Sunday, September 20, 2020

Restrictions: What are they? How do they affect me? Why should I care?

 

 

ASK AN ARCHITECT
Hector C. Fernandez
AIA

Few people think to ask the above questions. Significantly less people may realize the impact the answers to these questions may have on what, in most cases, will be the most important investment of their lives.

Zoning, what is it? Zoning, also referred to as “The Zoning Code” or, in the case of Marco Island, it is specifically referred to as “The Land Development Code” (refer to the link provided to the city’s website). The Land Development Code basically deals with matters of growth, density, uses and restrictions as they pertain to the built environment. In simpler terms, what you can build, where you can build it and what it can be used for.

Marco Island Zoning Code

www.municode.com/library/fl/marco_

island/codes/code_of_ordinances?nodeId

=PTIICOOR_CH30LADECO

It is critical to understand this because zoning districts or designations, which are typically illustrated on a zoning map (refer to link provided to city’s website) will show in brilliant colors all the various zoning districts within the municipality. Although the definitions of what a district “is” rarely change, the allowable uses can be amended from time to time at the recommendation of any number of entities, such as the City Planning Department, Growth Management Department or even a member of the City Council. These changes will go through a process that requires public hearings by the City Planning Review Board, and adoption of changes after two public hearings by the City Council. This is very important because a use that currently exists on your property may be removed or amended through this type of process.

The outcome could potentially diminish or add value to your property, and of course, can affect your neighboring properties as well.

Marco Island Zoning Map

www.cityofmarcoisland.com/index.aspx?page=117

Guiding the zoning districts one will find the city’s Comprehensive Plan. This is the blueprint that the city uses to guide and plan for the future growth of the city. The zoning code will typically be amended in response to how growth and other factors affect the city, and how they relate back to the planned growth outlined in the Future Land Use Map and Comprehensive Plan (refer to links provided to city’s website). To add to all of this, you also have the EAR or “Evaluation and Appraisal Report” which the State of Florida requires, by Florida Statute Section 163.3191, that cities participate in every seven years. “Each local government shall adopt an evaluation and appraisal report (EAR) once every seven years assessing the progress in implementing the local government’s comprehensive plan.”

The importance of the Comprehensive Plan and EAR are that they give one a look at what the city sees as the future of the community. The Comprehensive Plan can clue you in on the city’s projections regarding commercial growth, residential growth, increased density, encouragement of mixed use areas, or if the city anticipates and plans on growth scaling back. All these factors, of course, will have a very significant impact on growth; and ultimately affect the look, feel and character of a place. Of course there are many factors that affect the growth and function of a city and the Comprehensive Plan is only a tool to help plan ahead and lay out a road map to follow.

Marco Island Comprehensive Plan website

www.cityofmarcoisland.com/index.aspx?page=107

Marco Island Future Land Use Map

www.cityofmarcoisland.com/modules/showdocument.aspx?documentid=1036

Last, but not least, we have deed restrictions. Before I get into how deed restrictions affect Marco Island, let me clarify that all municipalities or “cities” have the aforementioned guidelines and mechanisms in place that outline and manage a city’s growth and built environment; however, not all cities have deed restrictions. In fact, I would argue that few do.

Deed restrictions are a legally binding instrument attached to the deed of a property and recorded with the county. Similar to other legal instruments such as liens, judgements, claims or assessments, these restrictions are not part of the deed, but restrict the deed. In the case of Marco Island, the deed restrictions were created by the Deltona Corporation.

The deed restrictions are typically administered by an entity that is entrusted with their enforcement. The party entrusted with this right is the sole entity responsible for the enforcement of the restrictions in order to ensure that the intent of the development are met and maintained. In 1986, the original developer of Marco Island, the Deltona Corporation, transferred that authority of enforceability to MICA.

These restrictions are typically part of a greater whole and tie back into a “Master Plan” that outlines the design intent of the city or, most typically, of a planned community that is proposed to be, or was, privately developed, such as was the case with Marco Island. In a way Deed Restrictions attempt to act very much like a form of zoning code. The distinct difference between the two is that unlike the process described above regarding the zoning code, Comprehensive Plan, Future Land Use and EAR, the deed restrictions are intended to remain as-is in perpetuity. In the case of Marco Island, the deed restrictions that were imposed on a majority of the land that makes up the city, with such notable exceptions as Old Marco, the Highlands, the Esplanade and Hideaway, were intended to create a very specific type of community.

The benefit of a deed restriction over a typical zoning guideline, is that it preserves a very distinct set of rules and protects them from tinkering, manipulation or subversion by the changing winds of politics, economy or individual mandate. Think of them as a development “insurance policy” of sorts. Or one could say “anti-development,” depending on how one looks at it.

The potential downside to deed restrictions is obviously their inflexibility and lack of responsiveness to changing trends and growth demands. They assume a static status quo that is everlasting. Such an outlook one can easily argue can be unrealistic and potentially may fail to address the changing needs of the community, and ultimately, can adversely impact its future and survivability.

However, with most deed restrictions there are typically built in “restrictions” to the deed restrictions. These safeguards, for the lack of a better term, are written in to provide the responsiveness and flexibility that they may inherently lack. The administrators of the deed can use these “restrictions” to determine at any given time in the future if the deed restrictions remain relevant to the community. In Marco Island, the deed restrictions are organized by “Units,” which essentially are blocks of properties that lie within a designated boundary area. These “Units” have a renewal period every 10 years, and the authority having control of the deed restrictions can decide whether to renew the deed restrictions or allow them to lapse. Additionally there are provisions that allow a representative majority of parcel owners within a “Unit” to abandon the restrictions.

I am of the opinion that such guidelines and restrictions are established with the intent to help provide us with a framework, whereby future generations can use these instruments to help them address the constant changes and pressures that will challenge the evolution of the community. As it relates to these various guidelines that grant, restrict and guide our usage of property, I would say that it is always important to keep in mind that the best policy may be the one that is best suited to address the needs of the community as a whole at any given time, and therefore must allow for change, as reflected in the will of its citizens.

MICA (Marco Island Civic Association) Deed Restriction Information

www.marcocivic.com/index.php?

option=com_content&view=

article&id=24

I would strongly recommend that anyone considering the purchase of a property retain the services of a qualified professional to help them understand the specific rules and restrictions that pertain to their prospective purchase. The services of a land use attorney are advisable for all commercial properties, but may not be as critical or warranted for a single family residential property. It is important to note that an attorney that deals with land use issues is not the same as a real estate attorney, who primarily deals with the details and process of executing a real estate contract purely from a transactional point of view. It is not to say that a real estate attorney cannot also be an experienced land use attorney, or vice versa.

I would also recommend consulting a licensed architect, especially in the case of the purchase of a property were one intends to engage in either new construction, extensive expansion or remodeling of a property. An architect is specifically trained to look beyond just the legally recorded restrictions, and will be able to provide ideas, opinions and analysis on how to best develop the project in order to maximize its optimal usability, while staying within the various guidelines and restrictions imposed.

I hope I have been successful in providing some clarity on zoning and deed restrictions, and how they may affect you and your investment. If not, I hope I have not completely confused you. But in case I have, I always welcome you to…“Ask an Architect.”

 

Hector C. Fernandez, AIA, can be reached at Infoh366@aol.com, or by calling 239-330-8124.

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