Do our deed restrictions supersede a spot zoning

by Tom
(Erie, PA)

Visitor Question: My neighbor has received a spot zoning change based on the fact that his converted garage was used as a rental prior to 1957. The building has not been rented since 1957 and he is the 3rd owner to occupy the main building since it was last rented.

Our deed restrictions (dated back in 1907) have three applicable restrictions number 2 which states that only one house can be built on the property; number 3 which states it has to be a single family home; and number 5 preventing commercial usage of the property. He has informed the board that the zoning variance supercedes our bylaws and that they cannot enforce the bylaws. He has also formally changed the assessment record showing the other building as a house (prior owners left the structure listed as a garage).

Now my question :-) - Can the board enforce our deed restrictions and since he has formally changed the status can he be required to convert it back to an acceptable structure under our deed restrictions?

Editors' Reply:
This is an interesting and multi-faceted question, Tom. First we should caution you that we're not attorneys, any of us, and we all think your board probably will need one before this is all over.

Let's answer on the basis of typical U.S. laws and not on the basis of investigating Pennsylvania law. At least we can help you sort out some of the terminology, and what is probably relevant and probably irrelevant.

You say this situation next door is a spot zoning, which would be an official rezoning granted by your city or county council, or equivalent body. But later you speak of zoning variances, which are a different process granted by a board of zoning appeals (which may be named something slightly different).

However, legally, the effects are similar whether it was a rezoning or a zoning variance. Neither can be appealed in most states except to court. If it was a zoning variance, for sure, check whether Pennsylvania and your own local zoning ordinance might allow you to appeal to your local city council (or county government, if you're not inside city limits).

Your question though is whether your neighbor in fact is correct that the zoning action, whatever it was, supersedes your subdivision deed restrictions. Almost everywhere and almost always, real estate covenants simply add another layer of regulation to what a government provides.

So that's good news for your point of view, because even though the government might say using the garage as an apartment is a permitted use, your covenants 2 and 3 say no, only one family on this property.

This is a situation just like when your municipal codes might be completely silent about where you can put your American flag, your mailbox, and your satellite dish, but your covenants are very specific about these matters. Then your covenants rule.

Now, how are covenants enforced? Only one way usually--by going to court. Your particular association might have the ability to levy fines or mete out some other undesirable minor punishment, but covenants themselves are enforced only in court.

That's why we all think you're headed to court if you can't settle this matter amiably. In most places in the U.S., your deed restrictions outweigh zoning when the deed restrictions are more strict, but if your board doesn't have enough tools to force the return of the garage to its intended use, then you or your board will have to file a suit.

By the way, the not-so-relevant facts you gave us, from a planning and zoning perspective and probably the legal one as well, are how long your covenants have been in place, the previous use of the garage as a residence, and the fact that the neighbor had the assessor reclassify the garage as a residence. Probably restriction 5 against commercial use wasn't anticipating renting out the property, as much as actually conducting a business.

A possibly relevant fact that you omitted is whether the rental already has commenced and if so, whether the person renting is part of the nuclear family. If so, then your neighbor could argue that the use is still "single family," but that one member of the family has simply moved to an outbuilding.

While not a definitive answer, we hope these observations help you organize and present your thoughts even better, although you did a good job, and give you some probabilities about what may happen. An attorney could help you further by determining what legal precedents, if any, exist in Pennsylvania and thereby also giving you an estimate of your chance of success if you have to go to court.

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