Recently, the question came up as to whether I should include the zoning restrictions in a Declaration for a Homeowner’s Association (“HOA”) for a single family home development. And, if I should include the zoning restrictions, should I include all of them or just some?
This is an interesting question. On one hand, you don’t want to bog down a Declaration with information that would be of little use to homeowners. Furthermore, you don’t want to add information that could change in the future as that would require an amendment to the Declaration (which, admittedly, is unlikely to happen, and will probably just create confusion). On the other hand, putting as much information in the Declaration as possible can be useful. For example, a potential buyer of a home in the subdivision may want to know as much as possible about what kind of restrictions apply to the person’s home or the subdivision in general. That homeowner is more likely to look at the Declaration than to look up the zoning text.
Perhaps the most pivotal question, though, is whether you want the HOA to have the ability to enforce the restrictions. Chapter 5312 of the Ohio Revised Code, which is the 2010 statute governing HOAs and Declarations, provides that the board of directors of the HOA may enforce any restrictions set forth in the Declaration. Furthermore, it gives the HOA and other owners the power to commence a civil suit against any owner that does not comply with the restrictions set forth in the Declaration. Therefore, if zoning restrictions are set forth in the Declaration, they can be enforced by the HOA. Whereas, if the zoning restrictions are not set forth in the Declaration, ostensibly only the local municipality can enforce the restriction.
In what circumstances would you want the municipality to be the exclusive enforcement mechanism? The best example would be in the instance where the zoning restriction benefited the community as a whole and not just the subdivision. Perhaps a restriction is put in place to ease traffic congestion on busy roads nearby. In this instance, it would make sense to not allow the HOA to enforce the restriction as it may do so in a manner that is not appropriate or is not consistent with how the municipality believes it should be enforced.
This is more of a caveat than the rule. In my experience, most zoning restrictions are specific to the subdivision and absolutely should be included in the Declaration. This is to both put new potential homeowners on notice, and to allow the HOA the ability to enforce these restrictions. For some restrictions, however, some thought should go into whether the HOA is an appropriate body to enforce the restrictions on the homeowners.
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