Question: We recently purchased a vacant lot in north Phoenix for the purpose of building our retirement home. During the escrow period the title company delivered to us the recorded Covenants, Conditions and Restrictions for our vacant lot. These CC&Rs show that lot-line setbacks are required at the front and side of our lot, but there is no such requirement for the rear of our lot. After the transaction closed, we hired an architect to draft the plans to construct our new home. We then went to the city building department with these plans to procure a building permit, and we were told that a city zoning ordinance requires a 25-foot rear lot line setback for our home. Due to the configuration of our cul-de-sac lot, we will not be able to build the home we want on our lot. How can a city zoning ordinance change the recorded CC&Rs?
Answer: The CC&Rs and other types of deed restrictions are private regulation of real property. In other words, CC&Rs are adopted by property owners in a community to govern their own property. A city zoning ordinance is public — that is, government regulation of real property. Any owner of a lot who wants to build a home must comply with both the CC&Rs and any city zoning ordinance. You and the other property owners can amend the CC&Rs, but only the city can amend a city zoning ordinance such as the 25-foot rear lot-line setback. You can, however, request a variance from this city zoning ordinance based on the severe restriction of the building envelope — that is, the available land for construction of a home on your cul-de-sac lot.