When CC&R's conflict with current zoning, who wins?

Question

We (family) own a piece of land at the beginning of a housing development. At some point the county made changes to their zoning maps and they changed our property to multi family residential from single family (when we bought it, it was zoned multi family). There is already an existing apartment complex basically next door to us, so the change is not necessarily unwarranted. Now, we're planning on building units on the land.

The neighbors are pissed. They are saying that the building would be in violation of the CC&R's that exist. The CCR's state that an owner is allowed to use his land in accordance with the zoning. However it also states that no owner is allowed to build anything other than a single family residence on the property (thus a contradiction). Obviously the CCR's were written before the zoning changed and didn't take that into account.

So, do the CCR's supercede current zoning? And could the neighbors stop us from building our apartments based on the CCR's?

Jay Hinrichs · Answer

as long as city will give you permits and title company will insure without exceptions then I suspect you will be fine.

Paige Howarth · Answer

HI, Britton. I was just curious what your attorney advised you in this unique situation?

Peter Walther · Answer

I don't think it's a matter of one superseding the other, it's a matter of two parties, each with the right to impose restrictions on the use of the land, having done so. Everyone who purchased in the subdivision, including you and your family, purchased subject to the CC&Rs. If they limit the use to single family homes why should your neighbor, who bought his/her property in reliance on the CC&Rs, be force to live next to an apartment building when (s)he doesn't want to?

Peter Walther · Answer

I suspect if your neighbors object to a permit being issued for a multi family project being built the application will be rejected. Easiest thing to do is ask the permitting dept what they think.

Britton Cook · Answer

I also forgot to mention that our direct neighbors (2 lots) adjacent to the property have single family homes built on their multi family residential zoned lots. Years ago the county was much more lenient and approved their construction in spite of the fact that it's multi family. It seems to me that their issue is not with us, but rather with the county for allowing this mess to take place. All we want to do is use the land for its intended purpose.

Britton Cook · Answer

I don't understand how CCR's can supercede zoning. I can't legally build a single family home on the property. CCR's declare i am allowed to use the land in accordance with the way it is zoned. Yet the CCR's also say that i can only build a single family residence. Therefore the CCR's contradict itself and conflict with the city zoning. We've got our lawyer looking into it. He's getting back to us on Wednesday.

Britton Cook · Answer

California.

Kenneth Garrett · Answer

@Britton Cook

They are two different things. CC&R are generally regulated through a Homeowners Association. If created properly and applied properly that is the law within that particular subdivision. The zoning ordinance is a separate guideline. If the zoning allows multifamily, but the HOA does not, then it is prohibited. In some locations the HOA is approved by the city as well. This means the city would not issue a permit without the HOA signing off on it.

Taylor L. · Answer

What state is the property in?

When CC&R's conflict with current zoning, who wins?

When CC&R's conflict with current zoning, who wins?

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