Deed Restrictions versus City and County Ordinances: Which One Controls

Frequently, we receive questions from managers and directors regarding which provision controls when there is a conflict between a deed restriction in CC&Rs and a city or county ordinance.  When a CC&R provision and a city or county ordinance both restrict a given use or activity, both provisions are enforceable by the respective entity.  The more restrictive provision will ultimately establish the permitted use.

As an example, there may be a city zoning ordinance that requires setbacks to be a minimum of ten feet.  If an association’s CC&Rs require a minimum setback of twelve feet, the CC&R provision would govern as it is the more restrictive provision and the association could enforce it in the architectural approval process even though the city would be satisfied with plans showing ten feet.  Similarly, a city ordinance may require that trash containers be stored, between collection days, on the user’s property so as not to interfere with pedestrian or vehicular traffic.  If an association’s CC&Rs require the trash container to be stored in the rear yard so as not be to visible from neighboring property, the CC&R provision would establish the permitted use as it is more restrictive than the city ordinance.  The owner could not defend against fines by saying “the city does not care about visibility.”

The most common scenario where there is a dispute about which provision controls is in the parking context.  For instance, assume that the city does not restrict or prohibit on street parking on the public street; however, the association’s CC&Rs only authorize street parking for a period not more than forty-eight hours.  In this scenario, the CC&R provision restricting street parking for more than forty-eight hours is enforceable by the association. 

While there are no published cases in Arizona about the enforceability of association restrictions against parking on public streets, there is an appellate case on the subject from Missouri.¹ The Missouri Court held that the association could control street parking on a publicly dedicated street because owners contractually gave up their right to park on the street.  This is consistent with the general view that private covenants, such as deed restrictions, can be more restrictive than ordinances, and that such covenants are enforceable as contracts.  Arizona law clearly holds that recorded CC&Rs are contracts.  CC&Rs govern and restrict the use of land within a given community and constitute “a contract between the subdivision’s property owners as a whole and the individual lot owners.”²

In some instances, the city ordinance may be more restrictive.  For instance, if the ordinance requires a wall between a lot and a public street to be eight feet tall, and the CC&Rs have no restrictions, the homeowner (or builder) would still have to comply with the city requirement in building plans or permits.

In sum, if there is a conflict between the association’s CC&Rs and a city or county ordinance, the more restrictive provision will govern. 

If you have questions, please contact Nikita Patel or another attorney in the firm.