City Zoning vs. HOA CCR's

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

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.

Spelling error/typo *their utterly uninformed. . .

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.

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!

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

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.

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.

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.

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.

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.

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.

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

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