by Russ Lundberg
Visitor Question: There is a provision in our township's zoning ordinance which states zoning regulations cannot interfere with or impair a deed restriction. In this case, if a deed restriction is more restrictive (i.e., one building per parcel, accessory uses such as sheds must be part of the one building concept) does this mean a home owners association should review a site plan (zoning permit application) for a new building in their subdivision before the township can issue a zoning (site) permit??
Editors Reply: We apologize for overlooking this question when it came in! Sometimes our volume is high. Probably you resolved this on your own by now, but we will go ahead and give an opinion that may be relevant to other site visitors.
This is a somewhat unusual situation, and we hope it stays that way. Usually zoning ordinances ignore deed restrictions or possibly require that they be noted as part of a review. A zoning ordinance stating that its provisions are secondary to covenants does not happen every day.
But since we have the question, we would say that either (1) the township should be allowing the homeowner's association to review each and every application for a permit that requires a zoning sign-off and accepting the homeowner's association's verdict on each application,(2) the township government itself should be reviewing whether it thinks that the application meets the restrictive covenants, or (3) both reviews occur and both entities must agree that the application meets the deed restrictions.
We hope that the zoning ordinance makes it clear which of these should occur, and gives a legal rationale, but from your question, we surmise that this is not the case.
The healthiest thing that could happen now is for an open and respectful civic dialogue to occur about which option is intended. The zoning ordinance then should be amended to clarify the procedure.
In our presentation of the options above, we made an assumption that if both entities are consulted, they would have to agree for a permit to be issued. Any zoning ordinance clarification should state what happens in the event of a conflict, if both a homeowner's association and township government are reviewing applications in light of possible interference with deed restrictions.
Implicit in your jurisdiction's decision to have such a regulation in the zoning ordinance may be the idea that homeowner's associations actually have more expertise than the township government in making determinations about the desired nature of the subdivision. This could actually be an accurate depiction of reality in your location. Nationwide though, we feel honor-bound to point out that homeowner's associations are making petty, personality-based, vindictive, and just stupid decisions every day. We know this because we read our mail. So your township should be careful not to abdicate its governmental responsibilities to a homeowner's association.
In this section of the website, we often give the advice that people must obey both the restrictive covenants and the zoning ordinance, and if one is more restrictive than the other, that has to govern. It's just that the enforcement mechanism is different; a township can enforce zoning as a public action, while enforcement of deed restrictions is private, either by a homeowner's association or through the courts. So this is another valid way of looking at your question, and one that you seem to recognize already.
We hope these comments are helpful ways to think about your situation. As usual, community conversation is helpful in finding the very best procedure to meet local needs.
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