by Carol Lee McElwain
(Williams, AZ Coconino)
Visitor Question: Our HOA has CC&Rs stating one single family use. A lot owner built his house and just bought the lot next door but wants to build a garage. The HOA feels this is not keeping with the statistic of the subdivision. The subdivision is only 65 lots large. Do we have legal means to stop this owner from building the garage?
Editors Reply: Like many specific questions about HOA matters, we will not be able to give you a definite answer because we do not have the complete documents governing your subdivision. But we can give you some ways to think about it before you consult your HOA's attorney.
By the way if your HOA says it doesn't have an attorney, it should cultivate a relationship with one.
Let's think about the situation where there is no HOA. A garage is considered an accessory use to the main house and is usually permitted by zoning. If a single-family homeowner in a situation where there is no HOA wanted to combine two lots, there probably would be a procedure for legally doing so. That procedure probably would be covered under a city's or county's subdivision ordinance. Then providing the lot combination was approved, the single-family owner could build the garage as an accessory use allowed by the zoning ordinance.
Now in the case of a subdivision with CC&R's, all of this is in question. Probably the first thing to address is whether your covenants allow combining lots under any circumstances. Leaving aside the issue of a garage for a moment, if someone wanted to own two adjacent lots simply to have a larger yard, would that be permitted? If so, you might have a hard time prohibiting the garage.
If no combining of lots is described in your CC&R's, or if that is outright prohibited for any reason, your HOA probably does have a legal right to forbid this construction. If your CC&Rs describe a process in which your HOA can prohibit any and every structure it doesn't like for any reason, your HOA may want to just take that action. However, if the situation is more ambiguous, you will need that attorney.
Let's think for a minute about other ways your HOA might approach this problem. Perhaps you have appearance-related covenants about the minimum size and placement of structures that would make a garage highly impractical. Maybe curb cuts are prohibited except where explicitly approved by the HOA. Maybe every primary structure (largest structure) on a lot has to have a front door of a certain description that surely does not fit a garage door. Perhaps a certain percentage of the front of a structure has to be glass. Maybe you can be creative in some of these ways to squash the idea of the garage without taking on the issue of whether lots can be combined and whether a stand-alone garage is a permitted use.
Speaking of permitted use, have you thought about using your town's zoning ordinance as a tool? (Of course this only works if your subdivision lies in a town, township, or county that has a zoning ordinance.) Many zoning ordinances only permit garages as accessory uses, meaning there must be a main structure (a house) on the lot. If you haven't thought about this, immediately call your town to see what they think of this.
Our last paragraph underlines our frequent teaching that both HOA covenants and zoning must be followed where both are in place. Perhaps zoning will give you some relief, with the added benefit that you might have a government on your side and not have the financial responsibility and worry of needing to find an attorney to help with this.
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