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36. Assuming the proposition by the board passes, will it be legally enforceable?
The board of a homeowners' association manages a small residential community. The board is authorized to adopt rules relating to the construction and design of homes in the community. The board is currently voting on a proposition that would establish how far a residence must be set back from the edge of the property. The proposition being voted on would require a 30-foot setback on all new construction. The community is located in an area with a local zoning ordinance requiring all construction be set back at least 20 feet from the edge of the property line.
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In this case, the rule of a 30-foot setback would be enforceable because it stays within the established rule of the zoning ordinance. The zoning ordinance requires at least a 20-foot setback. The private rule can require a further setback but not a shorter one.
A is incorrect. A private rule and a zoning ordinance may coexist, as stated above, as long as the rule does not override the restrictions of the zoning ordinance.
B is incorrect. Zoning laws may impose restrictions on the development of property apart from restrictions just on use (e.g., building setbacks, height restrictions, and density regulations such as minimum size or number of dwellings on each lot). However, as noted above, a private rule may be more restrictive than a zoning ordinance.
D is incorrect. A private rule may not override a zoning ordinance.