Can Rezoning Overturn Deed Restrictions
Visitor Question: The Planning and Zoning Committee denied a request to change the designation of a lot to allow two homes instead of one on a lot. As a homeowner, several other homeowners and I requested denial of the zoning change primarily due to an existing water drainage issue which will be intensified if two homes are placed on lot in question. Planning and Zoning denied change. City Council heard from the new lot owner, who is building homes for resale. Then homeowners presented our concerns with drainage (zoning change had been denied approximately six months ago on the same lot with different owner). City Council tabled decision until November.
I pulled out my deed restrictions (home on 1/2 acre lot, I also own another 1/2 acre lot next to my home). Deed restriction clearly state the following: (1) the lots in our subdivision are not to be further divided. (2) Only ONE home to be constructed on each lot. (3) property owner can not sell or convey a portion of lot to another person. (4) any change to deed restrictions must be done by consenting vote of 75% of current homeowners.
Therefore, my question is can the City Council make a zoning change on this lot. It seems to me that it is out of their jurisdiction. If they do vote in favor of a zoning change, what is our recourse as a homeowner who bought property in a subdivision with deed restrictions to protect our property from situations exactly like this?Editors Reply:
We would like to emphasize that property owners have to comply with both zoning requirements and deed restrictions. That is the big point here.
The big difference is that zoning violations can be enforced by the city, but deed restriction violations have to be enforced by going to court.
So yes, the City Council can rezone the property if they wish. However, that does not relieve the property owner of the responsibility of complying with the deed restrictions, no matter how unreasonable the new property owner might think the restrictions are.
The problem comes with the enforcement angle we mentioned above. If the City Council rezones, then you the property owners would have to get together and sue for enforcement of the deed restriction if you wish to oppose the lot split.
Our advice would be to take these steps:
1. Make sure the property owner in question is well aware of the deed restrictions. Try your best to have a civil face-to-face conversation with this individual, or corporate representative. Let that person know that you would consider pooling your resources to go to court to enforce the deed restrictions.
2. Make sure the City Council is aware of your deed restrictions. Provide them a copy. Tactfully make sure that they understand that even if they approve the rezoning, the property owner would be in violation of deed restrictions if they try to proceed with splitting the lot to resell it and build. Again, avoid threats (because that may make some Councilpersons feel defensive), but simply state the facts.
3. Be sure to have a private meeting with your City Council representative, if your city is divided up into geographic areas with a representative elected from each area. If you have an "at large" City Council where the entire city votes on each councilperson, just find the most vocal and effective Councilperson who might be sympathetic to your cause, and meet with that person.
4. If you and your neighbors potentially are willing to sue, choose and involve your attorney as soon as possible in this process. It will make his or her job easier, and the presence of an attorney on your side will make you seem like a more formidable force to be reckoned with. The builder must think you would not possibly take this step or he/she/they would not have spent the time and money to go through the rezoning process. Possibly the builder is just ignorant too.
Understand that we are not attorneys, but instead are experienced city planners. This would be the situation in every state of which we are aware, but none of us are practicing in Texas right now. So take this as general advice and a perspective on how to think about this situation.
The big picture is both zoning and deed restrictions govern property owner action.