Agenda - Planning Commission - 01/03/2008

Home

November 15, 20071 Volume 1 I No. 22 . A vote was held on the amendment, which was passed by a vote of 60-4, with two members abstaining. Subsequently, after Hazelbaker acquired his property, he applied to the county's zoning commission to subdivide the lot. The commission denied the application, citing the amendment. Hazelbaker appealed the decision, ultimately landing the case in court, where he argued that the amendment was invalid. The court found in Hazelbaker's favor, noting that the original restric- tions did not prohibit the subdivision of lots and that the amendment was not approved by all lot owners. The court granted an injunction pre- venting the association and county from enforcing the amendment, and it ordered the county to approve Hazelbaker's subdivision application. The county appealed. @ DECISION: Affirmed. ;[ ;1 II ;[ ;i 1 ., :1 The Association raised two points on appeal: 1) that the language of the original restrictions did prohibit subdividing lots; and 2) that the amendment was valid upon all owners who agreed to it, regardless of its validity upon the owners who did not. The association argued that Ha- zelbaker's predecessor in title had agreed to the amendment, and Hazel- baker was therefore bound by it. The appeals court, however, disagreed with the association's interpretation of the restrictions. The association argued that the term "lot" referred only to the 66 lots in existence at the time that the restrictions were drafted, and that there was limit of one single-family residence per lot. The association concluded that subdivision would create two residences on one lot, in violation of the restrictions, but the appeals court noted that the restric- tions contained no implicit prohibition on subdivision. The court found that "[t]he act of subdividing Lots [could] just as easily be seen as creat- ing two new Lots from one, and the limitation of one residence on each of those Lots may still be followed to the letter." Turning toward the issue of whether an amendment creating new burdens on property owners could be valid without urianimous consent, the court had to look at the amendment procedure prescribed in the restrictions and precedents set by case law. The restrictions stated that a majority of lot owners could agree to "change" the covenants and restrictions in Highland Trails, but the provision did not give owners the power to add new burdens to the restrictions by majority vote. The appeals court noted that: "[b]ecause a new prohibition on subdividing Lots [was] a burden on ownership, the Restrictions' prescribed amend- ment procedure [did] not cover it." Further, case law provided that the creation of additional burdens to restrictive covenants had to be done so unanimously. Although the as- sociation argued that Hazelbaker should be bound to the amendment because his predecessor in ownership had agreed to it, the appeals court stated that "an amendment must either by valid for all or invalid for all; lacking such unanimity, the Amendment [was] wholly invalid." The de- cision of the lower court was affirmed. i~ I! " !~ 9 59