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Deed restrictions cut yet another case short at ZAP

Wednesday, May 15, 2013 by Elizabeth Pagano

The Zoning and Platting Commission ran into a familiar foe last week.


A homeowner hoping to re-subdivide his property in the Shoalmont Addition was informed the property had a private deed restriction that could make that difficult, much to his surprise.


Chair Betty Baker said that, most likely, enforcement of the private deed restrictions would ultimately be the neighborhood’s responsibility, but she offered her sympathies to all of the parties. She was also game to hear from city legal staff so that they could, in her words, “renew our frustrations and explain where we are in this.”


“We’ve done this before. We’ve run these rabbit trails, and you know our hands are tied,” said Baker. “What you are saying to us – we’ve heard it; we know it; and we’re as frustrated as you.”


Baker was addressing Alan McMurtry, who explained that he had lived in the neighborhood since 1976, and there were, indeed, deed restrictions against re-subdivision.


“One of the problems we have today is something I’ve been fighting with city staff about for a long time. We have a nice young man that’s building nice homes and doing remodels. We have architecture firms and people of high intent. And yet, despite the lawsuits that have gone on in this area, the fights that have been before ZAP, all the hearings that have gone on, we are dragging them back here at the last minute, letting them know that there are deed restrictions that require two-thirds of the people in this subdivision to approve a re-subdivision,” said McMurtry.


McMurtry explained that, though he understood what city legal’s interpretation has been, the neighborhood had previously won a temporary restraining order (now released) against the city, and a permanent injunction that validated the deed restrictions. He explained that he was asking the commission to help come up with a better solution to the problem so that property owners were not caught unaware of the restrictions.


“I’d like to not come down here any more over these issues,” said McMurtry. “At least warn the people that this may be a contested hearing. There may be issues in there that you are unaware of, but staff is very bright. They know these things exist. I would like some kind of solution.”


“The city knows the situation in Shoalmont. Some of these people don’t. It doesn’t make them bad people. Why can’t we solve this? It’s in the city’s best interest. It’s in (the property owner’s) best interest. I’m not losing any money over this, but it’s a problem for me because if we let these go away, it means it is harder and harder to enforce the deed restrictions,” said McMurtry.


McMurtry explained that they had successfully sued to prevent re-subdivision in the past, but indicated he was looking for a better solution to the problem. He asked for more time to see if the neighborhood could create a valid petition. If not, he said, they would be “right back in a lawsuit situation.”


Mark Canada, who owns the lot, has lived in the neighborhood for 20 years. He said that he had probably remodeled about 10 homes within three blocks of the house during that time, though he had not run into this problem before.


He noted that the lot was probably “one of three remaining lots that had not been subdivided” on the street.


“There seems to be a pretty glaring precedent set of taking these 100 foot lots and subdividing them,” said Canada. “My intent was to build two single family houses on lots that look just like all the other lots on the block.”


Canada said he wasn’t aware of any deed restrictions.


Project engineer Jennifer Simmons told the commission that her research did not find any deed restrictions associated with the property. She acknowledged that the neighborhood had historically opposed subdivisions, but noted the improvements that the new construction would bring to neighborhood, like more attractive landscaping, sidewalks, and newer houses.


Simmons said that just prior to the meeting the city’s case manager, Cesar Zavala gave her a copy of a private deed restriction. Zavala explained that he was made aware of the deed restriction earlier in the day himself. He pointed out that because it was private, it was not required to be reviewed by staff.


Commissioner Patricia Seeger said that she needed the time to review the last-minute materials, which included the deed restriction and copies of state law. Her fellow commissioners agreed, voting unanimously to continue the case until their first June meeting.

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