Deed restriction in conflict with zoning?

[ryeellen]

Hi -- Our neighborhood of single family homes (1/2-1 acre lots) is built on land zoned as multifamily. The developer of the neighborhood now wants to build a commercial retail plaza on his adjoining land.

Zoning requires 75 feet between multifamily and commercial. If we were zoned per actual use of single family, a 200 foot buffer would apply.

We're appealing to the planning board to give us the 200 foot buffer.

Question: is the builder required to inform buyers of the zoning? None of us were informed of the multifamily zoning.

Also -- the neighborhood deed restrictions (enacted by the builder) prevent us from building multifamily residences.

Isn't this a catch-22? Can the deed restrictions prevent us from building according to our zoning?

Your help is appreciated.

[giff57]

Um? Didn't we go over this?

http://www.cyburbia.org/forums/showthread.php?t=17765

[Chet]

The short answer, YES, deed restrictions can prevent you from building according to your zoning. The long answer, well...

Most municipalities will not enforce deed restrictions. They deem it a civil matter for the courts to decide, so the developer would have to litigate to stop you. Also, the courts can vacate deed restictions deemed overly burdensome.

Deed resrictions CAN be more restictive than zoning. That is the entire point of them. The seller (in my state) does not need to inform you of zoning. The only way a buyer is informed of zoning is to look themselves, and the only way a buyer is informed of deed restrictions is through a TITLE SEARCH. The seller is not necessarily obligated to inform of them.

The builder / developer was well within his right to play by one set of rules (zoning) then deed restrict the property prior to its resale. It happens all the time.

ALWAYS read schedule II-B of your title commitment prior to purchasing. This will identify all of the items the title co. will not insure against, including deed restrictions. They may noy always be attached. Sometimes you need to take the schedule II-B to the register of deeds and look them up yourself.

If you don't know how, hire a reputable land use law attorney to assist you with this. In this case, sounds like water over the dam.

Um? Didn't we go over this?

Sorta. This was a much more specific question, and less a NIMBY plea.

[giff57]

Sorta. This was a much more specific question, and less a NIMBY plea.

OK I'll re-open this and see where it goes

[mendelman]

As Chet said, you may be restricted by the deed and it is a civil matter between the buyer and seller, but, and this is big, it is up to one party invovled to decide whether to enforce the deed restriction.

A restriction is only as good as its enforcement.

Example:
You wish to turn your house into a multi-unit building, and the underlying zoning allows it, then you could do it, so long as you understand that the developer or a neighboring property owner could take legal action to prevent you.

How old is the development you live in?

[ryeellen]

Most homes went in in 1994-1998.

We recently discovered that the deed restrictions, as signed by the builder and the original buyers, were never actually filed with the county clerk.

I'm the second owner, and didn't get a copy of the deed restrictions at closing. I received them as part of the neighborhood newsletter after I moved in.

We also have big concern about the zoning, because the setback between R-3 single family residential and commercial is 200 feet, but the setback between Medium High Residential and commercial is only 75 feet.

We all thought our homes were R-3 single family residential, because many of us have building permits from the town (for pools, decks etc.) ranging from 1995-2003 indicating that the zoning is R-3.

However, the developer and the town are now telling us our zoning is MHR and the 75 foot setback applies.

Your insight is appreciated.

As Chet said, you may be restricted by the deed and it is a civil matter between the buyer and seller, but, and this is big, it is up to one party invovled to decide whether to enforce the deed restriction.

A restriction is only as good as its enforcement.

Example:
You wish to turn your house into a multi-unit building, and the underlying zoning allows it, then you could do it, so long as you understand that the developer or a neighboring property owner could take legal action to prevent you.

How old is the development you live in?

[PlannerGirl]

Your real estate person or lawyer or YOU should ALWAYS review HOA/Deed/whatever before any closing. The onus is on you to push for these items. Its required in many areas that you get copies of these documents x days before closing but I have found most folks don't bother to read them until its too late.

Its part of doing your homework before buying property.

Sorry, I don't mean to sound harsh.

[giff57]

We recently discovered that the deed restrictions, as signed by the builder and the original buyers, were never actually filed with the county clerk.

I'm not a lawyer, but I'd say that this means the restrictions do not exist.

[Queen B]

I'm not a lawyer, but I'd say that this means the restrictions do not exist.

I would agree.

[noottamevas]

I'm not a lawyer, but I'd say that this means the restrictions do not exist.

I'm not a lawyer either but I would definately check on this. In a lot of cases, just because a document has not been filed at County Clerks office, doesn't make it any less legal.

[Otis]

I'm not a lawyer, but I'd say that this means the restrictions do not exist.

I am a planner and a (recovering) lawyer, and it best lawyer fashion, I'll say it depends. There probably is a statute in your state that addresses the issue of the effect of unrecorded instruments, and probably court decisions as well. Think about investing a few hundred dollars with a practicing real estate attorney to find out what the answer is in your situation.

[mallen]

Your basic question is pretty straightforward. I think some may be reading more into it than necessary.

You stated - "the neighborhood deed restrictions (enacted by the builder) prevent us from building multifamily residences. Also -- the neighborhood deed restrictions (enacted by the builder) prevent us from building multifamily residences.
Isn't this a catch-22? Can the deed restrictions prevent us from building according to our zoning?"

Yep. Deed restrictions can (and usually are) more restrictive than zoning (ie prevent you from building something according to zoning). But that is really irrelevant. Deed restrictions have nothing to do with your situation. Your beef is not with the person that sold you your house.

The issue - if I understand it correctly - is that the zoning rules only require certain buffers between commercially ZONED property and single-family residentially ZONED property. The regulations pertain to zoning not uses. If that is how it is written (and that is how it is in my community too), you are pretty much screwed.

Is it unfair? Probably. A better written Ordinance probably takes USES into consideration - not just zoning.

But the developer is within his rights to use property as allowed by the laws in place. If the rules say X, he can rely on the fact that X is it. BUT, if he needs some type of non-administrative approval (such as a rezoning, Special Use Permit, etc.) then the city/township can add stipulations/conditions that require something greater. If no non-administrative approval is required, the city/township CANNOT require something more than the rules typically require. The city cannot just make things up as they go along - even if it may be stupid.

[abrowne]

The one nagging question I have is how was the builder allowed to construct single family residences on lots zoned for multifamily. I just can't wrap my head around that.

[boiker]

The one nagging question I have is how was the builder allowed to construct single family residences on lots zoned for multifamily. I just can't wrap my head around that.

The district could be setup pyramidal. It would allow mod density residential and any lower density residential use.

[mallen]

The one nagging question I have is how was the builder allowed to construct single family residences on lots zoned for multifamily. I just can't wrap my head around that.

As "boiker" noted, it is not unheard of to have pyramidal-type zoning. That is all the uses funnel down (most intensive uses allow just about everything and as you get more restrictive so do the uses). So in commercial districts, you can have commercial uses, multi-family uses, or single-family uses. In multi-family areas, you can have multi-family or single-family uses. In single-family districts you can only have single-family uses.

In fact, my zoning ordinance does that on a limited basis. It allows single-family uses in multi-family districts, but it requires buffers for all residential districts the same.

[Vlaude]

Question #1: Most states require some type of notification by the property owner or the Municipality / County when a rezoning takes place.

Question #2: No this is not a catch 22, in a sense the land is probably available for many other uses other than multifamily. The deed restrictions would mask the zoning in this case, being more restrictive than the zoning code.

Comment: You might want to double check the zoning ordinances, a lot (but not all) ordinances have in the language an R-1 use or zoning. So it could be possible the 200' is required by the use and not the zoning. Just a thought to look into if you haven't read the ordinance yourself... Looks like a few people have given you some good info already, just thought I'd add my 2 cents...