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Ely
Ely, Counselor at Law
Category: Legal
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I recently received a conditional variance approval from the

Resolved Question:

I recently received a conditional variance approval from the town planning commission to expand my house square footage beyond the "allowed" square footage. The planning department did not have authority to approve the variance at the staff level so it was "kicked up" to the planning commission. One of the conditions of approval is to put a deed restriction on the property that requires the exterior paint color to be maintained in accordance with the town hillside development standards.
My questions are:
1) Can the city force me as one of their conditions of approval to put a deed restriction on my property?
2) Aren't deed restrictions imposed by other nearby property owners; only zoning can be imposed by the city?
3) Is the city admitting that I currently do not have to conform to their paint color standards?
4) Is there a difference between paint color standards, fence, trees, building standards? If not, then is the city also admitting that my property does not have to follow their building and other standards as well?
Submitted: 1 year ago.
Category: Legal
Expert:  Ely replied 1 year ago.
Hello, my name is Ely. Welcome to JustAnswer. Please note: (1) this is general information only, not legal advice; and (2) my function is to give you honest information and not necessarily to tell you what you wish to hear. Note: there may be a slight delay between your follow ups and my replies.

I am afraid on this website, I do not always get to give good news, and that this is one of these times.

1) Can the city force me as one of their conditions of approval to put a deed restriction on my property?

The answer is yes, I am afraid. The city does not have to approve the variance. If it does, then it can do so only with the condition that a restriction be placed on your deed. This is not unusual in itself, and the city does have the right to do so. Of course, this is negotiable - you can try to ask them to drop this condition - but it is up to them. In the end, they do not even have to approve the variance.

2) Aren't deed restrictions imposed by other nearby property owners; only zoning can be imposed by the city?

No, not quite. Restrictive covenants (the general term for such a restriction) may be placed on a title by the developer, by a court order from another party (typically when an easement situation goes to court), by the owner themselves (in this case), or by an easement agreement between two parties which then recorded with the county and which runs with the deed.

In this case, the city would be asking you to agree to have this restriction leveled unto the deed as part of the agreement to allow the variance.

3) Is the city admitting that I currently do not have to conform to their paint color standards?

No. By allowing the variance, or by proposing a compromise that would allow the variance if a certain condition is met (such as in your case), the city is not admitting that you do not have to conform. The point of the variance is to have the city essentially "cut you a break" and agree that your situation will variate from the ordinances in force for land use (hence the term "variance"), for good cause. The city ordinances allow them to make this exception.

4) Is there a difference between paint color standards, fence, trees, building standards? If not, then is the city also admitting that my property does not have to follow their building and other standards as well?

See above. The city has ordinances for land use. As a party to a deed in that city, you are bound by these ordinances. The ordinances allow the city to give you a break and allow a variance that would go outside what is allowed per the ordinance. That is basically it. By acknowledging your variance request and/or providing a counter-offer, they are not admitting anything, but are simply stating: "Okay, we will allow your property not to follow the ordinances, if..."

I hope this helps and clarifies. Good luck.

Surely, you prefer that I tell the truth rather than what you wish to hear. Because it reflects very poorly on me unless you press one of the top three faces, keep this in mind when rating my and please do not punish me for being honest. I understand that this may not be easy to hear, and I empathize.

IMPORTANT: Please use REPLY button to keep chatting, or RATE my answer when we are finished. Kindly rate my answer as one of the top three faces before submitting the rating, because this is how I get credit for my time with you. Rating my answer the bottom two faces does not give me credit and reflects negatively on me as an expert, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith. Do not worry, you may always ask follow ups free after rating. My ultimate goal is your complete satisfaction.
Customer: replied 1 year ago.

Hello Ely, thank you for the response. Just a followup question: Why do you think the town wants just the exterior paint color to be on the new deed restriction; why not include everything including the "kitchen sink" because it seems that by granting my variance, they are "holding all the cards" and can basically demand anything they want?

Background information: The color of my house does not conform to the current paint color standards since my house was built 22 years ago when the exterior color standards were different and the maximum square footage allowed was larger. Since then, the city has restricted the number of colors allowed and reduced the allowed square footage of houses allowed. Because the house was bought 22 years ago, aren't I bound to the original standards when I bought the house? Could it be the town's intent is to get me to repaint my entire house (instead of just the remodel part which is 10% of the exterior walls)? If I must follow all of their rules and standards without my deed being restricted, why don't they just compel me to repaint the entire house using their current paint color standards as a condition of the variance approval?

Expert:  Ely replied 1 year ago.
C,

Hello Ely, thank you for the response.

My pleasure.

Just a followup question

By all means.

Why do you think the town wants just the exterior paint color to be on the new deed restriction; why not include everything including the "kitchen sink" because it seems that by granting my variance, they are "holding all the cards" and can basically demand anything they want?

Because they may simply not wish to deal with it further. Technically, you may attempt a Writ of Mandamus in Court (and if so, then you'd lose, but you can still tie them up for a few months and waste time and resources). Also, prior to this, the ordinances may allow an administrative appeal. So as not to waste time and resources, they likely feel that they can offer you something you can would take without variating TOO MUCH, and then, the matter would be over. So they do not hold all the cards - you hold leverage in possibly prolonging this thing for a while.

Also, they may genuinely want to help, but cannot simply throw out all the ordinances, so may wish to draw the line somewhere.

why don't they just compel me to repaint the entire house using their current paint color standards as a condition of the variance approval?

See above, and also, I cannot say WHY really because I do not know what they are thinking, but likely because of the above, and because they feel that this way, you get what you want, and (at least in their mind), there is still a following of whatever ordinances to a point.

IMPORTANT: Please use REPLY button to keep chatting, or RATE my answer when we are finished. Kindly rate my answer as one of the top three faces before submitting the rating, because this is how I get credit for my time with you. Rating my answer the bottom two faces does not give me credit and reflects negatively on me as an expert, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith. Do not worry, you may always ask follow ups free after rating. My ultimate goal is your complete satisfaction.
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 89090
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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Ely
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