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What Happens When Local Ordinances Conflict with your Governing Documents? – A Survey of the Conflict of Law Provisions for the Northern Virginia & Fredericksburg Areas

By Chad Rinard, Esq.

Every city or county in Virginia has published ordinances that restrict their residents' home construction and lot use in a subdivision. Authorized by Virginia Code[1], a city or county may adopt the ordinances it needs to perform its obligations. To assure the orderly subdivision of land in the city or county, achieve the goals of a comprehensive development plan, or implement the Chesapeake Bay Preservation Act, subdivisions have been the subject of countless ordinances. Not surprisingly, so many ordinances cover a wide range of topics, and each is accompanied by a remedy for the local government to ensure compliance, often via an agency that will receive and investigate complaints. 

In addition, recorded covenants unique to a condominium or property owners' association restrict residents' home construction and property use. Therefore, the restrictions of ordinances and covenants are bound to overlap, and many aspects of community associations are subject to these overlapping restrictions, including balconies, carports, decks, driveways, fences, height limits, home businesses, home improvements, lot size, maintenance, monuments, noise levels, nuisances, parking, open areas, outdoor lighting, pets, private roads, setback requirements, sheds, snow removal, signs, storm water management, towing, and trees.

What happens when an ordinance restriction and conflicts with a covenant in an association's governing documents? In the event of a conflict, most cities and counties have an(other) ordinance that says the more restrictive ordinance or covenant shall prevail, and other cities and counties have said that their ordinance prevails. A board of directors therefore will have a choice when dealing with a conflicting ordinance and covenant that may well be resolved depending on the law of the city or county in which it sits.

For example, if Prince William County allows most fences in a rear or side yard to be built to a maximum height of six feet;[2] Arlington County allows most fences to be up to seven feet;[3] and Spotsylvania County allows as much as ten feet for most fences;[4] then community associations in those counties will need to be aware of their respective local government's ordinance to set or adjust its own association's maximum fence height at respectively six, seven, ten feet, or less.   

This conflict is also relevant to covenants enforcement. An association's board of directors may find an owner in violation of the restrictions of an ordinance or a covenant, and seek to bring that owner into compliance. But, which restriction should the board choose? On one hand, the board lacks authority to enforce the restriction in a local ordinance against an owner in violation, and will have to file a complaint with the appropriate city or county agency to investigate. On the other hand, the board certainly has the authority to enforce the restrictive covenants for its association, and may choose to proceed after it has weighed the costs and benefits to do so without the assistance of the local government. Below is a survey of the law from several local cities and counties for associations and their councils or boards to consider when addressing ordinances and covenants that conflict.

Loudoun County, Prince William County & Fairfax County

Loudoun County, Prince William County, and Fairfax County are clear that the restrictions in their ordinances for subdivisions do not abrogate an agreement among private parties such as the restrictive covenants in a declaration between owners and their association. In each of these counties, if a respective county ordinance is more restrictive or imposes a higher standard than a private covenant, then the ordinance governs. However, when the covenant is more restrictive, it controls, provided that it is consistent with the ordinance.[5]

An association's council or board of directors located in any of these counties should determine whether an ordinance may impose a different standard than a pertinent covenant. It also will need to be aware of any ordinance that overlaps with a covenant that it wishes to enforce against an owner in violation; before amending its covenants; or, before expanding on any existing covenants with the adoption of a rule, regulation, or architectural guideline. Identify and address any conflict now to make a defensible restriction going forward.

City of Alexandria

The City of Alexandria does not currently have a conflict of law provision for when an ordinance and covenant conflict. Association board and council-members in Alexandria should seek legal counsel before enforcing, amending or adding covenants in conflict with an ordinance. 

Arlington County

In Arlington County, if a county's zoning ordinance imposes either a greater or lesser standard than a covenant upon the use of buildings or premises, the height of buildings, or the size of yards, courts or other open spaces, then the more restrictive standard controls. [6]

An association's council or board in Arlington County will similarly wish to be aware of any ordinance that overlaps with a covenant it wishes to enforce against an owner in violation; before amending its covenants; or, before expanding on any existing covenants with the adoption of a rule, regulation or architectural guideline more restrictive than the County's standard.  

Stafford County

Any subdivision ordinance more restrictive than an agreement among private parties such as the covenants in a declaration between owners and their association controls in Stafford County.[7]  An association's board in Stafford County is best to give deference to any pertinent ordinance more restrictive than its own covenant and it may wish to avoid amending the same or adopting a rule, regulation or architectural guideline less restrictive than the County's standard. A council or board in Stafford County is still encouraged to enforce any covenant that may be less restrictive than a pertinent ordinance as it is not logical that an owner can assert an association is not authorized to enforce its own covenant even if it is less restrictive than the County's standard.

City of Fredericksburg

Fredericksburg says that its ordinances govern the use, development and subdivision of buildings, structures, and land.[8] It may therefore be best to enforce covenants, to amend covenants or to adopt rules, regulations and architectural guidelines that are in harmony with the City's ordinances. 

Spotsylvania County

Spotsylvania County's subdivision and zoning ordinances cannot abrogate a covenant. If a County ordinance imposes either a greater or lesser standard than a covenant, then the more restrictive standard controls.  No ordinance may be used to repeal a covenant, nor may a less restrictive covenant excuse an owner's failure to comply with an ordinance. [9]

An association's council or board in Spotsylvania County should be aware of any ordinance that overlaps with a covenant before it enforces that covenant against a noncompliant owner; amending its covenants; or expanding on any existing covenants with the adoption of a rule, regulation or architectural guideline. Adopted standards that are either the same or more restrictive that the County's standard should make defensible restrictions going forward. 

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When the restrictions of a city or county ordinance and an association's covenant conflict, a council or board will always have a choice. To amend a covenant or expand upon it by adopting a rule, regulation or architectural guideline, a council or board should weigh the risk of a more restrictive covenant, rule, regulation or architectural guideline than the standard adopted by the city or county. A council or board will further need to weigh any potential conflict in the restrictions of a city or county ordinance and a restrictive covenant when deciding to proceed against an owner in violation.  Legal counsel will be available to make recommendations to the council or board on how best to reconcile a covenant with an overlapping ordinance. Council and board members should contact their association's manager to identify pertinent local ordinances, and consult with legal counsel as conflicts with the association's covenants arise.