Planning Commissions and Deed Restrictions

by Matthew Cochran
(Boulder, UT, USA)

Visitor Question: Should Planning Commissions ignore deed restrictions, since they are agreements between private properties and the Town Government is not a party to them, when voting on land planning issues? Though a Town cannot enforce deed restrictions, are there towns that ask for deed restriction disclosure on building permits and subdivisions? In other words how should a Planning Commission deal with deed restrictions?

Editors Reply: As you point out, the theory is that local governments are not involved with deed restrictions at all, except that of course the county recorder of deeds, or whatever the similar position in your state is called, sees and records the deed restrictions so that they are available to the inquiring public and professionals involved in land transfer.

Only courts can enforce deed restrictions, although homeowners associations can and do impose fines and even liens against a violating property, if these actions are permitted by a master deed.

However, as time goes on and as a high percentage of new developments in the U.S. impose a goodly number and variety of deed restrictions, we are noting that the best quality local governments are beginning to figure out good ways that planning commissions and their staff can take note of the restrictions. The planning machinery of a town, village, or city ought to aim not only for transparency in its own operations, but also serve as a beacon of information and interpretation for the citizens to the extent possible.

We are now advising planners to start now to find a way to systematically inform both planning commissions and all other city departments, including the division that issues building permits, about deed restrictions applicable to a particular property. What once would have been a huge coordination nightmare now becomes fairly easy to implement if (and only if) all of the town's computer systems, and the county's computer system, "talk" to each other. The county must be a party of these conversations in most states of the U.S., since the deed restrictions are recorded there.

Of course this would be easier if the planning department can either administratively or by ordinance collect the deed restrictions as a requirement for subdivision or planned development approval. That is the best course of action for your new developments. Then there must be an arrangement with the county, as well as a continuing requirement of the development approval, for notification if there are changes to the restrictions.

As your question suggests, you could simply require disclosure of any deed restrictions during the application process. That may be the simplest recommendation if you want to change the traditional order of things to be more citizen-friendly. However, we think that if you do that, you should make sure that the planning staff or consultants have an easy way to verify the accuracy of that disclosure.

If your town wants to be more proactive, the first order of business should be assuring that these measures are accounted for under local ordinances for new developments going forward. As a second project some towns and cities will need to undertake the massive project of researching all of their past developments to add them to the database. This would help assure that new building, sign, and other permits would only be issued when projects are in compliance with the deed restrictions.

But there is a problem with our last sentence. In many places, local ordinances do not allow the town or city to turn down an otherwise valid permit application if deed restrictions are violated. We hope that over time, most local governments will have enough ready access to deed restriction information that they will be able to enact a requirement for deed restriction compliance into their zoning ordinance and other land development ordinances.

Because of the historic and continuing lack of a zoning ordinance in Houston, look to Houston and the surrounding area for examples of how to allow local government to begin to assist with and even take over deed restriction enforcement.

We realize that much of our answer is idealistic and aspirational for many U.S. communities. If your town simply does not have the staffing and information technology capabilities to track all of the deed restrictions, your planning commission, staff planners, and building code staff can continue to ignore deed restrictions.

In our view it is both legal and ethical to take this stance. It's just that the practicalities of such a large percentage of the population being effectively restrained by deed restrictions seem to argue for local government recognition of this fact.

We often say in response to questions in this section of our website that property owners have to abide by both deed restrictions and zoning or other local government ordinances. If one is more restrictive than the other, the most restrictive one will have to govern. When towns ignore deed restrictions, they may be giving applicants a false sense of security that what they are proposing is entirely legal and appropriate from all standpoints.

It could be time for local governments to consider the applicable deed restrictions when reviewing subdivisions, building permits, zoning permits or sign-offs, and development approval ordinances. Your planning commission will need to assess whether it is practical to have that information in hand in all instances.

Our opinion is that whatever you decide to do, be consistent. Maybe the worst of all outcomes would be the one that we have seen a couple of times at local planning commission meetings. It goes like this. In discussing a development plan approval, one planning commission member who works maybe in a real estate or legal office will say something like, "Did you know that XYZ subdivision next door to the one that we are considering has a master deed that says blah blah blah?" Sometimes this sways the discussion, and yet there is no conversation about deed restrictions that apply to other applications on the agenda the same evening.

If that sort of thing happens or has happened in your town, it's a signal that it is time to become systematic and thorough in the way you add deed restrictions to your staff reports and your planning commission recommendations to the town council.

All in all, this would be a great local discussion for you to start.

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