ordinances, relationship of covenants to
The ordinances of a local municipality or county are independent of private covenants. That means CC&Rs may impose a certain requirement regardless of what the local ordinance says. For instance if CC&Rs say the minimum setback for a home is 30 feet and the city's ordinance says the minimum setback is 20 feet, a property owner may get approval from the city and build a home with a 20 foot setback, but that owner won't get approval from the homeowners association and will be subject to enforcement of the CC&Rs by the HOA or any other owner in the development who may pursue an action for an injunction requiring reconstruction of the home within the setback required by the CC&Rs.
On the other hand, if CC&Rs say the minimum setback for a home is 20 feet and the city's ordinance says the minimum setback is 30 feet, a property owner may get approval from the HOA to build a home with a 20 foot setback, but they won't be able to get approval from the city.
Neither provision grants the right to a property owner to choose which provision the owner complies with. It is the more restrictive provision that applies. As one ordinances put it, the ordinance "shall not nullify the more restrictive provisions of covenants, agreements, other ordinances, or laws, but shall prevail notwithstanding such provisions which are less restrictive." Millcreek City Code, Section 19.02.040. Also, "In interpreting and applying the provisions of this title, the requirements contained herein are declared to be the minimum requirements for the purposes set forth." Millcreek City Code, Section 19.02.030.
While private covenants are independent of local ordinances, they do not exist in a vacuum. They must be capable of being adhered to and they cannot impose requirements that are against the law or public policy. For example, each lot in Harmony Village has been sold for the purpose of containing a residential dwelling. The CC&Rs state that the required setback for a home is at least 20 feet and no more than 25 feet. The city's ordinance says the minimum setback is 30 feet. A lot owner tries but is unable to obtain a variance with the city to build a residential dwelling with a 20-25 foot setback. In the absence of other facts or circumstances, the conclusion would be justified that the restriction in the CC&Rs is not valid because it is impossible to comply with.
Statutes and Cases:
(For reference: 57-8 is the Condo Act, 57-8a is the Community Association Act, 16-6a is the Nonprofit Act)