The Windsor Beacon recently announced that conditional use grants (“CUGs”) may soon be allowed for E-1 estate lots of three or more acres in the Town of Windsor. CUGs are intended to allow consideration of uses which are unique in nature or character, although not specifically included as uses by right in any specific zoning districts. See the Town of Windsor Municipal Code, Sec. 16-7-10. Currently, the Town of Windsor will prohibit a conditional use in any zone if the use is allowed in at least one other zoning district.
So if the Town of Windsor approves the proposal, what does this mean for an association that has an E-1 estate lot that is impacted by the approval? Associations should pay attention to changes in local ordinances for a number of reasons, as discussed below.
Associations Need to Understand the Impact on Enforcement
Changes in local ordinances could impact an association’s enforcement of the same or similar restrictions contained in the association’s governing documents. In determining the impact, if any, the association needs to understand the hierarchy of enforcement authority among legal resources, and where the ordinance falls in this hierarchy.
What is the hierarchy of authority? Simply put it’s a hierarchy among the association’s legal resources (e.g., statute, covenants, bylaws, ordinances, etc.). The higher legal resource will take precedence over any lower legal resource to the extent of any conflict or inconsistency. For example, the Colorado Common Interest Ownership Act is on the top of this hierarchy and above the declaration. Therefore, it will trump over an association’s declaration to the extent of any inconsistency or conflict.
So where does an ordinance fall in the hierarchy of enforcement? It depends. A covenant contained in the declaration may be more restrictive than a city ordinance (i.e., the city ordinance allows fences up to six feet in height, but a covenant may prohibit fences in excess of three feet). Therefore, as Planning Director Joe Plummer indicates in the Windsor Beacon article “The HOA covenants could prevent people from applying for CUGs, even if this change is made.”
On the other hand, can an association allow a use that is less restrictive or would not be permitted under the local government? Again, as Plummer indicates “HOAs can be more restrictive than the town, but they cannot allow a use we don’t”. However, it is the Town or other local governmental entity that must enforce its own ordinances; the association has no jurisdiction to enforce the local ordinance.
An association should be aware of an ordinance change so it can notify homeowners of the impact, if any, on their property and on enforcement of its own restrictions. For more information on the hierarchy of enforcement, see: Successful Enforcement of Covenants, Rules and Architectural Standards/Guidelines.
The Ordinance Could be Used as an Additional Resource for the Association
Do not overlook changes in local ordinances, because they could be an additional enforcement resource. If your association’s covenants or rules are the same as or less restrictive than the change in ordinance, you may be able to get the governmental agency to enforce its ordinance, instead of spending association time and resources on enforcement. However, you must be aware of the change in order to take advantage of it.
For example, in June, 2011, the City of Loveland enacted Ordinance #5591, which amended the Loveland Municipal Code regarding animals by adding, among other things, requirements on adequate fencing for animal (Sec 6.20.010(G). Specifically, the ordinance requires fences for animal enclosures to be properly and adequately constructed for securing the animal, and kept in good repair for security purposes. An association having trouble with animals on the loose due to inadequate fencing could take advantage of the City’s ordinance by referring homeowners to City for enforcement.
For a complete reference in regards to animals, see the City of Loveland’s Municipal Code.
May Prompt an Association to Amend
A change in local ordinances may prompt an association to consider amendment of its own governing documents, in order to reflect the ordinance or impose a greater restriction. For example, in November 1, 2011, a citizen initiated ballot measure banning all medical marijuana related businesses in Fort Collins passed, thereby requiring all medical marijuana related businesses to be closed no later than February 14, 2012.
Although this ordinance affects medical marijuana dispensaries in the City of Fort Collins, it does not address concerns regarding the use, growth and potential sale of medical marijuana as it specifically relates to community associations. Due to the new ordinance, an association may want to consider amending its declaration to address medical marijuana concerns in the community.
An association should be aware of any changes in local ordinances and be proactive in notifying its members of the impact, if any, on existing association covenants and regulation. By being aware of these changes, an association could take advantage of additional enforcement resources and/or use the change as a basis for amending its governing documents. On the other hand, lack of knowledge or improper understanding of a local ordinance change could cause unnecessary friction between the Association and those owners specifically impacted by the ordinance.