conflict between documents

Mike,

It's more likely that the developer used a boiler plate document for the covenants and didn't pay any attention to conflicts between the documents and State law/City Ordinances.

Since laws change, it's not uncommon for conflicts between those laws and the governing documents to occur. When you can, change the documents to remove the conflict. Until then, publish to the membership that the conflict exists and what must be complied with.

SusanW,

I live on an air park with one acre lots where the covenants (never approved by P&Z)say horses are allowed. which is completely contrary to what the Plat states. The P&Z approved Plat states: "Land use as being houses, hangers (attached) and airplanes allowed to taxi on the streets".
I have been bombarded for three years with fly's, unwanted odor and dust mixed with feces and urine then ground so fine by the hoofs of horses it goes right through screen wire.I cannot open my front door or open windows. I live down wind of this barnyard.
The developer put this provision in the covenants to make it easy to sell lots but didn't run it through P&Z. Few people in our sub-division have a copy of the plat, I got mine from the Court House. I thought this kind of information was supposed to be disclosed to the buyer when they bought property?
Our Bi-Laws and Covenants also refer to the plat where it says: "As shown on the plat".

MikeT

Mike,

You can make a complaint to the zoning commission about the "barnyard" and see what happens.

Tim

Mike,

You have mentioned several times that the coventants were not approved by your local planning and zoning authority. I assume that the document your are referring to is the Declaration of Covenants, Conditions, and Restrictions (or some similarly-titled document).

Is there a requirement in either New Mexico or local law that a Declaration be approved by P&Z? The declaration is a contract between the seller and the buyers. In most places it requires no approval from any government agency. A declaration is normally recorded with the officer who is designated by law to record documents. In Arizona, that person is the County Recorder. I understand that in other places the recording official may be the clerk of courts or even the city clerk. You wrote that "I asked Planing and Zoning about this and was told they never look at the covenants and only registrar them at the Court house as a courtesy." I seriously doubt that P&Z gets involved at all in recording a Declaration and I doubt that P&Z records them as a courtesy. It would normally be entirely up to the Declarant to record the Declaration.

When a seller subdivides a property, he usually will hire a surveyor to prepare a plat that shows, among other things, the location of roads, lot lines, easements, and other physical features that either exist now or are intended to be built. A plat is nearly always signed and sealed by a licensed surveyor and recorded with the same official that recorded the Covenants. In my state, P&Z is not involved.

That leaves me wondering if the "plat" you are referring to is actually a land use map. A plat would not normally state how the land is going to be used, but there seem to be infinite variations around the country. If the map approved by P&Z does not have a surveyor's signature and seal, then I would say it is definitely not a plat. The place to resolve the conflict is at the recorder's office, not at P&Z.

I hate to say this, but I find no conflict between the documents you cited. Nothing in the map that P&Z approved prohibited owning horses, so there was no conflict with the covenants that authorized horses. The declaration was your notice that there could be horses in your subdivision. (I like horses but their droppings are fly magnets, so I only like them at a great distance.)

I do not mean to be harsh with you. I lived in New Mexico for a year around 1990. My observation was the NM is the poverty capital of North America and that, as a result, corruption runs rampant at every level of government. While I lived in Albuquerque there was a Justice of the Peace who was convicted of taking bribes; two city police officers who admitted to planting evidence that led to a wrongful conviction retained their jobs without any sort of reprimand; the city spent a huge amount of money defending one of their managers who admitted that he did not promote one of his workers because the employee was black (the city lost in federal district court and again on appeal); and the Sheriff could not bring himself to firing one of his detectives even after the detective wrecked his third official car in one year while drunk and killing a bicyclist. I am therefore not at all surprised that you got screwed over as a result of filing a complaint.

SusanW,

I was only pointing out that the plat is the only document that has ever been approved. Yes, I am talking about the CC&Rs and I am aware they don't need local approval and that they are a contract between the land owner and the developer.
However there is a relationship between the plat and the CC&Rs because the CC&Rs refer to the plat where they state "As shown on the plat". This reference changes the way the CC&Rs read because they do have the "Permitted Land Use" stated on them.
I am talking about two provisions within the same document (CC&Rs) that appear to be in conflict, The "As shown on the Plat" and the "Horses allowed" provisions, simply because you have to take into account what is on the plat when reading the CC&RS because of that reference.
I know it is unusual to have the the permitted land use on the plat because I have spent years in the construction business and have never seen it before but it's there.
About the plat:
I don't think this is just a land use plat because it is not only signed and stamped by the surveyor but also signed by the Chair person of the Board of County Commissioner, the County Deputy Commissioner, The Chair person of the County Development Review Commission, The County Public Works Director, The County Land Use Administrator, and signed and sealed by the Deputy of the Recorder of deeds. It also has a Land development permit number.
I will however check with the County Recorder's Office to be sure.

There are a couple things I'm having difficulty wrapping my mind around.

1. How can a developer hand the County Commissioners one thing (the plat) wherein he claims a certain land use, then go out and writes a contract for (land Use) something else?
2. If the above case is legal then you could do anything you wanted regardless of what you tell County Commissioners once you get your plat approved.
3. Shouldn't the contents of the plat be disclosed to the buyer since it affects the way the CC&Rs read?
If I am wrong about my analysis of this please tell me where I am wrong.

If you think corruption was bad when you lived in NM it is much worse now.

Mike8

Mike,

I'm sorry to hear that legal action was brought against you over a simple complaint/request to the zoning board.

Other than getting people together to change the documents, I'm not sure what else can be done. Even if you did get the documents changed, the individual in question would probably be grandfathered in - so I'm not sure it would be worth the effort.

Tim

Tim,
That's interesting you mention Grandfathered in. The City doesn't have a Grandfather Clause and has never adopted one, It only took me two years to pry that information out of them. lol
As far as getting others together to change the documents---not a chance---people are scared to death of these evil idiots.
Mike