Zoning change from single family to multifamily with deed restrictions

[S. Dean]

I live in Ohio and am fighting a zoning change from Single Family to multifamily. The developer first applied for a Planned unit development overlay to put condos on single family lots. They withdrew that proposal and now want to rezone the property to multifamily with deed restrictions. They have a purchase agreement on the property. The property currently has extensive deed restrictions that restrict anything but single family use. My question is, can they apply new deed restrictions when they already exist. And is it legal for the mayor and Planning Commission from my city to negotiate deed restrictions. Is this considered conditional or contractual zoning?

 

[m2AICP]

I would be leery of lowering your objections in light of a rezoning + deed restriction arrangement. I share your concern about deed restrictions (DRs) on top of DRs -- you should review the language of the original DRs and see who are the parties that must agree to a release of the restrictions.

We always advise our Plan Commission when considering joint applications involving a rezoning to consider the applicability of the proposed zoning district WITHOUT the additional relief because nothing mandates that an applicant must build. If your developer does pull out after the rezoning has been approved but before the DRs are recorded, a new developer could enter the game gaining the new zoning and no restrictions. If the latest deal proceeds, pay close attention to when the DRs must be recorded in relationship to the adoption of the ordinance approving the rezoning. Also, pay close attention to who are the new release parties to the proposed DRs. With the info. you have provided, it sounds as if the appropriate process is a PUD which would preserve the underlying zoning -- why is the municipality and/or developer shying away from this approach? Both involve a public hearing . . .

The rezoning + DRs sounds vaguely like negotiating zoning -- ironically, the purpose of a PUD . . .

Good luck!

 

[cobus]

Having a project before a local Township, I have have been following the same hearing and approval schedule as a proposed residential development. This development is very suited for a PUD, being mixed between single-family, duplexes and some attached condo's. Remember that an added benefit of a PUD is an area plan or preliminary site plan up front and part of the resolution. For some reason that I, as an outsider, am not privy to, this project of over 400-units is being taken through as a straight rezoning.

The catch is that the proposed rezoning district (multi-family) is so broad that it emcompasses duplexes, attached condo's and mobile home parks. So the Township is a little on edge about the mobile home parks, so the developer (via representative) says he will have deed restrictions drawn up from each of the prop. owners of the group of properties he has options on.

For several reasons (my dog ate it!!!), these deed restrictions couldn't get done by the time the Board was to hear and act on the proposal. The developer and representative make speechs as to the cost of land, viability of MHP's, has never done one and doesn't like MHP developments, etc.

The Township has been advised by their attorney that they can't 'condition' DR's. The developer says "we've worked in good faith with the Township, blah, blah" The Board approves the rezoning with the "understanding" that deed restrictions are being worked on and submitted to the Township when recorded. I couldn't believe it!!! As stated by the previous posting, note when the deeds will be recorded and the zoning approved.

The moral of the story is watch out. Typically developers wouldn't try to slide a multi-family or MHP in through a subversive route. However, with the private development world, it is all about options and the ability to take advantage when opportunity arises. The PUD allows the Commission more tools and more opportunity to view what they are getting themselves into and to put it literally on paper. The developer still has options, but the municipality retains a tool of checks and balances.

I ditto the "good luck!!!"