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Thread: Violate deed restriction? Tear down the house!

  1. #1
    Cyburbian WSU MUP Student's avatar
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    Violate deed restriction? Tear down the house!

    I had never heard of this case until yesterday but apparently a judge has ruled that a couple who poured more than $1 million to build a 9,000 square foot house in the Detroit 'burbs has been ordered to demolish portions of the house that were built violating setbacks required per deed restrictions. I'm sure this will probably be appealed to the state supreme court so it will be interesting to see what the final resolution is.

    It sounds like a couple spiteful neighbors who just cannot get along. The big house owner was reportedly told of the violations during construction but proceeded anyway while the plaintiff seems to be willing to settle for nothing short of total demolition. I have no dog in this fight, but I guess my jerk side is really winning out because I'm cheering for the plaintiffs.

    http://www.macombdaily.com/articles/...mode=fullstory
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    Cyburbian SW MI Planner's avatar
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    Quote Originally posted by WSU MUP Student View post
    I had never heard of this case until yesterday but apparently a judge has ruled that a couple who poured more than $1 million to build a 9,000 square foot house in the Detroit 'burbs has been ordered to demolish portions of the house that were built violating setbacks required per deed restrictions. I'm sure this will probably be appealed to the state supreme court so it will be interesting to see what the final resolution is.

    It sounds like a couple spiteful neighbors who just cannot get along. The big house owner was reportedly told of the violations during construction but proceeded anyway while the plaintiff seems to be willing to settle for nothing short of total demolition. I have no dog in this fight, but I guess my jerk side is really winning out because I'm cheering for the plaintiffs.

    http://www.macombdaily.com/articles/...mode=fullstory
    I read this today too! I too am cheering for the paintiffs, especially when they were aware that they were in violation and continued construction and also because they are playing the disabled child card when the house could have still been built to suit their needs and in compliance with the deed restrictions.

  3. #3
    Cyburbian btrage's avatar
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    Yeah, I hadn't heard about this one until I read the article this morning. While I see where the plaintiff is coming from, it's ridiculous they can't come to an agreement.
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  4. #4
    Cyburbian Cardinal's avatar
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    Tear it down. If deed restrictions are unenforceable then what is the point of having them? The case could become a precedent for similar instances - a classic case for "build first and then ask forgiveness".

    Of course I do have sympathy for the family who spent $1.1 million to build a 9,000 square foot home and now may be left out on the street, unable to care for a disabled child.
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  5. #5
    OH....IO Hink's avatar
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    Tear it down. Where is the poll?

    To me it is pretty clear he knew the regulations, built anyway, then was AMAZED that anyone would ask him to meet those restrictions.

    He might have invested a lot of money into the design, but if he knew at that stage of the restrictions and still went ahead (when a judge told him to move forward at your own risk), he deserves to have his house torn down.

    It isn't about your child. Keep that out of the equation. It is about your arrogance to the regulations. You didn't meet them. Period.

    Tear it down.
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  6. #6
    Cyburbian Tide's avatar
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    Here's the heart of the issue "The subdivision association, which enforces the restrictions, was hardly even in existence at the time" obviously if the city/county aren't aware of these restrictions and it is left up to a third party (HOA or title search) then the city/county has no way of enforcing the restriction as part of the approval process. My guess is the city will be brought in as a witness to answer why they approved the permit and if they did or did not have knowledge of the restrictions.


    I do not believe it is the government's responsibility to enforce private restrictions but then again this shows you that if no-one does the no-one will.

  7. #7
    Cyburbian HomerJ's avatar
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    Quote Originally posted by Tide View post
    Here's the heart of the issue "The subdivision association, which enforces the restrictions, was hardly even in existence at the time" obviously if the city/county aren't aware of these restrictions and it is left up to a third party (HOA or title search) then the city/county has no way of enforcing the restriction as part of the approval process. My guess is the city will be brought in as a witness to answer why they approved the permit and if they did or did not have knowledge of the restrictions.

    This is what has me conflicted as well. It is logical to assume the city will take a hands off approach if asked and only speak in terms of whether or not the property violates any city codes.

    My feeling, however, is that the defendants won't get much latitude simply because they were repeatedly informed they were breaking the rules and decided to go forward out of what I can only assume is arrogance. It's awfully tough getting around that. Like the old speeding analogy; just because other people have gotten away with it, that doesn't make your actions any less illegal.

    If this case were an application for a variance, I think 99% of cities would say "sorry, you were aware of the rules, you broke them, and your direct neighbor isn't happy. Fix it."
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  8. #8
    Cyburbian Raf's avatar
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    Quote Originally posted by Tide View post
    Here's the heart of the issue "The subdivision association, which enforces the restrictions, was hardly even in existence at the time" obviously if the city/county aren't aware of these restrictions and it is left up to a third party (HOA or title search) then the city/county has no way of enforcing the restriction as part of the approval process.
    Tear it down. And here is why (at least from a CA planning perspectives in regards to private deed restrictions enforced by an HOA). This is taken directly from a staff report i did to a similar situation regarding "restrictions" from an HOA

    the City does not enforce neighborhood covenants, conditions, and restrictions (CC&Rs) nor does the City have the legal authority to directly enforce CC&Rs that are deeded with properties. It is the property owner’s obligation to enforce the covenants. The City [insert name] enforces the City’s Zoning Code, which applies to every property within the City. The zoning ordinance regulates development standards and property uses which are adopted by the City. The City does have the authority to act if it has been determined that a violation has been made to City Codes.
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  9. #9
    Cyburbian Tide's avatar
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    Quote Originally posted by CPSURaf View post
    Tear it down. And here is why (at least from a CA planning perspectives in regards to private deed restrictions enforced by an HOA). This is taken directly from a staff report i did to a similar situation regarding "restrictions" from an HOA
    SC passed a state law a while back that "required" cities and counties who we aware of HOA or restrictive covenants to pass along the information and enforce them prior to permit issuance. However, there was no way to prove the permit clerk or planner was "aware" of the restrictions. I'm sure the law was a knee jerk reaction to some HOA rule near Columbia or something.

  10. #10
    Unfrozen Caveman Planner mendelman's avatar
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    Meh...from an objective standpoint the built setbacks as described in the article are very ample despite not complying with the private requirements, so I don't see what the problem is...apart from very bruised egos.

    Another case study for why I will always avoid buying in a single family HOA.

    Funny...my MIL lives in this township, but not this neighborhood....oh the things some people think are "real" problems.

    And if Washington Twp gets pulled into this, I hope they just say, "The construction meets township requirements, and the township does not enforce private restrictions."

    Here's a map of the property and context (the large cleared site in the center on the south side of Lockwood Dr.) - http://binged.it/zdTC5p
    Last edited by mendelman; 22 Feb 2012 at 3:34 PM.
    I'm sorry. Is my bias showing?

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  11. #11
    Cyburbian wahday's avatar
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    I sat in on a Zoning Hearing Examiner hearing a few weeks ago and there was a very similar case heard then (owner building a large, two story garage and upstairs apartment without proper permission within the side and rear setbacks. Also, he has been at this for over two years with no end to the project in sight. In that case, there was also a “hardship” claim of a single father with spotty employment living with his son who has mobility issues which, for some mysterious reason, he thought allowed him to do what he’s been doing.

    The ZHE did not rule on the case at the hearing, but I suspect the owner will be required to take it down. The reason, in this case’s argument, was that by violating the setbacks, they have negatively impacted the values of adjacent properties. This is essentially a “constructive taking” and the City, were it to condone the structure now that they know it is in violation, could be sued for damages to the adjacent properties. The rationale here is that the adjacent owner “suffers a restriction or impairment of his or her right to use their property.” This is one of the reasons for these types of zoning restrictions in the first place – to ensure no one person’s activities negatively impact the potential for the “highest and best use” of adjacent properties as restricted by zoning laws.

    CPSURaf and others raise an excellent point about the overlapping roles of the COAs CC&Rs and the City’s zoning ordinances. If the setback issues also violate City zoning, that seems like a pretty clear cut case to me – they are in violation and the structure must come down. If these regulations are additional restrictions above and beyond City zoning, it gets a little squirrelier. But it does certainly seem that the owners were informed on numerous occasions about the violation and decided to ignore that information and forge ahead anyway. The owners also undoubtedly signed a contract stating they understood the HOA regulations and pledged to abide by them when they purchased the place. A CC&R agreement IS a binding document that, in most cases, would allow the HOA to place a lien on the home until the violations are rectified. They would still likely have to take it down, but the legal course may not be through zoning enforcement.
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  12. #12
    Cyburbian Raf's avatar
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    Quote Originally posted by Tide View post
    SC passed a state law a while back that "required" cities and counties who we aware of HOA or restrictive covenants to pass along the information and enforce them prior to permit issuance. However, there was no way to prove the permit clerk or planner was "aware" of the restrictions. I'm sure the law was a knee jerk reaction to some HOA rule near Columbia or something.
    Hmm.. so does SC require a title report with every building permit application when construction affects an entire site? Geeze.. talk about chasing a paper trail just to make one "aware".
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  13. #13
    Cyburbian Tide's avatar
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    Quote Originally posted by CPSURaf View post
    Hmm.. so does SC require a title report with every building permit application when construction affects an entire site? Geeze.. talk about chasing a paper trail just to make one "aware".
    Nope, that's why the "aware" is just personal awareness or one could have an HOA supply their restrictions but with probably over 100 HOAs in the county and plenty others with just deed restrictions it was not a game we wanted to get into.

    To tag on what Wahday said, if in fact this subdivision does have different setback requirements than the local zoning ordinance I think it would be prudent to have the zoning ordinance amended to match the restrictive covenants or HOA in this neighborhood to avoid future cases such as this.

  14. #14
    Cyburbian UrbaneSprawler's avatar
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    With the disclaimer that I'm not an attorney, so I'm probably completely wrong on this: I just can't help but get the feeling that if the rules being violated were that of the municipality instead of covenants, a land use attorney would have had better luck defending the non-comformity to stand without having to tear stuff down, with the argument that having the house torn down as a remedy would not equate to a rough proportionality and that a claim for a regulatory taking would exist.

    It's as if the order of a "higher power" has railroads and ditch companies tied for #1, deed restrictions #3, and the municipality as a distant #4.

    I'm assuming the title insurance company for the home in question is trying to be as inconspicuous as possible right now.

  15. #15
    Unfrozen Caveman Planner mendelman's avatar
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    Quote Originally posted by UrbaneSprawler View post
    ...with the argument that having the house torn down as a remedy would not equate to a rough proportionality and that a claim for a regulatory taking would exist.
    I'm not a lawyer either, but after staying at a Holiday Inn Express last night I can safely say that you're missing the key part of such an argument - the regulation that results in a "taking" would have to be imposed or change that would effectively remove the market value of the property. If this was a violation of the municipal zoning which existed prior to the construction of this structure than I don't see any way one could argue regulatory taking.

    But really, if this was violating the Township's zoning, the owner would have never gotten this far with construction. Through inspections, it would have been stopped, hopefully, at the foundation inspection.

    Really, this case is people with arrogance, too much money and miss directed priorities.
    Last edited by mendelman; 23 Feb 2012 at 11:45 AM.
    I'm sorry. Is my bias showing?

    Let's not be didactic in this profession, because that is a path to disillusion and irrelevancy.

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  16. #16
    Cyburbian UrbaneSprawler's avatar
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    Quote Originally posted by mendelman View post
    But really, if this was violating the Township's zoning, the owner would have never gotten this far with construction. Through inspections, it would have been stopped, hopefully, at the foundation inspection.
    That would be more to what I would be as an attorney arguing, if this was a muni code situation and inspections had not caught the enforcement of this during the course of construction and the house is now built and CO'd. Perhaps "taking" isn't the right word then, but I don't think there would any muni attorney that would want to defend that the home should now be be partially demolished because it is a zoning violation that was not caught during construction.

  17. #17
    Unfrozen Caveman Planner mendelman's avatar
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    Yeah...no sensible PD/City Attorney/City Manager would be stupid enough to go hard nosed on this type of situation if the Muni was partly at fault.

    I think the defendant's attorney should have taken another tact of demanding that the plantiff also sue the other three dozen property owners violating the restrictions.
    Viviano repeated trial arguments, that the subdivision did not enforce deed restrictions. A survey of 66 of 79 lots in the subdivision found violations on 36 lots in the subdivision off Mound Road between 26 Mile and 28 Mile roads, he said. The subdivision association, which enforces the restrictions, was hardly even in existence at the time, according to some residents.
    I'm sorry. Is my bias showing?

    Let's not be didactic in this profession, because that is a path to disillusion and irrelevancy.

    Six seasons and a movie!

  18. #18
    Maybe I'm missing something, but this is in no way a zoning or code matter. The municipality should not be involved. It's strictly a private matter - violating a legal deed restriction and possibly the CC&R of the HOA. The courts are an appropriate remedy if an agreement cannot be reached.

    Wal-Mart has a nasty habit of placing a deed restriction when it shuts down a store and disposes of the real estate. The deed restriction usually forbids any subsequent owners from operating a competing retail outlet for a period of time. The land may still be be zoned for commercial uses, but Wal-Mart will enforce its deed restriction in the courts if say a Macy's were to try to open up shop.

    It will be interesting to read the final verdict, especially if the HOA was not enforcing its deed restrictions on the other properties.

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    Cyburbian DetroitPlanner's avatar
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    This has been around the local news on and off for years. What I find odd is no one mentions just how butt-ugly the house is that is in question. Its a monstrosity. At one time I bet the HOA saw a 9k sq ft home as some sort of feather in thier cap, fast forward a few years and its a liability. Think about it, they probably have a lot of family living in that home parking all over the place, throwing parties to show off thier wealth, and good luck trying to unload a house like that on today's market.

    Sometimes you get what you wish for. People who build homes like that feel entitled and they don't always make the best neighbors. Thier justification for building a home of that size is one of thier kid's has cerebal palsy. Therefore they see themselves as victims. Really? Does that justify a 9k sq ft home??
    Last edited by DetroitPlanner; 23 Feb 2012 at 12:34 PM.
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  20. #20
    http://www.mysanantonio.com/news/loc...on-1408578.php

    After it sat vacant and mostly forgotten for two years on the outskirts of Bexar County, Verizon Wireless Amphitheater finally has a new owner.

    River City Community Church bought the amphitheater last month, and pastor Sean Azzaro is excited about the new, spacious home for his evangelical flock.

    But how did a church wind up buying Bexar County's largest outdoor concert venue, where artists such as ZZ Top and Toby Keith had performed during the amphitheater's flashy glory days?

    Records show that even if an entertainment company were interested in buying the property, deed restrictions prevent the concert venue from being used as a concert venue...

  21. #21
    NIMBY asshatterer Plus Richmond Jake's avatar
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    OK, a different take based on my short time experience with HOAs. Screw the HOA. If the home was built in compliance with local regulations, let it go.

    Latches.

    I'm not an attorney, but I sleep with ZG and her dad was an attorney. So I got that going for me.

  22. #22
    Cyburbian Cardinal's avatar
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    Quote Originally posted by Richmond Jake View post
    OK, a different take based on my short time experience with HOAs. Screw the HOA. If the home was built in compliance with local regulations, let it go.

    Latches.

    I'm not an attorney, but I sleep with ZG and her dad was an attorney. So I got that going for me.
    But my understanding from what I read is that this is not a case in which the city is trying to enforce the deed restriction. It is a private party suing a private party. I agree that the city should not be leading the charge in such cases, but it is alright for a neighbor to press the issue and it is right for the courts to take this position.

    I wonder if city permit application/approvals need to carry some sort of disclaimer. Something like:

    Private deed restrictions, covenants, and homeowners' association regulations are not investigated as part of the review process for approval by the Plan Commission or issuance of city permits and inspections. It is the applicant's responsibility to ensure that any alteration or improvement to their property is consistent with deed restrictions, covenants, or other requirements not imposed by the city, such as covenants imposed by the subdivider or regulations of a homeowners' association. Approval by the Plan Commission, issuance of building permits, or inspections by public authorities does not guarantee approval or compliance with legal requirements or restrictions imposed by private parties.
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  23. #23
    Cyburbian WSU MUP Student's avatar
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    An update:

    Washington Township mansion owners face demolition deadline

    The gist - the owners of this house have until July 1st to demolish a house built within the deed restricted setbacks or settle with the neighbors.

    If I were a betting man, I bet now that one of the neighbors has died, the remaining neighbor might be more willing to settle where the defendants would likely buy her property at some inflated price. We shall see...
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  24. #24
    Cyburbian btrage's avatar
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    Quote Originally posted by WSU MUP Student View post
    An update:

    Washington Township mansion owners face demolition deadline

    The gist - the owners of this house have until July 1st to demolish a house built within the deed restricted setbacks or settle with the neighbors.

    If I were a betting man, I bet now that one of the neighbors has died, the remaining neighbor might be more willing to settle where the defendants would likely buy her property at some inflated price. We shall see...
    I saw the article this morning.

    I still don't understand how it got this far. A simple monetary exchange would have sufficed for me if I was the neighbor. You built into the setback, pay me $10,000 and I'll settle. But I guess the defendant may have not wanted to settle on principle.
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  25. #25
    Cyburbian WSU MUP Student's avatar
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    Yet another update.

    Macomb County Mansion Fight Returns to Court

    So they had until July 1 to demolish the house (or at least enough of it to bring it back in to compliance) but have failed to do anything and now want another extension.
    "Where free unions and collective bargaining are forbidden, freedom is lost." - 1980 Republican presidential candidate Ronald Reagan

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