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Housing 🏠 State code and HOA's

bwilke

Member
Messages
9
Points
0
Greetings,
First time venturing into the realm of planning & zoning, so easy on me please.:D
So in the state of Virginia, we are a commonwealth and as such under Dillon rule. After scouring the code of VA administratively and otherwise, I could find no linkage or connection to a HOA.
I do understand the dynamics, mostly as in who will be the overseer and enforcement of. Understandably, jurisdictions do not want to get involved in petite affairs of a subdivisions pet peeves and so on, but it begs the question,
If a construction site plan for a subdivision is approved as a cluster subdivision without any direct linkage to the inklings of a HOA.
How then can the owner(s) (from sale of owner to developer, to sale of the building lots to the builder), create a HOA agreement and alter the scope of the approved construction site plan for said subdivision without it being in the approved plan?
What has happened is the land was sold to become a subdivision , but done so by right (1 house per 3 acres) traditionally, yet they the developer created all the visages of a cluster subdivision concept open land spaces and all and submitted it that way for approval by the local planning & zoning department of which was approved that way. Now the developer created in the beginning a HOA (by declaration to the court) with more restrictions to the open land spaces than normally would be otherwise, (good for the quality of life for all). But before the last house was issued a final CO, another declarant by the builder to nullify all the conditions of the first declarant by the developer, left it void of any resemblance of the cluster subdivision concept and thus removed any references to a HOA.
The open land spaces were set aside for the community, now they are individually owned by the building lots that abut to the open land spaces. For example 1 1/2 building lots, open land spaces from 2.5 - 8.0 acres on five of the abutting building lots. Guess what some one now has a 10 acre farm in a cluster subdivision.
How is that legal considering the county approved the construction site plan with access for all the owners in the subdivision to use the open land spaces? by the way on the approved documents are 8 foot wide pedestrian pathways between the abutting lots to the open land spaces gone, and now we have min farms, what gives?
thanks in advance
Bwilke
 
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estromberg

Cyburbian
Messages
328
Points
13
Planning departments typically steer way clear of CC&Rs and HOAs as they are private contracts between land owners that run with the land (and they are a nightmare.) That being said, normally they are recorded with the Subdivision plat and typically establish the HOA as part of the deal. They typically spell out what is needed to modify or nullify the provisions of the agreement. Normally, it is the signatures of some percentage of the existing landowners. Were some portion of the lots sold prior to the builder/developer nullifying the original provisions? If so, those owners are party to the agreement and it would require at least some portion of them for approval.

How was the zoning/subdivision approved? As a straight map amendment or as a Special Use/PUD? Do you have a copy of the original CC&Rs and the later version? Like I said these should have been recorded along with the Subdivision plat.
 

arcplans

As Featured in "High Times"
Messages
6,770
Points
36
Most municipalities will not enforce HOA or CC&R regs. That's a private property dispute. If it violates whatever zoning ordinance or condition imposed then maybe, but outside of that, go hire an attorney.
 

bwilke

Member
Messages
9
Points
0
Thanks for the info. I will digest this and get back after talking with a planning and zoning department One thing I have gleaned is different county's have either endorsed the provisions of an HOA into the approved plans, or kept it away with a 10 foot pole....
 

bwilke

Member
Messages
9
Points
0
I think were I am getting hung on is, what state statue or regulatory agency requires a HOA to become part of any legal document reviewed under state (perhaps FED) and or local jurisdictions and approved by the planning and or zoning administrator of that locality? It seems it sets itself up for failure if no one is accountable for things associated with an HOA, especially since this is likely to occur after the subdivision is finished when things such as property damage , maintenance of or anything resembling a membership only mentality, start looking for resolution too! Even when it has no bearing on any state regulatory or administrative code, yet the county or the approving authority is culpable to lawsuits and such.
hoe does that work in a courtroom I am wondering now? Why would a jurisdiction set itself up without any segway to the laws of its legislative body that oversees planning and zoning regulations and law?
 

bwilke

Member
Messages
9
Points
0
Most municipalities will not enforce HOA or CC&R regs. That's a private property dispute. If it violates whatever zoning ordinance or condition imposed then maybe, but outside of that, go hire an attorney.
what does CC&R represent?
 

estromberg

Cyburbian
Messages
328
Points
13
Covenants, Conditions & Restrictions. These are a list of deed restrictions that run with the land for some set amount of time. They commonly establish restrictions on use, building materials/construction methods, and other items "intended" to maintain property value or protect the developer's vision of the subdivision.

Now, keep in mind that these are PRIVATE, CIVIL contracts. They are not enforced by government, WHATSOEVER. The enforcement mechanism is spelled out in the CC&R as well. Normally, it would be by civil action (lawsuit) or in the case of a HOA with enforcement authority (again by the CC&R), fines and/or liens against the offending property.

If you don't already have a copy, go to the County Recorder of Deeds and get a copy of the original CC&R for the subdivision, as well as any modifications. Additionally, take note of whether any of the lots were sold after the original CC&R, but prior to the modification. If so, the modification may be invalid if not properly authorized by the other property owners.
 

bwilke

Member
Messages
9
Points
0
Covenants, Conditions & Restrictions. These are a list of deed restrictions that run with the land for some set amount of time. They commonly establish restrictions on use, building materials/construction methods, and other items "intended" to maintain property value or protect the developer's vision of the subdivision.

Now, keep in mind that these are PRIVATE, CIVIL contracts. They are not enforced by government, WHATSOEVER. The enforcement mechanism is spelled out in the CC&R as well. Normally, it would be by civil action (lawsuit) or in the case of a HOA with enforcement authority (again by the CC&R), fines and/or liens against the offending property.

If you don't already have a copy, go to the County Recorder of Deeds and get a copy of the original CC&R for the subdivision, as well as any modifications. Additionally, take note of whether any of the lots were sold after the original CC&R, but prior to the modification. If so, the modification may be invalid if not properly authorized by the other property owners.
I will be doing so. It is a curious creature these HOA's
Thanks for the info, informative :up:
 

estromberg

Cyburbian
Messages
328
Points
13
The HOA is commonly the owner and maintainer of common areas (subdivision entrance signage/plantings, drainage detention, neighborhood amenities, private streets, etc). They are not required by any government body. They are set up by developers wishing to offload responsibility or get around requirements for acceptance by a muni (most commonly: private streets, developer doesn't want to build them to a proper municipal standard).
 

MD Planner

Cyburbian
Messages
3,228
Points
49
As others have said, government tries to stay far, far away from CCRs. Now many places will look at the proposed CCRs as part of a development project but just to make sure there is nothing in there that is flat out illegal. I've come across many OLD deed restrictions in my career that said you couldn't sell your property to a black person for example. Obviously not legal and morally reprehensible. But all that other crap we don't want to deal with: don't want parking on your private streets? You deal with it. Don't want your neighbors underwear on a clothesline? You deal with it. You want all the mailboxes to be green? You enforce it.
 

bwilke

Member
Messages
9
Points
0
I appreciate all the responses!

So if the property owner (land developer) creates a HOA by declaration to the court while the construction site plan is being reviewed for zoning & planning compliance. The owner sells to the builder during the process, builder absorbs as is, starts building SFD’s and before the last house is issued a CO, decides to abolish by declaration the first declaration and basically sets it free from any HOA’s (don’t think any covenants or deed restrictions were ever declared) and any responsibility to anyone other than what happens on personnel property.

Is that about right? Nobody to blame…

The real stickler is the whole subdivision concept was designed under the light of a cluster subdivision, but was done traditionally (SFD per 3 acres) but still resembles a cluster subdivision, including the open land spaces & 1 ½ lots. The 5 lots that abut the open land spaces were originally designed for community hence the first declaration, but was nullified by the second declaration to the court. Now any one of those 5 lots can increase their boundaries exponentially So the lucky one has a 1 ½ lot plus 8.5-acre open land space, but is really not open land space and now has a 10-acre farm in a cluster subdivision.

What I don’t understand is why the court would approve a declaration to cluster subdivision plan under review all the while allowing the second declaration to nullify everything including protection of the open land spaces after the site plan was approved. I mean come on, the idea was to preserve the open land space for the community, now 1 individual controls each separate open land space. So 10 homes have nothing, while 5 are mini farms.

How does this work legally?
 

arcplans

As Featured in "High Times"
Messages
6,770
Points
36
If the owner has not conveyed any of the lots, still one owner, they can do what they please to encumber or change things. Depending on your state and how subdivisions are created, things can get changed at the last minute. Again, go hire an attorney if you got beef.
 

bwilke

Member
Messages
9
Points
0
If the owner has not conveyed any of the lots, still one owner, they can do what they please to encumber or change things. Depending on your state and how subdivisions are created, things can get changed at the last minute. Again, go hire an attorney if you got beef.
Funny how the little guy always gets the shaft or in this case the shovel. It is quite some feat of work how it works, for example,
1. potential developers scan the GIS maps like vultures looking for old folks ready to give up the farm to the next generation.
2. next gen doesn't want it, just the money. So said land developer scoops it up on the cheap, developing it so it is builder ready.
3. Builder build houses, both make profits.

What is messed up is the loop holes allow all sort of things to transpire behind the curtain, county naively turns a blind eye and approves as it was submitted cluster subdivision,, but wait said developer goes to the courthouse outside of the approved construction site plan for said development and creates the HOA subdivision with all the requirements including open land spaces and so on. Builder nullifies the first declaration by his own accord, basically canceling out everything under the original declaration which reverts everything back to a traditional model subdivision. So no cluster subdivision, no open land space.
And here I was thinking the property owners had a dog in the fight since they had an expectation of open land spaces used by the community, now at the mercy of one man owner who has increased their 1 1/2 building lot to a 10 acre farm and do what ever they want including pissing off the neighbors that have been there for generations and they are to get a lawyer to fix a problem of not their doing?
Messed up and costly to the one who does not have much
 

arcplans

As Featured in "High Times"
Messages
6,770
Points
36
Funny how the little guy always gets the shaft or in this case the shovel. It is quite some feat of work how it works, for example,
1. potential developers scan the GIS maps like vultures looking for old folks ready to give up the farm to the next generation.
2. next gen doesn't want it, just the money. So said land developer scoops it up on the cheap, developing it so it is builder ready.
3. Builder build houses, both make profits.

What is messed up is the loop holes allow all sort of things to transpire behind the curtain, county naively turns a blind eye and approves as it was submitted cluster subdivision,, but wait said developer goes to the courthouse outside of the approved construction site plan for said development and creates the HOA subdivision with all the requirements including open land spaces and so on. Builder nullifies the first declaration by his own accord, basically canceling out everything under the original declaration which reverts everything back to a traditional model subdivision. So no cluster subdivision, no open land space.
And here I was thinking the property owners had a dog in the fight since they had an expectation of open land spaces used by the community, now at the mercy of one man owner who has increased their 1 1/2 building lot to a 10 acre farm and do what ever they want including pissing off the neighbors that have been there for generations and they are to get a lawyer to fix a problem of not their doing?
Messed up and costly to the one who does not have much
You always have a dog in the fight.. if you got the cash to spend... 'merica!
 

bwilke

Member
Messages
9
Points
0
You always have a dog in the fight.. if you got the cash to spend... 'merica!
Guess I am being ostensibly ignorant of the fact here in America once upon a time, an ordinary man could bring an issue before a judge. Now if you show up without a well paid lawyer, your guilty of being poor, next case....
 

estromberg

Cyburbian
Messages
328
Points
13
The real stickler is the whole subdivision concept was designed under the light of a cluster subdivision, but was done traditionally (SFD per 3 acres) but still resembles a cluster subdivision, including the open land spaces & 1 ½ lots. The 5 lots that abut the open land spaces were originally designed for community hence the first declaration, but was nullified by the second declaration to the court. Now any one of those 5 lots can increase their boundaries exponentially So the lucky one has a 1 ½ lot plus 8.5-acre open land space, but is really not open land space and now has a 10-acre farm in a cluster subdivision.

What I don’t understand is why the court would approve a declaration to cluster subdivision plan under review all the while allowing the second declaration to nullify everything including protection of the open land spaces after the site plan was approved. I mean come on, the idea was to preserve the open land space for the community, now 1 individual controls each separate open land space. So 10 homes have n
I keep coming back to the fact that the changes in cc&rs would have to be recorded prior to any of the lots being sold to other owners and at that point, the CC&Rs were a matter of public record which should have been disclosed to buyers by their real estate agents. I'm just not seeing the rug being pulled out from under anyone. Additionally, I'm not following why the court is even involved. Then again, maybe stuff in Virginia is done differently than the rest of the Country.
 

Gedunker

Moderating
Staff member
Moderator
Messages
11,905
Points
48
A couple of things I think have come up here and perhaps not been acknowledged:

There is no statutory requirement to establish an HOA. I deal with lots and lots of subdivisions that don't create them. In my 33-years experience as a municipal planner, they are most common in larger residential subdivisions. Most are harmless, a few can be toxic.

Most states mandate a local ordinance establishing frameworks for subdivisions, including standards for things like public dedications (think roads and related infrastructure, retention ponds, and utility easements) and who is required to accept those dedications. If the subdivision meets the site zoning, and the subdivisions regs, in most places approval is ministerial (e.g., it can't be denied). (In many states, if it doesn't meet the requirements, that has to be spelled out to the developer so they can fix the non-conformities and get it approved.)

Once the Plat is accepted and recorded, it can't be amended without going back through local planning. The HOA for example cannot then decide to convert the Plat into a conservation subdivision from a standard subdivision, say, without going through a re-plat. Now, the HOA could amend the covenants to, for example, prohibit detached garages, when such were allowed previously - so long as the HOA does so within the requirements of the covenants (which is typically a simple majority, but can sometimes be a supermajority). Bur once streets are dedicated/accepted, and lot lines recorded, it can't legally change without public approval.

There is a common belief that developers make a fortune with every project. I'm here to tell you, they can't afford to retire after their first successful project, most of the time. First, the heirs aren't selling the dirt cheap - they recognize this is the final harvest on Grandpa and Grandma's farm, and they want to make as much money as they can. The more heirs, by the way, the more valuable they estimate the land, at least in my experience. Purchase is just one expense, though. Engineering/design, permits, bonds, insurance, interest, opportunity costs, and obviously construction of public improvements, all cost money (sometimes lot and lots of it). Throw in a global pandemic, with increased material and labor costs, and a lot of developers might have been skating very near insolvency. When you think of a private developer doing affordable housing, man the profit margin is razor thin.

I agree with the OP that our legal system has skewed hard toward the wealthy/powerful.
 

bwilke

Member
Messages
9
Points
0
I think the elephant in the room is, two differing branches of government have become entangled by the others (executive branch aka local government) regulatory authority to enforce the state level guidelines for local jurisdictions to follow. As an example Virginia is a Dillon rule state which pretty much allots authority from the state level down to the local level so that one size fits all in the great scheme of thing.
So in the example I have been teetering on, you have
1. Farm land (A1 use) sold to developer wholesale, that is no other boundaries other than the perimeter of the property.

2. After purchase, said developer creates a construction site plan with lots and open land spaces. The secret sauce here is, the developer presented the project as a cluster subdivision concept 1 1/2 building lots with open land spaces and could have or as I learned after the fact, they didn't have to do that, since it was by right, that is in VA 1 house on 3 acres. they didn't get the approved construction site plan signed & sealed by tradition but rather by cluster concept.

3. Developer creates an HOA thru the court (outside of the approved construction site plan, remember it was approved with cluster concept). and continues onward to sell said lots, to builder, who before the last house was issued a final CO creates another declaration to nullify the first declaration.

4. builder sneakily decides to sell open land space to only 5 houses whose building lots abuts the open land space, the other 10 homes are out of luck. So now the five homes range in size from 4.4 acre to 10 acre estates, with no regulations to prevent the original concept of preserving the rule character and nature by allowing 40% of the land to be deemed open land space. It was nullified by the 2nd declaration.

5. Now home owner can do whatever on their new founded land holdings, including denuding and other activities, yet and this comes from the homeowner, still bound by an HOA rules:r: but not really , which one is it I ask? All I here is crickets from the local jurisdiction.

But I think the real injustice is in the fact that all the surrounding abutters properties against the open land spaces, had expectations of privacy to that effect. But now 1 person is in charge, unbridled and can do whatever they want without consequence. it is one thing to have a community play agriculture farm day on those open land spaces, quite another when one person owns the land and gets a pass on all the regulations that got kicked to the side by the developer and builder.
How is it even legal at this point?
 
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