on. I've been working with engineers, the city, the developer and the hoa for months and i thought i had a good plan to just take care of the problem and move on but thats proving to be almost impossible now the developer does not want to sign the maintenance agreement. That is that only thing that the city is holding back my building permit for now. I think that i should be able to get the affidavit thrown out possibly. Any advice would be very helpful.


  2. #2
    Join Date
    Sep 2005
    Behind a Desk

    Default Re: When Can an Affidavit Restricting Issuance of Building Permit be Vacated

    As you appear to be saying that the restriction was imposed by the municipality, you would need to review your municipality's ordinances to see if they clarify your rights, and provide a mechanism to challenge the affidavit or seek amendment based upon the information you have gathered and the report of your engineering firm.

    Why didn't you notice this problem before you closed on the property?

  3. #3
    Join Date
    Oct 2013

    Default Re: When Can an Affidavit Restricting Issuance of Building Permit be Vacated

    Thanks for the reply. I didn't notice the problem because it was just a simple hyperlink on the deed the title company sent me to review the link was buried in about a page and a half of liens filed by the municipality for not mowing the property.

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