County Ordinances vs. CC&R's

Started by DouglasM6 • 5 replies • 1130 views

💬 Join us to post & get advice from 50,000 HOA & Condo leaders.

⚡ Takes 30 seconds

Already a member? Log in

DouglasM6 (Arizona)
Posts: 724

Posted:

I read that in the hierarchy of legal documents a lower document cannot be more restrictive than the rule/document above it. If the county, no city involved, has zoned a subdivision as R43 (meaning livestock is allowed) how is it the CC&R's can restrict livestock?

TimB4 (Tennessee)
Posts: 21,062

Posted:

I don't know where you read that, as it is incorrect.
Please provide the source of your understanding.

A lower document may not conflict with a higher document. If a conflict exists, then the higher document controls (must be complied with) unless they defer control to the lower document. However, being more restrictive is not a conflict.

Example:
City ordinance says fences may be up to 8 feet high.
CC&Rs limit fence height to 4 feet.
No conflict exists. You simply contractually agreed to limit fences to 4 feet even though the city allows 8 feet.

Now, if the CC&Rs said fences could be 10 feet high, a conflict exists as the higher document limits the fences to 8 feet.

The CC&Rs could specify no fences allowed and this would still not be a conflict as you contractually agreed (by purchasing property with those deed restrictions) to not have fences even though fences are allowed by the city.

Hope this helps explain things.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Mark

A lower document can be more restrictive. The fence example Tim pointed out is a classic example. Parking is another common one. This is especially of Covenants/Bylaws of an association as the buyers/signers agreed to the "tougher" restrictions.

DouglasM6 (Arizona)
Posts: 724

Posted:

Thank you for the clarification. I read it on this site, but misunderstood it.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By DouglasM6 on 04/20/2017 2:53 PM
I read that in the hierarchy of legal documents a lower document cannot be more restrictive than the rule/document above it. If the county, no city involved, has zoned a subdivision as R43 (meaning livestock is allowed) how is it the CC&R's can restrict livestock?

My County generally makes developers add something to affect as noted below to the CCR's:

"The Owners may and are encouraged to continue agricultural uses, lincluding, but not limited to, crop production and grazing purposes."

Check your CCR's. Also, check with the County to see if they have an ordinance prohibiting agriculture rights to be overridden by an HOA.

BobD4 (up north)
Posts: 1,002

Posted:

Quote:

Posted By DouglasM6 . . . If the county, no city involved, has zoned a subdivision as R43 (meaning livestock is allowed) how is it the CC&R's can restrict livestock?

Douglas M6 The reconciliation might respectfully be that the Declarant was empowered by zoning/planning to set up a community with realty uses that could theoretically have gone so far as to include livestock-keeping.

But instead chose lesser limits into which end-use buyers covenanted to be limited to far less. Like an official plan limit of 200 units in theory for the site but the market ultimately supported only 150 constructed albeit higher luxury . . .

🎯 You've read this entire discussion

Join the conversation with 50,000 HOA & Condo Leaders:

✓ Ask follow-up questions
✓ Share your experience
✓ Get expert advice
✓ Access 350,000 discussions

Create Free Account →

⚡ Takes 30 seconds

Already a member? Log in here