Rezoning When Deed Restrictions Prohibit Activity

by Rick
(Kent,Oh)

Visitor Question: Can township zoning appeals rezone a 1/2 acre lot in the middle of residential develop to agricultural? I am in Ohio without an HOA. The development is about 12 years old and some one wants to rezone their property to agriculture so they can raise 4 alpacas. This development has recorded a set of deed restrictions that prohibits such activity.

Editors Reply: To answer the question posed in your first sentence, the township can rezone to any classification they please, as long as they have established the criteria for that particular zoning classification.

We think probably you wanted to find out if the township should do this rezoning. Readers, our visitor who asked this question originally titled his question Spot Zoning, and the spot zoning issue certainly comes into play here.

Still leaving out the spot zoning and deed restriction questions for a moment, this is a ridiculous rezoning. Half an acre is not large enough for an agricultural district under any circumstances we can think of. That amount of land is too small for any serious agriculture, and certainly for the other residential lots in the vicinity of the subject property, it is tremendously unfair to have agriculture as the primary land use.

Now readers, please understand that there are incidental uses or accessory uses for many parcels of land. For instance, a store might have a garage as an accessory use, and a house may have a garden as an accessory use. Denial of agricultural zoning does not mean there cannot be any gardening or any outdoor pets. But to have agriculture as the primary land use on a parcel in the midst of residential sounds very wrong to us.

Alpacas are not small animals either!

If this parcel were rezoned to agricultural, would your township be subject to attack (both political and legal, potentially) on the basis of spot zoning? Yes it would. This would seem to be an almost textbook case of spot zoning.

Then to your last element of the question, which is that there are deed restrictions in place prohibiting activities such as raising four alpacas.

We want to reinforce over and over again that property owners must comply with both zoning regulations and deed restrictions. The difference is that zoning violations can be enforced by the governmental entity, apparently the township in your case, whereas deed restrictions have to be enforced by a private property owner or group of private property owners filing a lawsuit.

So in your case, it in your best interest to really mobilize to try to prevent this rezoning, which would be ridiculous on the basis of inappropriate size and also a legally difficult-to-defend spot zoning. But if you and your neighbors are able to make your voices heard and the rezoning is defeated, then you have achieved your goal at no expense. (See our page on "re-zoning opposition" if you have not done so.)

By the way, you can use the existence of the deed restriction as one of your arguments in whatever rezoning public hearings are held.

And if the property owner is stupid enough to try to sneak an alpaca onto the land anyway, you can immediately ask the township to enforce their own law.

Whereas if you lose in the rezoning battle, you will have to pursue the deed restriction enforcement by filing a lawsuit, or at the very least a request for an injunction, depending on what is appropriate in Ohio. That will cost time and money.

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