Zoning Administrator Splits Lot Contrary to Covenants

(NC)

Visitor Question: Can a municipality's employee (the zoning administrator) subdivide a lot within a PUD (Planned Unit Development)?

Our covenants state "No lot shall be split, divided, or subdivided for sale, resale, gift transfer of otherwise after acquisition for Declarant. With respect to any Lots while owned by the Declarant, Declarant expressly reserves the right to further subdivide or alter property lines as it may deem necessary and appropriate, subject to all applicable governmental laws, rules and regulation."

The Declarant is defined as the developer in the covenants.

The final plat for this phase of the subdivision was recorded on 25 Oct 2011 and includes the lot in question. The lot was sold to a private individual and the deed recorded 1 Nov 2011. The current lot owner has maintained that they are not part of the subdivision and therefore do not have to abide by the subdivision covenants.

Both the town and county tax records show the lot as being in the subdivision. In June of this year the zoning administrator signed off on the subdividing of the owner's lot into two lots, with no action by the town government.

The plat is legally recorded in the county office.

To restate the question: Can a municipal employee (the zoning administrator) subdivide a lot within a PUD? If the municipal employee has violated our covenants, what action can the HOA take?

Editors Comment: We should say that we are not attorneys, so our comments are simply ways to think about the issue.

The first thing to figure out is whether the lot in question is covered by the covenant that you quote. You state that the "tax records" show that the lot (now two lots) is part of the subdivision. Tax records can be wrong, as often the tax collector or revenue office head makes an interpretation of what is sent to him or her. It isn't very likely that the tax office is wrong, but it's possible.

To find out, look at the official subdivision plat in your court house and also at the map or plat that accompanied the ordinance approving the Planned Unit Development. County and town officials should help you find these items.

Another possible source of misunderstanding is that the lot that the zoning administrator split conceivably could not be covered by the covenants. In other words, the Declarant/developer could have treated that particular lot differently for some reason, excluding it from the covenants even though it was included in the PUD approval and in what you call the subdivision. That seems really unlikely, but it's worth an investigation.

To look into whether the covenants apply to the particular lot in question, you may have to engage a title company in the search. This really seems like overkill, but you have a strange situation here and you need to account for every possibility.

Before you spend money on a title company, though, it probably is worth filing a case with the zoning board of appeals, board of adjustment, or whatever it may be called in your locale. This is because zoning ordinances typically allow a decision of a zoning official to be appealed to this independent board. The board of adjustment or appeals is appointed by the governing body, such as a town council, but is not supervised by the council. They are not related to the zoning board or planning and zoning commission and not supervised by them either.

Typically there is a filing fee for the board of zoning appeals, but it may be worth it for you and your neighbors.

If your local zoning ordinance allows you to file such a case, this means that part of the burden of the research would fall onto the city staff, which should be well equipped to undertake it.

If your side prevails in the board of appeals case, the only recourse for the town is to appeal to a circuit court. If you lose, you also can appeal to the relevant court in your state, although of course you are then incurring legal costs to file a lawsuit.

All of this cautious response on our part should not obscure the obvious point that probably what the zoning administrator did is just flat out wrong. An administrator might well have the power to approve a lot split (the term commonly used for creating just two lots from one), but should not have done so in contravention of a covenant.

In the zoning administrator's defense, it's common for zoning offices not to have access to covenants, although in the case of a PUD, certainly good practice would have been for the municipality to require the proposed covenants to be submitted during the approval process.

These are some places to start in entangling this mess. Probably you are headed for a board of adjustment filing, but you may want to have legal advice on that, as it sounds as if the new owner would say the HOA has no jurisdiction over this land.

As to the actions that the HOA (homeowner's association) can take, we didn't address that directly until now, but we mean all of these actions to be possible actions by the HOA.

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