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Posted by a Land Use & Zoning client, Flag
In late 2006 a developer proposed a large residenial/commercial development in a South Lincoln County community. The proposed development included multiple residential structures that would be located on lots that are CC&R limited to 1 living unit per lot. Additionally, several residential structures were proposed to be situated above commercial structures on Commercially Zoned lots (lying within the CC&R area). Many of these living unts were proposed to have heights that exceed the CC&R residential height limitation of 16-feet.
Mr Minor's first question of us was "Have your CC&Rs been continuously enforced?" Following our "yes" answer, he stated that the wording of the CC&Rs (specifically limiting residential structures to 16-feet height above average natural grade - irrespective of whether these structures are located on Residential or Commercial Lots within the CC&R area), coupled with numerous and supporting precident cases, placed us a winnable position, should the developer go ahead with his proposed deveopment and violate our CC&Rs. Mr Minor wrote the developer, clearly advising him of the perilous position that he was in. The developer had earlier gained approval of the Community's Planning Commission, which had chosen to avoid challenging him on traffic impact, density and other concerns voiced that had earlier been voiced by dozens of nearby property owners and other citizens.
Mr Minor's understanding of the law as it bears on CC&R and Zoning issues was most impressive -- as was his candor in asking the first question "Have your CC&Rs been continuously enforced?" -- and explainig that the community's ability to prevail in this case was dependent on prior enforcement of the prior enforcement of the covenents.