New owners old violation & definition

First, I want to thank everyone who responded to my previous inquiry. It is my hope that many of your suggestions will now become policy for our little community and alleviate unnecessary conversation and confusion, and help us become more efficient as well.

So here are two another issues.

(1)A property has recently sold in our association, this property has been marked with surveyor's ribbons and flags. It is now very apparent that the driveway location on this lot is in violation of our CC&Rs (big time). The home and driveway on this lot is at least 15 years old.

I suppose originally this violation was not obvious because the lot adjacent to the driveway was vacant up until about a year ago, now that this lot has been built on, and the surveyor's' markings are in place, the violation is very obvious.

Can we request that the new owners move their driveway to be in compliance even though the violation has been in place for sometime?

(2)Our CC&R's state that only an "attached dwelling" can be constructed when a lot is under certain acreage (not an unattached dwelling). We are getting push back regarding the definition of an "Attached Dwelling". We believe that an attached dwelling is defined as having a common wall. In our community if a detached dwelling is constructed a septic waste water system would have to be installed.

Any advise would be welcome! Best, Robin

It would be helpful it you could tell us what CCR the driveway violates. Is it a setback, easement, or something else? I agree with Larry that the violation would have to be exceptional to warrant pursuing after 15 years.

Thanks for your quick replies!

Just some background and clarification, sorry not to give you enough information.

(1)Our Covenants are very restrictive in regards to the protection of the natural environment. One directive, to help protect the wildlife, is to allow for "corridors" for creatures to travel through. These corridors are considered conservation lands, fences, and driveways have to be at least 50ft from any lot line, this allows for a 100ft corridor between properties.

The driveway in question, (along with a dilapidated fence that has been recently removed, is right on the lot line. Their neighbors when building their home and driveway positioned their fence and driveway 50ft off their lot line and are in compliance. As a result their is only a 50ft "corridor" between these two properties, which is a very big violation for our association. (And again it's really obvious now with all the ribbons etc.)

Recently the owners in question removed the old fence and will probably put in a new one soon, so this would be the opportune time to ask them to move their driveway.

If they erect a fence on the lot line this will be a NEW violation. They will probably not want to put this fence on the other side of the driveway, which would be the only way the fence could be in compliance, because the gate and fence would be oddly positioned to gain access to their home. So maybe we should pursue the fence violation and perhaps the new owners would move the driveway voluntarily.( just thought of this actually.)

(2)"Dwelling" in our CC&R is defined as any building designed for human occupancy including an attached apartment or a detached structure if either of them have any of the following: kitchen, running water toilet or tub/shower.

Under dwellings and lot sizes:
There shall be no dwelling unit per (so many acres) except that an attached apartment of no more than half the size of the main dwelling may exist on these small lots.

Robin,

With regard to the wildlife easement, the closest case I know of is that of Smith v. Beesley. (http://caselaw.findlaw.com/az-court-of-appeals/1552618.html)

In that case, Beesley purchased a small parcel next to his home; the parcel was entirely dedicated as a drainage easement. Beesley built a driveway on the easement and Smith sued alleging, among other things, that the drainage easement precluded all other uses. The court held that as long as the drainage was not impeded the land could be used for other purposes.

In your situation, the driveway itself does not prevent wildlife from traveling the corridor so I do not believe it is a violation of the terms of the easement although it may be a long-standing violation of your CC&R's. My advice would be to let sleeping dogs lie but ask the owners to reroute their driveway in the future should it ever need substantial repair.

The fence, of course, is a different issue but it sounds like that is being taken care of.