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Realizing that the enforcement of deed restrictions is not a government function, should the local BZA deny an application for a home occupation when there is evidence that deed restrictions limit the use of the development to residential.
Well, my first question would be "Does the deed restriction prevent all commercial use of the property, or just the primary use from being commercial". A home occupation should be a secondary use to the primary use of the house as a residence. If the deed restriction did prevent all commercial use, I would be curious how it could be enforced. For example, if Stephen King lived there, wrote his new bestseller in the den, sent it to his publisher over the internet, and received his royalty checks at that address, how would anyone know?
My second question would be for the BZA's legal counsel or City Attorney. Does the zoning ordinance or some other city regulation require that BZA action be in conformance with recorded deed restrictions? If not and the BZA decided to approve the application, then the Board could make clear in the motion to approve and the minutes that their approval does not change the deed restrictions, and that they encourage the applicant to pursue that issue with the other parties involved. If the BZA does have to act in conformance, then the applicant needs to address the deed restrictions before the Board can act on the item, or at least before they can approve it.
A question for you: "Do all home occupations require BZA action or approval, or are some allowed in the Zoning Ordinance by right?" If some are allowed without review or approval (even with conditions or performance standards that must be met), then the City is permitting those occupations without reviewing them for compliance with deed restrictions. Why would that be a criteria for special-permission ones and not for by-right ones?
Another question for anyone: "Do deed restrictions have to be enforced?" If I have a deed restrictions over property I've sold to you, do I have to enforce it, or do I have discretion over whether or not to take you to civil court ? If a private party has discretion over whether or not to enforce a deed restriction, then it is difficult for me to equate that to a City adopted law or ordinance where the enforcement is ultimately decided by City Council or some other publicly elected body. If a city could only act in conformance with the whims of a private individual, I would be concerned about equal protection for all applicants, and arbitrary and capricious decisions.
In Robert's situation, the BZA does not enforce deed restrictions ("realizing ... is not a government function").
It borders on an ethical problem. We know the restrictions exist, but ignore them because they are outside the zoning code. (After you read a few covenants, you know that many should be ignored.)
We recently had a similar case dealing with the size of a detached garage. When the deed restriction was brought up in testimony, the BZA asked if the applicant was aware of such, proceeded to approve the petition, and advised the applicant to address the deed restriction issue. They acknowledged the restriction on the record, they approved the petition based on the zoning code. They did not enforce the deed restriction.