The City of Phoenix Planning and Development Department has proposed a zoning ordinance text amendment, which would permit Accessory Dwelling Units (“ADU”s) to be built on single-family lots citywide. For those unfamiliar with the term “ADU,” think guesthouse or a casita. Essentially, an ADU is an addition to a residential property that can be added to the property as a separate building or attached to the house on the property. What sets an ADU apart from other accessory buildings such as a storage shed, is that an ADU may legally be used as a residence with a kitchen, bathroom, bedroom, etc.
The newly proposed amendment to permit ADUs is part of an initiative from 2020, in which Phoenix City Council unanimously approved the Housing Phoenix Plan. The Housing Phoenix Plan was created with a primary goal to create or preserve 50,000 homes in Phoenix by 2030, in order to increase the overall housing supply market, workforce, and shortage of affordable housing.
In light of this news, many people want to know whether a homeowners’ association (“HOA”) can prevent a homeowner from constructing an ADU, even if an ADU would be permitted under the City of Phoenix zoning ordinances. The short answer is “it depends.”
HOAs derive their authority from a recorded declaration of covenants, conditions, and restrictions (“CC&R”s), and the language found in the CC&Rs is what dictates what owners can and cannot do with their property – even when a municipality, like the City of Phoenix, says otherwise. Additionally, even when an HOA does not exist, homeowners may be bound by deed restrictions that, like CC&Rs, may restrict the ability to construct an ADU. So, in general, even if zoning laws permit the construction of a certain structure, an HOA can nix a homeowner’s plan.
But, the ADU concept is a bit different and the ability to override CC&Rs, HOA rules, or deed restrictions is dependent on whether the City grants homeowners a “right” to construct an ADU, even when the CC&Rs prohibit them. In California, for example, cities have been successful, so far, in pushing through ADU laws that explicitly permit the construction of an ADU, regardless of what CC&Rs or an HOA may have to say about constructing one. And, there is some Arizona case law that may permit the same. Indeed, thanks to a case called Hawk v. PC Village Ass’n, Inc., we can be fairly certain that City of Phoenix could do the same thing as California if it wanted to, and should have no issue doing so.
In Hawk, the fight was centered on the constitutional validity of a state law that gave property owners a right to post a “for sale” sign, even if their property was subject to CC&Rs that explicitly forbid “for sale” signs. The case made it up to the Court of Appeals, and the Court ruled that CC&Rs did not stand in the way of the law.
In short, if the City of Phoenix implements this ADU zoning ordinance, with language that states that ADUs cannot be prevented by CC&Rs, then CC&Rs will not likely be able to stand in the way of ADUs. However, if the zoning ordinance is not implemented in a way that supersedes CC&Rs, then the CC&Rs likely control the issue. Notably, in reviewing the most recent iteration of the zoning ordinance amendment, it does not appear to contain language that would cause ADUs to be allowed if they were not also permitted by CC&Rs or deed restrictions.
So, while the City of Phoenix has the power to permit construction of ADUs in a truly citywide fashion, it appears, at the moment, that the City does not intend to force ADUs into neighborhoods that have CC&Rs or deed restrictions prohibiting them.
If you have questions or would like to share a zoning or HOA issue, feel free to email me at pmacqueen@medalistlegal.com .
More on this article can be viewed here in the Ahwatukee Foothills News
