November 14, 2019
Private Restrictive Covenants, City Zoning Laws, and City Permit Applications
Residents frequently ask whether City zoning laws and proposed zoning changes override deed restrictions. The question often centers on whether a multi-unit residential structure can be built on a lot, even if the lot is subject to deed restrictions that limit development to a single residential unit. (These restrictions should not be confused with regulatory covenants required by the City, which are commonly referred to as "public restrictive covenants.")
The short answer is that the Land Development Code does not affect the enforceability of deed restrictions. Several things to keep in mind regarding the Code, City zoning laws, and deed restrictions include:
- Deed restrictions are a civil matter enforced by the parties named in the restriction, such as a property owners’ association or a property owner.
- Changes to city zoning regulations should not affect the enforceability of deed restrictions. A deed restriction that is enforceable now should continue to be enforceable, regardless of changes to City zoning regulations.
- Zoning does not extinguish the obligations between parties to a deed restriction.
Other questions focus on whether the City can deny permit applications based on deed restrictions that exist on a property. Several things to keep in mind regarding City permit application approvals and deed restrictions include:
- If a building permit application complies with the Land Development Code, then staff must approve the application whether or not it conforms to a deed restriction.
- The City cannot prevent landowners from developing property based on a deed restriction.
Although the City cannot enforce deed restrictions, the City has updated its residential permit application form that requires the applicant to acknowledge the following:
- The applicant has checked for any property-specific information such as deed restrictions or restrictive covenants on the property.
- The applicant is responsible for any conflicts between the property-specific information and the request for the proposed development.