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Zoning and Restrictive Covenants

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#1
First I’ll start off by saying….I completely understand that restrictive covenants are different than zoning and they are not enforceable by a municipality; however, I would like your thoughts on the following:

I am contemplating some amendments to our code relative to fencing. My thought would be to keep the traditional height and setback stuff in there…add some design and construction language…..and go with it. A recent BZA disaster got me thinking. Along with the above mentioned regulations, can I (or do I want to) add a caveat that says something like…if your neighborhood/subdivision has a set of recorded covenants and restrictions and if those covenants regulate fencing, then the restriction contained in the covenants and restrictions will govern fencing in that neighborhood… Does this make since? Other than the need to keep the C&R’s on file, what are the pros and cons with this. Is it a good idea or a bad idea?

The way I see it, often times the zoning code and the covenants and restrictions are in conflict with the zoning code. We have to allow what the zoning code allows. If a property owner buys into a neighborhood with recorded restriction, they really should abide by those restrictions regardless of zoning. An example, fences in front yards; zoning allows them, many C&R’s do not. Someone comes in to get a fence permit we have to issue it. Neighborhood calls to complain. Nobody wants to spend the time or money taking a neighbor to court to enforce the restrictions.

This same concept could be used for things such as sheds/storage buildings.

Any thoughts? Anyone out there doing anything similar?
 
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#2
Private covenants and restrictions can limit private property rights to the use of land subject to such covenants even though local zoning may authorize a more intense or different use. However, covenants cannot supersede zoning or allow a use of land that would be inconsistent with the comprehensive plan or zoning ordinance. To allow otherwise would delegate legislative authority to private persons which does not further the purposes of a representative democracy and which is also unconstitutional.
 

mendelman

Unfrozen Caveman Planner
Moderator
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#3
No. The municipality should not get into such concerns. It is the fence permit applicant's responsibilty to abide by the CC&Rs. Simply, the private enforcement of CC&Rs varies wildly over time. Let the neighboring property owners decide whether or not to enforce the CC&Rs.
 
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#5
I'll through in with "not a good idea" crowd. Its best to leave the topic alone and let the property owner do the reseach themselves. As mentioned privously, the covenants and enforcement of them vary widely. In the older subdivisions, the covenants may have lapsed.
 

Streck

Cyburbian
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#6
We are in a small suburb city of 25,000 adjacent to a state capital.

We find that covenants have good restriction that our city really cannot address. We also find that the covenants are not being enforced due to fear of personal law suits against the officers who try to enforce the covenants.

We are looking at offering to help on enforcement by requiring covenants to be approved by the city, then if approved and a violation is documented by the subdivision officers in writing and the owner has not corrected the violation within a certain number of days, the city may step in to enforce the covenants.

We are on the verge of enacting this provision. Any comments would be appreciated.

Another problem we find with covenants is that the real estate agent and attorney typically indicate on deed documents at the closing "subject to restrictive covenants," but a copy of the covenants is not actually provided to the new owner at the closing. They are on file at the county courthouse, but the owner should have a copy prior to Closing, and in the Closing paperwork. Most of the time, the owner would have followed covenant restrictions if he had known what they say. Usually they go ahead with their project then find that their project is in violation of the covenants and a big fight ensues.

Hopefully we will be able to address some of the problem.
 

mendelman

Unfrozen Caveman Planner
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#7
We are looking at offering to help on enforcement by requiring covenants to be approved by the city, then if approved and a violation is documented by the subdivision officers in writing and the owner has not corrected the violation within a certain number of days, the city may step in to enforce the covenants.
I hope you have good and defensible standards by which to approve such CC&Rs, and a list of acceptable and unacceptable regulations that can be included in a CC&Rs. If you don't, you may run into problems with equal protection laws and if the type and extent of convenants/restrictions varies wildly, you will need a good file system to reference the approved CC&Rs for enforcement.

Another problem we find with covenants is that the real estate agent and attorney typically indicate on deed documents at the closing "subject to restrictive covenants," but a copy of the covenants is not actually provided to the new owner at the closing. They are on file at the county courthouse, but the owner should have a copy prior to Closing, and in the Closing paperwork. Most of the time, the owner would have followed covenant restrictions if he had known what they say. Usually they go ahead with their project then find that their project is in violation of the covenants and a big fight ensues.
Is that really something the municipality needs to be concerned with? Unless the municipality wants to become a nanny/parent and make sure buyers get copies of the CC&Rs when they purchase, then I guess that is your sovereign right to do. But, I presume, the purchaser is an adult and they should be responsible enough to make sure they get a copy of the CC&Rs at purchase.

I don't believe the job of a municipality is to hand-hold everybody with every decision.
 
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