Developer changes zoning without

Started by JimV4 • 6 replies • 232 views

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JimV4 (Colorado)
Posts: 1

Posted:

There are two parts to our development. A residential airpark and a commercial business park. The developer sold out of the residential side and sold only one of the 6 Commercial lots. Recently, he petitioned the County Commission to have the zoning changed on the remaining 5 commercial lots to residential without consulting or even notifying the HOA. The County approved the change. He also took it upon himself to rewrite the CCRs for the Business park to accommodate this change of zoning and use as residential lots although he did not try to record them yet.
He claims to have sold one of the lots as residential already (which probably prompted all this) and turned down a commercial sale on that lot.
As a Board member, I am concerned how this can all happen without the HOA having any input. Our CCRs do specify how to amend them and that was not followed. It seems to me the Zoning change would also affect the Platt when the PUD was originally approved by the County and since that is a governing document of the HOA, it should also not be able to be changed without HOA approval.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

It is his HOA and can do what he wants. Unless he doesn't own it?

Former HOA President

LoriM15 (Florida)
Posts: 1,009

Posted:

Did the commercial area have it's own documents? If the commericial lots were governed by the HOA for the residential side that's one thing, but if the developer still maintained control of the HOA for the commercial lots then he can do whatever he wants.

CathyA3 (Ohio)
Posts: 6,299

Posted:

Yes, the developer can ask for this, but it doesn't mean he'll get what he wants.

Zoning decisions involve more than just adjacent properties. Unless the HOA actually owns the section that was zoned commercial, they have no more say than anyone else.

When I've seen zoning disputes involving HOAs in the past, they usually involve efforts to turn residential into commercial property, not the other way around. People who buy homes in HOAs under development with large open areas around the community often live in dread of what that open space may turn into - commercial lots mean noise, traffic, possibly more strangers coming into the community, and other things that are generally considered undesirable in residential communities.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Jim

Is the developer still the Declarant? If so, typically a Declarant can pretty much do as they want to do.

SheliaH (Indiana)
Posts: 6,964

Posted:

What everyone else said. However, you're not necessarily SOL because you may be able to appeal to the zoning board to dictate what type of businesses will be allowed in those commercial zones. That's one reason my community is in a neighborhood association that keeps an eye on what people want to build and where, and if there could be an issue with noise, traffic, and whatnot, the association will bring those concerns to the zoning board. The board usually pays close attention to what the neighbors say (especially residents), which can prompt the business to amend their application to address those concerns or drop it altogether.

You may want to see what's in your area and consider joining that organization, but if there isn't one, that shouldn't stop the board andy/or residents from speaking up at those meetings, writing letters, etc.

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

LoriM15 (Florida)
Posts: 1,009

Posted:

I believe the OP said that the developer already got part of the commercial area re-zoned to residential. If so there's not much the HOA can do especially if the developer was still the declarant for the commercial association and got the documents updated.

We have a commercial area in our community with separate documents. The commercial association is now defunct since they have not provided annual reports for several years. The commercial association owns a private street so at this point no one is taking care of it. One lot was recently under contract and a sign went up saying a car wash was going to be built. Our attorney went through the documents and discovered that even though zoning allowed car washes, the commercial association prohibits, among other things, car washes and gas stations. We had the attorney contact the real estate agent and point out that even though the association isn't active, the documents are still applicable and no car wash can be built there. The contract with the car wash was cancelled. If the purchase had gone through we could have taken the case tot the zoning and land use departments and we would have been able to stop it there.

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