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Subject: City Zoning vs. HOA CCR's
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Author Messages
GloriaL
(Georgia)

Posts:195


04/23/2009 7:17 PM  
A new issue is unfolding in our Association and we could use some input.

A gentleman who owns a mortgage co. took possession by quit claim, a Lot on which he had granted a loan that was defaulting. The Lot was platted as a buildable Lot in 2002 by the county. Since the time the Lot was originally platted until now, our area gained its independence as an unincoporated part of one city and became an independent new city. Our new city put in place stricter restrictions regarding buffer zones near streams. That is where the problem has arisen.

The BOD discovered that the owner had submitted to the Zoning Board of Appeals plans to construct a residence on the Lot, which has a stream meandering through the middle (1.2 areas). The owner never submitted for approval any plans for construction, which is a requirement of our CCR's. The proposed residence is not in compliance with our CCR's: residence square foot inadequate, three car garage minimum, garage doors must not face the street (side entry), driveway must be constructed from concrete. The BOD attended the Zoning Meeting and was able to get a postponement so the BOD and the new owner could work together. The new owner wants the BOD to grant variances, which the BOD does not have the authority to do.

The BOD's position is that the owner must bring the proposed plans into compliance with our CCR's, and then go before the Zoning Board of Appeals for them to grant any variances to the setbacks they have in place. We are drafting a letter to the owner to that end, and hope that he will comply. We believe that it is our charge to uphold the CCR's, and any variance should be granted by the city.

One Zoning Board Member asked the city attorney at the Meeting if the CCR's are enforceable, to which the attorney responded that they are legally binding.

The questions are:
1. If we get the owner to amend his proposal so that it is in compliance with our CCR's and present it to the Zoning Board for necessary variances, can the city demand that changes be made which will take the residence OUT of compliance with our CCR's.
2.Can the HOA be forced to allow something to be built which was does not comply?
3.What if the owner refuses to amend his proposal? Will a cease and desist order issued to the owner prohibit the Zoning Board from moving forward with granting a variance anyway?

I know that this is long, but we are in the midst of this and would certainly appreciate any insight.

Thanks,
Gloria

GeorgerwilliamsW
(Indiana)

Posts:975


04/23/2009 11:41 PM  
If you are genuinely serious about this issue, don't listen to the uninformed opinions of the people spouting off here. You need to find a good attorney, one who specializes in zoning issues, not simply one that deals in real estate law or homeowners associations.

Here is why: the covenants may be unenforceable because they were written for circumstances (zoning) that no longer exist. This is a very challenging area of law, one that could be disputatious in the extreme. Some contract cases in which the overarching circumstances changed have been in court for years.

Of course, the best course of action is to work out a mutually agreeable solution outside of court. And, if needed, the association can seek a declaratory judgment invalidating specific sections of the covenants to allow an exception to the covenants as written.

You have to ask yourself if it makes sense for the association to assess huge legal fees to members in order to defend a set of covenants that are no longer operable under the new circumstances.

The city attorney may be completely wrong in his off-the-cuff assessment.

I am sure there will be people here who will insist on offering their utterly uninformed opinions. If they make you feel good, that is fine, but the very fact that they spout off shows their lack of understanding and knowledge of the law.
MicheleD
(Kentucky)

Posts:4491


04/24/2009 6:35 AM  
Posted By GeorgerwilliamsW on 04/23/2009 11:41 PM
If you are genuinely serious about this issue, don't listen to the uninformed opinions of the people spouting off here.




That's not only offensive, but highly incorrect as well. There are people on this site who are incredibly well-informed about a large variety of issues. Most of us, though, aren't pompous or arrogant, which may be where your confusion comes in.

You could have advised her to look to attorneys without having to denigrate the people on this site. Everyone, including Gloria, already knows we are not legal professionals.

She would hardly be using this site as a source of actionable legal advice.



MicheleD
(Kentucky)

Posts:4491


04/24/2009 6:41 AM  
Posted By GeorgerwilliamsW on 04/23/2009 11:41 PM


The city attorney may be completely wrong in his off-the-cuff assessment.

I am sure there will be people here who will insist on offering their utterly uninformed opinions. If they make you feel good, that is fine, but the very fact that they spout off shows their lack of understanding and knowledge of the law.





By the way, how does your completely inappropriate and lacking of any context or reference regarding whether the city attorney's comment is either "off-the-cuff" or "completely wrong" differ in any way from the statement you made immediately following it, re: people who will "insist on offering there utterly uninformed opinions"?

How can you even presume to characterize the city attorney's "assessment" as either "off-the-cuff" or even remotely wrong, much less completely wrong, if you have no idea when or in what context, of based on what breadth of experience he made it.

Talk about someone "spouting off" ~~

Just sayin'.
MicheleD
(Kentucky)

Posts:4491


04/24/2009 6:42 AM  
Spelling error/typo *their utterly uninformed. . .
RobertR1
(South Carolina)

Posts:5164


04/24/2009 7:07 AM  
George,
What is your problem?

No one said we were perfect and you are included in that statement. For someone as articulate as you are to write such rubbish leaves people with the impression you are part of the problem and your posts require greater scrutiny.
If you don't like it here don't post. Surely you are not saying you are the only one that has any knowledge around here.

The difference between you and I George is I know I am full of crap.
And where in the world did you ever get the idea that because people post on this site, they really give a Rat's patootie about what you think of me or anyone else. Come on down from the clouds George, I enjoy your posts too much, but then I can accept the BS and not let it get in the way of reality.

I'll be glad to not post if the disclaimer requires that I have to be right all the time, but then, that would eliminate you also.
MaryA1


Posts:0


04/24/2009 7:24 AM  
Good response Robert!

You said: "Surely you are not saying you are the only one that has any knowledge around here." But, of course that's what George IS saying!!! This is not the first time he's dismissed us as being totally uninformed and not qualified to give an opinion on the color of the sky, much less an HOA issue. Only George knows what he's talking about! I'm surprised he hasn't demanded HOA Talk admin to require all of our messages to be cleared through him b/4 being posted.

I don't know about anyone else, but I surely was enjoying George's absence and now he's baaack and as arrogant as ever.
MicheleD
(Kentucky)

Posts:4491


04/24/2009 7:32 AM  
. . .

Oh, but we weren't too stupid to provide him with input for his "article" on what to ask when buying in a covenant community, were we?

He wants us to do his homework for him, but not share "insight" with fellow HOAers on this site?

The OP in this thread wasn't even asking for legal advice, or even professional advice any way, shape or form.

She specifically was wanting our own INSIGHT.

I dunno about the next guy, but when someone is asking for "insight" I think they pretty well understand the value level is somewhat below that of a professional response or legal advice.

"Insight" can cover a wide variety of responses, up to and including our pitiful "uninformed" ones.

MaryA1


Posts:0


04/24/2009 8:02 AM  
Gloria,

Well I'm going to "spout off" my "uninformed opinion". Besides John has given me the title of "Esq, Jr" so I think I am as qualified as anyone!

The city zoning depart can grant a variance but if the variance is in violation of the CCRs the HOA can prohibit him from building his residence. The HOA restrictions can be more restrictive than city code they just cannot allow something that city code denies. I would doubt that the city is concerned with your CCR restrictions. Their concern is that their requirements be met. If they grant a variance allowing him to build a 2,000 sq ft residence, but the CCRs state a minimum of 2,500 sq ft, he must abide by the CCR requirement or he will be in violation and subject to whatever enforcement policy is in effect. The City won't care if the residence is 2,500 sq ft, as long as it's at least 2,000 sq ft.

To specifically answer your questions:

1) Only if your CCRs would violate the city's variance
2) No, as long as the CCRs do not violate the city's variance
3) No. However, w/o board approval he cannot build no matter what the city approves. The HOA has the final word. The fact that the City grants a variance does not overrule the assn's right to require approval b/4 construction begins.

I'm not an attorney. This is just my "uninformed" opinion!
JohnK3
(Pennsylvania)

Posts:967


04/24/2009 9:34 AM  
Mary writes:

>>>Besides John has given me the title of "Esq, Jr" so I think I am as qualified as anyone!<<<

That, Grasshopper, plus 99 cents will get you a "Junior" Bacon Cheeseburger at Wendy's.

Having said that, your spouted, uninformed opinion is excellent and I'm sure will be appreciated by Gloria.
MaryA1


Posts:0


04/24/2009 10:43 AM  
Thx, John! You know, I don't believe I've ever been to Wendys, but that Jr Bacon Cheeseburger sounds good. Are you sending the 99 cents in cash or money order? LOL
JohnK3
(Pennsylvania)

Posts:967


04/24/2009 10:58 AM  
The JBC is on Wendy's so-called "Value Menu." Gets very high marks on the nutrition vs. junk scale. Comes in around 390 calories, I believe. Coupled with the Value Fries (read: Very Small Dose), $2.10 (tax included), makes for a nice, quick lunch if you're not famished. Mrs. JohnK is a big fan.

DonnaS
(Tennessee)

Posts:5671


04/24/2009 1:54 PM  


George,

Why oh why do you feel the nescessity to belittle everyone on this site for their comments and yet you continue to come back time after time. We are beneath you, your expertise and your tollerance for anyone else having an opinion so why is it that you still want to show up here and attack everyone?

If you are having a bad day, don't even turn on your computer. I'll bet that you treat everyone who you feel is less intelligent than you, as crap. In a perfect world, we would all be as smart as you but then again, I don't think that I want to be like you.
SteveM9
(Massachusetts)

Posts:2909


04/24/2009 5:47 PM  
Most towns wont get involved. They will approve a building permit based on local laws. If the owner doesn't follow HOA rules, that's your problem to work out with the owner. The city has done its part checking for compliance based on its rules. It doesn't have time to figure out yours.

The HOA would need to inform the owner of non-compliance and if they dont comply, follow the CCR's to fix the situation.
KirkW1
(Texas)

Posts:1665


04/24/2009 6:33 PM  
Two things:

1) The poster probably should make a motion to consult an attorney early in this process. Even if I could say 100% how such would play in my area, I am not in Georgia and can't speak for what will happen there.

2) George, while we may not be able to give legal advice, people here may have real experience in similar situations.

I can say that my father was involved in a situation where a land owner was trying to pit zoning against CC&Rs. In their case the zoning commission informed them that they legally could not consider the existing covenants as they were private contracts and they were prohibited from enforcing such. At the same time, because enough neighbors were present and up in arms over the proposed change the issue was killed. The conclusion was that a zoning change would be contrary to good public policy.

I can also say that in Texas the owner would likely be able to force one of two outcomes.
1) Honoring the original land plan.
2) Buying the lot for what it would be worth under the original land plan.

But again, this is Texas and not Georgia. I would try and spend some time to see what can be worked out. I would also keep in mind that one house that is smaller will not always be a detriment to the neighborhood. In fact, because of its unique situation it may end up increasing the value of the neighbors.

If your BOD doesn't have the authority to grant any variance, then you would be well to look for a change there. This is exactly why most CC&Rs allow for a variance.
GloriaL
(Georgia)

Posts:195


04/24/2009 7:13 PM  
I must thank all of you who offered the requested "insight." I value the many opinions and have found direction many times here before.

After reading George's original comment, I sat back and waited to see what happened here next...didn't take too long.

For the record, our HOA has briefly discussed this with our attorney. And will bring the attorney into the issue if we cannot get the new Owner to bring his proposal into compliance with our CCRs before it goes back to the Board of Zoning Appeals. The attorney will issue a cease and desist letter to the new Owner at that time. Just looking to see how other city Boards have dealt with HOA's and opposing issues.

I come to this forum often...not for legal advice on which to base direction. I come to hear how others who may have experienced the same or similar issues have dealt with them. Many people can look at the same situation and come away with very different views. I value collecting those views and experiences, sorting through them, tossing out some and keeping others.

Everyone has bad days and good days. I'll chalk some of the comments here on this issue as a bad day for some, and a good one for others.

But I will keep coming back and posting.

Thanks,
Gloria
DonnaS
(Tennessee)

Posts:5671


04/25/2009 1:36 PM  

Gloria,

Thank You for having such a positive attitude about our rants on your thread. Sometimes, someone knows how to push the right buttons and it doesn't take long for the explosion to occur. Good days and Bad days, this is still a good place to read about other experiences and insights, living in a HOA.
GloriaL
(Georgia)

Posts:195


04/25/2009 2:42 PM  
Again, I have learned a lot from this forum. This is only my first experience with a HOA, and I can honestly say that I don't like them. Sorry, but I don't.

I have lived in many places, and many subdivisions, all without CCR's or HOA's. I like the freedom to choose what I want to do with my property and respect someone else's right to do something different with theirs. Perhaps I have been very lucky in all the places that I have lived, or just the scale of the homes have tended to make people take pride in their dwellings. I have a strong belief that good fences make good neighbors. I have built a fence around each home that I have owned no matter what the acreage, and enclosed that with tall dense shrubs so that I don't have to see what is going on next door. As long as they stay out of my yard, I stay out of their business.

But a HOA is a creature of another nature. By its very nature, our lives are intertwined. In this area of GA, HOA's are prevalent. I can understand the perceived benefit of an HOA, especially if there are ammenities associated with it such as pools and tennis. But again, everywhere else, if you wanted a pool or a tennis court, you just put one in your own yard and enjoyed it without restrictions.

I like my neighbors. I like my home. I enjoy the look and feel of the subdivision. Can I say that is all because of the HOA? The honest answer is No.
All the other subdivisions had no HOA's, and they matured beautifully, and increased in value tremendously. I think it speaks more to the owners than to the Documents.

Having said all that, I have now been an active BOD Member for four years, and probably will continue. I will continue to enforce the CCRs as written and nothing more nor less. I value all that I have learned here since I was so totally inexperienced in the world of HOAs, POAs, and CCRs.

I still wish it didn't exist, to be truthful...

Gloria
RobertR1
(South Carolina)

Posts:5164


04/25/2009 3:19 PM  
Donna and Gloria,
Donna, how about that? I think you have defined this site pretty well. I don't suppose our founding fathers at the Hoatalk Hdqtrs designed it this way, but it pretty much has evolved this way. It is a excellent place to read about and comment on experiences and insights of day to day HOA living. No tablets of stone or rolled scrolls mandating your life, just get up, wake up and start the day and enjoy the experience.................that's it.

Gloria,
I somehow deleted some of your post and thought for a while you were talking about married life (just kidding). Stick around, you will get as warped(the verb) as the rest of us, except be careful you don't jump off the cliff and start to think you are smart or folks owe you something.
MicheleD
(Kentucky)

Posts:4491


04/25/2009 5:00 PM  
Gloria, no need at all to apologize to us for your position on HOAs. My own dad won't live in one, even though he never has, he's only going on "perception." We helped him find a home in a development without one when he moved back here from Colorado.

People who live in them don't even necessarily love them. I know I was always leery of them (probably based on my dad's ranting and raving against them all my adult life).

But having lived in many areas without one and now living in an area with one, I wouldn't move into a development without restrictions and an HOA to maintain/enforce them.

Although I will admit that I would probably actively try to be involved in the board or leadership in some way, simply because of the human nature aspect of people who have a perceived sense of power that they don't really have. . .

I digress.

The idea is not that anyone really cares about the minutia regarding what you do with your home and what I do with mine.

The idea is that not every really does care about what happens to their neighbors' property values, regardless of how high end or low end your development is.

If you get some yahoo who never intends to sell, what does he care what his home value is in the long run?

I have lived in homes in the high end of the spectrum -- and have had neighbors who are literally hanging engine blocks from trees in their yards. It's a hobby. Go figure.

And not all HOAs are the same. My neighborhood's restrictions, while they tick some people off as communism (we've been called dictators, too), they are still no where near as restrictive as some other neighborhoods.

So I would definitely only live in a deed restricted community -- ever. I would just be very picky about what sort of restrictions I would be willing to live under.

I would also say that you've been very lucky if you've lived in non-deed restricted areas that have had no problems. It only takes one or two neighbors to being the slide in property values. It has less to do with the areas where you lived without them than it does, quite frankly, with the sheer luck of the draw that you didn't get a neighbor or two who could initiate that slide.

MicheleD
(Kentucky)

Posts:4491


04/25/2009 5:03 PM  
Oh, I also wanted to say one more thing.

The thing about people loving or hating HOAs: It's more like a spectrum or a continuum, if you will.

Imagine on one end the type of person who ADORES HOAs and then on the other end someone who detests them with a passion.

Most all other homeowners, including those on this board, I'm sure, would fall somewhere closer to the middle or middle left or right on that spectrum.

Me? I consider them a necessary P.I.T.A. (pain in the A**).

But, I'm also all to aware of how a rogue board can royally screw up a neighborhood. That means, to me, wherever I go to live that has an HOA, I would first want to canvas regarding the type of Board Leadership that exists.

GloriaL
(Georgia)

Posts:195


04/25/2009 6:48 PM  
Posted By MicheleD on 04/25/2009 5:03 PM
Oh, I also wanted to say one more thing.

The thing about people loving or hating HOAs: It's more like a spectrum or a continuum, if you will.

Imagine on one end the type of person who ADORES HOAs and then on the other end someone who detests them with a passion.

Most all other homeowners, including those on this board, I'm sure, would fall somewhere closer to the middle or middle left or right on that spectrum.

Me? I consider them a necessary P.I.T.A. (pain in the A**).

But, I'm also all to aware of how a rogue board can royally screw up a neighborhood. That means, to me, wherever I go to live that has an HOA, I would first want to canvas regarding the type of Board Leadership that exists.





I guess I agree with MicheleD's assessment:
1. people love or hate HOAs, and most land somewhere in the middle
2. I also consider them a P.I.T.A. (and maybe not necessary, IMHO)
3. that a rogue board can really screw up a neighborhood
4. except that instead of just canvassing the type of Board Leadership that exists, I'd want to become part of that Board Leadership so help ensure that it doesn't become more than what it was intended to be.

I have been very lucky in all the places in which i have lived, and I am aware of that. Hopefully, this latest venture in this HOA will also stay a good experience.

I can say that being a BOD Member requires a great deal of time, effort, willingness to learn, a great big dose of patience...a sense of humor helps too. I give a tremendous amount of praise to all those who do these volunteer jobs year after year after year, and can still smile.

Gloria
KirkW1
(Texas)

Posts:1665


04/26/2009 7:40 AM  
One thing that people should keep in mind is that if you have trouble getting people to serve on the Board it is probably time to try and lay the HOA to bed. I think often it is at this point that a rogue Board gets their start.
GloriaL
(Georgia)

Posts:195


04/27/2009 11:56 AM  
As an update on where our Association is at this point, our attorney has advised as follows:

1. The BOD does NOT have the authority to grant variances. Failure to enforce as written could result in a selective enforcement claim in the future.

2. The Membership does NOT have the authority to grant variances. The most the Membership can do is to vote to remove a specific Covenant.

3. The City will not enforce the private Covenants.

4. If the required city variances would put an owner in the position of violating existing CCR restrictions on his property, the Assocation still has the right to enforce the private Covenant.

5. The City CANNOT force the Assocaition to waive its private covenants.

This will get more interesting as we move forward on this issue. The BOD has demanded that the new owner bring his plans into compliance with our CCRs before going back to the city Board of Zoning Appeals, and we gave a specific date. If he does not comply, our attorney will issue a cease and desist letter. He may end up with an unbuildable Lot due to the new restrictive setbacks put in place by the City, not the Association.

I truly relish ideal of private property ownership, and, again I have been more than blessed to have lived in wonderful neighborhoods that stayed that way due to wonderful neighbors without the need for "wonderful" Documents.

But it is what it is. We all moved here fully knowing what the restrictions are, and bought into it anyway. Being a BOD Member, I will do diligence and enforce our CCRs as written...no more and no less...that it is the hard part.

Life is good, even in an HOA.
Gloria
DonnaS
(Tennessee)

Posts:5671


04/27/2009 12:08 PM  


WOW !!! An Attorney who I like. I believe he gave you sound advice and the bill will be worth paying.
MaryA1


Posts:0


04/27/2009 12:27 PM  
Gloria,

Good news!! Actually what your attorney had to say is what I "opined". Guess George should be eating his words: "I am sure there will be people here who will insist on offering their utterly uninformed opinions. If they make you feel good, that is fine, but the very fact that they spout off shows their lack of understanding and knowledge of the law."
GloriaL
(Georgia)

Posts:195


04/27/2009 2:39 PM  
I am afraid to become too complacent with how this seems to be going. Afterall, the new owner is going to push as much as he can to recoup his investment.

He has said that he never came to look at the property before he quitclaimed it. He thought he was getting a great steal by getting raw land in an established subdivision of 3/4 million dollar homes which he bought for less than 1/2 the assessed value. What he may have actually purchased is an unbuildable Lot due to streams, increased city buffer and setback requirements, septic field and reserve field requirements, steep slopes...none of which was imposed by the Association. That old adage, "If it seems too good to be true, then it probably is" just didn't seem to enter into his thought process.

Now if this property was in a place without an HOA, he would only need to get the variances and permits necessary from the City, and most likely would. I would be perfectly fine with that, afterall, it is his property. However, that is not the case. He will have to adhere to our CCRs just like everyone else.

To me, from our attorney's advice, this looks like the owner has no choice but to comply with us. Any variances would rest on the City's shoulders, not ours. I hope it unfolds that way, and doesn't end up turning into a huge battle with lots of $$$ attached. Our HOA is really small and our $$$ are even smaller.

Even though some people sounded off at the beginning of this post, the rest of the experiences offered seemed calm and helpful. What happens in real life here still remains to be seen. Maybe blood sugar levels were low...

Gloria
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Forums > Homeowner Association > HOA Discussions > City Zoning vs. HOA CCR's



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