Editors Note: The visitor question below was received several months ago, and we failed to answer at that time. We offer our apologies to our site visitor, who probably has decided on a course of action already. But we think the question points up what is likely to be an increasingly frequent situation as a rapidly growing percentage of new homes in the U.S. are covered by a master deed, so we decided to comment.
Visitor Question: We own a lot within a subdivision that is governed with covenants and restrictions. This lot is the only one out of the entire set of town houses that is actually within a floodplain. We have the elevation set and the plat approved by FEMA.
We received the original building permit, but things beyond our control occurred and the permit expired. We went back to purchase another building permit and they had changed the zoning from C3, which allows storage buildings, to R2, which does not allow storage buildings. This was done without our knowledge.
Now the city planning commission is requiring a deed restriction on our lot only, stating we will only build the approved six storage units as submitted. They will not consider changing the zoning back to C3 until we agree to apply this deed restriction to the property. Is this legal, and does it have to be tied to the original covenants that apply restrictions to the entire subdivision?
Editors Reply: The final answer will depend on both Arkansas law and case law in your state and area, so this website visitor needs to consult an attorney licensed in the state. For this particular situation we further recommend that the attorney be specialized in real estate law, since it is not a common question--yet.
Unless there is a peculiarity in your state's laws and court case precedents, we think it is quite likely that it is legal for an additional deed restriction to be imposed on just one lot. As planners we would prefer to see that additional restriction reflected in a minor change in the covenants of the overall subdivision, but again, the final answer should be determined by a real estate attorney.
Another aspect of your question about whether this is legal may be whether the planning commission should legally be suggesting that they will recommend a particular zoning classification only if you do this or that. City councils, and the recommending planning commissions that hear a rezoning case before sending it on to the city council, can and do make these informal deals with property owner petitioners all the time, but it is less legally defensible and sound policy-wise to do that than to figure out a cleaner way to achieve the result they desire.
In your instance, the planning commission and city council should be wondering why their C3 zoning district allows so many storage units that they feel it necessary to ask and require you to add a deed restriction on your property. You could wonder if there is a C2 district that would cap the intensity of the storage unit use closer to what the city would like to see, for example.
We are a little uncomfortable with the city's position on this for two reasons: (1) we don't like to see public bodies relying on deed restrictions to supplement their zoning ordinance, and we think if the zoning law is broken, they should fix it, and (2) this is close to contract zoning, in which a zoning change is granted only in exchange for something that otherwise would not be permitted. (If you want to explore more about this topic, see our page on contract zoning.
We hope that your situation has been resolved successfully and after at least a brief conversation with a local attorney. From a broader perspective, we hope that your city has learned some lessons about contract zoning and zoning ordinance revision, and we hope that private attorneys who draft master deed covenants for subdivisions will begin to contemplate what happens when conditions change and a single land owner in a development wants or needs to impose a deed restriction on his or her own property alone.
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