CC&R Conflict with Zoning Ordinance

[Brennen Cook]

So I have gone through Biggerpockets and have not found this one....

I have a situation where CC&R's seem to conflict with local zoning ordinances. Situation as is below:

-CC&R's written in 1987 read "No building on any lot of said property shall be used for more than one single family dwelling and or accessory building".

- In 2015 zoning was legally changed to multi family.

My understanding of zoning vs CC&R is that CC&R's can be more restrictive, but cannot violate any laws. My understanding is that zoning ordinances are law, enforceable by such, and CC&R are voluntary agreements, a civil matter.

There is multifamily already permitted to build on the property and I know city planning and permitting departments are not privy to CC&R's. Would there be some crazy civil recourse on this being in conflict with CC&R's?

Curious is anyone has any insight or experience on this before I reach out to my attorney. Any insight is appreciated!

[Matt Everling]

@Brennen Cook Cities do not enforce CC&Rs. If the City Council adopted an Ordinance rezoning the subject property to MFR, then revisions to the CC&Rs would remain a civil matter between the property owner and the HOA.

[Adam D Rinehart]

@Brennen Cook I wouldn't rely solely on what the CCR's say in this situation. I'm not versed in your local development ordinances so I'm only going off what what I've seen in other states. First thing I would check is the subdivision plat to see if any restrictions were placed on lot development when it was recorded. Since most homeowners don't get a copy of the subdivision plat at the time they close but will be given the deed restrictions, the CCRs will include some of same pertinent language so no one can claim it wasn't disclosed to them. If there's no language on the plat prohibiting what you want to do, I would attempt to replat the lot under the new zoning designation. If that's allowed or not will determined by the planning department during review of your application.

[Rob Massopust]

What is your goal - that would be the first step

You want to add on in a HOA property ie:condo or sfr

you can look at the ADU law and might allow some flexibility

regarding the zoning - if the city upzoned or downzoned then the complex would be grandfathered in [most likely - just my opinion] and with regard to the lender or financing if the zoning descrepancy then sometimes you can get what is called a rebuild letter from the city which allows you or the HOA to rebuild in case of destruction etc