Deed restriction vs zoning ordinance

[Liz]

This is my first post and hopefully I can get some answers from you fine folks.

I have a successful massage practice in a professional building near my home. I would like to downsize and move my practice to my home to a part-time venture.

I met with my township zoning officer who explained the process: $300 application fee, file the application then in a month go before the Township Zoning Board for a hearing to determine whether or not I get the permit for a home occupation.

HOWEVER, he told me that before I spent the money I should check out my deed restriction. I did and this is what it says "Uses: No building shall be used for any purpose other than a private single family dwelling..."

He went on to explain that the Township would not grant me the permit if the deed won't permit it. From what I have learned, it appears that many townships will give you the permit and close one eye to deed restrictions. Apparently, my particular township zoning officer is a hard ass on this point.

What am I to do? I want to get the proper permit to do my work which I feel is quiet and low-impact, but I am fighting a 30-year old deed restriction which is no longer appropriate to today's working world.

Any suggestions would be enormously appreciated!

Liz

[Chet]

In my experience, and home occupation that brings any traffic - even one car at a time - is not "low impact". I don't think the zoning administrator is doding the wrong thing. Our jobs get harder when zoning guys look the other way.

Absent of breaking the law, I beleive your options are:

1) Seek ludicial relief (vacate the restrictions).
2) Relocate
3) Kill the zoning administrator. Just kidding. Don't kill anyone.

[Queen B]

Is your deed restriction on just your property or is it a subdivision.

I once had a deed restriciton on my home that said I could not serve alcohol there and that no one could bring it on the premises. We sure weren't sure who was going to take us to court about it!!! My point is that the words of wisdom would be different for 1 property as apposed to multiple.

[SGB]

While we could offer a variety of advice on this situation, the best is probably best surmised as this:

Consult with an attorney.

The legal intersection of deed restrictions and zoning is often precarious, filled with blind spots and unsignaled.

[giff57]

Chet is correct, you either get the restrictions removed or you move. Deed restrictions are somewhat more powerful than zoning. There is no built in method for appeal or change like with zoning. Even if you killed the zoning guy, since deed restrictions are usually enforced by HOA, you would still be stuck.

[Liz]

Wow, thanks for responding so quickly to my questions!

Chet: Relocating and killing the zoning officers are not options...what did you mean by "seek judicial relief". Change the deed restrictions? I have considered this. Not sure how to go about it, but I'm so angry about the unfairness of this that I am ready to challenge the deed and have the restriction changed.

Queen B I live in a development called "Rolling Green Acres" which is about 200 homes. The restriction applies to everyone in this development. However, I personally know of two people who are working out of their home. Low impact, mind you, but nevertheless they earn their incomes at home. I'm sure they have no permit.

SGB I have consulted with my attorney who merely looked over my papers and said, "oh just forget it". Need a new lawyer I think.

I believe my options are:
1) work quietly and hope the zoning folks don't find out (I hate this, I'm really honest)
2) try to change the deed restriction by going to everyone in the development with a petition.

There is a section in my deed that says " All restrictions shall be binding for fifty years. bla..bla..bla......until an instrument signed by a majority of the lot owners has been recorded in the county in which these covenants are changed in whole or in part."

Liz

Giff: HOA?

[mendelman]

Giff: HOA?

HomeOwner's Association

Are you sure that the township code actually states that the deed restrictions can override the zoning regulations? Or is it just Township policy to defer to deed restrictions, in order to avoid the uncomfortable "it's a civil matter" discussions?

In my experience, deed restrictions are considered separate from the zoning regulations and that, although the municipality may approve some zoning request, a private agreement, such as a deed restriction, could still prevent the petitioner from acting on the zoning approval.

EDIT: Though, a deed restriction is only as strong as the will to enforce it.

[NHPlanner]

In my experience, deed restrictions are considered separate from the zoning regulations and that, although the municipality may approve some zoning request, a private agreement, such as a deed restriction, could still prevent the petitioner from acting on the zoning approval.

That's my experience as well, but our ZBA would not approve an application they knew to be in conflict with a deed restriction....it's just bad policy.

[imaplanner]

Doing research on a project once I found some CC&R's that prohibited african americans from living in the subdivision

[Liz]

[QUOTE=mendelman]HomeOwner's Association

Are you sure that the township code actually states that the deed restrictions can override the zoning regulations? Actually, I was simply told this my the Zoning Officer - he said that they always defer to the deed.

From what I am quickly learning, deed restrictions do seem to be a separate matter than zoning regs and in this case the deed has the last word. Sooooooo... I am ready to change this deed OR to go around to 200 homes and get a majority vote to change it. Generally, who are the powers-that-be that I would address in this case? Fortunately, I have many friends who are big fish in our little pond and would be willing to talk to them. Heck, I'd go to the media with this. I just abhor unfairness.

Awaiting your words of wisdom.... Liz

That's my experience as well, but our ZBA would not approve an application they knew to be in conflict with a deed restriction....it's just bad policy.

Actually, I have no problem with the ZB keeping with the deed restrictions. But what if the deed restrictions are antiquated? That is what I find frustrating.

[imaplanner]

Deed restrictions are generally unenforceable by city code. The only possible exception that I can see to that is if the code actually says something to the effect of not approving actions which would violate a deed restriction. Otherwise I would think the township would have to act on your request on the basis of the required findings in the code. I would request a copy of the code that states what the zoning officer is telling you - as well as a copy of the code relating to the home occupations. The HOA would be the ones to enforce the deed restriction if they desire- probably by bringing you to court.

[RandomPlanner]

[Heck, I'd go to the media with this. I just abhor unfairness... But what if the deed restrictions are antiquated? That is what I find frustrating.

Deed restrictions, while possibly outdated, are not 'unfair'. They are a legal way to ensure specific areas stay as intended. I understand your aggrevation that others in the community are running home-based businesses and that is unfair. But it really should be the resident's responsibilty to check into any deed restrictions before purchasing the property.
If you can get the restrictions recinded, good for you. But if not, I think threatening to go the media because a municipality is upholding the law is a bit unwarrented.

EDIT: 'Big fish' legally shouldn't be able to disuade the situation one way or the other.

[Liz]

Deed restrictions are generally unenforceable by city code. The only possible exception that I can see to that is if the code actually says something to the effect of not approving actions which would violate a deed restriction. Otherwise I would think the township would have to act on your request on the basis of the required findings in the code. I would request a copy of the code that states what the zoning officer is telling you - as well as a copy of the code relating to the home occupations. The HOA would be the ones to enforce the deed restriction if they desire- probably by bringing you to court.

This is some great advice. I actually have a copy of the Township Zoning Ordinance (2 thick volumes) and will read through them to see if they have covered the area of not approving actions which would violate a deed restriction. Thanks!

[vaughan]

Where I work, deed restrictions and covenants are not enforced by the county. They are considered a private contract between homeowners. If something is legal by zoning but not allowed by deed/covenant, we will go ahead and approve it anyway and the homeowner's association has to deal with it on a private basis. Not saying that's the best way, but its what we do...

I think that you should try and change it by working through the homeowners' association... might not be that hard, you know.

[CCMNUT39]

It is an interesting subject when we talk about CC & R's and Zoning.....what has precedance and who enforces what. In Washington State, it's up to the HOA to enforce their codes and convenenants and the City only enforces the Zoning Code and Comprehensive Plan.

1) The Township authority extends to what they have passed by Ordinance. If it is in the Zoning Code as being a authorized use, then don't they usally have to allow it?

2) TWouldn't then he enforcement of the deed restriction then falls upon the HOA since the Township would not enforce the CC & R's?

I would check with your HOA as well and see what their general feeling is as well.

[Memphis]

Where I work, deed restrictions and covenants are not enforced by the county. They are considered a private contract between homeowners. If something is legal by zoning but not allowed by deed/covenant, we will go ahead and approve it anyway and the homeowner's association has to deal with it on a private basis. Not saying that's the best way, but its what we do...

Ditto here

Good luck changing the HOA rules. I have found most are reluctant to do so. How old is your subdivision? Have the restrictions expired?

Doing research on a project once I found some CC&R's that prohibited african americans from living in the subdivision

The above used to be standard practice around here. Old plats state that no one other than a "white christian" could own property in a particular subdivision.

[Liz]

Where I work, deed restrictions and covenants are not enforced by the county. They are considered a private contract between homeowners. If something is legal by zoning but not allowed by deed/covenant, we will go ahead and approve it anyway and the homeowner's association has to deal with it on a private basis. Not saying that's the best way, but its what we do...

I think that you should try and change it by working through the homeowners' association... might not be that hard, you know.

Vaughn, thanks for the positive words. I'd say your way is the most common. I truly don't think we have a homeowner's association - been here 10 years and have never heard of them. I'll check it out.

[Gedunker]

Liz: The deed restrictions or covenants are a private contract to which the city/town is not a party. Any approval they grant cannot release you from the terms of the restrictions (because the city/town is not a party to them).

You have to do both: remove the restriction through whatever process the covenants define (51% or 75% of the homeowners, or whatever) AND get zoning approval. You should know that removing a restriction from a property in a 200-lot subdivision could be a cumbersome, lengthy, and costly exercise. A land use variance (to operate a business in a home) is rather difficult in most places -- there needs to be something peculiar about your property that is not generally shared by all of the properties. For example, you front a major roadway, while everybody else is on quiet cul-de-sacs. Other conditions may also need to be present.

Good luck.

[Liz]

Gedunker: You said, "The deed restrictions or covenants are a private contract to which the city/town is not a party. Any approval they grant cannot release you from the terms of the restrictions".

Okay, but do most cities/towns consider the deed restrictions when determining whether or not to give a permit? Or does this vary from town-to-town depending on local ordinances? The Zoning Officer told me to check my deed restrictions before spending the money for an application. Am I obligated to show proof i.e., a copy of the deed?

People in the forum are awesome! Thanks for the generosity of time and thought to walk me through this process. Sigh....there's always more to learn, isn't there...?

[SGB]

Gedunker: You said, "The deed restrictions or covenants are a private contract to which the city/town is not a party. Any approval they grant cannot release you from the terms of the restrictions".

Okay, but do most cities/towns consider the deed restrictions when determining whether or not to give a permit? Or does this vary from town-to-town depending on local ordinances? The Zoning Officer told me to check my deed restrictions before spending the money for an application. Am I obligated to show proof i.e., a copy of the deed?

Check for any PA land use law materials that may be available online. They may have a definite answer to your question.

If you find reliable materials that state municipalities cannot enforce private deed restrictions in Pennsylvania, make sure you point that out to both the zoning officer and your attorney. And then be sure to bill your attorney for doing his/her research.

[Gedunker]

If you want to spend $300 for a variance that does not trump the deed restrictions, well, it's your money. In my jurisdiction of about 40,000 I advise people to settle the deed issues before coming to P&Z. This is especially true if it is a fairly new subdivision and the HOA is very active. If applicants have not settled them, we add a note to any approval that the Board's actions do not over-ride any private restrictions that might be applicable.

I look at it like this: to the extent possible, I do not want to put my employer in a possible fight where it has no vested interest.

I believe you mentioned that the HOA is not active (to your knowledge at least) and there are other home occupations in the subdivision. These facts will sometimes work in your favor if you have to go to court to get the deed restriction over-turned.

[Whose Yur Planner]

[QUOTE=Liz]Gedunker: You said, "The deed restrictions or covenants are a private contract to which the city/town is not a party. Any approval they grant cannot release you from the terms of the restrictions".

Okay, but do most cities/towns consider the deed restrictions when determining whether or not to give a permit? Or does this vary from town-to-town depending on local ordinances? The Zoning Officer told me to check my deed restrictions before spending the money for an application. Am I obligated to show proof i.e., a copy of the deed?

We do not enforce them. We have our hands full enforcing the zoning ordinance/subdivison regulations/building code. Like 'dunker said, they are a private contract that the government cannot enforce, which is probably a very good thing. I've seen deed restriction and subdivision covenants that are probably best forgotten.

[Salmissra]

Well, in Houston (where I used to work) there's no zoning, so deed restrictions are very strong and the city can and will enforce certain aspects of the restrictions. Specifically, the aspects that would regularly be covered in a zoning ordinance (lot size, house size, lot use are the biggies).

Deed restrictions that are old probably also have a clause in them about "if any part of the restrictions are deemed unenforceable/unlawful, the rest of the restrictions still stand." Otherwords, one unlawful section (ie - no people other than those of the Caucasian race may reside here) does not invalidate the whole document. Read through and find an exact expiration date, and also how the restrictions can be amended or nullified.

Then get an attorney that specializes in land use cases.

It will cost you $$$ and time to first find out if it's worth the time and trouble to go through the process to amend the restrictions. Then you have to actually do the change. In Texas (which has 3 convoluted ways to address this issue) it takes at least a year. Then, once you get the restrictions changed/nullified, you then get the fun part of going to the city for the zoning request. Due to public notice requirements, all your neighbors will know about your request, and I bet some of them will show up at the meeting!

Good luck in this endeavor. Keep us informed!

[Liz]

Well, I certainly don't want to spend $300 for a "special exception variance" that does not trump the deed restrictions. What's the point? Further, I know of two people in my development (there are 125 houses, I counted yesterday) who run businesses quietly from their home. A man who has two internet companies and a hairdresser. They have no external signs or any indication that there is a business within.

At this point I'm going to go ahead and conduct my business without an outside sign. If the township comes after me (which I rather doubt) then I have proof that the deed restriction has not been enforced to date. We have no HOA. I asked a woman yesterday who used to be President of the HOA and she mentioned that it was disbanded and now there is no association to speak of. Incredible. So, at this point, my only concern is the township discovering the business and fining me. But again, I'm not too worried.

[mendelman]

Good luck, Liz. I hope for your sake that township code enforcement is weak.