Mountain Law: What’s the difference between restrictive covenants and zoning?
May 23, 2016
People often misunderstand the distinction between restrictive covenants and zoning. Here's my stab at setting the record straight.
Restrictive covenants (which are sometimes called "protective covenants") are land-use restrictions placed on property by a private owner, such as a developer, for the purpose of creating a general plan of development. A typical occurrence would be for a developer to record in the public land-use records a document that contains the restrictive covenants titled something like "Declaration of Covenants, Conditions, and Restrictions for Snowy Acres." The document is often referred to as the "Declaration" or the "CC&Rs." Except for disallowing certain types of restrictive covenants for public policy reasons — e.g. covenants that prevent certain patriotic displays — Colorado law leaves it up to the developer what to include in the restrictive covenants. Once created, the restrictive covenants form a contract between owners of property governed by them. Property owners in the development as well as any association of owners given such authority can enforce them. They are subject to amendment according to their terms, which typically involves a vote of a certain number of the affected owners.
Like restrictive covenants, zoning is also a land-use restriction that creates a general plan for development. However, whereas private owners create restrictive covenants, the local government imposes zoning. Zoning ordinances are created through a legislative process and then applied to specific properties through a judicial-approval process. While affected owners may sometimes enforce zoning themselves, the government itself most typically enforces zoning.
On their faces, a restrictive covenant and a zoning ordinance could state identical restrictions. For example, they could both state that a property is restricted to residential use only. In cases where there is agreement between the restrictive covenants and the zoning, the allowed uses of the affected property are clear.
However, confusion may arise where there is disagreement between the restrictive covenants and the zoning. For example, the zoning could state that a given property may be used for either commercial or residential uses, while the restrictive covenants state that the same property is restricted to residential use only. In such cases, the most restrictive provision will apply. In other words, a property owner must comply with both the restrictive covenants and the zoning before engaging in a given use. In the above example, the property could only be used for residential use under the most restrictive provision found in the restrictive covenants. This is the case even if the owner of the property-obtained government approval to use the property for commercial use.
Further confusion may arise when the lines between restrictive covenants and zoning are not carefully delineated. As one example, the plat of a subdivision may state various use restrictions for the property depicted on the plat. It may be difficult to tell from the plat whether these use restrictions are restrictive covenants or zoning restrictions. Consequently, it may be difficult to know what process to follow (such as a vote of the owners or a rezoning to amend such use restrictions as may be desired.
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As another example, there is a common type of zoning called a "Planned Unit Development" or "PUD" that starts off as a negotiated contract between the developer and the local government but then becomes a zoning ordinance for purposes of future changes. The distinction between PUD restrictions and separate restrictive covenants contained in a declaration may not be well understood by property owners affected by them.
In sum, restrictive covenants and zoning are two types of land use restrictions that differ in terms of how they are created, who may enforce them and how they may be changed. They overlap each other and must both be complied with before given use may be made of land.
Noah Klug is owner of The Klug Law Firm, LLC, in Summit County. He may be reached at 970-468-4953 or Noah@TheKlugLawFirm.com.
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