Empathy List Archives

oama@lists.imla.org

Oklahoma Association of Municipal Attorneys

View all threads

building permit in conflict with Restrictive covenants

Ken Underwood

Sat, Apr 29, 2023 12:58 AM

Good evening everyone

I love Fridays because it means there are only two more work days in the week.

We have citizens wanting building permits in residential subdivisions with restrictive covenants that prohibit the type of construction planned by the owner. I seem to recall some case somewhere that says municipalities do not enforce restrictive covenants and that the dispute is between homeowners but since we approved the plat I am a little uncomfortable advising the city to just grant the permit.

Any experience with this issue and citations of authority would be appreciated. I am not having luck randomly searching OSCN

Thanks to everyone.

Ken Ray Underwood

Ken Ray Underwood
Attorney at Law
The Beacon Building
406 S. Boulder Ave., Suite 640
Tulsa, OK 74103
Phone: 918-582-7447
Fax: 918-582-0166
Ken@ulawok.com mailto:Ken@ulawok.com
www.ulawok.com http://www.ulawok.com/
CONFIDENTIALITY NOTICE: This e-mail message, and all attachments transmitted with it, may contain legally privileged and confidential information intended solely for the use of the intended recipient. If the reader of this message is not the intended recipient or the employee or agent responsible to deliver it to the intended recipient, you are hereby notified that any reading, dissemination, distribution, copying or other use of this communication is strictly prohibited. If you have received this message in error, please notify the sender immediately by telephone (918) 582-7447, or by electronic mail to ken@ulawok.com mailto:kenunderwood@tulsacoxmail.com, and delete this message and all copies and backups thereof. Thank you.

Good evening everyone I love Fridays because it means there are only two more work days in the week. We have citizens wanting building permits in residential subdivisions with restrictive covenants that prohibit the type of construction planned by the owner. I seem to recall some case somewhere that says municipalities do not enforce restrictive covenants and that the dispute is between homeowners but since we approved the plat I am a little uncomfortable advising the city to just grant the permit. Any experience with this issue and citations of authority would be appreciated. I am not having luck randomly searching OSCN Thanks to everyone. Ken Ray Underwood Ken Ray Underwood Attorney at Law The Beacon Building 406 S. Boulder Ave., Suite 640 Tulsa, OK 74103 Phone: 918-582-7447 Fax: 918-582-0166 Ken@ulawok.com<mailto:Ken@ulawok.com> www.ulawok.com<http://www.ulawok.com/> CONFIDENTIALITY NOTICE: This e-mail message, and all attachments transmitted with it, may contain legally privileged and confidential information intended solely for the use of the intended recipient. If the reader of this message is not the intended recipient or the employee or agent responsible to deliver it to the intended recipient, you are hereby notified that any reading, dissemination, distribution, copying or other use of this communication is strictly prohibited. If you have received this message in error, please notify the sender immediately by telephone (918) 582-7447, or by electronic mail to ken@ulawok.com<mailto:kenunderwood@tulsacoxmail.com>, and delete this message and all copies and backups thereof. Thank you.

Jon Miller

Sat, Apr 29, 2023 2:36 AM

Ken,

I think if the building proposed meets with the zoning requirements, whether it meets with the restrictive covenants is not the city's issue. The only case I am aware of seems to support a position that restrictive covenants are a matter of civil concern and not the city's concern. While this case involved "plat restrictions," the language seems even more appropriate if it involved restrictive covenants. In this case, the court stated as follows:

The interpretation, construction, legal effect and application of plat restrictions can be accomplished only by a court of equity. The Board of Adjustment is an administrative board that has been granted certain quasi judicial functions, such as the one involved in this case, to-wit: The determination of existing facts and circumstances, and that said facts and circumstances do, or do not, create a situation wherein the literal application of the ordinance would be unjust and unduly burdensome to an individual. It is not a court, however, and cannot construe, enforce or strike down plat restrictions. Said Board of Adjustment cannot even consider plat restrictions in connection with all the other facts and circumstances developed for the reason that the burden placed on the individual is created by the existent facts and is in nowise lessened or increased by the terms of plat restrictions. Plat restrictions might mean that the individual could have no relief and would, therefore, have to bear the burden regardless of how great it might be. So to permit the Board of Adjustment to consider plat restrictions would permit it to determine the legal effect of the plat restrictions or in other words to determine whether or not the individual would have to bear the burden however great that was placed on him by the surrounding facts and circumstances.

Based on this case, it would seem that the city should not rely upon restrictive covenants to determine application of municipal ordinances. A private agreement cannot override the force of an ordinance. And, as indicated in this case, there may be an argument that restrictive covenants have been waived or are unenforceable for a reason unknown to the City and which the city has no power to resolve.

Sometimes residents show up to oppose rezoning requests and base their position on restrictive covenants. It has been my position that issues relating to restrictive covenants are for a court to determine, and should not be considered when making determinations of whether relief should or should not be granted under municipal ordinances. There can be exceptions if the ordinances specifically address or require covenants be included in connection with a zoning matter (which some of our ordinances do incorporate).

I would be interested if anyone has a different take on this issue.

Jonathan E. Miller
City Attorney
City of Mustang
1501 N. Mustang Road
Mustang, Oklahoma 73064
Telephone: (405) 376-7746
Facsimile: (405) 376-7721

This email is sent by the City Attorney and may contain information that is privileged or confidential. If you received this email in error, please notify the sender by reply email and delete the email and any attachments. If you are a and officer, employee or agent of the City of Mustang, you should not share this email with others. Sharing this email may result in a loss of the attorney-client privilege.

From: Ken Underwood ken@ulawok.com
Sent: Friday, April 28, 2023 7:59 PM
To: OAMA luistserv (OAMA@lists.imla.org) oama@lists.imla.org
Subject: [Oama] building permit in conflict with Restrictive covenants

Good evening everyone

I love Fridays because it means there are only two more work days in the week.

Any experience with this issue and citations of authority would be appreciated. I am not having luck randomly searching OSCN

Thanks to everyone.

Ken Ray Underwood

Ken Ray Underwood
Attorney at Law
The Beacon Building
406 S. Boulder Ave., Suite 640
Tulsa, OK 74103
Phone: 918-582-7447
Fax: 918-582-0166
Ken@ulawok.com mailto:Ken@ulawok.com
www.ulawok.com https://us-west-2.protection.sophos.com?d=ulawok.com&u=aHR0cDovL3d3dy51bGF3b2suY29tLw==&i=NjBhNjhkYzZhZmIzMmUwZjVhOTkxZDZk&t=VmViekJVU1FDeDl6RWs2Tm1ObC9KQjEyZDJPRWdCSURmRGdMQ0loeCt3WT0=&h=174487bb02e44db8a2ebfa26dfc623ca&s=AVNPUEhUT0NFTkNSWVBUSVYwiDSt18cnlPbW9bTFlV1ZfummaworVCN8q0WfxCo9ips1Os8sxFMJXNGwWU_9nWuO1pVEpCvAYoNQNMfqAtzH
CONFIDENTIALITY NOTICE: This e-mail message, and all attachments transmitted with it, may contain legally privileged and confidential information intended solely for the use of the intended recipient. If the reader of this message is not the intended recipient or the employee or agent responsible to deliver it to the intended recipient, you are hereby notified that any reading, dissemination, distribution, copying or other use of this communication is strictly prohibited. If you have received this message in error, please notify the sender immediately by telephone (918) 582-7447, or by electronic mail to ken@ulawok.com mailto:kenunderwood@tulsacoxmail.com, and delete this message and all copies and backups thereof. Thank you.

Ken, I think if the building proposed meets with the zoning requirements, whether it meets with the restrictive covenants is not the city's issue. The only case I am aware of seems to support a position that restrictive covenants are a matter of civil concern and not the city's concern. While this case involved "plat restrictions," the language seems even more appropriate if it involved restrictive covenants. In this case, the court stated as follows: The interpretation, construction, legal effect and application of plat restrictions can be accomplished only by a court of equity. The Board of Adjustment is an administrative board that has been granted certain quasi judicial functions, such as the one involved in this case, to-wit: The determination of existing facts and circumstances, and that said facts and circumstances do, or do not, create a situation wherein the literal application of the ordinance would be unjust and unduly burdensome to an individual. It is not a court, however, and cannot construe, enforce or strike down plat restrictions. Said Board of Adjustment cannot even consider plat restrictions in connection with all the other facts and circumstances developed for the reason that the burden placed on the individual is created by the existent facts and is in nowise lessened or increased by the terms of plat restrictions. Plat restrictions might mean that the individual could have no relief and would, therefore, have to bear the burden regardless of how great it might be. So to permit the Board of Adjustment to consider plat restrictions would permit it to determine the legal effect of the plat restrictions or in other words to determine whether or not the individual would have to bear the burden however great that was placed on him by the surrounding facts and circumstances. Based on this case, it would seem that the city should not rely upon restrictive covenants to determine application of municipal ordinances. A private agreement cannot override the force of an ordinance. And, as indicated in this case, there may be an argument that restrictive covenants have been waived or are unenforceable for a reason unknown to the City and which the city has no power to resolve. Sometimes residents show up to oppose rezoning requests and base their position on restrictive covenants. It has been my position that issues relating to restrictive covenants are for a court to determine, and should not be considered when making determinations of whether relief should or should not be granted under municipal ordinances. There can be exceptions if the ordinances specifically address or require covenants be included in connection with a zoning matter (which some of our ordinances do incorporate). I would be interested if anyone has a different take on this issue. Jonathan E. Miller City Attorney City of Mustang 1501 N. Mustang Road Mustang, Oklahoma 73064 Telephone: (405) 376-7746 Facsimile: (405) 376-7721 This email is sent by the City Attorney and may contain information that is privileged or confidential. If you received this email in error, please notify the sender by reply email and delete the email and any attachments. If you are a and officer, employee or agent of the City of Mustang, you should not share this email with others. Sharing this email may result in a loss of the attorney-client privilege. From: Ken Underwood <ken@ulawok.com> Sent: Friday, April 28, 2023 7:59 PM To: OAMA luistserv (OAMA@lists.imla.org) <oama@lists.imla.org> Subject: [Oama] building permit in conflict with Restrictive covenants Good evening everyone I love Fridays because it means there are only two more work days in the week. We have citizens wanting building permits in residential subdivisions with restrictive covenants that prohibit the type of construction planned by the owner. I seem to recall some case somewhere that says municipalities do not enforce restrictive covenants and that the dispute is between homeowners but since we approved the plat I am a little uncomfortable advising the city to just grant the permit. Any experience with this issue and citations of authority would be appreciated. I am not having luck randomly searching OSCN Thanks to everyone. Ken Ray Underwood Ken Ray Underwood Attorney at Law The Beacon Building 406 S. Boulder Ave., Suite 640 Tulsa, OK 74103 Phone: 918-582-7447 Fax: 918-582-0166 Ken@ulawok.com<mailto:Ken@ulawok.com> www.ulawok.com<https://us-west-2.protection.sophos.com?d=ulawok.com&u=aHR0cDovL3d3dy51bGF3b2suY29tLw==&i=NjBhNjhkYzZhZmIzMmUwZjVhOTkxZDZk&t=VmViekJVU1FDeDl6RWs2Tm1ObC9KQjEyZDJPRWdCSURmRGdMQ0loeCt3WT0=&h=174487bb02e44db8a2ebfa26dfc623ca&s=AVNPUEhUT0NFTkNSWVBUSVYwiDSt18cnlPbW9bTFlV1ZfummaworVCN8q0WfxCo9ips1Os8sxFMJXNGwWU_9nWuO1pVEpCvAYoNQNMfqAtzH> CONFIDENTIALITY NOTICE: This e-mail message, and all attachments transmitted with it, may contain legally privileged and confidential information intended solely for the use of the intended recipient. If the reader of this message is not the intended recipient or the employee or agent responsible to deliver it to the intended recipient, you are hereby notified that any reading, dissemination, distribution, copying or other use of this communication is strictly prohibited. If you have received this message in error, please notify the sender immediately by telephone (918) 582-7447, or by electronic mail to ken@ulawok.com<mailto:kenunderwood@tulsacoxmail.com>, and delete this message and all copies and backups thereof. Thank you.